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By:
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/s/ LM Goliath | |
Name: LM Goliath | |||
Title: Company Secretary | |||
Exhibit
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Description
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1. |
This Circular should be read in its entirety with particular attention to the section headed “Action Required by AGA Shareholders” commencing on page 13 of this
Circular, which sets out in detail the action required to be taken by you.
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2. |
If you are in any doubt as to what action you should take, please consult your CSDP, Broker, banker, accountant, legal adviser, financial adviser or other
professional adviser immediately.
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3. |
If you have disposed of all of your AGA Ordinary Shares on or before Tuesday, 27 June 2023, please forward this Circular, together with the accompanying Form of Surrender and Transfer (blue), the Notice of Shareholders’ Meeting and Form of Proxy (yellow), and the Disclosure Package to the purchaser of such AGA Ordinary Shares, or to the Broker
or agent through whom the disposal of those AGA Ordinary Shares was effected for transmission to the purchaser or transferee.
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AngloGold Ashanti Limited
(Incorporated in the Republic of South Africa)
Registration number: 1944/017354/06
Ordinary share code: ANG ISIN: ZAE000043485
(“AGA” or the “Company”)
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AngloGold Ashanti plc
(Incorporated in England and Wales)
Company number: 14654651
Ordinary share code: ANG ISIN: GB00BRXH2664
(“NewCo”)
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COMBINED CIRCULAR TO AGA SHAREHOLDERS
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● |
the Spin-Off, in terms of which a distribution in specie will be effected by AGA to the AGA Shareholders recorded in the AGA Register as at the Reorganisation
Consideration Record Date, pursuant to which AGA will direct NewCo, its wholly-owned Subsidiary at that time, to issue 46,000 (forty six thousand) NewCo Ordinary Shares to such AGA Shareholders on a pro rata
basis, with the aggregate subscription price of USD 46,000 (forty six thousand Dollars) paid by AGA, resulting in NewCo ceasing to be a Subsidiary of AGA;
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● |
the AGAH Sale, in terms of which NewCo has made an irrevocable offer to AGA to purchase 100% (one hundred percent) of the issued shares in AGAH. It is the present, non-binding intention of AGA to accept the
Irrevocable Offer to Purchase. The AGAH Sale, if completed, will constitute a disposal of all or the greater part of the assets or undertaking of AGA subject to approval under Chapter 5 of the Companies Act in terms of Section 112 and Section
115 of the Companies Act;
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● |
the Scheme, being a scheme of arrangement in terms of Section 114(1) read with Section 115 of the Companies Act between AGA and the AGA Shareholders, proposed by the AGA Board whereby NewCo will acquire all
of the issued AGA Ordinary Shares from the AGA Shareholders in consideration for the right and obligation to receive, ipso facto and without any action on the part of such AGA Shareholders, the
respective pro rata portions of the Scheme Consideration Shares;
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● |
the Spin-Off, the AGAH Sale and the Scheme are three sequential, separate and inter-conditional transaction steps, referred to as the Reorganisation, which will result in, among other things:
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o |
AGA Shareholders recorded in the AGA Register as at the Reorganisation Consideration Record Date, receiving in aggregate one NewCo Ordinary Share for each AGA Ordinary Share (including AGA Ordinary Shares
represented by AGA ADSs);
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o |
NewCo becoming the listed parent company of the Group and each of AGA and AGAH becoming a direct, wholly-owned Subsidiary of NewCo;
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o |
the AGA Ordinary Shares being delisted from the JSE and the A2X in South Africa;
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o |
the AGA Ordinary Shares being delisted from the GhSE in Ghana;
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o |
the AGA GhDSs being delisted from the GhSE and replaced with the listing of NewCo GhDSs in Ghana;
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o |
the AGA ADSs being delisted from the NYSE and the AGA ADS Program being terminated; and
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o |
the NewCo Ordinary Shares having a primary listing on the NYSE, secondary inward listings on the JSE and the A2X in South Africa and a secondary listing on the GhSE in Ghana.
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● |
the Notice of Shareholders’ Meeting in terms of which the Shareholders’ Meeting is convened;
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● |
a Form of Proxy (yellow) in respect of the Shareholders’ Meeting, for use by Certificated AGA Shareholders and Dematerialised AGA Shareholders with “own name”
registration only;
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a Form of Surrender and Transfer (blue), for use by Certificated AGA Shareholders only;
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● |
the Independent Expert Report prepared by the Independent Expert in terms of Sections 114(2) and 114(3) of the Companies Act and Regulations 90 and 110(1);
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● |
certain financial information in respect of AGA and NewCo; and
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● |
extracts of Section 115 of the Companies Act dealing with the approval requirements for the AGAH Sale and the Scheme and Section 164 of the Companies Act dealing with Dissenting AGA Shareholders’ Appraisal
Rights.
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Legal Adviser
as to South African law
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Legal Adviser
as to U.S. law
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Legal Adviser
as to English law
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Financial Adviser
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Financial Adviser
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Financial Adviser
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Independent Expert
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Independent Reporting Accountant
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JSE Sponsor
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Transaction Sponsor
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Tax Adviser
as to South African tax
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Legal Adviser
as to Ghanaian law
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CORPORATE INFORMATION AND ADVISERS
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AngloGold Ashanti Limited
Registration No. 1944/017354/06
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AngloGold Ashanti plc
Company No. 14654651
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Date and place of Incorporation
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Date and place of Incorporation
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29 May 1944, South Africa
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10 February 2023, United Kingdom
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Directors
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Directors
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Executive
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Executive
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Alberto Calderon
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Alberto Calderon
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Gillian Doran
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Robert Hayes
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Non-executive
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Non-Executive
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Maria Ramos (Chairperson)*
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None
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Kojo Busia*
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Alan Ferguson*
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Company Secretary
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Albert Garner
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Oakwood Corporate Secretary Limited
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Rhidwaan Gasant*
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Registration No. 07038430
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Scott Lawson
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3rd Floor
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Maria Richter*
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1 Ashley Road
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Jochen Tilk*
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Altrincham, Cheshire WA14 2DT
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Jinhee Magie
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United Kingdom
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Diana Sands
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Telephone: +44 (0)161 942 4700
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* members of the Independent Board
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Registered Office
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4th Floor, Communications House
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Company Secretary
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South Street
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LM Goliath
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Staines-upon-Thames, Surrey TW18 4PR
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(B.Com; MBA)
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United Kingdom
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Telephone: +44 (0) 203 968 3323
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Registered Office
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NewCo Transfer Agent
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112 Oxford Road, Houghton Estate,
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Computershare Trust Company, N.A.
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Johannesburg, 2198
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150 Royall Street
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(Private Bag X 20, Rosebank, 2196)
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Canton, Massachusetts 02021
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South Africa
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United States of America
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Telephone: +27 11 637 6000
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Fax: +27 11 637 6624
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Transfer Secretaries
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Computershare Investor Services Proprietary Limited
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Registration No. 2004/003647/07
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Rosebank Towers, 15 Biermann Avenue,
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Rosebank, 2196
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(Private Bag X9000, Saxonwold, 2132)
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South Africa
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Telephone: 0861 100 950 (in SA)
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E-mail: queries@computershare.co.za
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Website: www.computershare.com
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JSE Sponsor
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The Standard Bank of South Africa Limited
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Registration No. 1962/000738/06
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33 Baker, Rosebank, Johannesburg, 2196
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South Africa
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(PO Box 61344, Marshalltown, 2107)
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Telephone: +27 11 721 0000
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Transaction Sponsor
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J.P. Morgan Equities South Africa Proprietary Limited
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Registration No. 1995/011815/07
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1 Fricker Road, Illovo, Johannesburg, 2196
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South Africa |
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(Private Bag X9936, Sandton, 2196, South Africa)
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Legal Adviser as to South African law
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Legal Adviser as to U.S. law
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Edward Nathan Sonnenbergs Incorporated
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Cravath, Swaine & Moore LLP
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Registration No. 2006/018200/21
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DOS ID No. 2886667
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The MARC, Tower 1, 129 Rivonia Road, Sandton,
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CityPoint, One Ropemaker Street, London, EC2Y 9HR
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Johannesburg
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United Kingdom
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South Africa
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(PO Box 783347, Sandton, 2146)
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Independent Reporting Accountants
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Legal Adviser as to English law
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Ernst & Young Incorporated
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Slaughter and May
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Registration No. 2005/002308/21
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SRA No. 55388
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EY, 102 Rivonia Road, Sandton, Johannesburg
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One Bunhill Row, London, EC1Y 8YY
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South Africa
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United Kingdom
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(Private Bag X14, Sandton, 2146)
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Legal Adviser as to Ghanaian law
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Financial Adviser
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Bentsi-Enchill, Letsa & Ankomah
4 Momotse Avenue
Adabraka, Accra
Ghana
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JPMorgan Chase Bank, N.A., Johannesburg Branch
Registration No. 2001/016069/10
1 Fricker Road Illovo, Johannesburg, 2196, South Africa
(Private Bag X9936, Sandton, 2146, South Africa)
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Independent Expert
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Tax Adviser as to South African tax
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Barclays Bank PLC
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Bowman Gilfillan Incorporated
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1 Churchill Place, London E14 5HP
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Registration No. 1998/021409/21
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United Kingdom
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11 Alice Lane, Sandton
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Johannesburg
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Financial Adviser
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South Africa
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Centerview Partners UK LLP
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(PO Box 785812, Sandton, 2146)
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Company number OC345806
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100 Pall Mall, London, SW1Y 5NQ
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United Kingdom
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Financial Adviser
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Rothschild and Co South Africa Proprietary Limited
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7th Floor, 144 Oxford, Rosebank
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Johannesburg
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South Africa
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(PO Box 411332, Craighall, 2024)
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IMPORTANT LEGAL NOTICES, DISCLAIMERS AND FORWARD-LOOKING STATEMENTS
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SUMMARY OF REORGANISATION
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1. |
AGA, having disposed of its remaining South African operating assets in 2020, has undertaken a comprehensive review of its domicile and listing structure.
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2. |
The review concluded that the most appropriate corporate structure for the Group is a UK corporate domicile with a U.S. primary listing on the NYSE and secondary inward listings on the JSE and the A2X in
South Africa and an additional listing on the GhSE in Ghana.
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3. |
This change in corporate structure, domicile and listing structure is aligned with the transformation of AGA’s asset base into a diversified global portfolio of producing assets and projects.
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4. |
The proposed Reorganisation is believed to have a number of benefits that will help facilitate implementation of the Company’s strategy and greater recognition of its full value, explained in more detail in
paragraph 6 of this Circular, including:
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4.1. |
enhanced access to deeper pools of capital, including the opportunity to improve share trading liquidity;
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4.2. |
improved competitive position in line with the Group’s global peers;
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4.3. |
redomiciling to a leading, low-risk jurisdiction where the Group has a corporate presence;
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4.4. |
minimal disruption for existing AGA Shareholders and other stakeholders; and
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4.5. |
continuity of shareholding structure.
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5. |
A number of inter-conditional transaction steps, implemented in sequence will be taken to implement the Reorganisation, including:
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5.1. |
AGA will effect a distribution in specie to the AGA Shareholders as at the Reorganisation Consideration Record Date, pursuant to which AGA will direct NewCo, a new
UK incorporated company, and AGA’s wholly-owned Subsidiary at that time, to issue 46,000 (forty six thousand) NewCo Ordinary Shares (the “Spin-Off Shares”) to such AGA Shareholders on a pro rata basis, with the aggregate subscription price of USD 46,000 (forty six thousand Dollars) paid by AGA (the “Spin-Off” as more fully detailed in paragraph
7.12.1.3 of this Circular), resulting in NewCo ceasing to be a Subsidiary of AGA;
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5.2. |
NewCo has made an irrevocable offer to AGA to purchase 100% (one hundred percent) of the shares in AGAH. It is the present, non-binding intention of AGA to accept the Irrevocable Offer to Purchase. The AGAH
Sale, if completed, will result in NewCo holding all of the Group’s operations and assets located outside South Africa (the “AGAH Sale”, as more fully detailed in paragraph 7.12.1.4 of this Circular);
and
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5.3. |
NewCo will then acquire all of the issued AGA Ordinary Shares from AGA Shareholders in consideration for a right and obligation to receive, ipso facto and without
any action on the part of such AGA Shareholders, the respective pro rata portions of the Scheme Consideration Shares, pursuant to a scheme of arrangement in terms of Section 114(1) read with Section
115 of the Companies Act between AGA and the AGA Shareholders (the “Scheme”, as more fully detailed in paragraph 7.12.1.5 of this Circular).
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6. |
If successfully completed, the aforementioned Reorganisation will result in:
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6.1. |
NewCo owning all of AGA’s existing assets with:
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6.1.1. |
the same shareholders as AGA immediately prior to implementation of the Reorganisation (subject to any adjustments to reflect the exercise of any Appraisal Rights by AGA Shareholders);
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6.1.2. |
the business carried out by NewCo and its Subsidiaries immediately following the Reorganisation being the same as the business carried out by AGA and its Subsidiaries immediately prior to the implementation
of the Reorganisation;
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6.1.3. |
a primary listing on the NYSE; and
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6.1.4. |
secondary inward listings on the JSE and A2X in South Africa and a secondary listing on the GhSE in Ghana;
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6.2. |
NewCo becoming the listed parent company of the Group and each of AGA and AGAH being a direct, wholly-owned Subsidiary of NewCo;
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6.3. |
the AGA Ordinary Shares being delisted from the JSE in terms of paragraph 1.17(b) of the JSE Listings Requirements, the AGA ADSs being delisted from the NYSE and the AGA Ordinary Shares being delisted from
the GhSE;
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6.4. |
the AGA ADS Program being terminated;
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6.5. |
AGA GhDSs being delisted from the GhSE and the NewCo GhDSs being listed on the GhSE;
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6.6. |
NewCo being subject to English company law;
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6.7. |
no changes to the withholding tax rates for South African shareholders of NewCo and no South African withholding tax on dividends for other shareholders of NewCo; and
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6.8. |
South African shareholders being able to hold NewCo Ordinary Shares on the South African register of NewCo without using their foreign investment allowance and to trade their NewCo Ordinary Shares on the
South African capital markets.
|
7. |
The Group will incur non-recurring costs in connection with the implementation of the Reorganisation and the NewCo Notes Distribution, consisting primarily of taxes payable in South Africa.
|
8. |
The costs of implementing the Reorganisation and the NewCo Notes Distribution will be tied to factors such as AGA’s market value and the prevailing ZAR/USD exchange rate at the time of implementation.
|
9. |
The total costs of the Reorganisation and NewCo Notes Distribution are currently estimated to be in the order of c. 5% (five percent) of the market capitalisation of AGA on the Operative Date.
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TABLE OF CONTENTS
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CLAUSE NUMBER AND DESCRIPTION
|
PAGE
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CORPORATE INFORMATION AND ADVISERS
|
3
|
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IMPORTANT LEGAL NOTICES, DISCLAIMERS AND FORWARD-LOOKING STATEMENTS
|
5
|
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SUMMARY OF REORGANISATION
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9
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ACTION REQUIRED BY AGA SHAREHOLDERS
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13
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INTERPRETATION AND DEFINITIONS
|
19
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SALIENT DATES AND TIMES
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26
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COMBINED CIRCULAR TO AGA SHAREHOLDERS
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28
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1.
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INTRODUCTION
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28
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2.
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PURPOSE OF THIS CIRCULAR
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29
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3.
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BACKGROUND REGARDING AGA
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29
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4.
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BACKGROUND REGARDING NEWCO
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29
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5.
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BACKGROUND REGARDING AGAH
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30
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6.
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RATIONALE FOR THE REORGANISATION AND PROSPECTS
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30
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7.
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TERMS AND CONDITIONS OF THE REORGANISATION
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33
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8.
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ACCOUNTING MATTERS AND TREATMENT
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46
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9.
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EXCHANGE CONTROL REGULATIONS
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47
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10.
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TAX IMPLICATIONS FOR AGA SHAREHOLDERS
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47
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11.
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APPLICABLE LAWS
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47
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12.
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SHARE CAPITAL OF AGA
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47
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13.
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MAJOR AGA SHAREHOLDERS
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47
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14.
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FINANCIAL INFORMATION
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48
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15.
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INFORMATION RELATING TO AGA DIRECTORS
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48
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16.
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BENEFICIAL INTERESTS
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49
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17.
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CONTINUATION OF THE BUSINESS OF AGA
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51
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18.
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OPINIONS AND RECOMMENDATIONS
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52
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19.
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MATERIAL AGREEMENTS RELATING TO THE REORGANISATION
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52
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20.
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MATERIAL CHANGES AND LITIGATION
|
52
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21.
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DIRECTORS’ RESPONSIBILITY STATEMENT
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52
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22.
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COSTS OF THE REORGANISATION AND EXPENSES
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53
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23.
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CONSENTS
|
54
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24.
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DOCUMENTS AVAILABLE FOR INSPECTION
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54
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CLAUSE NUMBER AND DESCRIPTION
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PAGE
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Annexure A – Report of the Independent Expert
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58
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Annexure B – The Summary of Consolidated Financial Information of AGA
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72
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Annexure C – The Pro Forma Financial Information
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73
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Annexure D – The Independent Reporting Accountant’s Assurance Report on the Pro Forma Financial Information
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79
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Annexure E – Information on AGA Directors
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81
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Annexure F – Section 115 – Required Approval for the Transactions Contemplated in Part A of Chapter 5 of the Companies Act
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86
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Annexure G – Section 164 – Dissenting Shareholders’ Appraisal Rights
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88
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Annexure H – Tax Implications for AGA Shareholders
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91
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Annexure I – Extract of the Exchange Control Regulations
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100
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Annexure J – Notice of Shareholders’ Meeting
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101
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Annexure K – Form of Proxy
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109
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Annexure L – Form of Surrender and Transfer
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111
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ACTION REQUIRED BY AGA SHAREHOLDERS
|
1. |
IF YOU ARE A DEMATERIALISED AGA SHAREHOLDER WITHOUT “OWN NAME” REGISTRATION
|
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1.1. |
To Participate in the Shareholders’ Meeting
|
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1.1.1. |
Your CSDP or Broker with whom you have concluded a custody agreement in respect of your AGA Ordinary Shares should contact you in the manner stipulated in such custody agreement to ascertain:
|
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1.1.1.1. |
if you wish to Participate in the Shareholders’ Meeting, in which case it must furnish you with a letter of representation which gives you the necessary authorisation to do so; or
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1.1.1.2. |
if you do not wish to Participate in the Shareholders’ Meeting, in which case, you must not complete the attached Form of Proxy (yellow), you must instead provide your CSDP or Broker with your voting instructions in the manner stipulated in such custody agreement or advised by your CSDP or Broker. The forementioned instructions must be provided to
your CSDP or Broker by the cut-off time and date advised by the CSDP or Broker for instructions of this nature.
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1.1.2. |
If your CSDP or Broker has not contacted you, you should contact your CSDP or Broker and furnish it with your voting instructions.
|
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1.1.3. |
If your CSDP or Broker does not obtain voting instructions from you, it will be obliged to vote in accordance with the instructions contained in the custody agreement concluded between you and your CSDP or
Broker.
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1.1.4. |
You must not complete the attached Form of Proxy (yellow).
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|
1.1.5. |
It is requested that the necessary letter of representation (and supporting identification documents) of Dematerialised AGA Shareholders without “own name” registration be delivered to the Transfer
Secretaries, as follows:
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|
1.1.5.1. |
by email at proxy@computershare.co.za;
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1.1.5.2. |
by hand to Computershare Investor Services Proprietary Limited, 1st Floor, Rosebank Towers, 15 Biermann Avenue, Rosebank, Johannesburg 2196, South Africa; or
|
|
1.1.5.3. |
by post to Computershare Investor Services Proprietary Limited, Private Bag X9000, Saxonwold, 2132,
|
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1.2. |
Surrender of Documents of Title
|
|
1.3. |
Operation of the Reorganisation
|
2. |
IF YOU ARE A DEMATERIALISED AGA SHAREHOLDER WITH “OWN NAME” REGISTRATION
|
|
2.1. |
To Participate in the Shareholders’ Meeting
|
|
2.1.1. |
You may Participate in the Shareholders’ Meeting (or if you are a company or other body corporate be represented by a duly authorised person) by electronic communication as outlined in paragraph 4.
|
|
2.1.2. |
Alternatively, if you do not wish to or are unable to Participate in the Shareholders’ Meeting and wish to be represented thereat, you may appoint one or more proxies, who need not also be AGA Shareholders
to Participate in your place by completing the Form of Proxy (yellow), in accordance with the instructions therein, and returning it together with proof of identification (i.e. valid South African
identity document, driver’s license or passport) and authority to do so (where acting in a representative capacity), to the Transfer Secretaries, as follows:
|
|
2.1.2.1. |
by email at proxy@computershare.co.za;
|
|
2.1.2.2. |
by hand to Computershare Investor Services Proprietary Limited, 1st Floor, Rosebank Towers, 15 Biermann Avenue, Rosebank, Johannesburg 2196, South Africa; or
|
|
2.1.2.3. |
by post to Computershare Investor Services Proprietary Limited, Private Bag X9000, Saxonwold, 2132,
|
|
2.2. |
The Form of Proxy (yellow) may, however, be handed to the chairman of the Shareholders’ Meeting, at any time before the commencement of the voting on the applicable
matter at the Shareholders’ Meeting.
|
|
2.3. |
Surrender of Documents of Title
|
|
2.4. |
Operation of the Reorganisation
|
3. |
IF YOU ARE A CERTIFICATED SHAREHOLDER
|
|
3.1. |
To Participate in the Shareholders’ Meeting
|
|
3.1.1. |
You may Participate in the Shareholders’ Meeting (or if you are a company or other body corporate be represented by a duly authorised person) by electronic communication as outlined in paragraph 4.
|
|
3.1.2. |
Alternatively, if you do not wish to or are unable to Participate in the Shareholders’ Meeting and wish to be represented thereat, may appoint one or more proxies, who need not also be AGA Shareholders to
Participate in your place by completing the Form of Proxy (yellow), in accordance with the instructions therein, and returning it together with proof of identification (i.e. valid South African
identity document, driver’s license or passport) and authority to do so (where acting in a representative capacity), to the Transfer Secretaries, as follows:
|
|
3.1.2.1. |
by email at proxy@computershare.co.za;
|
|
3.1.2.2. |
by hand to Computershare Investor Services Proprietary Limited, 1st Floor, Rosebank Towers, 15 Biermann Avenue, Rosebank, Johannesburg 2196, South Africa; or
|
|
3.1.2.3. |
by post to Computershare Investor Services Proprietary Limited, Private Bag X9000, Saxonwold, 2132,
|
|
3.1.3. |
The Form of Proxy (yellow) may, however, be handed to the chairman of the Shareholders’ Meeting, at any time before the commencement of the voting at the
Shareholders’ Meeting.
|
|
3.2. |
Surrender of Documents of Title and Operation of the Reorganisation
|
|
3.2.1. |
Should the Reorganisation become unconditional and be implemented:
|
|
3.2.1.1. |
you will be required to surrender your Documents of Title in respect of all your AGA Ordinary Shares in order to receive the Reorganisation Consideration which will be in Dematerialised form; and
|
|
3.2.1.2. |
you shall only be entitled to receive the Reorganisation Consideration owed to you once you have surrendered your Documents of Title in respect thereof. This is achieved by completing the attached Form of
Surrender and Transfer (blue) in accordance with its instructions and returning it, together with the relevant Documents of Title, to the Transfer Secretaries to be received by no later than 12:00
p.m. (South Africa Standard Time) on the Reorganisation Consideration Record Date. Should you wish to expedite receipt of your Reorganisation Consideration, you are entitled to surrender your Documents of Title in anticipation of the
Reorganisation being implemented, by completing the Form of Surrender and Transfer (blue) in accordance with the provisions contained in this paragraph 3.2.1.2 of this Circular. Documents of Title
surrendered by you prior to the Operative Date, will be held in trust by the Transfer Secretaries, at your risk, pending the Reorganisation becoming unconditional. Should you surrender your Documents of Title in anticipation of the
Reorganisation being implemented and the Reorganisation then is not implemented, the Transfer Secretaries shall, within 5 (five) Business Days of either the date upon which it becomes known that the Reorganisation will not be implemented or
on receipt by the Transfer Secretaries of the required Documents of Title, whichever is the later, return the Documents of Title to you by registered post at your own risk.
|
|
3.2.2. |
Once you have surrendered your Documents of Title, you will not be able to trade your AGA Ordinary Shares from the date that you surrender your Documents of Title in respect of those AGA Ordinary Shares
until the Operative Date or, if the Reorganisation is not implemented, between the date of surrender and the date on which your Documents of Title are returned to you as set out in paragraph 3.2.1.2 of this Circular.
|
|
3.2.3. |
If:
|
|
3.2.3.1. |
you fail to surrender your Documents of Title by not completing and returning the Form of Surrender and Transfer (blue) in accordance with the instructions
contained therein; or
|
|
3.2.3.2. |
you fail to provide any account details, or provide incorrect account details, of your CSDP or Broker, into which your Scheme Reorganisation Consideration will be transferred in Dematerialised form,
|
|
3.2.4. |
You should note that if the Reorganisation becomes unconditional and is implemented, you will have to surrender your Documents of Title in respect of your AGA Ordinary Shares in exchange for your
Reorganisation Consideration, irrespective of whether you voted in favour of Special Resolution Number 1 and/or Special Resolution Number 2.
|
|
3.2.5. |
If the Reorganisation is not implemented, you will retain your AGA Ordinary Shares and will not be entitled to receive any NewCo Ordinary Shares.
|
|
3.2.6. |
If you wish to Dematerialise your AGA Ordinary Shares, please contact your CSDP or Broker. Although all NewCo Ordinary Shares will initially be issued in Dematerialised form, you do not need to Dematerialise
your AGA Ordinary Shares to participate in the Reorganisation or to receive any NewCo Ordinary Shares in terms of the Reorganisation.
|
|
3.2.7. |
No Dematerialisation or re-materialisation of AGA Ordinary Shares may take place:
|
|
3.2.7.1. |
from the Business Day following the Reorganisation Last Day to Trade up to and including the Shareholders’ Meeting Voting Record Date in respect of the Shareholders’ Meeting; and
|
|
3.2.7.2. |
if the Scheme becomes operative, on or after the Business Day following the Reorganisation Last Day to Trade.
|
|
3.2.8. |
If your share certificates relating to the Reorganisation Consideration to be surrendered have been lost or destroyed and you are a Certificated AGA Shareholder, you should nevertheless return the Form of
Surrender and Transfer (blue), duly signed and completed, to the Transfer Secretaries together with a duly completed indemnity form, which is obtainable from the Transfer Secretaries, as well as
satisfactory evidence that the Documents of Title have been lost or destroyed.
|
|
3.2.9. |
Under Strate directives, Dematerialised AGA Shareholders are required to elect to receive direct communication in the future, which includes but is not limited to the receipt of shareholder communication
documentation. Such election will facilitate the direct communication by NewCo to such holders. AGA Shareholders who are currently Certificated AGA Shareholders and will be Dematerialised NewCo Shareholders are encouraged to make such
election.
|
4. |
ELECTRONIC PARTICIPATION AT THE SHAREHOLDERS’ MEETING
|
|
4.1. |
AGA has appointed The Meeting Specialist Proprietary Limited (“TMS”) for purposes of hosting the Shareholders’ Meeting entirely by way of electronic communication and,
in particular, for TMS to provide AGA and the AGA Shareholders with access to its electronic communication platform (the “Platform”) for purpose of enabling all of the AGA Shareholders, who are present
at the Shareholders’ Meeting, to communicate concurrently with each other, without an intermediary, and to participate reasonably effectively in the Shareholders’ Meeting and exercise their voting rights at the Shareholders’ Meeting.
|
|
4.2. |
Please also note that in order to attend and participate in the Shareholders’ Meeting, AGA Shareholders are required to be granted access to the Platform by TMS and any AGA Shareholder who wishes to attend
the Shareholders’ Meeting is encouraged to contact TMS on proxy@tmsmeetings.co.za or +27 084 433 4836 / 081 711 4255 / 061 440 0654 as soon as possible, but not later than 2:00 p.m. (South Africa Standard Time) on Friday, 4 August 2023 to
enable TMS to verify its/his/her identity and thereafter to grant that AGA Shareholder access to the Platform. Notwithstanding the foregoing, any AGA Shareholder who wishes to attend the Shareholders’ Meeting is entitled to contact TMS at any
time prior to the conclusion of the Shareholders’ Meeting, in order to be verified and provided with access to the Platform by TMS. In order to avoid any delays in being provided with access to the Platform by TMS, AGA Shareholders are
encouraged to contact TMS at their earliest convenience.
|
|
4.3. |
Further details as to how you can Participate using electronic communication are set out in the Notice of Shareholders’ Meeting.
|
5. |
IF YOU ARE A HOLDER OF AGA ADSs
|
|
5.1. |
To Participate in the Shareholders’ Meeting
|
|
5.1.1. |
As a holder of AGA ADSs on the ADS Voting Record Date, you are entitled to instruct the ADS Depositary on how to vote the AGA Ordinary Shares that your AGA ADSs represent.
|
|
5.1.2. |
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. (Eastern Standard Time) on Tuesday, 8 August 2023 (the “ADS Instruction Date”). If you hold AGA ADSs in a securities account through a broker or other securities intermediary, you should receive
voting materials from your intermediary, which you should use to give voting instructions to your intermediary, to be received prior to the cut-off date and time specified in those materials (which will be earlier than the ADS Instruction
Date above).
|
|
5.1.3. |
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 Special Resolution Number 1 and Special Resolution Number 2 has
been achieved.
|
|
5.1.4. |
If you wish to attend, speak and vote at the Shareholders’ Meeting, you must:
|
|
5.1.4.1. |
surrender your AGA ADSs to the ADS Depositary for cancellation;
|
|
5.1.4.2. |
withdraw the AGA Ordinary Shares represented by your AGA ADSs from the custodian bank holding such AGA Ordinary Shares; and
|
|
5.1.4.3. |
be recorded in the AGA Register as an AGA Shareholder on the Shareholders’ Meeting Voting Record Date. You should note that the ADS Depositary may charge a fee for the surrender of your AGA ADSs and the
delivery of the AGA Ordinary Shares represented by your AGA ADSs. The amount of any such charge should be confirmed directly with the ADS Depositary.
|
|
5.1.5. |
For more information on how to provide instructions in connection with the Shareholders’ Meeting, holders of AGA ADSs should refer to the notice and instructions provided by the ADS Depositary.
|
6. |
FOREIGN SHAREHOLDERS
|
7. |
APPROVAL OF THE AGAH SALE AND THE SCHEME
|
|
7.1. |
The AGAH Sale must be approved by AGA Shareholders by voting in favour of Special Resolution Number 1, being a special resolution to be adopted in accordance with Section 112(2) read with Section 115(2)(a)
of the Companies Act, at the Shareholders’ Meeting and at which Shareholders’ Meeting sufficient AGA Shareholders are present (not being less than 3 (three) AGA Shareholders) to exercise, in aggregate, at least 25% (twenty five percent) of
all the voting rights that are entitled to be exercised on Special Resolution Number 1. In order to be approved, Special Resolution Number 1 will require votes in favour representing at least 75% (seventy five percent) of the voting rights
exercised at the Shareholders’ Meeting.
|
|
7.2. |
The Scheme must be approved by AGA Shareholders by voting in favour of Special Resolution Number 2, being a special resolution to be adopted in accordance with Section 114 read with Section 115(2)(a) of the
Companies Act, at the Shareholders’ Meeting and at which Shareholders’ Meeting sufficient AGA Shareholders are present (not being less than 3 (three) AGA Shareholders) to exercise, in aggregate, at least 25% (twenty five percent) of all the
voting rights that are entitled to be exercised on Special Resolution Number 2. In order to be approved, Special Resolution Number 2 will require votes in favour representing at least 75% (seventy five percent) of the voting rights exercised
at the Shareholders’ Meeting.
|
|
7.3. |
AGA Shareholders are advised that, in accordance with Section 115(3) of the Companies Act, AGA may, in certain circumstances, not implement Special Resolution Number 1 and Special Resolution Number 2,
despite the fact that they will have been adopted at the Shareholders’ Meeting, without the approval of a court or other competent authority. Please also see 7.14 (Court Approval) below. A copy of
Section 115 of the Companies Act pertaining to the required approval for the AGAH Sale and the Scheme is set out in Annexure F attached to this Circular.
|
|
7.4. |
No approval of the Spin-Off is being sought from AGA Shareholders or AGA ADS Holders.
|
8. |
DISSENTING AGA SHAREHOLDERS’ APPRAISAL RIGHTS
|
|
8.1. |
If an AGA Shareholders wishes to exercise his/her/its Appraisal Rights, that AGA Shareholder must give AGA written notice in terms of Section 164 of the Companies Act objecting to Special Resolution Number 1
and/or Special Resolution Number 2, at any time before Special Resolution Number 1 and Special Resolution Number 2 are to be voted on at the Shareholders’ Meeting.
|
|
8.2. |
Within 10 (ten) Business Days after AGA has adopted Special Resolution Number 1 and Special Resolution Number 2, AGA must send a notice stating that Special Resolution Number 1 and/or Special Resolution
Number 2 has been adopted, to each AGA Shareholder who gave AGA written notice of objection and has not withdrawn that notice and has voted against Special Resolution Number 1 and/or Special Resolution Number 2, as applicable.
|
|
8.3. |
An AGA Shareholder who has given AGA written notice in terms of Section 164 of the Companies Act objecting to Special Resolution Number 1 and/or Special Resolution Number 2, and who has not withdrawn that
notice and has voted against Special Resolution Number 1 and/or Special Resolution Number 2, as the case may be, and has complied with all of the procedural requirements set out in Section 164 of the Companies Act may, if Special Resolution
Number 1 and Special Resolution Number 2 have been adopted, demand in writing within:
|
|
8.3.1. |
20 (twenty) Business Days after receipt of the notice from AGA referred to above; or
|
|
8.3.2. |
20 (twenty) Business Days after learning that Special Resolution Number 1 and Special Resolution Number 2 have been adopted, if the AGA Shareholder does not receive the notice from AGA referred to above,
|
|
8.4. |
A copy of Section 164 of the Companies Act referred to in this paragraph 8 is attached as Annexure G to this Circular.
|
|
8.5. |
AGA ADS Holders do not have dissenting shareholders’ Appraisal Rights, except if they surrender their AGA ADSs to the ADS Depositary, pay the ADS Depositary’s fee for surrender of the AGA ADSs and become a
registered holder of AGA Ordinary Shares prior to the Shareholders’ Meeting Voting Record Date.
|
9. |
OTHER
|
INTERPRETATION AND DEFINITIONS
|
1. |
the following terms shall have the meanings assigned to them hereunder and cognate expressions shall have corresponding meanings, namely:
|
|
1.1. |
“ADS Depositary” means The Bank of New York Mellon which acts as the depositary in respect of the AGA ADS Program;
|
|
1.2. |
“AGA” or “Company” means AngloGold Ashanti Limited (Registration No. 1944/017354/06), a public company duly incorporated in
accordance with the company laws of South Africa;
|
|
1.3. |
“AGA ADS Holder” means a registered holder of AGA ADSs;
|
|
1.4. |
“AGA ADS Program” means the American Depositary Share Program of AGA governed by the AGA Deposit Agreement;
|
|
1.5. |
“AGA ADSs” means American depositary shares representing AGA Ordinary Shares deposited or subject to deposit with the ADS Depositary under the AGA Deposit Agreement at
a ratio of 1 (one) AGA Ordinary Share to 1 (one) such American depositary share, which are listed and traded on the NYSE;
|
|
1.6. |
“AGA Board” means the directors of the Company, comprising, as at the Last Practicable Date, those persons whose names appear in section headed “Corporate Information
and Advisers”;
|
|
1.7. |
“AGA Ghana Shareholder” means the holders of the AGA Ordinary Shares on the Ghana branch of the AGA Register;
|
|
1.8. |
“AGA GhDSs” means Ghanaian depositary shares representing AGA Ordinary Shares at a ratio of 1 (one) AGA Ordinary Share to 100 (one hundred) such Ghanaian depositary
shares, which are listed and traded on the GhSE;
|
|
1.9. |
“AGA GhDS Holder” means a holder of AGA GhDS;
|
|
1.10. |
“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;
|
|
1.11. |
“AGA Ordinary Shares” means the ordinary shares, with a par value of R0.25 (twenty five cents) each, in the issued share capital of AGA, which are listed for trading
with ISIN No. ZAE 000043485 on, inter alia, the Main Board of the JSE;
|
|
1.12. |
“AGA 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”);
|
|
1.13. |
“AGA Shareholders” means the holders of AGA Ordinary Shares, who are recorded as such in the AGA Register;
|
|
1.14. |
“AGAH” means AngloGold Ashanti Holdings plc (Registration No. 001177V), a company duly incorporated in accordance with the company laws of the Isle of Man, which as of
the Last Practicable Date is a wholly-owned subsidiary of AGA;
|
|
1.15. |
“AGAH Sale” means the irrevocable offer by NewCo to AGA to purchase 100% (one hundred percent) of the shares in AGAH, and the present, non-binding intention of AGA to
accept the Irrevocable Offer to Purchase, which if completed will constitute a disposal of all or the greater part of the assets or undertaking of AGA subject to approval under Chapter 5 of the Companies Act in terms of Section 112 and
section 115(2)(b) of the Companies Act;
|
|
1.16. |
“AGAH Sale Shares” means 100% (one hundred percent) of the issued share capital of AGAH;
|
|
1.17. |
“Annexures” means the annexures to this Circular;
|
|
1.18. |
“Appraisal Rights” means the dissenting shareholders’ appraisal rights remedy afforded to shareholders in terms of section 164 of the Companies Act;
|
|
1.19. |
“Associate/s” means an associate in relation to either an individual or to a company;
|
|
1.20. |
“ASX” means the Australian Securities Exchange;
|
|
1.21. |
“ASX Delisting” means the termination of the listing of AGA from the ASX;
|
|
1.22. |
“AUD” or “Australian Dollars” means the Australian Dollar, being the lawful currency of Australia;
|
|
1.23. |
“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 Markets which is operated by A2X Solutions Proprietary Limited and which is licensed to operate as a securities exchange under the Financial Markets
Act;
|
|
1.24. |
“A2X Listing” means the proposed secondary inward listing of NewCo Ordinary Shares on the A2X;
|
|
1.25. |
“Barclays” means Barclays Bank PLC, acting through its Investment Bank;
|
|
1.26. |
“Beneficial Interest” means an interest in one fifth of an AGA Ordinary Share retained by a Former CDI Holder;
|
|
1.27. |
“Broker” means any person registered as a “broker member equities” in terms of the rules of the JSE in accordance with the provisions of the Financial Markets Act;
|
|
1.28. |
“Business Day” means any day other than a Saturday, Sunday or proclaimed public holiday in South Africa from time to time;
|
|
1.29. |
“CDI” means CHESS depositary interest;
|
|
1.30. |
“Certificated AGA Ordinary Shares” means issued AGA Ordinary Shares that have not been Dematerialised and to which title is evidenced by a physical document of title,
including share certificates and certified transfer deeds;
|
|
1.31. |
“Certificated AGA Shareholders” means holders of Certificated AGA Ordinary Shares;
|
|
1.32. |
“Circular” means this bound document, dated 7 July 2023, including the Annexures hereto incorporating the Notice of Shareholders’ Meeting, Forms of Proxy (yellow), Form of Surrender and Transfer (blue);
|
|
1.33. |
“Common Monetary Area” means South Africa, the Republic of Namibia and the Kingdoms of Lesotho and Eswatini;
|
|
1.34. |
“Companies Act” means the South African Companies Act, No. 71 of 2008;
|
|
1.35. |
“Companies Regulations” means the Companies Regulations, 2011, promulgated under the Companies Act;
|
|
1.36. |
“Computershare” means Computershare Investor Services Proprietary Limited (Registration No. 2004/003647/07), a limited liability private company incorporated and
registered under the laws of South Africa;
|
|
1.37. |
“Computershare Nominees” means Computershare Nominees Proprietary Limited (Registration No. 1999/008543/07), a limited liability private company incorporated and
registered under the laws of South Africa, being the nominee of Computershare’s CSDP;
|
|
1.38. |
“Cravath, Swaine & Moore” means Cravath, Swaine & Moore LLP, DOS ID No. 2886667;
|
|
1.39. |
“Credit Support Agreement” means an agreement titled “Credit Support Agreement” concluded or to be concluded 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);
|
|
1.40. |
“CS Depositary” means Computershare Trust Company, N.A., a national association organised under the laws of the United States;
|
|
1.41. |
“CS Depositary Nominee” means GTU Ops Inc., a Delaware corporation, operating as nominee to hold NewCo Ordinary Shares for the CS Depositary;
|
|
1.42. |
“CSDP” means a central securities depository participant authorised by a licenced 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 Financial Markets Act;
|
|
1.43. |
“Dematerialised” 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 AGA Register;
|
|
1.44. |
“Dematerialised AGA Shareholders” means the AGA Shareholders who hold Dematerialised AGA Ordinary Shares;
|
|
1.45. |
“Disclosure Package” means this Circular and the Pre-listing Statement, which shall be posted together;
|
|
1.46. |
“Dissenting AGA Shareholder” means any AGA Shareholder who has exercised and/or is exercising their Appraisal Rights;
|
|
1.47. |
“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 Ordinary Shares;
|
|
1.48. |
“DTC” means The Depository Trust Company, a limited purpose trust company established under the New York Banking Law;
|
|
1.49. |
“ENSafrica” means Edward Nathan Sonnenbergs Inc. (Registration No. 2006/018200/21), a personal liability company incorporated and registered under the laws of South
Africa;
|
|
1.50. |
“Exchange Control Regulations” means the Exchange Control Regulations of South Africa, promulgated in terms of section 9 of the South African Currency and Exchanges
Act, No. 9 of 1933;
|
|
1.51. |
“EY” means Ernst & Young Inc. (Registration No. 2005/002308/21), a personal liability company incorporated and registered under the laws of South Africa;
|
|
1.52. |
“Financial Adviser” means AGA’s and/or NewCo’s (as the case may be) appointed financial advisers in respect of the Reorganisation, being Centerview Partners UK LLP
(Company number OC345806), JPMorgan Chase Bank, N.A., Johannesburg Branch (Registration No. 2001/016069/10) and Rothschild and Co South Africa Proprietary Limited (Registration No. 1999/021764/07);
|
|
1.53. |
“Form F-4” means the Registration Statement on Form F-4 (SEC File No. 333-272867) initially filed by NewCo with the SEC on 23 June 2023;
|
|
1.54. |
“Former CDI Holder” means a holder of a CDI on the date of the ASX Delisting who as at the Shareholders’ Meeting Voting Record Date retains a Beneficial Interest in
AGA Ordinary Shares;
|
|
1.55. |
“Financial Markets Act” means the South African Financial Markets Act, No. 9 of 2012;
|
|
1.56. |
“Firm Intention Announcement” means the firm intention announcement in respect of the Reorganisation, as released by AGA on SENS on Friday, 12 May 2023;
|
|
1.57. |
“Foreign Shareholder” means an AGA Shareholder who is a non-resident of South Africa as contemplated in the Exchange Control Regulations;
|
|
1.58. |
“Founder Share” means the 1 (one) NewCo Ordinary Share which AGA holds in NewCo as at the Last Practicable Date, which NewCo Ordinary Share was issued to AGA upon the
incorporation of NewCo;
|
|
1.59. |
“Fulfilment Date” means the date on which the last of the Reorganisation Conditions has been fulfilled or waived, as the case may be;
|
|
1.60. |
“GBP” or “Pounds” means the British Pound Sterling, being the lawful currency of the United Kingdom;
|
|
1.61. |
“Ghana” means the Republic of Ghana;
|
|
1.62. |
“GhSE” means the Ghana Stock Exchange;
|
|
1.63. |
“Group” means AGA and its Subsidiaries prior to the implementation of the Reorganisation and subsequent to the implementation of the Reorganisation, NewCo and its
Subsidiaries, as the context requires;
|
|
1.64. |
“HMRC” means His Majesty’s Revenue and Customs, being the tax authority of the United Kingdom;
|
|
1.65. |
“IASB” means the International Accounting Standards Board;
|
|
1.66. |
“IFRS” means the International Financial Reporting Standards, as issued by the IASB;
|
|
1.67. |
“Implementation Agreement” means the agreement titled “Implementation Agreement” entered into on or about 12 May 2023 between AGA and NewCo, and as amended on 23 June
2023, in terms of which, inter alia, NewCo undertakes to co-operate with AGA to implement the Reorganisation;
|
|
1.68. |
“Implementation Deadline” means the end of the third business day (or such other date as determined by the AGA Board) following the implementation of the Spin-Off;
|
|
1.69. |
“Income Tax Act” or “ITA” means the South Africa Income Tax Act, No. 58 of 1962;
|
|
1.70. |
“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
Companies Regulations, for the purposes of, inter alia, the Scheme (details of each of whom are included in Annexure E (Information
on AGA Directors) attached to this Circular);
|
|
1.71. |
“Independent Expert” means the independent expert appointed by the Board in terms of regulation 110 of the Takeover Regulations to provide the Independent Board with
appropriate external advice in the form of the Independent Expert Report, being Barclays;
|
|
1.72. |
“Independent Expert Report” means the report prepared by the Independent Expert in accordance with section 114 of the Companies Act and regulation 90 and 110 of the
Takeover Regulations, and attached as Annexure A to this Circular;
|
|
1.73. |
“Independent External Auditor” means each of AGA’s and NewCo’s appointed independent auditor, being PwC;
|
|
1.74. |
“Independent Reporting Accountant” means each of AGA’s and NewCo’s appointed independent reporting accountant, being EY;
|
|
1.75. |
“Irrevocable Offer to Purchase” means the document titled “Irrevocable Offer to Purchase”, signed by NewCo and delivered to AGA on or about 12 May 2023, in terms of
which, inter alia, NewCo irrevocably offers, in favour of AGA, to purchase all (and not part only) of the AGAH Sale Shares in consideration for the issue by NewCo to AGA of the NewCo Notes;
|
|
1.76. |
“Issuer Nominee Dematerialised NewCo Shareholder” means if the Reorganisation becomes unconditional and is implemented, AGA Shareholders who, prior to implementation
of the Reorganisation and whilst they were Certificated AGA Shareholders, (a) failed to complete and return a Form of Surrender and Transfer (blue) in accordance with the instructions contained
therein; or (b) in the Form of Surrender and Transfer (blue) failed to provide any account details, or provided incorrect account details, of a CSDP or Broker, into which the relevant NewCo Ordinary
Shares were to be transferred and on whose behalf Computershare Nominees will hold the Reorganisation Consideration until such person appoints a CSDP or Broker and provides such details to Computershare Nominees with an instruction to
transfer the Reorganisation Consideration;
|
|
1.77. |
“JSE” means the JSE Limited (Registration No. 2005/022939/06), a public company duly incorporated in South Africa and which is licensed to operate as a securities
exchange under the Financial Markets Act;
|
|
1.78. |
“JSE Listing” means the proposed secondary inward listing of the NewCo Ordinary Shares on the JSE;
|
|
1.79. |
“JSE Listings Requirements” means the listings requirements of the JSE, as published from time to time by the JSE;
|
|
1.80. |
“JSE Sponsor” means The Standard Bank of South Africa Limited (Registration No. 1962/000738/06), a public company incorporated and registered under the laws of South
Africa;
|
|
1.81. |
“Last Practicable Date” means 15 June 2023, being the last practicable date before the issue of this Circular;
|
|
1.82. |
“Legal Advisers” means each of AGA’s and NewCo’s appointed legal advisers, being ENSafrica, Cravath, Swaine & Moore or Slaughter and May, as the context may
require;
|
|
1.83. |
“Longstop Date” means 29 February 2024 or such later date that the AGA and NewCo may agree to in writing prior to such date, being the date by which all the
Reorganisation Conditions must be fulfilled (or, where appropriate, waived);
|
|
1.84. |
“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 of the Implementation Agreement, 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 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 (sixty) days), or could reasonably be expected to prevent or impair or delay (for a period of at least 60 (sixty) days), the implementation of
the Reorganisation or the ability of either AGA or NewCo to perform its obligations under the Implementation Agreement, or (c) increases, or could reasonably be expected to increase, the costs to the Group of implementing the Reorganisation
by at least USD 150,000,000 (one hundred and fifty million Dollars);
|
|
1.85. |
“Mineral Resource and Mineral Reserve Report” means the report titled “Mineral Resource and Mineral Reserve Report” as at 31 December 2022, an annual report prepared
by AGA in terms of paragraph 12.13 of the JSE Listings Requirements;
|
|
1.86. |
“NewCo” means AngloGold Ashanti plc (Registration No. 14654651), a public company duly incorporated in accordance with the laws of England and Wales;
|
|
1.87. |
“NewCo Board” means the board of directors of NewCo, comprising, as at the Last Practicable Date, those persons whose names appear in section headed “Corporate
Information and Advisers”;
|
|
1.88. |
“NewCo GhDSs” means Ghanaian depositary shares representing NewCo Ordinary Shares at a ratio of 1 (one) NewCo Ordinary Share to 100 (one hundred) such Ghanaian
depositary shares, which are to be listed and traded on the GhSE;
|
|
1.89. |
“NewCo Notes” means zero coupon unsecured loan notes, which have an aggregate face value equal to the fair market value of the AGAH Sale Shares (as determined pursuant
to the Irrevocable Offer to Purchase), to be issued by NewCo to AGA;
|
|
1.90. |
“NewCo Ordinary Shares” means ordinary shares with a nominal value of USD 1 (one Dollar) each in the share capital of NewCo;
|
|
1.91. |
“NYSE” means the New York Stock Exchange;
|
|
1.92. |
“NYSE Listing” means the proposed primary listing of the NewCo Ordinary Shares on the NYSE;
|
|
1.93. |
“Operative Date” means the date, after the Fulfilment Date, on which the Scheme is to be implemented, being the later of: (a) 25 September 2023; (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 Spin-Off Completion); or (c) such other date as may be agreed in writing between AGA and NewCo;
|
|
1.94. |
“Own Name Registration” means the recordal by the CSDP, in the sub-register kept by the CSDP, of Dematerialised AGA Ordinary Shares in the name of the Dematerialised
AGA Shareholder;
|
|
1.95. |
“Participate” means to attend, speak and vote at the Shareholders’ Meeting in person or remotely by electronic communication;
|
|
1.96. |
“Pre-listing Statement” means the South African pre-listing statement posted by NewCo dated 7 July 2023, including all annexures and attachments thereto, which was
prepared by NewCo in accordance with the JSE Listings Requirements for the purpose of the JSE Listing;
|
|
1.97. |
“PwC” means PricewaterhouseCoopers Inc. (Registration No. 1998/012055/21), a personal liability company incorporated and registered under the laws of South Africa;
|
|
1.98. |
“Redeemable Preference Shares” means 50,000 (fifty thousand) non-voting redeemable preference shares with a nominal value of GBP 1 (one Pound) each issued in the share
capital of NewCo;
|
|
1.99. |
“Reorganisation” means the series of inter-conditional transaction steps (which will be implemented in the following sequence being the Spin-Off, the AGAH Sale and the
Scheme), in order to procure that, following implementation of the foregoing, NewCo is established as the new holding company of the Group, with its primary listing on the NYSE and with secondary inward listings on the JSE and the A2X and a
secondary listing on the GhSE;
|
|
1.100. |
“Reorganisation Conditions” means the suspensive conditions to which the completion of the Reorganisation is subject, as set out in paragraph 7.2 of this Circular;
|
|
1.101. |
“Reorganisation Consideration” means collectively the Scheme Consideration Shares and the Spin-Off Shares;
|
|
1.102. |
“Reorganisation Consideration Record Date” means 5:00 p.m. (South Africa Standard Time) on the date upon which an AGA `Shareholder must be recorded in the AGA
Register, in order to participate in the Spin-Off and the Scheme and to consequently receive the Spin-Off Shares and 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 and the JSE Listings Requirements;
|
|
1.103. |
“SARB” means the South African Reserve Bank;
|
|
1.104. |
“Scheme” means the scheme of arrangement in terms of section 114 read with section 115 of the Companies Act, to be proposed by AGA to the AGA Shareholders, in terms of
which the Scheme Participants will exchange their Scheme Shares for the right and obligation to receive, ipso facto and without any action on the part of such Scheme Participants, the respective pro rata portions of the Scheme Consideration Shares;
|
|
1.105. |
“Scheme Consideration Shares” means such number of new NewCo Ordinary Shares as equate to the total number of Scheme Shares less the total number of Spin-off Shares;
|
|
1.106. |
“Scheme Participants” means the AGA Shareholders who are recorded as such in the AGA Register on the Reorganisation Consideration Record Date and are entitled to
receive the Scheme Consideration Shares, being those AGA Shareholders who are registered as such in the AGA Register at the Reorganisation Consideration Record Date and who, by the Reorganisation Consideration Record Date, either:
|
|
1.106.1. |
have not timeously delivered an Appraisal Rights demand to AGA in terms of section 164(5) to (8) of the Companies Act; or
|
|
1.106.2. |
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;
|
|
1.107. |
“Scheme Shares” means all of the AGA Ordinary Shares held by the Scheme Participants at the Reorganisation Consideration Record Date;
|
|
1.108. |
“SEC” means the Securities and Exchange Commission of the United States;
|
|
1.109. |
“Securities Act” means the U.S. Securities Act of 1933;
|
|
1.110. |
“SENS” means the Stock Exchange News Service
of the JSE;
|
|
1.111. |
“Shareholders’ Meeting” means the meeting of the AGA Shareholders that will be held entirely by way of electronic communication on Friday, 18 August 2023 at 2:00 p.m.
(South Africa Standard Time) or such other postponed date and time or location as determined in accordance with the provisions of the AGA Memorandum of Incorporation, the Companies Act and the JSE Listings Requirements, at which AGA
Shareholders will be requested to consider and, if deemed fit, to pass, with or without modification, the resolutions set out in the Notice of Meeting of Shareholders attached to this Circular;
|
|
1.112. |
“Slaughter and May” means Slaughter and May,
an English general partnership whose offices are at One Bunhill Row, London EC1Y 8YY;
|
|
1.113. |
“South Africa” means the Republic of South
Africa;
|
|
1.114. |
“Spin-Off” means the distribution in specie to all the Scheme Participants, pursuant to which AGA will direct NewCo, its
wholly owned subsidiary, to issue 46,000 (forty six thousand) NewCo Ordinary Shares to such Scheme Participants on a pro rata basis, with the Spin-Off Subscription Consideration paid by AGA;
|
|
1.115. |
“Spin-Off Completion” shall have the meaning ascribed thereto in paragraph 7.12.1.3;
|
|
1.116. |
“Spin-Off Shares” means 46,000 (forty six thousand) NewCo Ordinary Shares;
|
|
1.117. |
“Spin-Off Subscription Date” means the date, after the Fulfilment Date, on which the Spin-Off Shares Subscription is to be implemented, being the later of: (a) 22
September 2023; or (b) such other date as may be agreed in writing between AGA and NewCo (which date may not be before the date referred in (a));
|
|
1.118. |
“Spin-Off Shares Subscription” means the transaction in terms of which AGA will subscribe for the Spin-Off Shares in consideration for the payment by AGA of an amount
equal to the Spin-Off Subscription Consideration;
|
|
1.119. |
“Spin-Off Subscription Consideration” means USD 46,000 (forty six thousand Dollars) to be paid by AGA to NewCo in consideration for the Spin-Off Shares;
|
|
1.120. |
“Sponsors” means each of the Transaction Sponsor and the JSE Sponsor, as the context may require;
|
|
1.121. |
“Strate” means, as appropriate, the electronic clearing and settlement system for transactions that take place on the JSE and A2X which is managed by Strate
Proprietary Limited (Registration Number: 1998/022242/07), a private company duly incorporated in accordance with the laws of South Africa;
|
|
1.122. |
“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;
|
|
1.123. |
“Takeover Regulations” means the Takeover Regulations set forth in chapter 5 (Fundamental Transactions and Takeover Regulations) of the Companies Regulations;
|
|
1.124. |
“Tax Adviser” means Bowmans Inc. (Registration No. 1998/021409/21), a personal liability company incorporated and registered under the laws of South Africa;
|
|
1.125. |
“Transaction Advisers” means collectively the Financial Advisers, Transaction Sponsor, JSE Sponsor, Independent Reporting Accountant, Tax Adviser and Legal Advisers;
|
|
1.126. |
“Transaction Sponsor” means J.P. Morgan Equities South Africa Proprietary Limited
(Registration No. 1995/011815/07), a private company incorporated and registered under the laws of South Africa, in its capacity as transaction sponsor;
|
|
1.127. |
“Transfer Secretaries” means Computershare Investor Services Proprietary Limited (Registration No. 2004/003647/07), a private company incorporated under the
company laws of South Africa, in its capacity as transfer secretary of AGA;
|
|
1.128. |
“TRP” or “Takeover Regulation Panel” means the Takeover Regulation Panel, established by section 196 of the Companies Act;
|
|
1.129. |
“United Kingdom” or “UK” or “U.K.” means the United Kingdom of Great Britain and
Northern Ireland, as constituted from time to time;
|
|
1.130. |
“United States” or “US” or “U.S.” means the United States of America;
|
|
1.131. |
“USD” or “Dollar” or “US$” or “$” or “U.S. dollars” means the United States Dollar, being the lawful currency of the United States;
|
|
1.132. |
“U.S. Exchange Agent” means Computershare Trust Company, N.A., a national association organised under the laws of the United States;
|
|
1.133. |
“Voting Last Day to Trade” means the last day to trade in AGA Ordinary Shares in order to be recorded in the AGA Register on the Voting Record Date, being Monday, 7
August 2023;
|
|
1.134. |
“Voting Record Date” or “Shareholders’ Meeting Voting Record Date” means the date on which AGA Shareholders must be recorded in
the AGA Register in order to be eligible to attend and vote at the Shareholders’ Meeting, being Friday, 11 August 2023; and
|
|
1.135. |
“ZAR” or “Rand” or “R” means the South African Rand, being the lawful currency of South
Africa.
|
1. |
any word or expression defined in the JSE Listings Requirements, the Companies Act and/or the Takeover Regulations and not expressly defined in this Circular shall have the meaning given in the JSE Listings
Requirements, the Companies Act and/or the Takeover Regulations (as applicable);
|
2. |
headings are to be ignored in construing this Circular;
|
3. |
words importing:
|
|
3.1 |
any one gender include the other of masculine, feminine and neuter;
|
|
3.2 |
the singular include the plural and vice versa; and
|
|
3.3 |
natural persons include created entities (corporate or unincorporate) and the state and vice versa;
|
4. |
if figures are referred to in numerals and in words in this Circular and if there is any conflict between the two, the words shall prevail;
|
5. |
expressions defined in the main body of this Circular shall bear the same meanings in schedules and/or annexures to this Circular which do not themselves contain their own conflicting definitions.
|
6. |
references to a paragraph or Annexure are to a paragraph of, or Annexure to, this Circular;
|
7. |
any reference to a time of day is a reference to South Africa Standard Time (SAST), unless a contrary indication appears;
|
8. |
a reference to any statute or statutory provision shall be construed as a reference to the same as it may have been, or may from time to time be, amended, modified, replaced or re-enacted;
|
9. |
a reference to any other document referred to in this Circular is a reference to that other document as amended, revised, varied, novated or supplemented at any time;
|
10. |
where any number of days is prescribed, those days shall be reckoned exclusively of the first and inclusively of the last day unless the last day falls on a day which is not a Business Day, in which event
the last day shall be the next succeeding Business Day;
|
11. |
the use of the word including, include/s, in particular or any similar such word followed by a specific example/s shall not be construed as limiting the meaning of the general wording preceding it and the eiusdem generis rule shall not be applied in the interpretation of such general wording or such specific example/s; and
|
12. |
references to law or regulation or any similar such word shall be deemed to include the rules of any stock exchange by which AGA and NewCo are bound, and specifically includes the JSE Listings Requirements.
|
SALIENT DATES AND TIMES
|
Key action
|
Day
|
2023
|
Date on which AGA Shareholders must be recorded in the AGA Register to receive this Circular
|
Friday
|
30 June
|
Posting of Circular to AGA Shareholders and Notice of the Shareholders’ Meeting released on SENS
|
Friday
|
7 July
|
ADS Voting Record Date
|
Tuesday
|
11 July
|
Last day to trade in AGA Ordinary Shares in order to be recorded in the AGA Register on the Voting Record Date (Voting Last Day to Trade)
|
Monday
|
7 August
|
Voting Record Date for AGA Shareholders to be recorded in the AGA Register in order to be eligible to vote at the Shareholders’ Meeting (Shareholders’ Meeting Voting Record Date)
|
Friday
|
11 August
|
Forms of Proxy for the Shareholders’ Meeting are requested to be lodged by 2:00 p.m. (South Africa Standard Time)
|
Wednesday
|
16 August
|
Last date and time for AGA Shareholders to give notice to AGA objecting to Special Resolution Number 1 and/or Special Resolution number 2 in terms of section 164 of the Companies Act, at
any time before the voting on Special Resolution Number 1 and/or Special Resolution Number 2 takes place
|
Friday
|
18 August
|
Shareholders’ Meeting at 2:00 p.m. (South Africa Standard Time)
|
Friday
|
18 August
|
Results of Shareholders’ Meeting released on SENS
|
Monday
|
21 August
|
Results of Shareholders’ Meeting published in the South African press
|
Tuesday
|
22 August
|
If the Reorganisation is approved by AGA Shareholders at the Shareholders’ Meeting:
|
||
Last day for AGA Shareholders who voted against the Scheme and/or AGAH Sale to require AGA to seek court approval for the Scheme and/or AGAH Sale in terms of section 115(3)(a) of the
Companies Act
|
Friday
|
25 August
|
Last day for AGA to send notice of adoption of Special Resolution Number 1 and/or Special Resolution number 2 to Dissenting AGA Shareholders, in accordance with section 164(4) of the
Companies Act
|
Friday
|
1 September
|
Last day for an AGA Shareholder who voted against the Scheme and/or AGAH Sale to apply to court for leave to apply for a review of the Scheme and/or AGAH Sale in terms of section
115(3)(b) of the Companies Act
|
Friday
|
1 September
|
Last day for an AGA Shareholder who gave notice to AGA objecting to the Scheme and/ or AGAH Sale in terms of section 164 of the Companies Act, to make a demand against AGA as
contemplated in section 164(7) of the Companies Act (assuming AGA provides the notice contemplated in section 164(4) of the Companies Act on the last possible day)
|
Friday
|
29 September
|
The following dates assume that no court approval or review of the Scheme and/or AGAH Sale is required and will be confirmed in the Finalisation
Date announcement if the Scheme and/or AGAH Sale becomes unconditional:
|
||
Finalisation Date announcement released on SENS (Reorganisation unconditional in every respect) by 10:00 a.m. (South Africa Standard Time)
|
Tuesday
|
12 September
|
Finalisation Date announcement published in the South African press
|
Wednesday
|
13 September
|
Last Day to Trade in AGA Ordinary Shares in order to receive the NewCo Ordinary Shares to be issued pursuant to the Reorganisation (Reorganisation Last Day to Trade)
|
Tuesday
|
19 September
|
Trading of AGA Ordinary Shares on the JSE and A2X is suspended
|
Wednesday
|
20 September
|
Secondary inward listing of NewCo (NewCo Ordinary Shares) ISIN GB00BRXH2664 with alpha code: ANG and short name “ANGGOLD” on the JSE and A2X with effect from the commencement of
business (9:00 a.m. South Africa Standard Time)
|
Wednesday
|
20 September
|
Record Date on which AGA Shareholders must be recorded in the AGA Register to receive the NewCo Ordinary Shares to be issued pursuant to the Reorganisation (Reorganisation
Consideration Record Date)
|
Friday
|
22 September
|
Scheme Operative Date / Implementation date of the Reorganisation
|
Monday
|
25 September
|
NewCo Ordinary Shares issued and shareholder accounts with CSDPs / brokers credited with NewCo Ordinary Shares
|
Tuesday
|
26 September
|
Listing of AGA Ordinary Shares on the JSE terminated
|
Wednesday
|
27 September
|
1. |
All dates and times in respect of the Reorganisation are subject to change by mutual agreement between AGA and NewCo and/or, to the extent required, obtaining the approval of the JSE, NYSE and the Takeover
Regulation Panel. The dates have been determined based on assumptions regarding the dates by which certain regulatory approvals will be obtained and that no court approval or review of the Reorganisation will be required. Any change to the
dates and times will be released on SENS and filed or furnished with the SEC.
|
2. |
As the salient dates and times are subject to change, they may not be regarded as consent or dispensation for any time periods which may be required in terms of the Companies Act or the Companies
Regulations, where applicable, and any such consents or dispensations must be specifically applied for and granted.
|
3. |
If the Shareholders’ Meeting is adjourned or postponed, Forms of Proxy (yellow) submitted for the initial Shareholders’ Meeting will remain valid in respect of any
adjournment or postponement of the Shareholders’ Meeting.
|
4. |
AGA Shareholders should note that as transactions in AGA Ordinary Shares are settled in the electronic settlement system used by Strate, settlement of trades takes place 3 (three) Business Days after such
trade. Therefore, persons who acquire AGA Ordinary Shares after the Voting Last Day to Trade (expected to be Monday, 7 August 2023) will not be eligible to vote at the Shareholders’ Meeting.
|
5. |
If the Scheme and/or AGAH Sale is implemented, AGA Ordinary Shares may not be Dematerialised or rematerialised after the Reorganisation Last Day to Trade (expected to be Tuesday, 19 September 2023).
|
6. |
All times given in this Circular are, unless the context indicates to the contrary, a reference to (South Africa Standard Time).
|
7. |
For the timetable relating to AGA ADSs, AGA ADS Holders should refer to the Form F-4 and the notice and instructions provided by the ADS Depositary. Holders of AGA ADSs in a securities account through a
broker or other securities intermediary should refer to the Form F-4 and the notice and instructions provided by their intermediary.
|
AngloGold Ashanti Limited
(Incorporated in the Republic of South Africa)
Registration number: 1944/017354/06
Ordinary share code: ANG ISIN: ZAE000043485
(“AGA” or the “Company”)
|
AngloGold Ashanti plc
(Incorporated in England and Wales)
Company number: 14654651
Ordinary share code: ANG ISIN: GB00BRXH2664
(“NewCo”)
|
COMBINED CIRCULAR TO AGA SHAREHOLDERS
|
1. |
INTRODUCTION
|
|
1.1. |
On 12 May 2023, AGA announced the Reorganisation, comprising the three sequential, separate and inter-conditional transaction steps consisting of:
|
|
1.1.1. |
Spin-Off
|
|
1.1.2. |
AGAH Sale
|
|
1.1.3. |
Scheme
|
|
1.2. |
Upon completion of the Reorganisation, NewCo will be the listed parent company of the Group and each of AGA and AGAH will be a direct, wholly-owned Subsidiary of NewCo.
|
|
1.3. |
AGA and NewCo have entered into the Implementation Agreement, in relation to, amongst other things, the Spin-Off and the Scheme, and NewCo made, and delivered to AGA, the Irrevocable Offer to Purchase, in
relation to the AGAH Sale on, 12 May 2023.
|
|
1.3.1. |
The Implementation Agreement contains, amongst other things, the Reorganisation Conditions, provisions regarding the implementation of the Reorganisation, and certain representations and warranties given by
each of AGA and NewCo.
|
|
1.3.2. |
The Irrevocable Offer to Purchase sets out, amongst other things, the terms of NewCo’s irrevocable offer to AGA to purchase 100% (one hundred percent) of the shares in AGAH in consideration for the issue of
the NewCo Notes.
|
|
1.4. |
The implementation of the Reorganisation is subject to the fulfilment or waiver, as the case may be, of the Reorganisation Conditions (as described in paragraph 7.2 (Reorganisation
Conditions)) including, amongst others, approval of the AGAH Sale and the Scheme by the AGA Shareholders in terms of Special Resolution Number 1 and Special Resolution Number 2 respectively. If all of the Reorganisation Conditions
are not fulfilled or fulfilment is not waived (to the extent permitted by applicable law and the Implementation Agreement), as the case may be, by the Longstop Date, the Reorganisation will not be implemented and the AGA Shareholders, AGA ADS
Holders and AGA GhDS Holders will retain their AGA Ordinary Shares, AGA ADSs and AGA GhDSs, respectively.
|
|
1.5. |
As a result of the Reorganisation, each Scheme Participant will own one NewCo Ordinary Share for each AGA Ordinary Share held on the Reorganisation Consideration Record Date, and the existing AGA
Shareholders will hold the same percentage of NewCo Ordinary Shares as they held of AGA Ordinary Shares on the Reorganisation Consideration Record Date (subject to any adjustments to reflect the exercise of Appraisal Rights as contemplated in
paragraph 7.11 (Dissenting AGA Shareholders’ Appraisal Rights)). Based on the current number of issued AGA Ordinary Shares, NewCo will issue up to approximately 419,612,543 NewCo Ordinary Shares in the
Reorganisation (subject to the aforesaid adjustments to reflect the exercise of Appraisal Rights). NewCo will have sufficient authority to allot and issue the Spin-Off Shares and the Scheme Consideration Shares to the Scheme Participants.
|
|
1.6. |
The NewCo Ordinary Shares to be issued pursuant to the Reorganisation will have a primary listing on the NYSE and secondary inward listings on the JSE, and the A2X and a secondary listing on the GhSE.
Additionally, NewCo expects the NewCo GhDSs to be listed on the GhSE. Following the implementation of the Reorganisation, the AGA Ordinary Shares will be delisted from the JSE in terms of paragraph 1.17(b) of the JSE Listings Requirements and
AGA will procure the delisting of the AGA Ordinary Shares from the A2X and the delisting of the AGA Ordinary Shares and the AGA GhDSs from the GhSE. The AGA ADSs will also be delisted from the NYSE and the AGA ADS Program will be terminated
upon completion of the Reorganisation. Additionally, AGA resolved to terminate its listing on the ASX regardless of whether the Reorganisation is implemented. AGA received approval to voluntarily delist from the ASX (which occurred on or
about 27 June 2023).
|
|
1.7. |
For a full understanding of the Reorganisation, this Circular should be read in its entirety.
|
2. |
PURPOSE OF THIS CIRCULAR
|
|
2.1. |
provide AGA Shareholders with information regarding the Reorganisation, including the background and rationale for the Reorganisation, and the manner in which they may have their vote recorded in relation to
the Reorganisation;
|
|
2.2. |
set out the salient terms and conditions of the Reorganisation by which all AGA Shareholders will be bound should the Reorganisation become effective;
|
|
2.3. |
provide AGA Shareholders with the Independent Expert Report in respect of the Reorganisation, prepared in terms of Sections 114(2) and 114(3) of the Companies Act and Regulations 90 and 110(1);
|
|
2.4. |
advise AGA Shareholders of the Independent Board’s recommendation in respect of the Reorganisation (regard being had to the Independent Expert Report) in order to enable AGA Shareholders to make an informed
decision as to whether or not they should vote in favour of Special Resolution 1, Special Resolution 2 and any other special and ordinary resolutions to be proposed at the Shareholders’ Meeting;
|
|
2.5. |
provide notice of the Shareholders’ Meeting to be convened for the AGA Shareholders to consider and, if deemed fit, approve the resolutions set out in the Notice of Shareholders’ Meeting; and
|
|
2.6. |
inform Dissenting AGA Shareholders of their rights and the manner in which such rights may be exercised.
|
3. |
BACKGROUND REGARDING AGA
|
|
3.1. |
AGA is an independent, global gold mining company with a diverse portfolio of operations projects, and exploration activities across nine countries on four continents. AGA is headquartered in Johannesburg,
South Africa. AGA has developed a high-quality, well-diversified asset portfolio, including production from seven countries (Argentina, Australia, Brazil, the Democratic Republic of Congo, Ghana, Guinea and Tanzania) supported by greenfield
projects in the United States and Colombia along with a focused global exploration program. While gold is its principal product, AGA also produces silver (Argentina) and sulfuric acid (Brazil) as by-products.
|
|
3.2. |
AGA (formerly AngloGold Limited) was incorporated in South Africa in 1944 under the name of Vaal Reefs Exploration and Mining Company Limited and AGA operates under the Companies Act and has been listed on
the Main Board of the JSE since 1998. On 26 April 2004, AGA acquired the entire issued share capital of Ashanti Goldfields Company Limited and changed its name to AngloGold Ashanti Limited on the same day.
|
4. |
BACKGROUND REGARDING NEWCO
|
|
4.1. |
NewCo was incorporated as a private limited company under the laws of England and Wales on 10 February 2023, under the name “AngloGold Ashanti (UK) Limited, and was re-registered as a public limited company
with the name “AngloGold Ashanti plc” on Thursday, 22 June 2023 for the purposes of carrying out the Reorganisation.
|
|
4.2. |
NewCo, a wholly-owned Subsidiary of AGA, was formed in order to facilitate the implementation of the Reorganisation, and has no operations and no material assets or liabilities other than in connection with
the Reorganisation. NewCo does not currently own any shares or securities in any entity.
|
|
4.3. |
As of the Last Practicable Date, NewCo has not paid any remuneration to the current or proposed NewCo non- executive directors or the proposed NewCo management. Under English law, following the
Reorganisation, NewCo will be required to compensate its directors in accordance with a shareholder approved remuneration policy, which will be presented to NewCo shareholders at the first annual general meeting following the Reorganisation.
It is expected that NewCo’s proposed remuneration policy will mirror that of AGA, subject to any changes necessary to reflect English law, or that the NewCo Compensation and Human Resources Committee determines to be necessary to align the
policy with applicable market practice and the new Group structure following the Reorganisation and that is in the best interests of NewCo and its shareholders (the “NewCo Remuneration Policy”).
|
|
4.4. |
Prior to the approval of the NewCo Remuneration Policy, the remuneration paid to the members of the NewCo Board will not be subject to the requirements of any remuneration policy. However, the Group expects
that such remuneration will be generally consistent with that provided for under AGA’s current remuneration policy.
|
5. |
BACKGROUND REGARDING AGAH
|
|
5.1. |
AGAH is a wholly owned subsidiary of AGA. The principal activity of AGAH is to act as a holding company for certain of AGA’s operations and assets located outside South Africa (other than certain of AGA’s
operations and assets located in the United States).
|
|
5.2. |
AGAH was incorporated on 10 January 1992, as a private limited company under the Isle of Man Companies Acts 1931 to 1986, under the name of S.M.I. Holdings Limited with company number 056961C. On 2 February
2004, S.M.I. Holdings Limited’s name was changed to AngloGold Holdings Limited in accordance with the provisions of the Isle of Man Companies Acts 1931 to 1993. On 6 February 2004, AngloGold Holdings Limited was converted to a public company
and changed its name to become AngloGold Holdings plc on 10 February 2004. AngloGold Holdings plc’s name was changed to AngloGold Ashanti Holdings plc on 18 October 2005. On 17 July 2007, AngloGold Ashanti Holdings plc re-registered in the
Isle of Man as a company incorporated and existing under the Isle of Man Companies Act 2006 with company number 001177V. On 1 December 2017, AngloGold Ashanti Holdings plc registered under the UK Companies Act 2006 as an overseas company with
company number FC034822 having established a UK establishment in the United Kingdom with UK establishment number BR019915. As a result, AGAH transferred its tax residence from the Isle of Man to the United Kingdom. AGAH’s registered office is
located at Falcon Cliff, Palace Road, Douglas, Isle of Man, IM2 4LB and its principal executive offices (UK establishment office) are located at 4th Floor, Communications House, South Street, Staines-upon-Thames, TW18 4PR, United Kingdom
(Telephone +44 (0)203 968-3320).
|
6. |
RATIONALE FOR THE REORGANISATION AND PROSPECTS
|
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6.1. |
The purpose of the Reorganisation is to enhance the Group’s strategic position. While the business carried out by the Group following the implementation of the Reorganisation will remain the same, AGA
intends to change its primary listing from the JSE to the NYSE in connection with the Reorganisation. AGA believes 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.
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6.2. |
The AGA Board unanimously approved the proposal of the Reorganisation at a meeting held on 11 May 2023. In reaching its decision, the AGA Board consulted with AGA’s management and legal, financial and tax
advisers, and considered a variety of factors, including the following:
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6.2.1. |
Enhancing access to deeper pools of capital
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6.2.2. |
Improving the Group’s competitive position in line with its global peers
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6.2.3. |
Redomiciling to a leading, low-risk jurisdiction where the Group has a corporate presence
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6.2.4. |
Minimal disruption for existing stakeholders
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6.2.5. |
Continuity of shareholding structure
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6.2.6. |
Tax treatment
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6.2.7. |
Accounting treatment
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6.2.8. |
The AGA Board also considered potential negative consequences and risks that may arise from the Reorganisation, including the following factors:
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6.2.8.1. |
Significant transaction costs and expenses
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6.2.8.2. |
Risk of failure to timely implement the Reorganisation
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6.2.9. |
However, the AGA Board concluded unanimously that the expected benefits of the Reorganisation outweigh the potential negative consequences and risks.
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6.2.10. |
This discussion of the information and factors considered by the AGA Board in making its decision is not intended to be exhaustive but includes the material factors considered by the AGA Board. The AGA Board
did not consider it practicable to, nor did it attempt to, quantify, rank or otherwise assign relative weights to the specific factors it considered in reaching its decision, nor did it evaluate whether these factors were of equal importance.
In addition, each member of the AGA Board may have given different weight to the various factors. The determination of the AGA Board was made after consideration of all of the factors together.
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6.3. |
The only relevant remaining South African subsidiaries and associates of the Group are AGA’s interest in Rand Refinery Proprietary Limited (42.41%), AGRe Insurance Company Limited (100%) and Agent K
Proprietary Limited (16.95%), a company managing the silicosis settlement. In addition, AGA has certain “legacy” liabilities being the post-retirement medical obligation and the silicosis liability.
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6.4. |
AGA will be released from all guarantees regarding group debt and the Group (through AGAH and the CSA) will provide credit support to AGA post implementation and to the extent required.
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6.5. |
NewCo has not entered, and does not intend to enter, into any financing arrangements of the nature contemplated in regulation 106(6)(c) of the Companies Regulations.
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6.6. |
The foregoing discussion of the AGA Board’s consideration of the factors supporting the Reorganisation is forward- looking in nature. This information should be read in light of the factors discussed in the
section entitled “Forward-Looking Statements”.
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6.7. |
The following simplified diagrams illustrate:
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6.7.1. |
the current structure of the Group; and
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6.7.2. |
the structure of the Group following the implementation of the Reorganisation.
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6.8. |
All of the existing operating mines, the development projects and all existing exploration activities of the Group occur and will continue within the International Subsidiaries which are held by AGAH.
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7. |
TERMS AND CONDITIONS OF THE REORGANISATION
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7.1. |
Overview of the Reorganisation
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7.1.1. |
In anticipation of the Reorganisation, AGA has incorporated a new Subsidiary, NewCo, under the laws of England and Wales. The Reorganisation comprises three sequential, separate and inter-conditional
transaction steps consisting of:
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7.1.1.1. |
the Spin-Off;
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7.1.1.2. |
the AGAH Sale; and
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7.1.1.3. |
the Scheme,
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7.1.2. |
In the Spin-Off, AGA will effect a distribution in specie to the Scheme Participants, pursuant to which AGA will direct NewCo, its wholly-owned Subsidiary at that
time, to issue the Spin-Off Shares to the Scheme Participants on a pro rata basis, with the Spin-Off Subscription Consideration being paid by AGA.
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7.1.3. |
In the AGAH Sale, NewCo has made, pursuant to the Irrevocable Offer to Purchase, an irrevocable offer to AGA to purchase 100% (one hundred percent) of the shares in AGAH, which holds all of the operations
and assets of AGA and its Subsidiaries located outside of South Africa, in consideration for the issue by NewCo to AGA of the NewCo Notes. The AGAH Sale, if AGA accepts the Irrevocable Offer to Purchase following the Spin-Off Completion, will
constitute a disposal as contemplated in Section 112 and Section 115 of the Companies Act given that NewCo will not be a Subsidiary of AGA following the Spin-Off Completion. It is the present, non-binding intention of AGA to accept the
Irrevocable Offer to Purchase.
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7.1.4. |
In the Scheme, which is a scheme of arrangement pursuant to Section 114(1) read with Section 115 of the Companies Act between AGA and the AGA Shareholders, proposed by the AGA Board, NewCo will acquire all
of the issued AGA Ordinary Shares from the Scheme Participants in consideration for a right and obligation to receive, ipso facto and without any action on the part of such Scheme Participants, the
respective pro rata portions of the Scheme Consideration Shares.
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7.1.5. |
Following completion of the Reorganisation, AGA will declare as a distribution in specie to its shareholder, NewCo, a portion of the NewCo Notes, which will then be
cancelled. AGA will retain a number of NewCo Notes that have the face value equal to the aggregate amount of South African dividends withholding tax payable by AGA as a result of the aforementioned distribution of NewCo Notes to NewCo.
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7.1.6. |
The failure or inability to implement any one or more of the Spin-Off, the AGAH Sale and the Scheme will result in the failure of all of the steps comprising the Reorganisation and any steps already
completed shall be unwound.
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7.1.7. |
As a result of the Reorganisation, each Scheme Participant will own one NewCo Ordinary Share for each AGA Ordinary Share (including the AGA Ordinary Shares represented by AGA ADSs) held on the Reorganisation
Consideration Record Date, and the existing AGA Shareholders will hold the same percentage of NewCo Ordinary Shares as they held of AGA Ordinary Shares on the Reorganisation Consideration Record Date (subject to any adjustments to reflect the
exercise of Appraisal Rights as contemplated in paragraph 7.11 (Dissenting AGA Shareholders’ Appraisal Rights)).
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7.1.8. |
The completion of the Reorganisation is subject to the fulfilment or, alternatively, the waiver (to the extent permitted by applicable law, the Implementation Agreement and the Irrevocable Offer to Purchase
(as the case may be)) of the fulfilment, as the case may be, of certain Reorganisation Conditions, the details of which are set out in paragraph 7.2 below of this Circular.
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7.1.9. |
With effect from the Operative Date, Scheme Participants, shall be deemed to have:
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7.1.9.1. |
disposed of their AGA Ordinary Shares to NewCo, who will acquire ownership of such AGA Ordinary Shares, in exchange for the NewCo Ordinary Shares, subject to the provisions of the Implementation Agreement;
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7.1.9.2. |
authorised AGA and/or the Transfer Secretaries on their behalf to transfer the AGA Ordinary Shares to NewCo; and
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7.1.9.3. |
authorised the CS Depositary Nominee (as nominee for the CS Depositary) to receive the NewCo Ordinary Shares from NewCo on the terms and in the manner set out in the Implementation Agreement.
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7.2. |
Reorganisation Conditions
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7.2.1. |
The Implementation Agreement and the Irrevocable Offer to Purchase are subject to the fulfilment or, alternatively, the waiver of the fulfilment, as the case may be (to the extent permitted by applicable law
and the terms of the Implementation Agreement), of the Reorganisation Conditions by no later than the Longstop Date (being, 29 February 2024 (or such later date that AGA and NewCo may agree to in writing prior to such date)). The
Reorganisation Conditions, and their respective status as at the Last Practicable Date, are as follows:
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Reorganisation Conditions
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Status
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1.
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The Irrevocable Offer to Purchase has been signed by NewCo and delivered to AGA.
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Completed
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2.
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NewCo has procured that the NewCo Ordinary Shares are approved for listing on the NYSE, subject only to official notice of issuance.
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Outstanding on Last Practicable Date
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3.
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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 necessary) Regulation 90 and such report is distributed to all of the AGA Shareholders; and
● has expressed a fair and reasonable opinion as required in Regulation 110(1) and defined in
Regulation 81(h).
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Completed / completed by Last Practicable Date
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4.
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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 Companies Act, such
approval has been obtained.
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Outstanding on Last Practicable Date
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5.
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AGA has not, by the expiry of the 20 (twenty) business day period contemplated in Section 164(7)(a) or 164(b) of the Companies Act (as the case may be), received
valid demands as contemplated in Section 164(5) to (8) of the Companies Act (whether in relation to the AGAH Sale or the Scheme) which in aggregate represent more than 3.5% (three point five percent) of the voting rights attaching to the AGA
Ordinary Shares.
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Outstanding on Last Practicable Date
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6.
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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.
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Outstanding on Last Practicable Date
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7.
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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 Companies
Regulations to approve the Scheme, including in particular, the resolution contemplated in Section 115(2) of the Companies Act.
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Outstanding on Last Practicable Date
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8.
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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 rows 6 and 7 above.
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Outstanding on Last Practicable Date
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9.
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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 (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 inward listing of all NewCo Ordinary 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.
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Completed / completed by Last Practicable Date
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10.
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The SEC has made a declaration confirming the effectiveness of the 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.
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Outstanding on Last Practicable Date
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11.
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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.
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Outstanding on Last Practicable Date
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12.
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If and to the extent required, any other regulatory approvals, consents or rulings necessary to implement the Reorganisation have been obtained (excluding the
requirement that the Takeover Regulation Panel has issued a compliance certificate in respect of the AGAH Sale and/or the Scheme, in terms of Section 119(4)(b) of the Companies Act).
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Outstanding on Last Practicable Date
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13.
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AGA has not, prior to 10:00 a.m. (South Africa Standard Time) on 29 February 2024 (or such later date that AGA and NewCo may agree to in writing prior to such
date), exercised its right to cancel the Implementation Agreement as a result of the occurrence of a Material Adverse Effect.
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Outstanding on Last Practicable Date
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7.2.2. |
AGA and NewCo are required to use their reasonable commercial endeavours and to cooperate with each other in good faith to achieve the fulfilment of the Reorganisation Conditions on or before the Longstop
Date.
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7.2.3. |
If the Reorganisation Conditions are not fulfilled or fulfilment is not waived, as the case may be (where permitted), by the Longstop Date, the rights and obligations of AGA and NewCo under the
Implementation Agreement, as set out in the immediately operative provisions of the Implementation Agreement, will remain in full force and effect and the status quo ante will be restored as near as
may be possible and neither AGA nor NewCo will have any claim against any other, save for any claims arising from a breach of the obligations referred to in paragraph 7.2.2 above and/or any prior breach of any of the provisions of the
Implementation Agreement and/or the Irrevocable Offer to Purchase which became effective prior to the Fulfilment Date.
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7.2.4. |
If the requisite majority of AGA Shareholders do not approve each of the Scheme and the AGAH Sale at the Shareholders’ Meeting, or if the Reorganisation 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 AGA Shareholders 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 listings on the A2X and the GhSE. Additionally, AGA resolved to terminate its listing on the
ASX regardless of whether the Reorganisation is implemented. AGA received approval to voluntarily delist from the ASX (which occurred on or about 27 June 2023).
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7.2.5. |
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.
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7.3. |
SARB conditions
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7.3.1. |
neither AGA nor any other South African subsidiary of the Group will provide any guarantees in order to enable the Reorganisation;
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7.3.2. |
NewCo has undertaken to nominate 2 (two) representatives from South Africa for election by shareholders to the NewCo Board at each annual general meeting for 5 (five) years following completion of the
Reorganisation and to nominate at least 1 (one) representative from South Africa for election by shareholders to the NewCo Board at each annual general meeting thereafter;
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7.3.3. |
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 Reorganisation;
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7.3.4. |
dividends funded from South African sources and which are due to South African NewCo shareholders will be paid in South Africa; and
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7.3.5. |
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 authorised 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.
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7.4. |
Shareholders’ Meeting
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7.4.1. |
The Shareholders’ Meeting is scheduled for Friday, 18 August 2023, 2:00 p.m. (South Africa 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 Memorandum of Incorporation of AGA, the Companies Act and the JSE Listings Requirements.
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7.4.2. |
At the Shareholders’ Meeting, AGA Shareholders will be asked to consider and vote, among other things, on Special Resolution Number 1 to approve the AGAH Sale and Special Resolution Number 2 to approve the
Scheme. For Special Resolution Number 1 and Special Resolution Number 2 to be approved by the AGA Shareholders, each must be supported by at least 75% (seventy-five percent) of the voting rights exercised on such 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 such resolution. Votes to abstain and broker non-votes will not be counted as a
voting right exercised for the purpose of calculating the aforementioned percentage.
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7.4.3. |
Each Certificated AGA Shareholder and Dematerialised AGA Shareholder recorded in the AGA Register on the Shareholders’ Meeting Voting Record Date with “own name” registration may attend, participate in and
vote at the Shareholders’ Meeting in person or give a proxy to someone else (including the chairman of the Shareholders’ Meeting) to represent him or her at the Shareholders’ Meeting by completing the attached Form of Proxy (yellow).
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7.4.4. |
The Form of Proxy (yellow) must be completed in accordance with the instructions therein and returned to the registered office of the Transfer Secretaries, to be
received by them by no later than 48 (forty eight) hours before the Shareholders’ Meeting. The Form of Proxy (yellow) may, however, be handed to the chairman of the Shareholders’ Meeting at any time
before the commencement of the voting on the relevant matter at the Shareholders’ Meeting.
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7.4.5. |
Should a Dematerialised AGA Shareholder recorded in the AGA Register on the Ordinary Share Voting Record Date who does not have “own name” registration:
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7.4.5.1. |
wish to attend, speak and vote at the Shareholders’ Meeting, such Dematerialised AGA Shareholder must arrange with his or her CSDP or Broker to obtain the necessary letter of representation to authorise such
Dematerialised AGA Shareholder to attend, speak and vote at the Shareholders’ Meeting. Dematerialised AGA Shareholders recorded in the AGA Register on the Ordinary Share Voting Record Date who do not have “own name” registration will not be
permitted to attend, speak or vote at the Shareholders’ Meeting without the necessary letter of representation being issued to them by their CSDP or Broker; or
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7.4.5.2. |
be unable to or not wish to attend the Shareholders’ Meeting but wish to vote at the Shareholders’ Meeting, such Dematerialised AGA Shareholder should provide his or her CSDP or Broker with their voting
instructions in the manner and subject to the cut-off time stipulated in the custody agreement governing the relationship between such Dematerialised AGA Shareholder and their CSDP or Broker (such Dematerialised AGA Shareholder must not
complete the attached Form of Proxy (yellow)).
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7.4.6. |
AGA ADS Holders should not complete the Form of Proxy (yellow), and should instead receive AGA’s voting materials and form of notice to holders of AGA ADSs and a
voting instruction card from the ADS Depositary, which they should mark, sign and return to the ADS Depositary, to be received prior to 12:00 p.m. (Eastern Standard Time) on Tuesday, 8 August 2023. If they hold AGA ADSs in a securities
account through a broker or other securities intermediary, they should receive voting materials from their intermediary, which they should use to give voting instructions to their intermediary, to be received prior to the cut-off date and
time specified in those materials.
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7.4.7. |
The ADS Depositary will in turn attempt, as far as practicable, subject to South African law and the terms of the AGA Deposit Agreement, to vote the AGA Ordinary Shares represented by ADSs in accordance with
the voting instructions received from the AGA ADS Holders, on their behalf.
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7.4.8. |
If AGA ADS Holders wish to attend, speak and vote at the Shareholders’ Meeting, such AGA ADS Holders must:
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7.4.8.1. |
surrender their AGA ADSs to the ADS Depositary for cancellation;
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7.4.8.2. |
withdraw the AGA Ordinary Shares that their AGA ADSs represent from the custodian bank holding such AGA Ordinary Shares; and
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7.4.8.3. |
be recorded in the AGA Register as an AGA Shareholder prior to the Shareholders’ Meeting Voting Record Date. AGA ADS Holders should note that the ADS Depositary may charge a fee for the surrender of AGA ADSs
and the delivery of the AGA Ordinary Shares represented by such AGA ADSs. The amount of any such charge should be confirmed directly with the ADS Depositary. For more information on how to provide instructions in connection with the
Shareholders’ Meeting, AGA ADS Holders should refer to the Form F-4 and the notice and instructions provided by the ADS Depositary.
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7.4.9. |
AGA Shareholders 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 AGA Shareholders 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. AGA Shareholders are also entitled to provide voting instructions for only some of the resolutions to be voted on at the Shareholders’ Meeting.
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7.4.10. |
If you are a Foreign Shareholder, your attention is drawn to paragraph 7.6.12 (Foreign Shareholders) of this Circular for further details concerning the Reorganisation. The availability of, and the implications of, the Reorganisation to Foreign Shareholders may be affected by the laws of the relevant jurisdiction of a Foreign
Shareholder. It is the responsibility of Foreign Shareholders to satisfy themselves as to the full observance of the laws and regulatory requirements of the relevant jurisdiction in connection with the Reorganisation, including the
obtaining of any governmental, exchange control or other consents, the making of any filings which may be required, the compliance with other necessary formalities and the payment of any transfer or other taxes or other requisite payments
due in such jurisdiction. If you are in any doubt as to what action to take, please consult your CSDP, Broker, legal adviser, accountant, banker, financial adviser or other professional adviser immediately.
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7.5. |
Reorganisation Consideration
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7.5.1. |
The Reorganisation Consideration consists of the NewCo Ordinary Shares to be issued to the Scheme Participants in connection with the Spin-Off (being the Spin-Off Shares) and the Scheme (being the Scheme
Consideration Shares). As a result of the Reorganisation, each Scheme Participant will own one NewCo Ordinary Share for each AGA Ordinary Share (including AGA Ordinary Shares represented by AGA ADSs) held on the Reorganisation Consideration
Record Date, and the Scheme Participants will hold the same percentage of NewCo Ordinary Shares as they held of AGA Ordinary Shares on the Reorganisation Consideration Record Date (subject to any adjustments to reflect the exercise of
Appraisal Rights as contemplated in paragraph 7.11 (Dissenting AGA Shareholders’ Appraisal Rights)). In order to receive the Reorganisation Consideration, holders of AGA Ordinary Shares must be
recorded in the AGA Register on the Reorganisation Consideration Record Date and AGA ADS Holders and holders of AGA GhDSs must be recorded on the applicable depositary register at 5:00 p.m. on the Reorganisation Consideration Record Date in
the jurisdiction of the applicable depositary.
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7.5.2. |
Each Scheme Participant will receive the Reorganisation Consideration in Dematerialised form, on the terms and in the manner set out in this Circular (please see paragraph 7.6 (Settlement of the Reorganisation Consideration)). NewCo will have sufficient authority to allot and issue to each Scheme Participant, as many NewCo Ordinary Shares as may be required to fully satisfy the Reorganisation
Consideration. AGA Shareholders are reminded that the settlement of the Reorganisation Consideration is subject to the Exchange Control Regulations. The salient Exchange Control Regulations are referred to in paragraph 9 below of this
Circular and set out more fully in Annexure I, attached to this Circular.
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7.5.3. |
AGA has resolved to terminate the AGA ADS Program upon completion of the Reorganisation. AGA expects to instruct the ADS Depositary to distribute a notice to the holders of all outstanding AGA ADSs in
accordance with the AGA Deposit Agreement for the AGA ADS Program, at least 30 (thirty) days prior to the Operative Date to amend and terminate the AGA Deposit Agreement on the Operative Date. Upon completion of the Reorganisation and the
termination of the AGA Deposit Agreement, the ADS Depositary will be discharged from all obligations under the AGA Deposit Agreement and the U.S. Exchange Agent will manage the exchange of AGA ADSs for NewCo Ordinary Shares.
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7.5.4. |
The Independent Board believes that the Reorganisation Consideration reflects fair and reasonable value for the AGA Ordinary Shares. In this regard, AGA Shareholders are referred to paragraph 18 below of
this Circular and the Independent Expert Report attached as Annexure A to this Circular.
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7.6. |
Settlement of the Reorganisation Consideration
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7.6.1. |
If the Reorganisation is implemented, AGA or its agents, will administer and/or transfer to the Scheme Participants, the Reorganisation Consideration.
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7.6.2. |
With effect from the Operative Date and without limiting the authorisation granted by the Scheme Participants elsewhere in this Circular, each and every officer/director of the Transfer Secretaries and/ or
AGA, or any other person nominated by AGA, will irrevocably be deemed to be the attorney and agent in rem suam of the Scheme Participants to implement the transfer of their AGA Ordinary Shares in
terms of this paragraph 7.6 and to sign any instrument of transfer in respect thereof or any other documents and to do any other acts required or desirable to implement the Reorganisation, including, but not limited to, the delisting of the
AGA Ordinary Shares and to take all steps necessary to procure electronic delivery of the Reorganisation Consideration that has been Dematerialised.
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7.6.3. |
The Reorganisation Consideration will be issued to Scheme Participants in accordance with the terms of the Reorganisation and on the terms and in the manner set out in this Circular, and without regard to
any lien, right to set-off, counterclaim or other analogous right to which AGA or NewCo may otherwise be, or claim to be, entitled.
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7.6.4. |
Scheme Participants who are Certificated AGA Shareholders, shall against the surrender by them of the Documents of Title in respect of their AGA Ordinary Shares and the specification of a valid account with
a CSDP or Broker into which the Reorganisation Consideration is to be transferred, receive the Reorganisation Consideration into the valid CSDP account which was identified on each Certificated AGA Shareholder’s Form of Surrender and Transfer
(blue).
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7.6.5. |
If you are required to complete and return the Form of Surrender and Transfer (blue) and you fail to do so, or in the Form of Surrender and Transfer (blue) 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
transferred in Dematerialised form to an account in the name of Computershare Nominees, who will, subject to what is stated below, hold such NewCo Ordinary Shares as the registered holder thereof for and on your behalf, and you will become an
Issuer Nominee Dematerialised NewCo Shareholder. Issuer Nominee Dematerialised NewCo Shareholders will be sent instructions by the Computershare Nominees explaining the procedure for surrendering their share certificates and obtaining full
access to their NewCo Ordinary Shares following completion of the Reorganisation.
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7.6.6. |
The beneficial ownership of such NewCo Ordinary Shares will remain with you, as the relevant Issuer Nominee Dematerialised NewCo Shareholder, subject to what is stated below, and will be recorded on a
sub-register (also commonly known as the nominee sub-register) maintained by Computershare. Issuer Nominee Dematerialised NewCo Shareholders will receive a statement from Computershare, which will confirm the number of NewCo Ordinary Shares
held by such Issuer Nominee Dematerialised NewCo Shareholder. Issuer Nominee Dematerialised NewCo Shareholders will have the option to move their NewCo Ordinary Shares to the account of their own CSDP or Broker or to materialise and
certificate their NewCo Ordinary Shares, at any stage, subject to what is stated below (any costs (including taxes) will be for the account of such Issuer Nominee Dematerialised NewCo Shareholders). See Annexure
H for details of the UK stamp duty and stamp duty reserve tax consequences of holding NewCo Ordinary Shares in materialised form. Issuer Nominee Dematerialised NewCo Shareholders will be bound by the provisions of Strate’s rules and
directives in respect of their NewCo Ordinary Shares held in the nominee sub-register, and will be deemed to have concluded a custody agreement with Computershare, which established a business relationship between Computershare and each
Issuer Nominee Dematerialised NewCo Shareholder. A copy of the aforesaid custody agreement, which will be deemed to have been concluded in such circumstances, is available on the Computershare’s website at https://www.computershare.com/za
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7.6.7. |
Strate will deliver to each Scheme Participant who is a Dematerialised AGA Shareholder book-entry interests to the same CSDP account as held the AGA Ordinary Shares.
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7.6.8. |
AGA has resolved to terminate the AGA ADS Program upon completion of the Reorganisation. AGA expects to instruct the ADS Depositary to mail a notice to the holders of all outstanding AGA ADSs in accordance
with the AGA Deposit Agreement for the AGA ADS Program, at least 30 (thirty) days prior to the Operative Date, to amend and terminate the AGA Deposit Agreement on the Operative Date. Upon completion of the Reorganisation and the termination
of the AGA Deposit Agreement, the ADS Depositary will be discharged from all obligations under the AGA Deposit Agreement and the U.S. Exchange Agent will manage the exchange of AGA ADSs for NewCo Ordinary Shares.
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7.6.9. |
NewCo Ordinary Shares will have a primary listing on the NYSE and, therefore, will not establish an American depositary share programme for the NewCo Ordinary Shares.
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7.6.10. |
Following completion of the Reorganisation (a) holders of AGA ADSs via a DTC participant account will automatically receive from DTC NewCo Ordinary Share book-entry interests in the same DTC participant
account as held the AGA ADSs and (b) holders of AGA ADSs in registered uncertificated or registered certificated form will receive from DTC NewCo Ordinary Share book-entry interests in the DTC participant account of the U.S. Exchange Agent.
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7.6.11. |
Registered uncertificated or registered certificated AGA ADS Holders will be sent instructions after completion of the Reorganisation by the U.S. Exchange Agent explaining the procedure for (a) surrendering
their AGA ADSs and (b) obtaining access to their NewCo Ordinary Shares.
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7.6.12. |
The availability and impact of the Reorganisation on Foreign Shareholders may be affected by the laws of the relevant jurisdiction of the Foreign Shareholders. It is the responsibility of Foreign
Shareholders to satisfy themselves as to the full observance of the laws and regulatory requirements of the relevant jurisdiction concerning the receipt of the Reorganisation Consideration, consents, the making of any filings which may be
required, the compliance with other necessary formalities and the payment of any transfer or other taxes or other requisite payments due in such jurisdiction. AGA Shareholders who are in any doubt regarding such matters should consult their
CSDP, Broker, legal adviser, accountant, banker, financial adviser or other professional adviser immediately.
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7.7. |
AGA Share Plans
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7.7.1. |
AGA sponsors one active equity plan, the Deferred Share Plan (the “DSP”), and two legacy equity plans, which have currently outstanding awards, the Long-Term Incentive
Plan (the “LTIP”) and the Bonus Share Plan (the “BSP”). Holders of vested awards, which includes all awards under the LTIP and the BSP, may exercise such awards
prior to the implementation of the Reorganisation and receive AGA Ordinary Shares pursuant to the terms of such awards that will participate in the Reorganisation on the same basis as other AGA Ordinary Shares generally.
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7.7.2. |
In the case of unvested awards under the DSP, NewCo will adopt an equity award plan in connection with the Reorganisation (the “NewCo Share Plan”). The terms of the
NewCo Share Plan will be substantially similar to those of AGA’s existing DSP, subject to certain modifications to ensure compliance with relevant English and U.S. legislation and governance practices. These modifications include providing
for additional flexibility for the NewCo Board to determine the proper treatment of awards in connection with a change in control of NewCo and permit NewCo to retain shares that would otherwise be issued in satisfaction of an award in order
to satisfy applicable tax liabilities, consistent with U.S. market practice. The NewCo Share Plan will issue awards in replacement of such unvested DSP awards as well as any vested awards under the DSP, the LTIP or the BSP that are not
exercised prior to the implementation of the Reorganisation. Such replacement awards will have substantially the same value and the same terms and conditions as the awards they replace; however, they will be exercisable over NewCo Ordinary
Shares in lieu of AGA Ordinary Shares.
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7.8. |
Effect of the Reorganisation
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7.8.1. |
NewCo will own all of AGA’s current assets with:
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7.8.1.1. |
the same underlying shareholders as AGA immediately prior to implementation of the Reorganisation (subject to any adjustments to reflect the exercise of Appraisal Rights (see paragraph 7.11 (Dissenting AGA Shareholders’ Appraisal Rights)));
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7.8.1.2. |
the business carried out by NewCo and its Subsidiaries immediately following the Reorganisation being the same as the business carried out by AGA and its subsidiaries immediately prior to the implementation
of the Reorganisation;
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7.8.1.3. |
a primary listing on the NYSE; and
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7.8.1.4. |
secondary inward listings on the JSE and A2X and a secondary listing on the GhSE;
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7.8.2. |
NewCo will be the listed parent company of the Group and each of AGA and AGAH will be a direct, wholly owned Subsidiary of NewCo;
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7.8.3. |
the AGA Ordinary Shares will be delisted from the JSE in terms of paragraph 1.17(b) of the JSE Listings Requirements and AGA will procure the delisting of the AGA Ordinary Shares from the A2X and the
delisting of AGA Ordinary Shares and AGA GhDSs from the GhSE;
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7.8.4. |
the AGA ADSs will also be delisted from the NYSE and the AGA ADS Program will be terminated and NewCo will not establish an American depositary share programme for the NewCo Ordinary Shares;
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7.8.5. |
no changes to the withholding tax rates for South African shareholders and no South African withholding tax on dividends for other shareholders; and
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7.8.6. |
South African shareholders being able to hold NewCo Ordinary Shares on the South African register of NewCo without using their foreign investment allowance and continue to trade their AngloGold Ashanti plc
Shares on the South African capital markets.
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7.9. |
Amendments to the Reorganisation
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7.9.1. |
before or at the Shareholders’ Meeting, make any amendment, variation or modification of the Reorganisation. AGA Shareholders will be notified of any such variation or modification either at the
Shareholders’ Meeting or via an updated announcement released on SENS (and filed or furnished with the SEC); or
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7.9.2. |
after the Shareholders’ Meeting, make any amendment, variation or modification of the Reorganisation, provided that no amendment, variation or modification made after the Shareholders’ Meeting may have the
effect of diminishing the rights which will accrue to all AGA Shareholders in terms of the Reorganisation.
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7.10. |
Documents of Title after Operative Date
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7.11. |
Dissenting AGA Shareholders’ Appraisal Rights
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7.11.1. |
AGA Shareholders have certain dissenting shareholder Appraisal Rights in connection with the AGAH Sale and the Scheme, in terms of Section 164 of the Companies Act. A complete extract of Section 164 of the
Companies Act is attached as Annexure G to this Circular.
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7.11.2. |
Holders of AGA ADSs may not exercise dissenters’ rights. The ADS Depositary will not exercise those rights on behalf of the holders of AGA ADSs, even if requested to do so. A holder of AGA ADSs that wishes
to exercise dissenters’ rights must, in a sufficiently advanced time, surrender its AGA ADSs to the ADS Depositary, pay the ADS Depositary’s fee for surrender of the AGA ADSs and become a registered holder of AGA Ordinary Shares prior to the
Ordinary Share Voting Record Date.
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7.11.3. |
This paragraph 7.11 contains only a summary of the provisions of Section 164 of the Companies Act. A complete extract of Section 164 of the Companies Act is attached as Annexure
G to this Circular.
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7.11.4. |
Section 164 of the Companies Act provides that:
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7.11.4.1. |
at any time before Special Resolution Number 1 and/or Special Resolution Number 2, as the case may be, is to be voted on, an AGA Shareholder may give AGA a written notice of objection (the “Notice of Objection”) with respect to the Special Resolution Number 1 and/or Special Resolution Number 2;
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7.11.4.2. |
within 10 (ten) Business Days after AGA has adopted Special Resolution Number 1 and/or Special Resolution Number 2, as the case may be, AGA must send a notice that Special Resolution Number 1 and Special
Resolution Number 2 have been adopted to each AGA Shareholder who (a) gave AGA a Notice of Objection, (b) has not withdrawn the Notice of Objection and (c) has voted against Special Resolution Number 1 and/or Special Resolution Number 2, as
the case may be;
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7.11.4.3. |
an AGA Shareholder may demand in writing within 20 (twenty) Business Days after receipt of the notice referred to above or, if the AGA Shareholder does not receive such a notice, within 20 (twenty) Business
Days after learning that Special Resolution Number 1 and/or Special Resolution Number 2 has been adopted, that AGA pay the AGA Shareholder the fair value for all the AGA Ordinary Shares held by that person if:
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7.11.4.3.1. |
the AGA Shareholder sent AGA a Notice of Objection;
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7.11.4.3.2. |
AGA has adopted Special Resolution Number 1 and Special Resolution Number 2; and
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7.11.4.3.3. |
the AGA Shareholder voted against Special Resolution Number 1 and/or Special Resolution Number 2, as applicable, and has complied with all of the procedural requirements of Section 164 of the Companies Act.
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7.11.4.4. |
The demand sent by the AGA Shareholder to AGA, as provided above, must set out:
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7.11.4.4.1. |
the AGA Shareholder’s name and address;
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7.11.4.4.2. |
the number of AGA Ordinary Shares in respect of which the AGA Shareholder seeks payment; and
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7.11.4.4.3. |
a demand for payment of the fair value of those AGA Ordinary Shares.
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7.11.4.5. |
The fair value of the AGA Ordinary Shares is determined as at the date on which, and the time immediately before, AGA adopted Special Resolution Number 1 and Special Resolution Number 2 that gave rise to the
AGA Shareholder’s rights under this section. The fair value is determined by AGA or a court, as applicable, and could be more than, the same as or less than the market price of the AGA Ordinary Shares.
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7.11.5. |
Any AGA Shareholder that is in doubt as to what action to take must consult their legal or professional adviser in this regard.
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7.11.6. |
Before exercising their Appraisal Rights, AGA Shareholders should have regard to the fact that:
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7.11.6.1. |
the report of the Independent Expert attached as Annexure A to this Circular concludes that the terms of the Reorganisation, including the Consideration, are fair
and reasonable to AGA Shareholders; and
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7.11.6.2. |
the court is empowered to grant a costs order in favour of, or against, a Dissenting AGA Shareholder, as may be applicable.
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7.11.7. |
An AGA Shareholder who has sent a demand in terms of Sections 164 of the Companies Act has no further rights in respect of their AGA Ordinary Shares, other than to be paid their fair value, unless:
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7.11.7.1. |
the AGA Shareholder withdraws that demand before AGA makes an offer for their AGA Ordinary Shares in terms of Section 164(11) of the Companies Act or allows any offer made by AGA to lapse;
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7.11.7.2. |
AGA fails to make an offer in accordance with Section 164(11) of the Companies Act and the AGA Shareholder withdraws the demand; or
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7.11.7.3. |
AGA, by a subsequent special resolution approved by the AGA Shareholders, revokes Special Resolution Number 1 and Special Resolution Number 2.
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7.11.8. |
It should be noted that one of the Reorganisation Conditions that must either be fulfilled or waived, is that no valid demands in terms of Section 164(5) to (8) of the Companies Act (whether in relation to
the AGAH Sale or the Scheme) are received from AGA Shareholders which in aggregate represent more than 3.5% (three and a half percent) of the voting rights attaching to the AGA Ordinary Shares.
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7.11.9. |
In the event that any of the circumstances contemplated in Sections 164(9)(a) or 164(9)(b) of the Companies Act occurs, then a Dissenting AGA Shareholder shall:
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7.11.9.1. |
if such event takes place on or before the Reorganisation Consideration Record Date in respect of the Reorganisation, be deemed to be a Scheme Participant and be subject to the provisions of the
Reorganisation; and
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7.11.9.2. |
if such event takes place after the Reorganisation Consideration Record Date in respect of the Reorganisation, be deemed to have been a Scheme Participant as at the Operative Date, provided that settlement
of the Reorganisation Consideration and transfer of that Dissenting AGA Shareholder’s Scheme Shares to NewCo shall take place after the Operative Date, and
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7.11.10. |
An AGA Shareholder who has made a valid demand in terms of Section 164, may apply to court to determine the fair value of the AGA Ordinary Shares: (a) if AGA fails to make an offer or (b) if AGA made an
offer that such AGA Shareholder considers to be inadequate (provided that the offer has not lapsed).
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7.12. |
Implementation Agreement
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7.12.1. |
Pursuant to the Implementation Agreement, AGA and NewCo have agreed, among other things, that (in addition to any other description of the provisions of the Implementation Agreement contained elsewhere in
this Circular):
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7.12.1.1. |
the Reorganisation is subject to the Reorganisation Conditions, as set out in more detail in paragraph 7.2 above of this Circular;
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7.12.1.2. |
prior to the implementation of the Reorganisation, AGA and NewCo have taken the following actions in connection with NewCo’s re-registration as a public limited company:
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7.12.1.2.1. |
AGA will subscribe for, and NewCo 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); and
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7.12.1.2.2. |
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).
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7.12.1.3. |
with respect to the Spin-Off:
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7.12.1.3.1. |
AGA will pay USD 46,000 (forty six thousand Dollars) to NewCo;
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7.12.1.3.2. |
AGA will effect a distribution in specie to the Scheme Participants, and will simultaneously direct NewCo to issue the Spin-Off Shares to the Scheme Participants
(via a nominee);
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7.12.1.3.3. |
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 cancelled under English law;
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7.12.1.3.4.
|
AGA will transfer, for nil consideration, the Founder Share to NewCo; and
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7.12.1.3.5. |
NewCo will cancel the Founder Share, following which AGA will no longer hold any shares in shares in NewCo, thereby resulting in AGA ceasing to have any shareholding in NewCo (the “Spin-Off Completion”);
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7.12.1.4. |
subject to completion of the Spin-Off, it is the present, non-binding intention of AGA to accept the Irrevocable Offer to Purchase, in terms of which NewCo will purchase from AGA 100% (one hundred percent)
of the AGAH Sale Shares in consideration for the issue by NewCo to AGA of NewCo Notes, in an aggregate principal amount equal to the fair market value of the AGAH Sale Shares. The terms of the AGAH Sale are governed by the Irrevocable Offer
to Purchase; and
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7.12.1.5. |
with respect to the Scheme:
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7.12.1.5.1. |
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
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7.12.1.5.2. |
NewCo will procure that: (a) 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.
(as nominee for DTC) to be held on DTC’s customary terms for, ultimately, the benefit of the Scheme Participants; and (b) the remainder of the Spin-Off Shares and Scheme Consideration Shares be held in the name of affiliates of NewCo (via a
nominee) outside of DTC.
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7.12.2. |
Following the completion of the Reorganisation:
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7.12.2.1. |
the Scheme Participants will beneficially hold the entire issued share capital of NewCo;
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7.12.2.2. |
NewCo, in turn, will hold the entire issued share capital of each of AGAH and AGA; and
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7.12.2.3. |
the NewCo Notes issued by NewCo will be held by AGA.
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7.12.3. |
AGA and NewCo have agreed that the failure or inability to implement any one or more of the Spin-Off, the AGAH Sale and the Scheme will result in the failure of all of the steps comprising the
Reorganisation. In this regard, if one or both of the AGAH Sale or Scheme are not ultimately implemented, while the Spin-Off or AGAH Sale are implemented (as applicable), the Spin-Off and, as applicable, AGAH Sale will be unwound.
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7.12.4. |
The Implementation Agreement further provides that AGA and NewCo will undertake the following covenants, among others:
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|
7.12.4.1. |
AGA will comply with the provisions of the Companies Act and the Companies Regulations that are applicable to it in terms of the Scheme, including:
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7.12.4.1.1. |
preparing and circulating the Circular to the AGA Shareholders;
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7.12.4.1.2. |
having the Independent Board communicate its opinion to the AGA Shareholders, in the Circular, which opinion will comply with Regulation 110 of the Companies Act;
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7.12.4.1.3. |
convening the Shareholders’ Meeting;
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7.12.4.1.4. |
procuring the transmittal of the 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; and
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7.12.4.1.5. |
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 validly
reinstated in terms of Section 164(10) of the 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 Companies Act, whereafter such AGA
Ordinary Shares will be cancelled by AGA and restored to the authorised, but unissued, share capital of AGA;
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7.12.4.2. |
with respect to the distribution of the NewCo Notes (the “NewCo Notes Distribution”):
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|
7.12.4.2.1. |
following the Reorganisation, 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 South African dividends
withholding 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
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7.12.4.2.2. |
in order to ensure that when AGA makes the abovementioned distribution it is solvent and liquid for purposes of Section 46 of the Companies Act, it intends, before declaring the distribution, to enter into
the Credit Support Agreement with AGAH;
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7.12.4.3. |
with respect to the conversion of AGA following the implementation of the Reorganisation:
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7.12.4.3.1. |
AGA will amend the Memorandum of Incorporation of AGA 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
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7.12.4.3.2. |
upon becoming a private company, AGA will make an election on IRS Form 8832 to be treated as disregarded from NewCo for U.S. federal tax purposes; and
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7.12.4.4. |
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 Program and the delisting of the AGA ADSs from the NYSE.
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7.12.5. |
At any time prior to 10:00 a.m. (South Africa Standard Time) on 29 February 2024 (or such other date as is specified in the Implementation Agreement or is agreed between AGA and NewCo, AGA may cancel the
Implementation Agreement by means of a written notice to NewCo if a Material Adverse Effect has occurred.
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7.12.6. |
Each of AGA and NewCo has undertaken and warranted to the other that:
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|
7.12.6.1. |
it is and will throughout the performance of its obligations under the Implementation Agreement remain validly incorporated in accordance with all applicable laws;
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7.12.6.2. |
it has and will continue to have the necessary legal capacity to enter into and perform each of its obligations under the Implementation Agreement;
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7.12.6.3. |
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
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7.12.6.4. |
it is and will throughout the performance of its obligations under the Implementation Agreement remain solvent and liquid.
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7.13. |
The Irrevocable Offer to Purchase
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|
7.13.1. |
Pursuant to the Irrevocable Offer to Purchase (in addition to any other description of the provisions of the Irrevocable Offer to Purchase contained elsewhere in this Circular):
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|
7.13.1.1. |
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;
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7.13.1.2. |
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 (a) after the Spin-Off has been
implemented as contemplated in the Implementation Agreement; but (b) before the Implementation Deadline;
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7.13.1.3. |
upon AGA countersigning the Irrevocable Offer to Purchase, the AGAH Sale Shares will be sold by AGA to NewCo in consideration of 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;
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7.13.1.4. |
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;
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7.13.1.5. |
AGA warrants to NewCo that, as of the Sale Effective Date:
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|
7.13.1.5.1. |
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
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7.13.1.5.2. |
AGA is entitled to dispose of the AGAH Sale Shares to NewCo; and
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|
7.13.1.6. |
each of AGA and NewCo undertakes and warrants to the other that, as of the Sale Effective Date:
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|
7.13.1.6.1.
|
it is and will remain validly incorporated in accordance with all applicable laws;
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|
7.13.1.6.2.
|
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;
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7.13.1.6.3.
|
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
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7.13.1.6.4.
|
it is and will throughout the performance of its obligations under the Irrevocable Offer to Purchase remain solvent and liquid.
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7.14. |
Court Approval
|
|
7.14.1. |
AGA Shareholders are advised that, in terms of Section 115(3) of the Companies Act, AGA may in certain circumstances not proceed to implement:
|
|
7.14.1.1. |
Special Resolution Number 1 approving the AGAH Sale; and
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|
7.14.1.2. |
Special Resolution Number 2 approving the Scheme, despite it being adopted at the Shareholders’ Meeting,
|
|
7.14.2. |
An extract from Section 115 of the Companies Act is attached as Annexure F to this Circular.
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|
7.15. |
The Capital Reduction
|
|
7.15.1. |
Under English company law, sufficient distributable reserves are required for a company to make distributions (including dividends). Upon completion of the Reorganisation, NewCo will have a relatively large
“merger reserve’” (representing the difference between the fair value of the AGA Ordinary Shares at the date they are acquired by NewCo and the aggregate nominal value of the NewCo Ordinary Shares issued) which is not a statutory reserve nor
a distributable reserve as it is not represented by qualifying consideration. To convert (some or all of) its merger reserve into distributable reserves, NewCo will issue bonus shares (paid up out of a capitalisation of the merger reserve)
and, shortly thereafter, cancel such bonus shares, resulting in their nominal value being credited to NewCo’s distributable reserve account (such process, the “Capital Reduction”).
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|
7.15.2. |
The necessary shareholder resolutions in respect of the Capital Reduction will be passed prior to the Operative Date by AGA, the current sole shareholder of NewCo. The application to the Companies Court of
England and Wales required to sanction the Capital Reduction will be made after implementation of the Reorganisation.
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|
7.16. |
Tax Consequences of the Reorganisation and the NewCo Notes Distribution for the Group
|
|
7.16.1. |
South African Securities Transfer Tax
|
|
7.16.2. |
South African Dividend Withholding Tax
|
|
7.16.2.1. |
The NewCo Notes Distribution will, to the extent that the NewCo Notes Distribution does not constitute a return of Contributed Tax Capital (as defined in the Income Tax Act), be regarded as a dividend in specie for South African dividend withholding tax purposes and will be subject to dividend withholding tax in the hands of AGA at the rate of 20% (twenty percent) of the market value of the NewCo
Notes. The rate of dividend withholding tax may be reduced to 5% (five percent) under the terms of Article 10 of the UK/South Africa Double Taxation Convention signed by South Africa and the United Kingdom on July 4, 2002 (the “Double Tax Convention”), provided the specific requirements of Article 10 of the Double Tax Convention are met and the administrative requirements of Section 64FA(2) of the Income Tax Act have been complied
with by NewCo before the dividend is paid. AGA expects that the NewCo Notes Distribution will be subject to a dividend withholding tax in the hands of AGA at the rate of 5% (five percent). In the event that NewCo fails to qualify as a tax
resident of the United Kingdom under the Double Tax Convention or fails to comply with the administrative requirements of Section 64FA(2) of the Income Tax Act, the NewCo Notes Distribution will be subject to a dividend withholding tax in the
hands of AGA at the rate of 20% (twenty percent).
|
|
7.16.2.2. |
To the extent that the NewCo Notes Distribution constitutes a return of Contributed Tax Capital, AGA will not be liable for any dividend withholding tax on the NewCo Notes Distribution.
|
|
7.16.3. |
Australian Landholder Duty
|
8. |
ACCOUNTING MATTERS AND TREATMENT
|
|
8.1. |
NewCo was incorporated on 10 February 2023 and prior to the implementation of the Reorganisation, NewCo will own no material assets (other than nominal capital) and will not operate any business. For this
reason, financial statements of NewCo are not available.
|
|
8.2. |
AGA has an accounting year end of 31 December. AGA prepares its consolidated financial statements in conformity with IFRS, as issued by the IASB, the South African Institute of Chartered Accountants (SAICA)
Financial Reporting Guides, as issued by the Accounting Practices Committee and Financial Pronouncements as issued by Financial Reporting Standards Council and the requirements of the Companies Act of South Africa. In evaluating the
requirements of IFRS 3 Business Combinations, no party to the Reorganisation can be identified as an accounting acquirer. Upon the completion of the Reorganisation, the existing AGA Shareholders are expected to beneficially own the same
percentage of NewCo Ordinary Shares as they held in AGA Ordinary Shares immediately prior to the implementation of the Reorganisation (subject to adjustments to reflect any exercise of Appraisal Rights as described under the “Dissenting AGA Shareholders’ Appraisal Rights” section of this Circular). Further, the business carried out by NewCo and its Subsidiaries immediately following the Reorganisation will be the same as the
business carried out by AGA and its Subsidiaries immediately prior to the implementation of the Reorganisation. The existing AGA Shareholders will have the same commercial and economic interest in the Group as they had prior to the
implementation of the Reorganisation and no additional new AGA Ordinary Shares will be issued as part of the Reorganisation. Accordingly, the Reorganisation does not result in a Business Combination as
defined under IFRS 3 and, as such, the consolidated financial statements of the successor (NewCo) will reflect that the Reorganisation is, save for the cost of implementation of the Reorganisation and the NewCo Notes Distribution, in
substance a continuation of the Group (the Reorganisation does not result in any change in ownership, economic substance or carrying values for 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.
|
9. |
EXCHANGE CONTROL REGULATIONS
|
|
9.1. |
AGA Shareholders who are resident outside the Common Monetary Area will need to comply with the Exchange Control Regulations set out in Annexure I attached to this
Circular.
|
|
9.2. |
If AGA Shareholders are in any doubt as to what action to take, they should consult their professional advisers.
|
10. |
TAX IMPLICATIONS FOR AGA SHAREHOLDERS
|
|
10.1. |
The tax implications of the Reorganisation on AGA Shareholders will depend on the individual circumstances of each AGA Shareholder. AGA Shareholders should seek advice from appropriate professional advisers
if they are in any doubt whatsoever about their tax position.
|
|
10.2. |
AGA Shareholders are referred to Annexure H attached to this Circular for a general summary of the South African, U.S. and U.K. tax implications.
|
11. |
APPLICABLE LAWS
|
12. |
SHARE CAPITAL OF AGA
|
|
12.1. |
The authorised and issued share capital of AGA at the Last Practicable Date is set out below:
|
Authorised and Issued Share Capital
|
Authorised Share Capital
|
600,000,000 ordinary par value shares of ZAR 0.25 (25 cents) each
|
Issued Share Capital
|
419,612,543 ordinary par value shares of ZAR 0.25 (25 cents) each
|
|
12.2. |
All AGA Ordinary Shares have the same voting rights.
|
13. |
MAJOR AGA SHAREHOLDERS
|
|
13.1. |
The table below presents, to the knowledge of AGA, each AGA Shareholder holding, directly or indirectly, a beneficial interest in excess of 5% (five percent) of the issued AGA Ordinary Shares as at Last
Practicable Date:
|
AGA Shareholder
|
Number of AGA Ordinary Shares
|
% of Issued Share Capital
|
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
|
|
13.2. |
At the Last Practicable Date, a total of 114,783,216 (one hundred and fourteen million seven hundred and eighty three thousand two hundred and sixteen) AGA Ordinary Shares (or 27.35% (twenty seven point
three five percent)) of ordinary issued share capital of AGA) were held by the ADS Depositary. Each AGA ADS represents one AGA Ordinary Share. At the Last Practicable Date, the number of persons who were registered holders of AGA ADSs was
reported at 1,888 (one thousand eight hundred and eighty eight). AGA is aware that many AGA ADSs are held of record by brokers and other nominees, and accordingly the above numbers are not necessarily representative of the actual number of
persons who are beneficial holders of AGA ADSs or the number of AGA ADSs beneficially held by these persons. All AGA Shareholders have the same voting rights of one vote per AGA Ordinary Share.
|
|
13.3. |
As at 26 May 2023, there were 21,608 (twenty one thousand six hundred and eight) holders on record of AGA Ordinary Shares. Of these holders 476 (four hundred and seventy six) had registered addresses in the
United States and held a total of 66,434,804 (sixty six million four hundred and thirty four thousand eight hundred and four) AGA Ordinary Shares, or 15.83 (fifteen point eight three percent) of the total issued AGA Ordinary Shares. In
addition, certain accounts on record with registered addresses outside the United States, including the custodians for the ADS Depositary, hold AGA Ordinary Shares, in whole or in part, beneficially for residents of the United States. As at
the Last Practicable Date, it is estimated that 34.95 (thirty four point nine five percent) of AGA Ordinary Shares were beneficially owned by residents of the United States.
|
|
13.4. |
Insofar as is known to AGA, there was no person who, directly or indirectly, jointly or severally, exercised or could exercise control over AGA, nor is AGA aware of any arrangements which might result in a
change of control of AGA except in relation to the Reorganisation.
|
|
13.5. |
As of the Last Practicable Date, AGA is the sole shareholder of NewCo. Alberto Calderon periodically receives, and has in the past received, awards under certain AGA equity plans, as a result of which he
held a balance of 233,253 (two hundred and thirty three thousand two hundred and fifty three) AGA share awards and 26,370 (twenty six thousand three hundred and seventy) AGA Ordinary Shares as at the Last Practicable Date. Robert Hayes
periodically receives, and has in the past received, awards under certain AGA equity plans, as a result of which he held a balance of 45,235 (forty five thousand two hundred and thirty five) AGA share awards and no AGA Ordinary Shares as at
the Last Practicable Date.
|
14. |
FINANCIAL INFORMATION
|
|
14.1. |
PwC was appointed by the AGA Board as the Group’s independent external auditor for the financial year ending 31 December 2023. EY resigned as independent external auditor of the Group on conclusion of its
responsibilities relating to the 31 December 2022 financial year audit.
|
|
14.2. |
The consolidated financial statements (the Annual Financial Statements) of the Group which comprise of the consolidated statements of financial position as at 31 December 2022, and the consolidated income
statements, the consolidated statements of comprehensive income, the consolidated statements of changes in equity and the consolidated statement of cash flows for the year then ended, and notes to the consolidated financial statements,
including a summary of significant accounting policies, have been audited by EY, an independent registered auditor, as set forth in their report thereon, included therein.
|
|
14.3. |
The summary of the consolidated financial information of AGA for the periods ended 31 December 2022, 31 December 2021 and 31 December 2020 contained in Annexure B attached
to this Circular. The summary of the consolidated financial information of AGA has not been reviewed nor reported on by the Independent Reporting Accountant or Independent External Auditor.
|
|
14.4. |
There have been no material changes in the accounting policies of AGA subsequent to its latest published financial results for the 12 (twelve) months ended 31 December 2022.
|
|
14.5. |
The pro forma financial information relating to the Reorganisation for AGA and NewCo is detailed in Annexure C attached to
this Circular and the Independent Reporting Accountant’s assurance report in respect thereof is contained in Annexure D attached to this Circular.
|
15. |
INFORMATION RELATING TO AGA DIRECTORS
|
|
15.1. |
The names, occupations and relevant business experience of the AGA Directors are set out in Annexure E attached to this Circular.
|
|
15.2. |
None of the directors of the Group, including any director who resigned within the last 18 (eighteen) months, has or had any material beneficial interest, direct or indirect, in any transaction which is or
was material to the business of the Group taken as a whole, and which was effected by AGA during the current or immediately preceding financial year or during any earlier financial year and which remains outstanding or unperformed in any
respect.
|
|
15.3. |
Neither the members of the AGA Board nor the members of the executive management of AGA will be granted any special benefits in connection with the Reorganisation. None of the members of the AGA Board or the
members of the executive management of AGA will receive compensation due to the Reorganisation, provided that in order to avoid additional taxes or penalties under U.S. tax law, members of the executive management of AGA who participate in a
deferred compensation plan that we have established for the benefit of our U.S. employees will be required to receive payment at the time of the Reorganisation of compensation, estimated at approximately USD 600,000 (six hundred thousand
Dollars) in total, they had previously earned but deferred the payment of. Further, no changes to the remuneration package for the members of the AGA Board or executive management of AGA are intended to be made in connection with the
Reorganisation. In connection with the implementation of the Reorganisation, the existing rights over AGA Ordinary Shares held by participants under AGA’s equity plans (including members of the AGA Board and executive officers) are expected
to be replaced by equivalent rights over NewCo Ordinary Shares.
|
|
15.4. |
The AGA Directors who hold AGA Ordinary Shares intend to vote such AGA Ordinary Shares in favour of the Reorganisation.
|
|
15.5. |
AGA Directors’ remuneration and benefits are set out in the consolidated financial statements of AGA as of 31 December 2022.
|
|
15.6. |
No services contracts have been entered into or amended before the Last Practicable Date other than in the ordinary course of business and on arm’s length terms.
|
16. |
BENEFICIAL INTERESTS
|
|
16.1. |
Interests of NewCo in AGA Ordinary Shares
|
|
16.2. |
Interests of NewCo Directors in AGA Ordinary Shares
|
NewCo Director
|
Number of AGA Share
Awards
|
Number of AGA Ordinary
Shares
|
Number of AGA Ordinary
Shares as % of Issued
Share Capital
|
Alberto Calderon
|
233,253
|
26,370
|
0.0063
|
Robert Hayes
|
45,235
|
0
|
0
|
|
16.3. |
Interests of NewCo Directors in NewCo Ordinary Shares
|
|
16.4. |
Interests of AGA and the AGA Directors in NewCo Ordinary Shares
|
|
16.4.1. |
As at the Last Practicable Date, AGA holds 100% (one hundred percent) of the issued shares in NewCo, being:
|
|
16.4.1.1. |
the Founder Share, which Founder Share, will following the Spin-Off, be gifted by AGA to NewCo for nil consideration and cancelled by NewCo; and
|
|
16.4.1.2. |
the Redeemable Preference Shares, which Redeemable Preference Shares will, following the Spin-Off, be redeemed by NewCo at nominal value.
|
|
16.4.2. |
None of the AGA Directors hold any NewCo Ordinary Shares. The AGA Directors who hold AGA Ordinary Shares, as of the Last Practicable Date, will acquire the corresponding number of NewCo Ordinary Shares
pursuant to the Reorganisation.
|
|
16.4.3. |
NewCo does not have any share trading history.
|
|
16.5. |
Interests of AGA Directors in AGA Ordinary Shares as at the Last Practicable Date:
|
Beneficial
|
||||
Direct
|
Indirect
|
|||
|
Number of AGA
Ordinary Shares
|
% of Issued
Share Capital
|
Number of AGA
Ordinary Shares
|
% of Issued
Share Capital
|
Non-Executive AGA Director
|
||||
Maria Ramos (Chairperson)
|
0
|
0
|
0
|
0
|
Rhidwaan Gasant
|
0
|
0
|
0
|
0
|
Kojo Busia
|
2,000
|
0.0005
|
0
|
0
|
Alan Ferguson
|
5,000
|
0.0012
|
0
|
0
|
Albert Garner
|
22,500
|
0.0054
|
0
|
0
|
Maria Richter
|
10,300
|
0.0025
|
1,000
|
0.0002
|
Scott Lawson
|
2,830
|
0.0007
|
0
|
0
|
Jochen Tilk
|
2,800
|
0.0007
|
0
|
0
|
Jinhee Magie
|
0
|
0
|
0
|
0
|
Diana Sands
|
0
|
0
|
0
|
0
|
Total Non-Executive AGA Directors
|
45,430
|
0.0108
|
1,000
|
0.0002
|
Executive AGA Directors
|
||||
Alberto Calderon
|
26,370
|
0.0063
|
0
|
0
|
Gillian Doran
|
0
|
0
|
0
|
0
|
Total Executive Directors
|
26,370
|
0.0063
|
0
|
0
|
Prescribed Officers/ Executive Committee of AGA
|
||||
Lisa Ali
|
0
|
0
|
0
|
0
|
Stewart Bailey
|
8,927
|
0.0021
|
0
|
0
|
Terry Briggs
|
0
|
0
|
0
|
0
|
Ludwig Eybers(1)
|
0
|
0
|
0
|
0
|
Marcelo Godoy
|
32,643
|
0.0078
|
0
|
0
|
Lizelle Marwick
|
0
|
0
|
0
|
0
|
Total Prescribed Officers/ Executive Committee of AGA
|
41,570
|
0.0099
|
0
|
0
|
TOTAL
|
67,940
|
0.0162
|
0
|
0
|
(1) |
Ludwig Eybers will leave his role as Chief Operating Officer on 30 June 2023 and is expected to retire in December 2023.
|
AGA Share Awards
Balance as at the Last Practicable Date (1) (2)
|
|
NewCo Director
|
|
Executive Directors
|
|
Alberto Calderon
|
233,253
|
Robert Hayes
|
45,235
|
Total Executive Directors
|
278,488
|
Members of the Executive Committee
|
|
Lisa Ali
|
92,902
|
Stewart Bailey
|
190,760
|
Terry Briggs
|
78,544
|
Ludwig Eybers(3)
|
410,465
|
Marcelo Godoy
|
130,282
|
Lizelle Marwick
|
144,100
|
Total Members of the Executive Committee
|
1,047,053
|
TOTAL
|
1,325,541
|
(1) |
The latest expiry date of all share awards granted and outstanding as at the Last Practicable Date is 24 February 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 30 June 2023 and is expected to retire in December 2023.
|
|
16.6. |
In connection with the implementation of the Reorganisation, awards over AGA Ordinary Shares currently held by participants under AGA’s equity plans (including members of the AGA Board and Executive
Committee) are expected to be replaced by equivalent rights over NewCo Ordinary Shares.
|
|
16.7. |
The AGA Directors did not trade AGA Ordinary Shares during the period beginning 6 (six) months before the issue of the Firm Intention Announcement in relation to the Reorganisation, and ending on the Last
Practicable Date.
|
|
16.8. |
The AGA Directors not listed do not hold any shares in AGA.
|
17. |
CONTINUATION OF THE BUSINESS OF AGA
|
18. |
OPINIONS AND RECOMMENDATIONS
|
|
18.1. |
AGA appointed the Independent Expert to advise AGA on the Reorganisation and to compile a report in terms of Section 114(3) of the Companies Act and the Companies Regulations (including regulations 90 and
110, in particular) to the Independent Board concerning the Reorganisation.
|
|
18.2. |
The Independent Expert has advised the Independent Board that it has considered the terms and conditions of the Reorganisation, the Implementation Agreement and the Irrevocable Offer to Purchase and is of
the opinion that the Reorganisation Consideration and the terms of the Reorganisation are fair and reasonable. The text of the Independent Expert Report is included in Annexure A attached to this
Circular.
|
|
18.3. |
The Independent Expert Report has not been withdrawn prior to the publication of this Circular.
|
|
18.4. |
The Independent Board, after due consideration of, amongst other things the Independent Expert Report and factors that are difficult to quantify or are unquantifiable (as set out under the subheading
“Assessment of Reasonableness” of paragraph 10 (Assessment of Fairness and Reasonableness) of the Independent Expert Report), has unanimously determined that the Reorganisation Consideration and the
terms of the Reorganisation are fair and reasonable. As such, the Independent Board unanimously proposes the Reorganisation to the AGA Shareholders for their consideration and recommends that the AGA Shareholders vote in favour of the
resolutions required to implement the Reorganisation.
|
|
18.5. |
The AGA Board has not received any offers as defined in Section 117(1) of the Companies Act and contemplated in regulation 106(7)(a) of the Companies Regulations in the 6 (six) month period preceding the
issue of the Firm Intention Announcement in relation to the Reorganisation and ending on the Last Practicable Date.
|
19. |
MATERIAL AGREEMENTS RELATING TO THE REORGANISATION
|
20. |
MATERIAL CHANGES AND LITIGATION
|
|
20.1. |
As at the Last Practicable Date, there are no known material changes in the financial or trading position of AGA subsequent to the latest published results.
|
|
20.2. |
There are no legal or arbitration proceedings against AGA or NewCo (including any such proceedings that are pending or threatened), of which the AGA and NewCo are aware, which may have, or have had, in the
recent past, being at least the 12 (twelve) months before the Last Practicable Date, a material effect on the Group’s financial.
|
|
20.3. |
As of the Last Practicable Date, as far as the AGA Directors are aware, there are no legal proceedings which have been instituted against AGA or NewCo which may have an influence on the rights of the Group
to explore or mine in the conduct of its business, in the normal and ordinary course, as conducted by the Group on the Last Practicable Date.
|
21. |
DIRECTORS’ RESPONSIBILITY STATEMENT
|
|
21.1. |
NewCo responsibility statement
|
|
21.2. |
AGA Independent Board and the AGA Board responsibility statement
|
22. |
COSTS OF THE REORGANISATION AND EXPENSES
|
|
22.1. |
The costs incidental to the Reorganisation, including the costs applicable to this Circular, shall be borne by AGA and NewCo.
|
|
22.2. |
The following expenses and provisions are expected, or have been paid or provided for by AGA in connection with the Reorganisation:
|
Nature of expense
|
Paid/Payable to
|
Total USD’000 (1) (2)
|
Australia tax adviser
|
Allens
|
394
|
Depositary fees and expenses
|
The Bank of New York Mellon
|
5,276
|
English legal adviser
|
Slaughter and May
|
4,000
|
Financial Adviser
|
Centerview Partners UK LLP
|
6,000
|
Financial Adviser / Transaction Sponsor
|
JPMorgan Chase Bank, N.A., Johannesburg Branch / J.P.Morgan Equities South Africa Proprietary Limited
|
6,000
|
Financial Adviser
|
Rothschild and Co South Africa Proprietary Limited
|
4,500
|
Ghanian legal adviser
|
Bentsi-Enchill, Letsa & Ankomah
|
250
|
Independent Expert fee
|
Barclays Bank PLC
|
1,070
|
Independent Reporting Accountant
|
Ernst & Young Incorporated
|
921
|
JSE documentation inspection fee and listing fee
|
JSE
|
239
|
Printing, publication and distribution
|
R&A Strategic Communications / Broadridge
|
180
|
South African legal adviser
|
Edward Nathan Sonnenbergs Incorporated
|
1,328
|
South African registrar, receiving agent fees and postage and transfer secretaries
|
Computershare
|
252
|
Settlement processing fee
|
Strate
|
152
|
South African tax adviser
|
Bowmans Incorporated
|
143
|
Takeover Regulation Panel transaction review fee
|
TRP
|
17
|
Tax advisors (other jurisdictions)
|
Miscellaneous
|
592
|
Legal advisors (other jurisdictions)
|
Miscellaneous
|
309
|
U.S. legal adviser
|
Cravath, Swaine & Moore LLP
|
22,251
|
U.S. Securities and Exchange Commission registration fee
|
SEC
|
1,110
|
Accounting review and advisory fee
|
PwC
|
379
|
Ghana Stock Exchange Registration Fees
|
GhSE
|
273
|
Media relations
|
Brunswick
|
1,000
|
Miscellaneous
|
Miscellaneous
|
3,114
|
TOTAL
|
60,000
|
(1) |
All amounts stated are exclusive of Value-Added Tax and have been rounded to the nearest thousand.
|
(2) |
Includes ZAR amounts converted at an assumed exchange rate of ZAR 18.82/USD.
|
|
22.3. |
The Estimated transaction costs in respect of the Reorganisation are USD 60 million, of which USD 13 million was expensed during 2022.
|
|
22.4. |
Other than as set out above, the Group has incurred no preliminary expenses, other commissions or fees in relation to the Reorganisation during the 3 (three) years preceding the Last Practicable Date.
|
23. |
CONSENTS
|
24. |
DOCUMENTS AVAILABLE FOR INSPECTION
|
|
24.1. |
the audited financial statements of AGA for the three years ended 31 December 2022, 31 December 2021, 31 December 2020, prepared in accordance with IFRS as issued by IASB;
|
|
24.2. |
Independent Reporting Accountant’s assurance report on the pro forma financial information to illustrate the effect of the Reorganisation as of and for the year
ended 31 December 2022;
|
|
24.3. |
the letter issued by the Takeover Regulation Panel in terms of Section 115(1)(b) of the Companies Act, approving this Circular;
|
|
24.4. |
the AGA Memorandum of Incorporation;
|
|
24.5. |
the NewCo Articles of Association;
|
|
24.6. |
a signed copy of this Circular;
|
|
24.7. |
a signed copy of the Independent Expert Report included in Annexure A attached to this Circular;
|
|
24.8. |
the letters of consent referred to in paragraph 23 above of this Circular;
|
|
24.9. |
the DSP, the LTIP and the BSP;
|
|
24.10. |
the Mineral Resource and Mineral Reserve Report;
|
|
24.11. |
the Implementation Agreement;
|
|
24.12. |
the Irrevocable Offer to Purchase;
|
|
24.13. |
a signed copy of the Pre-listing Statement; and
|
|
24.14. |
a signed copy of the Form F-4.
|
SIGNED ON BEHALF OF THE AGA BOARD
|
|
Signature:
|
|
who warrants that he / she is duly authorised thereto
|
|
Name:
|
|
Date:
|
|
Place:
|
SIGNED ON BEHALF OF THE AGA INDEPENDENT BOARD
|
|
Signature:
|
|
who warrants that he / she is duly authorised thereto
|
|
Name:
|
|
Date:
|
|
Place:
|
SIGNED ON BEHALF OF THE NEWCO BOARD
|
|
Signature:
|
|
who warrants that he / she is duly authorised thereto
|
|
Name:
|
|
Date:
|
|
Place:
|
Annexure A
|
REPORT OF THE INDEPENDENT EXPERT
|
The Independent Board
|
AngloGold Ashanti Limited
|
112 Oxford Road
|
Houghton Estate
|
Johannesburg 2198
|
South Africa
|
1.
|
INTRODUCTION
|
2.
|
DESCRIPTION OF THE PROPOSED TRANSACTION
|
Annexure A (continued)
|
3.
|
IDENTIFICATION OF SECURITIES THAT ARE AFFECTED
|
|
● |
AGA is authorised to issue 600,000,000 ordinary shares of 25 SA cents each.
|
|
● |
As at 15 June 2023, the issued share capital of AGA is 419,612,543, which is fully-paid and not subject to further calls or assessment by AGA (the “AGA ISC”).
|
|
● |
All the shares rank pari passu in all respects, there being no conversion or exchange rights attached thereto, and all of the AGA shares have equal rights to
participate in capital, dividend and profit distributions by AGA.
|
|
● |
Each ordinary shareholder is entitled to one vote per ordinary share held if voting by way of a poll and one vote if voting is conducted by show of hands.
|
|
● |
New ListCo does not have authorised share capital as this concept does not exist under UK corporate law.
|
|
● |
It is currently expected that as at the implementation of the Proposed Transaction New ListCo will be authorised to allot and issue ordinary shares in an
amount not less than the AGA ISC.
|
|
● |
It is currently expected that as at the implementation of the Proposed Transaction all the New ListCo shares rank pari passu in all respects, there being no
conversion or exchange rights attached thereto, and upon implementation of the Proposed Transaction all of the New ListCo shares will have equal rights to participate in capital, dividend and profit distributions by New ListCo.
|
|
● |
It is currently expected that as at the implementation of the Proposed Transaction each ordinary shareholder is entitled to one vote per share held if
voting by way of a poll and one vote if voting is conducted by show of hands.
|
|
● |
No treasury shares are expected to be held by New ListCo at the date of the implementation of the Proposed Transaction. Whereas AGA is subject to the Companies Act and requirements applicable to companies
listed on the JSE, New ListCo will be subject to English company law. AGA is currently considered a Foreign Private Issuer (“FPI”) under the US Securities Act of 1933 with ADRs listed on the NYSE. It is
subject to the NYSE’s corporate governance rules as they apply to FPIs which largely defer to home country practice; we understand that following completion of the Proposed Transaction, New ListCo will also be an FPI. Accordingly, we note
that there may be some differences between the rights of the Shareholders before the implementation of the Scheme and the rights of New ListCo shareholders following the implementation of the Scheme owing to the differences between the
Companies Act and JSE Listings Requirements, on the one hand, and English company law on the other. However, any difference that may exist between the rights of the Shareholders prior to the implementation of the Scheme and the rights of the
New ListCo shareholders after the implementation of the Scheme will not have a material impact on the fairness and reasonableness evaluation of the Proposed Transaction.
|
4.
|
SCOPE
|
5.
|
RESPONSIBILITY
|
6.
|
DEFINITION OF THE TERMS “FAIR” AND “REASONABLE”
|
7.
|
SOURCES OF INFORMATION
|
|
● |
Project Trilogy1 Special Meeting of the Investment Committee 20 May 2022 presentation;
|
|
● |
AGA Limited Formal Application to South African Reserve Bank for the Proposed Change in Domicile and Reference Listing;
|
|
● |
Project Trilogy Briefing Document;
|
|
● |
annual integrated reports of AGA, incorporating the audited annual financial statements, for the years ended December 2021, December 2022 and Interim Results for the 6 months to June 2022 and Market Update
Report for the quarter ended 31 March 2023;
|
|
● |
Trilogy 2022 exit tax calculation prepared by AGA management (the “Exit Tax Calculation”);
|
|
● |
AGA Press Releases that we deemed relevant;
|
|
● |
AGA Notes Prospectuses, to the extent we deemed relevant;
|
|
● |
Project Trilogy Final KPMG Report and discussions with the KPMG Tax team;
|
|
● |
last 6 months of published equity research from various brokers;
|
|
● |
FactSet consensus forecast earnings;
|
|
● |
various credit research reports that we deemed relevant including: S&P Global Ratings RatingsDirect (17 July 2020), Moody’s Investors Services AngloGold Ashanti Credit Opinion (4 December 2020), and
S&P Global Ratings AngloGold Fully Analysis (17 May 2022);
|
|
Annexure A (continued)
|
|
● |
South African Reserve Bank transaction approval letter;
|
|
● |
discussions with AGA management regarding the background and transaction overview of Project Trilogy including transaction steps;
|
|
● |
discussions with AGA management on exit tax calculations;
|
|
● |
discussions with AGA management regarding the historical financial information of the Company;
|
|
● |
discussions with AGA management on prevailing market, economic, legal and other conditions which may affect underlying value;
|
|
● |
Shareholder Analysis Summary Report produced by AGA’s advisors as at 26 May 2023;
|
|
● |
publicly available information relating to AGA that we deemed to be relevant, including company announcements and media articles; and
|
|
● |
publicly available information relating to the mining industry that we deemed relevant.
|
8.
|
PROCEDURES PERFORMED
|
|
● |
reviewed certain publicly available financial statements and other business and financial information relating to the Company that we considered relevant to our analysis, including the Company’s audited
financial statements for financial periods ended December 2021, December 2022 and unaudited Interim Results for the six months ended 30 June 2022 and Market Update Report for the quarter ended 31 March 2023;
|
|
● |
reviewed certain internal financial statements and other financial and operating data relating to the Company provided to us by the Company;
|
|
● |
compared certain financial information of AGA with similar information of companies we deemed relevant;
|
|
● |
utilized two sets of consensus forecast earnings, one being directly sourced from FactSet data, the other being compiled from certain of the above mentioned broker reports (the “Consensus Forecasts”);
|
|
● |
performed a discounted cash flows valuation analysis based on the Consensus Forecasts;
|
|
● |
considered peer trading comparables, focusing on industry metrics including share price to net asset value per share (“P/NAV”), enterprise value to EBITDA multiple (“EV/EBITDA”) and share price to cash flow per share (“P/CFPS”), and certain operational metrics; and
|
|
● |
analyzed a variety of transactional elements pertaining to the Proposed Transaction which include but are not limited to:
|
|
o |
the Proposed Transaction’s impact (if any) on the asset base and the strategy of the business;
|
|
o |
AGA management estimates of transaction costs;
|
|
o |
expected changes to future corporate costs and tax burden for the business (if any); and
|
|
o |
potential dividend withholding tax implications, and ability to make distributions to the shareholders.
|
9.
|
ASSUMPTIONS
|
|
● |
terms and conditions of the Proposed Transaction are legally enforceable;
|
|
● |
the Proposed Transaction will not trigger clauses in contracts entered into by AGA that materially negatively impact the value of AGA shares, or the underlying assets, operations and business of AGA and its
group (including New ListCo);
|
|
● |
any invocation of appraisal rights in connection to the Scheme by Shareholders will be on a fair market value basis;
|
|
● |
reliance can be placed on the historical and forecast financial information on AGA used in our analysis;
|
|
● |
the Proposed Transaction will not give rise to any undisclosed tax liabilities or have a material impact on tax burden for the business going forward;
|
|
● |
the Proposed Transaction will not cause any reduction in ability to make distributions to the Shareholders;
|
|
● |
the Proposed Transaction will not give rise to any material changes in corporate costs; and
|
|
● |
there are no undisclosed contingencies that could affect the value of the Company or the New ListCo.
|
10.
|
ASSESSMENT OF FAIRNESS AND REASONABLENESS
|
|
● |
discounted cash flow analysis: discounted cash flow model applied to a 3-year corporate-level cash flow forecast (2023 – 2025) as per the Consensus Forecasts with terminal value based on the final year
EV/EBITDA multiple;
|
|
● |
comparable companies analysis: reviewed and benchmarked P/NAV, P/CFPS, and EV/EBITDA multiples of producing gold major peers;
|
|
● |
research analysts estimates: reviewed range of target stock prices and NAV estimates recently published by equity research analysts covering AGA; and
|
|
● |
52-week trading range and volume weighted average price: reviewed trading range for AGA JSE stock price over the last 12 months and also considered volume weighted average prices for certain periods.
|
|
● |
Proposed Transaction corporate asset perimeter;
|
|
● |
Proposed Transaction consideration;
|
|
● |
any change in corporate costs, corporate tax or strategy;
|
|
● |
ability to make distributions to Shareholders;
|
|
● |
access to / cost of capital; and
|
|
● |
Proposed Transaction costs, which include tax costs, advisor fees, and other transaction costs as estimated by AGA management.
|
|
Annexure A (continued)
|
|
● |
to remove the perceived South African discount:
|
|
o |
break the longstanding historical link to assumed structural South African discount; and
|
|
o |
align public valuation approach for the Company with approaches adopted by practitioners for North American peers;
|
|
● |
certain debt capital markets benefits:
|
|
o |
certain agencies and market practitioners apply a South African sovereign ceiling based on AGA’s corporate domicile; and
|
|
o |
a North American capital markets locus offers better access to a deeper pool of fixed income investors;
|
|
● |
certain equity capital markets benefits:
|
|
o |
marginal increase in index demand;
|
|
o |
potential for enhanced share trading liquidity; and
|
|
o |
potential for enhanced broker research coverage;
|
|
● |
increased strategic flexibility:
|
|
o |
increased acceptability of shares of the Company as acquisition currency;
|
|
o |
removal of certain regulatory hurdles in conducting strategic transactions; and
|
|
o |
better positioning the business to benefit from certain operational efficiencies.
|
11.
|
OPINION
|
|
● |
the value attributable to Shareholders prior to the Proposed Transaction is between R410 per share and R480 per share. The most likely value is R445 per share, which approximates to the midpoint of our value
range;
|
|
● |
based on the calculations prepared by AGA management, we have assumed that the Proposed Transaction triggers one- off tax charges and transaction costs equal to between 4.5% and 5.3% of the above-mentioned
value range attributable to AGA shares prior to the Proposed Transaction;
|
|
● |
other than these one-off tax charges and transaction costs, no other charges or costs as a result of the Proposed Transaction which may have an adverse impact on the value per share attributable to the
Shareholders have been identified in the process undertaken by AGA management and its advisors;
|
|
● |
based on the foregoing, we are of the opinion that the value attributable to Shareholders post the Proposed Transaction is not materially different to the value attributable to Shareholders prior to the
Proposed Transaction; and
|
|
● |
there are potential qualitative benefits associated with the Proposed Transaction that may not immediately impact shareholder value but may help to unlock shareholder value over time.
|
12.
|
LIMITING CONDITIONS
|
|
Annexure A (continued)
|
13.
|
INDEPENDENCE, COMPETENCE AND FEES
|
14.
|
MATERIAL INTERESTS OF DIRECTORS AND TRUSTEES
|
Beneficial
|
||||
Direct
|
Indirect
|
|||
31-Mar-23
|
||||
AGA Ordinary
Shares
|
% of AGA Ordinary
Shares Outstanding
|
AGA Ordinary
Shares
|
% of AGA Ordinary
Shares Outstanding
|
|
Non-Executive Directors
|
||||
MDC Ramos
|
–
|
–
|
–
|
–
|
R Gasant
|
–
|
–
|
–
|
–
|
KOF Busia
|
2,000
|
0.0005
|
–
|
–
|
AM Ferguson
|
5,000
|
0.0012
|
–
|
–
|
AH Garner
|
22,500
|
0.0054
|
–
|
–
|
MC Richter
|
10,300
|
0.0025
|
1,000
|
0.0002
|
S Lawson
|
2,830
|
0.0007
|
–
|
–
|
JE Tilk
|
2,800
|
0.0007
|
–
|
–
|
Jinhee M
|
–
|
–
|
–
|
–
|
D Sands
|
–
|
–
|
–
|
–
|
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
|
|
Annexure A (continued)
|
Beneficial
|
||||
Direct
|
Indirect
|
|||
31-Mar-23
|
||||
AGA Ordinary
Shares
|
% of AGA Ordinary
Shares Outstanding
|
AGA Ordinary
Shares
|
% of AGA Ordinary
Shares Outstanding
|
|
Members of the Executive Committee
|
||||
L Ali
|
–
|
–
|
–
|
–
|
SD Bailey
|
13,039
|
0.0031
|
||
T Briggs
|
–
|
–
|
–
|
–
|
L Eybers
|
–
|
–
|
–
|
–
|
MC Godoy
|
32,643
|
0.0078
|
||
L Marwick
|
–
|
–
|
–
|
–
|
Total-Members of the Executive Committee
|
45,682
|
0.0109
|
–
|
–
|
Grand Total
|
72,052
|
0.0172
|
15.
|
THIRD-PARTY RIGHTS
|
16.
|
CONSENT
|
ANNEXURE A TO THE REPORT OF THE INDEPENDENT EXPERT
|
(1) |
Despite section 65, and any provision of a company’s Memorandum of Incorporation, or any resolution adopted by its board or holders of its securities, to the contrary, a company may not dispose of, or give
effect to an agreement or series of agreements to dispose of, all or the greater part of its assets or undertaking, implement an amalgamation or a merger, or implement a scheme of arrangement, unless –
|
|
(a) |
the disposal, amalgamation or merger, or scheme of arrangement –
|
|
(i) |
has been approved in terms of this section; or
|
|
(ii) |
is pursuant to or contemplated in an approved business rescue plan for that company, in terms of Chapter 6; and
|
|
(b) |
to the extent that Parts B and C of this Chapter, and the Takeover Regulations, apply to a company that proposes to—
|
|
(i) |
dispose of all or the greater part of its assets or undertaking;
|
|
(ii) |
amalgamate or merge with another company; or
|
|
(iii) |
implement a scheme of arrangement,
|
(2) |
A proposed transaction contemplated in subsection (1) must be approved –
|
|
(a) |
by a special resolution adopted by persons entitled to exercise voting rights on such a matter, at a meeting called for that purpose and at which sufficient persons are present to exercise, in aggregate, at
least 25% of all of the voting rights that are entitled to be exercised on that matter, or any higher percentage as may be required by the company’s Memorandum of Incorporation, as contemplated in section 64 (2); and
|
|
(b) |
by a special resolution, also adopted in the manner required by paragraph (a), by the shareholders of the company’s holding company if any, if –
|
|
(i) |
the holding company is a company or an external company;
|
|
(ii) |
the proposed transaction concerns a disposal of all or the greater part of the assets or undertaking of the subsidiary; and
|
|
(iii) |
having regard to the consolidated financial statements of the holding company, the disposal by the subsidiary constitutes a disposal of all or the greater part of the assets or undertaking of the holding
company; and
|
|
(c) |
by the court, to the extent required in the circumstances and manner contemplated in subsections (3) to (6).
|
(3) |
Despite a resolution having been adopted as contemplated in subsections (2) (a) and (b), a company may not proceed to implement that resolution without the approval of a court if –
|
|
(a) |
the resolution was opposed by at least 15% of the voting rights that were exercised on that resolution and, within five business days after the vote, any person who voted against the resolution requires the
company to seek court approval; or
|
|
(b) |
the court, on an application within 10 business days after the vote by any person who voted against the resolution, grants that person leave, in terms of subsection (6), to apply to a court for a review of
the transaction in accordance with subsection (7).
|
Annexure A (continued)
|
(4) |
For the purposes of subsections (2) and (3), any voting rights controlled by an acquiring party, a person related to an acquiring party, or a person acting in concert with either of them, must not be
included in calculating the percentage of voting rights –
|
|
(a) |
required to be present, or actually present, in determining whether the applicable quorum requirements are satisfied; or
|
|
(b) |
required to be voted in support of a resolution, or actually voted in support of the resolution.
|
(4A) |
In subsection (4), “act in concert” has the meaning set out in section 117 (1) (b).
|
(5) |
If a resolution requires approval by a court as contemplated in terms of subsection (3) (a), the company must either—
|
|
(a)
|
within 10 business days after the vote, apply to the court for approval, and bear the costs of that application; or
|
|
(b) |
treat the resolution as a nullity.
|
(6) |
On an application contemplated in subsection (3) (b), the court may grant leave only if it is satisfied that the applicant—
|
|
(a) |
is acting in good faith;
|
|
(b) |
appears prepared and able to sustain the proceedings; and
|
|
(c) |
has alleged facts which, if proved, would support an order in terms of subsection (7).
|
(7) |
On reviewing a resolution that is the subject of an application in terms of subsection (5) (a), or after granting leave in terms of subsection (6), the court may set aside the resolution only if –
|
|
(a) |
the resolution is manifestly unfair to any class of holders of the company’s securities; or
|
|
(b) |
the vote was materially tainted by conflict of interest, inadequate disclosure, failure to comply with the Act, the Memorandum of Incorporation or any applicable rules of the company, or other significant
and material procedural irregularity.
|
(8) |
The holder of any voting rights in a company is entitled to seek relief in terms of section 164 if that person –
|
|
(a) |
notified the company in advance of the intention to oppose a special resolution contemplated in this section; and
|
|
(b) |
was present at the meeting and voted against that special resolution.
|
(9) |
If a transaction contemplated in this Part has been approved, any person to whom assets are, or an undertaking is, to be transferred, may apply to a court for an order to effect –
|
|
(a) |
the transfer of the whole or any part of the undertaking, assets and liabilities of a company contemplated in that transaction;
|
|
(b) |
the allotment and appropriation of any shares or similar interests to be allotted or appropriated as a consequence of the transaction;
|
|
(c) |
the transfer of shares from one person to another;
|
|
(d) |
the dissolution, without winding up, of a company, as contemplated in the transaction;
|
|
(e) |
incidental, consequential and supplemental matters that are necessary for the effectiveness and completion of the transaction; or
|
|
(f) |
any other relief that may be necessary or appropriate to give effect to, and properly implement, the amalgamation or merger.
|
ANNEXURE B TO THE REPORT OF THE INDEPENDENT EXPERT
|
(1) |
This section does not apply in any circumstances relating to a transaction, agreement or offer pursuant to a business rescue plan that was approved by shareholders of a company, in terms of section 152.
|
(2) |
If a company has given notice to shareholders of a meeting to consider adopting a resolution to –
|
|
(a) |
amend its Memorandum of Incorporation by altering the preferences, rights, limitations or other terms of any class of its shares in any manner materially adverse to the rights or interests of holders of that
class of shares, as contemplated in section 37 (8); or
|
|
(b) |
enter into a transaction contemplated in section 112, 113, or 114,
that notice must include a statement informing shareholders of their rights under this section.
|
(3) |
At any time before a resolution referred to in subsection (2) is to be voted on, a dissenting shareholder may give the company a written notice objecting to the resolution.
|
(4) |
Within 10 business days after a company has adopted a resolution contemplated in this section, the company must send a notice that the resolution has been adopted to each shareholder who –
|
|
(a) |
gave the company a written notice of objection in terms of subsection (3); and
|
|
(b) |
has neither –
|
|
(i) |
withdrawn that notice; or
|
|
(ii) |
voted in support of the resolution.
|
(5) |
A shareholder may demand that the company pay the shareholder the fair value for all of the shares of the company held by that person if –
|
|
(a) |
the shareholder –
|
|
(i) |
sent the company a notice of objection, subject to subsection (6); and
|
|
(ii) |
in the case of an amendment to the company’s Memorandum of Incorporation, holds shares of a class that is materially and adversely affected by the amendment;
|
|
(b) |
the company has adopted the resolution contemplated in subsection (2); and
|
|
(c) |
the shareholder –
|
|
(i) |
voted against that resolution; and
|
|
(ii) |
has complied with all of the procedural requirements of this section.
|
(6) |
The requirement of subsection (5) (a) (i) does not apply if the company failed to give notice of the meeting, or failed to include in that notice a statement of the shareholders rights under this section.
|
(7) |
A shareholder who satisfies the requirements of subsection (5) may make a demand contemplated in that subsection by delivering a written notice to the company within –
|
|
(a) |
20 business days after receiving a notice under subsection (4); or
|
|
(b) |
if the shareholder does not receive a notice under subsection (4), within 20 business days after learning that the resolution has been adopted.
|
(8) |
A demand delivered in terms of subsections (5) to (7) must also be delivered to the Panel, and must state –
|
|
(a) |
the shareholder’s name and address;
|
|
(b) |
the number and class of shares in respect of which the shareholder seeks payment; and
|
|
(c) |
a demand for payment of the fair value of those shares.
|
(9) |
A shareholder who has sent a demand in terms of subsections (5) to (8) has no further rights in respect of those shares, other than to be paid their fair value, unless –
|
|
(a) |
the shareholder withdraws that demand before the company makes an offer under subsection (11), or allows an offer made by the company to lapse, as contemplated in subsection (12) (b);
|
|
(b) |
the company fails to make an offer in accordance with subsection (11) and the shareholder withdraws the demand; or
|
|
(c) |
the company, by a subsequent special resolution, revokes the adopted resolution that gave rise to the shareholder’s rights under this section.
|
(10) |
If any of the events contemplated in subsection (9) occur, all of the shareholder’s rights in respect of the shares are reinstated without interruption.
|
(11) |
Within five business days after the later of –
|
|
(a) |
the day on which the action approved by the resolution is effective;
|
|
(b) |
the last day for the receipt of demands in terms of subsection (7) (a); or
|
|
(c) |
the day the company received a demand as contemplated in subsection (7) (b), if applicable, the company must send to each shareholder who has sent such a demand a written offer to pay an amount considered by
the company’s directors to be the fair value of the relevant shares, subject to subsection (16), accompanied by a statement showing how that value was determined.
|
(12) |
Every offer made under subsection (11) –
|
|
(a) |
in respect of shares of the same class or series must be on the same terms; and
|
|
(b) |
lapses if it has not been accepted within 30 business days after it was made.
|
(13) |
If a shareholder accepts an offer made under subsection (12) –
|
|
(a) |
the shareholder must either in the case of –
|
|
(i) |
shares evidenced by certificates, tender the relevant share certificates to the company or the company’s transfer agent; or
|
|
(ii) |
uncertificated shares, take the steps required in terms of section 53 to direct the transfer of those shares to the company or the company’s transfer agent; and
|
|
(b) |
the company must pay that shareholder the agreed amount within 10 business days after the shareholder accepted the offer and –
|
|
(i) |
tendered the share certificates; or
|
|
(ii) |
directed the transfer to the company of uncertificated shares.
|
(14) |
A shareholder who has made a demand in terms of subsections (5) to (8) may apply to a court to determine a fair value in respect of the shares that were the subject of that demand, and an order requiring the
company to pay the shareholder the fair value so determined, if the company has –
|
|
(a) |
failed to make an offer under subsection (11); or
|
|
(b) |
made an offer that the shareholder considers to be inadequate, and that offer has not lapsed.
|
(15) |
On an application to the court under subsection (14) –
|
|
(a) |
all dissenting shareholders who have not accepted an offer from the company as at the date of the application must be joined as parties and are bound by the decision of the court;
|
|
(b) |
the company must notify each affected dissenting shareholder of the date, place and consequences of the application and of their right to participate in the court proceedings; and
|
|
(c) |
the court –
|
|
(i) |
may determine whether any other person is a dissenting shareholder who should be joined as a party;
|
|
(ii) |
must determine a fair value in respect of the shares of all dissenting shareholders, subject to subsection (16);
|
|
(iii) |
in its discretion may –
|
|
(aa) |
appoint one or more appraisers to assist it in determining the fair value in respect of the shares; or
|
|
(bb) |
allow a reasonable rate of interest on the amount payable to each dissenting shareholder from the date the action approved by the resolution is effective, until the date of payment;
|
|
(iv) |
may make an appropriate order of costs, having regard to any offer made by the company, and the final determination of the fair value by the court; and
|
|
(v) |
must make an order requiring –
|
|
(aa) |
the dissenting shareholders to either withdraw their respective demands or to comply with subsection (13) (a); and
|
|
(bb) |
the company to pay the fair value in respect of their shares to each dissenting shareholder who complies with subsection (13) (a), subject to any conditions the court considers necessary to ensure that the
company fulfils its obligations under this section.
|
(15A) |
At any time before the court has made an order contemplated in subsection (15) (c) (v), a dissenting shareholder may accept the offer made by the company in terms of subsection (11), in which case –
|
|
(a) |
that shareholder must comply with the requirements of subsection 13 (a); and
|
|
(b) |
the company must comply with the requirements of subsection 13 (b).
[Subs. (15A) inserted by s. 103 (d) of Act No. 3 of 2011.]
|
(16) |
The fair value in respect of any shares must be determined as at the date on which, and time immediately before, the company adopted the resolution that gave rise to a shareholder’s rights under this
section.
|
(17) |
If there are reasonable grounds to believe that compliance by a company with subsection (13) (b), or with a court order in terms of subsection (15) (c) (v) (bb), would result in the company being unable to
pays its debts as they fall due and payable for the ensuing 12 months –
|
|
(a) |
the company may apply to a court for an order varying the company’s obligations in terms of the relevant subsection; and
|
|
(b) |
the court may make an order that –
|
|
(i) |
is just and equitable, having regard to the financial circumstances of the company; and
|
|
(ii) |
ensures that the person to whom the company owes money in terms of this section is paid at the earliest possible date compatible with the company satisfying its other financial obligations as they fall due
and payable.
|
(18) |
If the resolution that gave rise to a shareholder’s rights under this section authorised the company to amalgamate or merge with one or more other companies, such that the company whose shares are the
subject of a demand in terms of this section has ceased to exist, the obligations of that company under this section are obligations of the successor to that company resulting from the amalgamation or merger.
|
(19) |
For greater certainty, the making of a demand, tendering of shares and payment by a company to a shareholder in terms of this section do not constitute a distribution by the company, or an acquisition of its
shares by the company within the meaning of section 48, and therefore are not subject to –
|
|
(a) |
the provisions of that section; or
|
|
(b) |
the application by the company of the solvency and liquidity test set out in section 4.
|
(20) |
Except to the extent –
|
|
(a) |
expressly provided in this section; or
|
|
(b) |
that the Panel rules otherwise in a particular case,
|
Annexure B
|
THE SUMMARY CONSOLIDATED FINANCIAL INFORMATION OF AGA
|
US Dollar millions, except where otherwise indicated
|
2022
|
2021
|
2020 Restated(1)
|
Revenue from product sales
|
4,501
|
4,029
|
4,595
|
Cost of sales
|
(3,362)
|
(2,857)
|
(2,829)
|
Profit after taxation from continuing operations
|
316
|
646
|
1,002
|
Profit from discontinued operations
|
—
|
—
|
7
|
Profit for the year
|
316
|
646
|
1,009
|
Allocated as follows to equity shareholders:
|
|||
Continuing operations
|
297
|
622
|
984
|
Discontinued operations
|
—
|
—
|
7
|
Basic and diluted earnings per ordinary share (US cents):
|
|||
Earnings per ordinary share from continuing operations
|
71
|
148
|
234
|
Earnings per ordinary share from discontinued operations
|
—
|
—
|
2
|
Headline earnings per ordinary share (US cents)(2)
|
129
|
146
|
248
|
Diluted headline earnings per ordinary share (US cents)
|
129
|
146
|
247
|
Weighted average number of shares
|
420,197,062
|
419,755,627
|
419,033,516
|
Dilutive number of ordinary shares
|
420,869,866
|
420,056,703
|
419,481,450
|
(1) |
Comparative periods have been retrospectively restated, where indicated, due to the initial application of the amendment to IAS 16 “Property, Plant and Equipment –
Proceeds before Intended Use” on 1 January 2022.
|
(2) |
Headline earnings per share is calculated in terms of the guidance issued by the South African Institute of Chartered Accountants (SAICA).
|
US Dollar millions
|
2022
|
2021 Restated(1)
|
2020 Restated(1)
|
Tangible assets
|
4,209
|
3,493
|
2,917
|
Cash and cash equivalents
|
1,108
|
1,154
|
1,330
|
Investments in associates and joint ventures
|
1,100
|
1,647
|
1,651
|
Total assets
|
8,072
|
8,000
|
7,705
|
Net assets
|
4,134
|
4,094
|
3,773
|
Share capital and premium
|
7,239
|
7,223
|
7,214
|
Total borrowings
|
1,983
|
1,909
|
1,931
|
Total liabilities
|
3,938
|
3,906
|
3,932
|
(1) |
Comparative periods have been retrospectively restated, where indicated, due to the initial application of the amendment to IAS 16 “Property, Plant and Equipment –
Proceeds before Intended Use” on 1 January 2022.
|
US Dollar millions
|
2022
|
2021
|
2020 Restated(1)
|
Net cash inflow from operating activities
|
1,804
|
1,268
|
1,692
|
Net cash outflow from investing activities
|
(1,461)
|
(940)
|
(514)
|
Net cash outflow from financing activities
|
(323)
|
(456)
|
(329)
|
Net increase (decrease) in cash and cash equivalents
|
20
|
(128)
|
849
|
(1) |
Comparative periods have been retrospectively restated, where indicated, due to the initial application of the amendment to IAS 16 “Property, Plant and Equipment –
Proceeds before Intended Use” on 1 January 2022.
|
Annexure C
|
THE PRO FORMA FINANCIAL INFORMATION
|
US Dollar million
|
AGA plc
|
AGA before the
Reorganisation(1)
|
Tax consequences(3)
|
Transaction costs(4)
|
AGA plc post the
Reorganisation(5)
|
Revenue from product sales
|
4,501
|
4,501
|
|||
Cost of sales
|
(3,362)
|
(3,362)
|
|||
Loss on non-hedge derivatives and other commodity contracts
|
(6)
|
(6)
|
|||
Gross profit
|
—
|
1,133
|
—
|
—
|
1,133
|
Corporate administration, marketing and related expenses
|
(79)
|
(79)
|
|||
Exploration and evaluation costs
|
(205)
|
(205)
|
|||
Impairment, derecognition of assets and loss on disposal
|
(304)
|
(304)
|
|||
Other expenses
|
(26)
|
(396)
|
(47)
|
(469)
|
|
Operating profit
|
—
|
519
|
(396)
|
(47)
|
76
|
Interest income
|
81
|
81
|
|||
Foreign exchange and fair value adjustments
|
(128)
|
(128)
|
|||
Finance costs and unwinding of obligations
|
(149)
|
(149)
|
|||
Share of associates and joint ventures’ profit
|
166
|
166
|
|||
Profit (loss) before taxation
|
—
|
489
|
(396)
|
(47)
|
46
|
Taxation
|
(173)
|
(173)
|
|||
Profit (loss) for the year
|
316
|
(396)
|
(47)
|
(127)
|
|
Allocated as follows:
|
|||||
Equity shareholders
|
297
|
(396)
|
(47)
|
(146)
|
|
Non-controlling interests
|
19
|
19
|
|||
—
|
316
|
(396)
|
(47)
|
(127)
|
|
Basic profit (loss) per ordinary share (US cents) (a)
|
71
|
(35)
|
|||
Diluted profit (loss) per ordinary share (US cents) (b)
|
71
|
(35)
|
|||
(a) |
Calculated on the basic weighted average number of ordinary shares.
|
(b) |
Calculated on the diluted weighted average number of ordinary shares.
|
Annexure C (continued)
|
US Dollar million
|
AGA plc
|
AGA before the
Reorganisation(1)
|
Tax consequences(3)
|
Transaction costs(4)
|
AGA plc post the
Reorganisation(5)
|
The profit attributable to equity shareholders has been adjusted by the following to arrive at headline earnings:
|
|||||
Profit attributable to equity shareholders
|
297
|
(396)
|
(47)
|
(146)
|
|
Impairment loss on investment in joint venture
|
1
|
1
|
|||
Impairment on property, plant and equipment and right of use asset
|
304
|
304
|
|||
Taxation on impairment on property, plant and equipment and right of use asset
|
(58)
|
(58)
|
|||
Derecognition of assets
|
4
|
4
|
|||
Profit on disposal of tangible assets
|
(4)
|
(4)
|
|||
Headline earnings
|
—
|
544
|
(396)
|
(47)
|
101
|
Headline earnings per ordinary share (US cents)
|
129
|
24
|
|||
Diluted headline earnings per ordinary share (US cents)
|
129
|
24
|
|||
Number of shares (2)
|
|||||
Ordinary shares
|
418,260,476
|
418,260,476
|
|||
Fully vested options
|
1,936,586
|
1,936,586
|
|||
Weighted average number of shares
|
—
|
420,197,062
|
—
|
—
|
420,197,062
|
Dilutive potential of share options
|
672,804
|
672,804
|
|||
Dilutive number of ordinary shares
|
—
|
420,869,866
|
—
|
—
|
420,869,866
|
US Dollar million
|
AGA plc
|
AGA before the
Reorganisation(1)
|
Tax consequences(3)
|
Transaction costs(4)
|
AGA plc post the
Reorganisation(5)
|
Profit (loss) for the year
|
316
|
(396)
|
(47)
|
(127)
|
|
Items that will be reclassified subsequently to profit or loss:
|
|||||
Exchange differences on translation of foreign operations
|
|
(27)
|
|
|
(27)
|
Items that will not be reclassified subsequently to profit or loss:
|
|||||
Exchange differences on translation of non-foreign operations
|
(1)
|
|
|
(1)
|
|
Net loss on equity investments
|
(50)
|
(50)
|
|||
Actuarial loss recognised
|
(10)
|
(10)
|
|||
Deferred taxation thereon
|
14
|
14
|
|||
—
|
(47)
|
—
|
—
|
(47)
|
|
Other comprehensive loss for the year, net of tax
|
(74)
|
—
|
—
|
(74)
|
|
Total comprehensive income (loss) for the year, net of tax
|
—
|
242
|
(396)
|
(47)
|
(201)
|
Allocated as follows:
|
|||||
Equity shareholders
|
223
|
(396)
|
(47)
|
(220)
|
|
Non-controlling interests
|
19
|
19
|
|||
|
—
|
242
|
(396)
|
(47)
|
(201)
|
(1) |
The financial information in the “AGA before the Reorganisation” column has been extracted without adjustment from the audited annual financial statements of AGA at 31 December 2022. The
annual financial statements of AGA were audited by Ernst & Young Inc. who issued an unqualified audit report on 15 March 2023. The AGA annual financial statements were published on 17 March 2023 and can be accessed at (https://www.anglogoldashanti.com/investors/reporting/annual-reports/).
|
(2) |
Under the Reorganisation, AGA plc will acquire all the Scheme Shares, being all the AGA Shares (including AGA Shares represented by AGA ADSs), from the Scheme Participants. The Scheme
Participants will receive AGA plc Shares in exchange for their Scheme Shares in accordance with the Entitlement Ratio, being 1 (one) AGA plc Share for every 1 (one) AGA Share held by a Scheme Participant on the Reorganisation Consideration
Record Date, with no entitlement to cash. This adjustment reflects the issue of 418,600,473 AGA plc shares in exchange for the same amount of AGA shares in issue on 31 December 2022. For purposes of the per share calculations, the weighted
average number of shares is adjusted to include the weighted average number of shares that were issued by AGA during the year ended 31 December 2022. Accordingly, the pro forma adjustments have no impact on the overall number of issued shares
as the exchange ratio is a one for one exchange of shares with no entitlement to cash.
|
(3) |
The acquisition of AGA, by AGA plc, does not represent a business combination as defined by IFRS 3 Business Combinations (“IFRS 3”). This is because neither party to the Reorganisation can be identified as
an accounting acquirer in the Reorganisation, and post the implementation there is no change of economic substance or ownership in the group. The existing AGA Shareholders will have the same commercial and economic interest as they have prior
to the implementation of the Reorganisation and no additional new ordinary shares of AGA will be issued as part of the Reorganisation. The consolidated financial statements of AGA will therefore reflect that the arrangement is in substance a
continuation of the existing AGA group. AGA plc’s comparative information will be presented as if the Reorganisation had occurred before the start of the earliest period presented. The tax consequences as calculated based on current
legislation, of $396 million, is made up of Australian landholder duty amounting to $58 million and South African dividend withholding taxes amounting to $338 million and will not have a continuing effect on the pro forma income statement.
The tax consequences 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 capitalisation) and the ZAR/USD exchange rate, in each
case on the Operative Date, to be approximately $396 million, as calculated based on current legislation, an assumed market capitalisation of AGA of ZAR 186,115 million, an AGA share price of ZAR 444 per share and a ZAR/USD exchange rate of
R18.19/US$1. The securities transfer tax of $26 million that arises as a consequence of the Reorganisation is classified as an equity transaction and as such it is accounted for as a deduction from equity. Accordingly the securities transfer
tax has no impact on profit for the period.
|
(4) |
Transaction costs directly attributable to the Reorganisation have been expensed. Estimated transaction costs are $60 million, of which $13 million has been expensed during 2022. This
adjustment will not have a continuing effect on the pro forma income statement and is attributable to the owners of AGA plc.
|
(5) |
The “AGA plc post the Reorganisation” column reflects the pro forma income statement for the year ended 31 December 2022 after the pro forma effects of the Reorganisation.
|
US Dollar million
|
AGA plc
|
AGA before the
Reorganisation (1)(2)
|
Adjustments relating to the
Reorganisation (2)(5)
|
Transaction costs (3)
|
AGA plc post the
Reorganisation (4)
|
ASSETS
|
|||||
Non-current assets
|
|||||
Tangible assets
|
4,209
|
4,209
|
|||
Right of use assets
|
156
|
156
|
|||
Intangible assets
|
106
|
106
|
|||
Investments in associates and joint ventures
|
1,100
|
1,100
|
|||
Other investments
|
3
|
3
|
|||
Inventories
|
5
|
5
|
|||
Trade, other receivables and other assets
|
231
|
231
|
|||
Reimbursive rights related to
post-retirement benefits
|
12
|
12
|
|||
Derivatives
|
—
|
—
|
|||
Deferred taxation
|
72
|
72
|
|||
Cash restricted for use
|
33
|
33
|
|||
—
|
5,927
|
—
|
—
|
5,927
|
|
Current assets
|
|||||
Inventories
|
773
|
773
|
|||
Trade, other receivables and other assets
|
237
|
237
|
|||
Cash restricted for use
|
27
|
27
|
|||
Cash and cash equivalents
|
1,108
|
1,108
|
|||
—
|
2,145
|
—
|
—
|
2,145
|
|
Total assets
|
—
|
8,072
|
—
|
—
|
8,072
|
EQUITY AND LIABILITIES
|
|||||
Share capital and premium
|
7,239
|
(5,380)
|
1,859
|
||
Reorganisation reserve
|
—
|
5,380
|
5,380
|
||
Accumulated losses and other reserves
|
(3,139)
|
(422)
|
(47)
|
(3,608)
|
|
Shareholders’ equity
|
—
|
4,100
|
(422)
|
(47)
|
(3,631)
|
Non-controlling interests
|
34
|
34
|
|||
Total equity
|
—
|
4,134
|
(422)
|
(47)
|
3,665
|
Non-current liabilities
|
|||||
Borrowings
|
1,965
|
1,965
|
|||
Lease liabilities
|
102
|
102
|
|||
Environmental rehabilitation and other provisions
|
634
|
634
|
|||
Provision for pension and post-retirement benefits
|
71
|
71
|
|||
Trade, other payables and provisions
|
7
|
7
|
|||
Deferred taxation
|
300
|
300
|
|||
—
|
3,079
|
—
|
—
|
3,079
|
US Dollar million
|
AGA plc
|
AGA before the
Reorganisation (1)(2)
|
Adjustments relating to the
Reorganisation (2)(5)
|
Transaction costs (3)
|
AGA plc post the
Reorganisation (4)
|
Current liabilities
|
|||||
Borrowings
|
18
|
18
|
|||
Lease liabilities
|
84
|
84
|
|||
Trade, other payables and provisions (5)
|
710
|
422
|
47
|
1,179
|
|
Taxation
|
45
|
45
|
|||
Bank overdraft
|
2
|
2
|
|||
—
|
859
|
422
|
47
|
1,328
|
|
Total liabilities
|
—
|
3,938
|
422
|
47
|
4,407
|
Total equity and liabilities
|
—
|
8,072
|
—
|
—
|
8,072
|
NAV
|
4,134
|
(422)
|
(47)
|
3,665
|
|
NTAV
|
3,952
|
(422)
|
(47)
|
3,483
|
|
NAV per share (US cents)
|
987.58
|
875.54
|
|||
NTAV per share (US cents)
|
944.10
|
832.06
|
|||
Number of shares issued (‘000)
|
418,600,473
|
418,600,473
|
(1) |
The financial information in the “AGA before the Reorganisation” column has been extracted without adjustment from the audited annual financial statements of AGA at 31 December 2022. The annual financial
statements of AGA were audited by Ernst & Young Inc. who issued an unqualified audit report on 15 March 2023. The AGA annual financial statements were published on 17 March 2023 and can be accessed at (https://www.anglogoldashanti.com/investors/reporting/annual-reports/).
|
(2) |
Under the Reorganisation, AGA plc will acquire all the Scheme Shares, being all the AGA Shares (including AGA Shares represented by AGA ADSs), from the Scheme Participants. The Scheme Participants will
receive AGA plc Shares in exchange for their Scheme Shares in accordance with the Entitlement Ratio, being 1 (one) AGA plc Share for every 1 (one) AGA Share held by a Scheme Participant on the Reorganisation Consideration Record Date, with no
entitlement to cash.
|
(3) |
Transaction costs directly attributable to the Reorganisation of $13 million have been expensed to 31 December 2022. Total estimated transaction costs are $60 million. The adjustment of $47 million, being
the balance of estimated costs to be incurred, will not have a continuing effect on the pro forma income statement and is attributable to the owners of AGA plc.
|
(4) |
The “AGA plc post the Reorganisation” column reflects the pro forma condensed consolidated statement of financial position at 31 December 2022 after the pro forma effects of the Reorganisation.
|
(5) |
The Reorganisation adjustment results in an increase in the current balance of “Trade, other payables and provisions” by $422 million of tax consequences. The tax consequences as calculated based on current
legislation, of $422 million is made up of Australian landholder duty amounting to $58 million, South African securities transfer taxes amounting to $26 million, and South African dividend withholding taxes amounting to $338 million.
|
(6) |
Net tangible asset value (NTAV) was calculated using the SAICA guide on pro forma financial information and is summarised as follows:
|
US Dollar million
|
AGA plc
|
AGA before the
Reorganisation
|
AGA plc post the
Reorganisation
|
Net asset value (NAV)
|
—
|
4,134
|
3,665
|
Less: Goodwill
|
—
|
(105)
|
(105)
|
Less: Deferred taxation
|
—
|
(72)
|
(72)
|
Less: Exploration and evaluation assets
|
—
|
(5)
|
(5)
|
NTAV
|
—
|
3,952
|
3,483
|
Annexure D
|
THE INDEPENDENT REPORTING ACCOUNTANT’S ASSURANCE REPORT ON THE PRO FORMA FINANCIAL INFORMATION
|
EY
|
Ernst & Young Incorporated
|
|
102 Rivonia Road
|
Co. Reg. No. 2005/002308/21
|
|
Sandton
|
Tel: +27 (0) 11 772 3000
|
|
Private Bag X14
|
Fax: +27 (0) 11 772 4000
|
|
Sandton
|
Docex 123 Randburg
|
|
2145
|
ey.com
|
|
Annexure D (continued)
|
● |
The related pro forma adjustments give appropriate effect to those criteria; and
|
● |
The Pro forma Financial Information reflects the proper application of those adjustments
to the unadjusted financial information. Our procedures selected depend on our judgement, having regard to our understanding of the nature of the Group, the corporate action or event in respect of which the Pro forma Financial Information has been compiled, and other relevant engagement circumstances.
|
Annexure E
|
INFORMATION ON AGA DIRECTORS
|
● |
Compagnie Financière Richemont S.A (current)
|
● |
Standard Chartered Plc (current)
|
● |
Standard Chartered Bank Plc (current)
|
● |
Public Investment Corporation SOC Limited (resigned/retired)
|
● |
Saudi British Bank (resigned/retired)
|
● |
Absa Group Limited (resigned/retired)
|
● |
Growthpoint Properties Ltd (current)
|
● |
V&A Waterfront Holdings (Pty) Ltd and Subsidiaries (current)
|
● |
MTN Nigeria Communications Plc (current)
|
● |
Rapid African Energy (Pty) Ltd (resigned/retired)
|
● |
Edcon Group (resigned/retired)
|
● |
MTN Dubai Ltd (resigned/retired)
|
● |
Rapid African Energy Zambia (resigned/retired)
|
● |
RAE Zambia Ltd (resigned/retired)
|
● |
MTN Cameroon (resigned/retired)
|
● |
MTN Yemen (resigned/retired)
|
● |
Orica Limited (resigned/retired)
|
● |
Rio Tinto Alcan Inc. (resigned/retired)
|
● |
Rio Tinto Alcan Fund Inc. (resigned/retired)
|
● |
Rio Tinto Japan Limited (resigned/retired)
|
● |
Rio Tinto Pte Limited (resigned/retired)
|
● |
Rio Tinto Global Employment Company Pte Limited (resigned/retired)
|
● |
African Mining Vision Resources Partners (current)
|
● |
Harbour Energy Plc (current)
|
● |
Johnson Matthey Plc (resigned/retired)
|
● |
Croda International Plc (resigned/retired)
|
● |
Marshall Motors Holdings Plc (resigned/retired)
|
● |
Lithium Americas Corporation (current)
|
● |
Star Royalties Ltd (current)
|
● |
Rexel Group (current)
|
● |
Bessemer Trust (US) (current)
|
● |
Barclays International (resigned/retired)
|
● |
Barclays Bank Plc (resigned/retired)
|
● |
SP+ Corporation (current)
|
● |
PDC Energy Inc. (current)
|
● |
Vmo Aircraft Leasing (resigned/retired)
|
● |
Emera Inc. (current)
|
● |
Nutrien Inc. (resigned/retired)
|
Annexure F
|
SECTION 115 – REQUIRED APPROVAL FOR THE TRANSACTIONS CONTEMPLATED IN PART A OF CHAPTER 5 OF THE COMPANIES ACT
|
(1) |
Despite section 65, and any provision of a company’s Memorandum of Incorporation, or any resolution adopted by its board or holders of its securities, to the contrary, a company may not
dispose of, or give effect to an agreement or series of agreements to dispose of, all or the greater part of its assets or undertaking, implement an amalgamation or a merger, or implement a scheme of arrangement, unless –
|
|
(a) |
the disposal, amalgamation or merger, or scheme of arrangement –
|
|
(i) |
has been approved in terms of this section; or
|
|
(ii) |
is pursuant to or contemplated in an approved business rescue plan for that company, in terms of Chapter 6; and
|
|
(b) |
to the extent that Parts B and C of this Chapter, and the Companies Regulations, apply to a company that proposes to –
|
|
(i) |
dispose of all or the greater part of its assets or undertaking;
|
|
(ii) |
amalgamate or merge with another company; or
|
|
(iii) |
implement a scheme of arrangement,
|
(2) |
A proposed transaction contemplated in subsection (1) must be approved –
|
|
(a) |
by a special resolution adopted by persons entitled to exercise voting rights on such a matter, at a meeting called for that purpose and at which sufficient persons are present to
exercise, in aggregate, at least 25% of all of the voting rights that are entitled to be exercised on that matter, or any higher percentage as may be required by the company’s Memorandum of Incorporation, as contemplated in section 64(2); and
|
|
(b) |
by a special resolution, also adopted in the manner required by paragraph (a), by the shareholders of the company’s holding company if any, if –
|
|
(i) |
the holding company is a company or an external company;
|
|
(ii) |
the proposed transaction concerns a disposal of all or the greater part of the assets or undertaking of the subsidiary; and
|
|
(iii) |
having regard to the consolidated financial statements of the holding company, the disposal by the subsidiary constitutes a disposal of all or the greater part of the assets or
undertaking of the holding company; and
|
|
(c) |
by the court, to the extent required in the circumstances and manner contemplated in subsections (3) to (6).
|
(3) |
Despite a resolution having been adopted as contemplated in subsections (2) (a) and (b), a company may not proceed to implement that resolution without the approval of a court if –
|
|
(a) |
the resolution was opposed by at least 15% of the voting rights that were exercised on that resolution and, within five business days after the vote, any person who voted against the
resolution requires the company to seek court approval; or
|
|
(b) |
the court, on an application within 10 business days after the vote by any person who voted against the resolution, grants that person leave, in terms of subsection (6), to apply to a
court for a review of the transaction in accordance with subsection (7).
|
(4) |
For the purposes of subsections (2) and (3), any voting rights controlled by an acquiring party, a person related to an acquiring party, or a person acting in concert with either of them,
must not be included in calculating the percentage of voting rights –
|
|
(a) |
required to be present, or actually present, in determining whether the applicable quorum requirements are satisfied; or
|
|
(b) |
required to be voted in support of a resolution, or actually voted in support of the resolution.
(4A) In subsection (4), ‘act in concert’ has the meaning set out in section 117 (1) (b).
|
(5) |
If a resolution requires approval by a court as contemplated in terms of subsection (3) (a), the company must either –
|
|
(a) |
within 10 business days after the vote, apply to the court for approval, and bear the costs of that application; or
|
|
(b) |
treat the resolution as a nullity.
|
(6) |
On an application contemplated in subsection (3)(b), the court may grant leave only if it is satisfied that the applicant-
|
|
(a) |
is acting in good faith;
|
|
(b) |
appears prepared and able to sustain the proceedings; and
|
|
(c) |
has alleged facts which, if proved, would support an order in terms of subsection (7).
|
(7) |
On reviewing a resolution that is the subject of an application in terms of subsection (5) (a), or after granting leave in terms of subsection (6), the court may set aside the resolution
only if –
|
|
(a) |
the resolution is manifestly unfair to any class of holders of the company’s securities; or
|
|
(b) |
the vote was materially tainted by conflict of interest, inadequate disclosure, failure to comply with the Act, the Memorandum of Incorporation or any applicable rules of the company, or
other significant and material procedural irregularity.
|
(8) |
The holder of any voting rights in a company is entitled to seek relief in terms of section 164 if that person –
|
|
(a) |
notified the company in advance of the intention to oppose a special resolution contemplated in this section; and
|
|
(b) |
was present at the meeting and voted against that special resolution.
|
(9) |
If a transaction contemplated in this Part has been approved, any person to whom assets are, or an undertaking is, to be transferred, may apply to a court for an order to effect –
|
|
(a) |
the transfer of the whole or any part of the undertaking, assets and liabilities of a company contemplated in that transaction;
|
|
(b) |
the allotment and appropriation of any shares or similar interests to be allotted or appropriated as a consequence of the transaction;
|
|
(c) |
the transfer of shares from one person to another;
|
|
(d) |
the dissolution, without winding-up, of a company, as contemplated in the transaction;
|
|
(e) |
incidental, consequential and supplemental matters that are necessary for the effectiveness and completion of the transaction; or
|
|
(f) |
any other relief that may be necessary or appropriate to give effect to, and properly implement, the amalgamation or merger.
|
Annexure G
|
SECTION 164 – DISSENTING SHAREHOLDERS’ APPRAISAL RIGHTS
|
(1) |
This section does not apply in any circumstances relating to a transaction, agreement or offer pursuant to a business rescue plan that was approved by shareholders of a company, in terms
of section 152.
|
(2) |
If a company has given notice to shareholders of a meeting to consider adopting a resolution to –
|
|
(a) |
amend its Memorandum of Incorporation by altering the preferences, rights, limitations or other terms of any class of its shares in any manner materially adverse to the rights or
interests of holders of that class of shares, as contemplated in section 37(8); or
|
|
(b) |
enter into a transaction contemplated in section 112, 113, or 114, that notice must include a statement informing shareholders of their rights under this section.
|
(3) |
At any time before a resolution referred to in subsection (2) is to be voted on, a dissenting shareholder may give the company a written notice objecting to the resolution.
|
(4) |
Within 10 business days after a company has adopted a resolution contemplated in this section, the company must send a notice that the resolution has been adopted to each shareholder who
–
|
|
(a) |
gave the company a written notice of objection in terms of subsection (3); and
|
|
(b) |
has neither –
|
|
(i) |
withdrawn that notice; or
|
|
(ii) |
voted in support of the resolution.
|
(5) |
A shareholder may demand that the company pay the shareholder the fair value for all of the shares of the company held by that person if –
|
|
(a) |
the shareholder –
|
|
(i) |
sent the company a notice of objection, subject to subsection (6); and
|
|
(ii) |
in the case of an amendment to the company’s Memorandum of Incorporation, holds shares of a class that is materially and adversely affected by the amendment;
|
|
(b) |
the company has adopted the resolution contemplated in subsection (2); and
|
|
(c) |
the shareholder –
|
|
(i) |
voted against that resolution; and
|
|
(ii) |
has complied with all of the procedural requirements of this section.
|
(6) |
The requirement of subsection (5) (a) (i) does not apply if the company failed to give notice of the meeting, or failed to include in that notice a statement of the shareholders rights
under this section.
|
(7) |
A shareholder who satisfies the requirements of subsection (5) may make a demand contemplated in that subsection by delivering a written notice to the company within –
|
|
(a) |
20 business days after receiving a notice under subsection (4); or
|
|
(b) |
if the shareholder does not receive a notice under subsection (4), within 20 business days after learning that the resolution has been adopted.
|
(8) |
A demand delivered in terms of subsections (5) to (7) must also be delivered to the Panel, and must state –
|
|
(a) |
the shareholder’s name and address;
|
|
(b) |
the number and class of shares in respect of which the shareholder seeks payment; and
|
|
(c) |
a demand for payment of the fair value of those shares.
|
(9) |
A shareholder who has sent a demand in terms of subsections (5) to (8) has no further rights in respect of those shares, other than to be paid their fair value, unless-
|
|
(a) |
the shareholder withdraws that demand before the company makes an offer under subsection (11), or allows an offer made by the company to lapse, as contemplated in subsection (12)(b);
|
|
(b) |
the company fails to make an offer in accordance with subsection (11) and the shareholder withdraws the demand; or
|
|
(c) |
the company, by a subsequent special resolution, revokes the adopted resolution that gave rise to the shareholder’s rights under this section.
|
(10) |
If any of the events contemplated in subsection (9) occur, all of the shareholder’s rights in respect of the shares are reinstated without interruption.
|
(11) |
Within five business days after the later of-
|
|
(a) |
the day on which the action approved by the resolution is effective;
|
|
(b) |
the last day for the receipt of demands in terms of subsection (7) (a); or
|
|
(c) |
the day the company received a demand as contemplated in subsection (7) (b),
|
(12) |
Every offer made under subsection (11) –
|
|
(a) |
in respect of shares of the same class or series must be on the same terms; and
|
|
(b) |
lapses if it has not been accepted within 30 business days after it was made.
|
(13) |
If a shareholder accepts an offer made under subsection (12) –
|
|
(a) |
the shareholder must either in the case of –
|
|
(i) |
shares evidenced by certificates, tender the relevant share certificates to the company or the company’s transfer agent; or
|
|
(ii) |
uncertificated shares, take the steps required in terms of section 53 to direct the transfer of those shares to the company or the company’s transfer agent; and
|
|
(b) |
the company must pay that shareholder the agreed amount within 10 business days after the shareholder accepted the offer and –
|
|
(i) |
tendered the share certificates; or
|
|
(ii) |
directed the transfer to the company of uncertificated shares.
|
(14) |
A shareholder who has made a demand in terms of subsections (5) to (8) may apply to a court to determine a fair value in respect of the shares that were the subject of that demand, and an
order requiring the company to pay the shareholder the fair value so determined, if the company has –
|
|
(a) |
failed to make an offer under subsection (11); or
|
|
(b) |
made an offer that the shareholder considers to be inadequate, and that offer has not lapsed.
|
(15) |
On an application to the court under subsection (14) –
|
|
(a) |
all dissenting shareholders who have not accepted an offer from the company as at the date of the application must be joined as parties and are bound by the decision of the court;
|
|
(b) |
the company must notify each affected dissenting shareholder of the date, place and consequences of the application and of their right to participate in the court proceedings; and
|
|
(c) |
the court –
|
|
(i) |
may determine whether any other person is a dissenting shareholder who should be joined as a party;
|
|
(ii) |
must determine a fair value in respect of the shares of all dissenting shareholders, subject to subsection (16);
|
|
(iii) |
in its discretion may –
|
|
(aa) |
appoint one or more appraisers to assist it in determining the fair value in respect of the shares; or
|
|
(bb) |
allow a reasonable rate of interest on the amount payable to each dissenting shareholder from the date the action approved by the resolution is effective, until the date of payment;
|
|
(iv) |
may make an appropriate order of costs, having regard to any offer made by the company, and the final determination of the fair value by the court; and
|
|
(v) |
must make an order requiring –
|
|
(aa) |
the dissenting shareholders to either withdraw their respective demands or to comply with subsection (13) (a); and
|
|
(bb) |
the company to pay the fair value in respect of their shares to each dissenting shareholder who complies with subsection (13) (a), subject to any conditions the court considers necessary
to ensure that the company fulfils its obligations under this section.
|
(15A) |
At any time before the court has made an order contemplated in subsection (15) (c) (v), a dissenting shareholder may accept the offer made by the company in terms of subsection (11), in
which case –
|
|
(a) |
that shareholder must comply with the requirements of subsection (13) (a); and
|
|
(b) |
the company must comply with the requirements of subsection (13) (b).
|
(16) |
The fair value in respect of any shares must be determined as at the date on which, and time immediately before, the company adopted the resolution that gave rise to a shareholder’s
rights under this section.
|
(17) |
If there are reasonable grounds to believe that compliance by a company with subsection (13)(b), or with a court order in terms of subsection (15)(c)(v)(bb), would result in the company
being unable to pays its debts as they fall due and payable for the ensuing 12 months –
|
|
(a) |
the company may apply to a court for an order varying the company’s obligations in terms of the relevant subsection; and
|
|
(b) |
the court may make an order that –
|
|
(i) |
is just and equitable, having regard to the financial circumstances of the company; and
|
|
(ii) |
ensures that the person to whom the company owes money in terms of this section is paid at the earliest possible date compatible with the company satisfying its other financial
obligations as they fall due and payable.
|
(18) |
If the resolution that gave rise to a shareholder’s rights under this section authorised the company to amalgamate or merge with one or more other companies, such that the company whose
shares are the subject of a demand in terms of this section has ceased to exist, the obligations of that company under this section are obligations of the successor to that company resulting from the amalgamation or merger.
|
(19) |
For greater certainty, the making of a demand, tendering of shares and payment by a company to a shareholder in terms of this section do not constitute a distribution by the company, or
an acquisition of its shares by the company within the meaning of section 48, and therefore are not subject to –
|
|
(a) |
the provisions of that section; or
|
|
(b) |
the application by the company of the solvency and liquidity test set out in section 4.
|
(20) |
Except to the extent –
|
|
(a) |
expressly provided in this section; or
|
|
(b) |
that the Panel rules otherwise in a particular case,
|
Annexure H
|
TAX IMPLICATIONS FOR AGA SHAREHOLDERS
|
● |
a bank or other financial institution;
|
● |
a tax-exempt organisation;
|
● |
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 percent (10%) or more of the voting stock of AGA prior to the Reorganisation;
|
● |
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 organised 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.
|
Annexure H (continued)
|
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.
|
Annexure H (continued)
|
● |
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.
|
Annexure H (continued)
|
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.
|
Annexure H (continued)
|
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.
|
Annexure I
|
EXTRACT OF THE EXCHANGE CONTROL REGULATIONS
|
14.(1) |
No person shall, without permission granted by the Treasury or a person authorised by the Treasury and in accordance with such conditions as the Treasury or such authorised person may
impose –
|
|
(a) |
acquire or dispose of in any way any controlled security;
|
|
(b) |
act as nominee for a non-resident or appoint a non-resident as nominee in respect of any dealings in securities;
|
|
(c) |
make any entry in a security register which involves the transfer of a security into or out of the name of a non-resident;
|
|
(d) |
change an address of a non-resident in any security register except a change to an address in the same monetary area as that currently recorded in the register;
|
|
(e) |
enter in a security register or do any act with intent to secure the entry in such register of an address in the Republic if he knows or has reason to believe that the purchaser of the
security is a non-resident or that a non-resident has an interest in the security;
|
|
(f) |
transfer a security owned by a non-resident, or in which a non-resident has an interest from a United Kingdom register or from the London section of a register to a South African register
or section of a South African register.
|
(2) |
(a) |
Any person who holds, possesses or has in his custody any controlled securities shall submit such securities to an authorised dealer within thirty days from the date of commencement of this regulation or within thirty days from the date on which he becomes the holder of such securities or on which such securities come into his possession or are placed in his custody whichever is the later date. |
|
(b) |
The securities submitted in terms of paragraph (a) must be accompanied by a list giving the following particulars: –
|
|
(i) |
Full name and country of residence of owner or person interested in the securities, together with a signed declaration by the holder that to the best of his knowledge, the owner or
interested person is actually resident in the country stated.
|
|
(ii) |
Name of company or body which issued the securities.
|
|
(iii) |
Total number of securities.
|
|
(iv) |
Full name and residential address of person in possession of the securities or who has the securities in his custody.
|
(3) |
For the purpose of this regulation –
|
|
(a) |
“controlled security” means –
|
|
(i) |
any security which is registered in the name of a non-resident, or of which a non-resident is the owner, or in which a non-resident has an interest;
|
|
(ii) |
any security acquired from a non-resident or acquired outside the Republic, by any person, irrespective of the residence of such person;
|
|
(b) |
“non-resident” means a person resident outside the Republic;
|
|
(c) |
“nominee” means a person through whose agency all or any of the rights of the owner of a security are exercised.
|
NOTICE OF SHAREHOLDERS’ MEETING
|
● |
receive notice of the Shareholders’ Meeting (being the date on which an AGA Shareholder must be registered in the AGA Register in order to receive notice
of the Shareholders’ Meeting), which date is Friday, 30 June 2023; and
|
● |
participate in and vote at the Shareholders’ Meeting (being the date on which an AGA Shareholder must be registered in the AGA Register in order to participate in and vote at the Shareholders’ Meeting), which date is Friday, 11 August
2023, being the Voting Record Date.
|
● |
are Certificated AGA Shareholders; or
|
● |
are Dematerialised AGA Shareholders with “own name” registration.
|
Annexure J (continued)
|
(i) |
Special Resolution Number 1 and/or Special Resolution Number 2 being approved by the AGA Shareholders; and
|
(ii) |
any Reorganisation Condition not being fulfilled or, to the extent permitted by applicable law and the Implementation Agreement, waived, or the AGAH Sale or the Scheme (as the case may be) has otherwise
lapsed or failed or the AGAH Sale or the Scheme (as the case may be) is terminated or cancelled, then:
|
(i) |
each of Special Resolution Number 1 and Special Resolution Number 2 be and is revoked with effect from the date of the announcement by AGA that the Reorganisation will not be continued or pursued any
further, including as contemplated in Section 164(9)(c) of the Companies Act; and
|
(ii) |
each Dissenting AGA Shareholder which has, pursuant to the adoption of the revoked Special Resolution Number 1 and/or and Special Resolution Number 2, sent a demand to the Company in terms of Sections 164(5)
to (8) of the Companies Act to be paid the fair value of its AGA Ordinary Shares, shall cease to have, and be deemed not to have had, any right, pursuant to the adoption of the revoked Special Resolution Number 1 and/or Special Resolution
Number 2, to be paid under Section 164 of the Companies Act.”
|
(i) |
revoke Special Resolution Number 1 and Special Resolution Number 2, being the resolutions which gave rise to the Appraisal Rights exercised by the Dissenting AGA Shareholders; and
|
(ii) |
reinstate the rights attaching to the AGA Ordinary Shares held by the Dissenting AGA Shareholders and absolve AGA from its obligation to purchase the AGA Ordinary Shares held by the Dissenting AGA
Shareholders for fair value.
|
● |
gave the Company a written notice of objection as contemplated above; and
|
● |
has not withdrawn that notice and has voted against Special Resolution Number 1 and/or Special Resolution Number 2 (as applicable).
|
● |
the AGA Shareholder has sent the Company a written notice of objection as contemplated above;
|
● |
the Company has adopted Special Resolution Number 1 and Special Resolution Number 2; and
|
● |
the AGA Shareholder voted against Special Resolution Number 1 and/or Special Resolution Number 2 (as applicable) and has complied with all of the procedural requirements of Section 164 of the Companies Act.
|
Date
|
Friday, 18 August 2023
|
Venue
|
The Platform hosted by TMS – further details of which will be provided to the AGA Shareholders upon making contact with TMS
|
Timing
|
The Shareholders’ Meeting will start promptly at 2:00 p.m. (South Africa Standard Time)
|
Admission
|
AGA Shareholders and others attending the Shareholders’ Meeting are asked to register with TMS by not later than 2:00 p.m. (South Africa Standard Time) on Friday, 4
August 2023. AGA Shareholders and proxies are required to provide proof of identity to TMS prior to being granted access to the Platform by TMS
|
Electronic participation
|
Every AGA Shareholder may only Participate in the Shareholders’ Meeting through electronic communication by making use of the Platform
|
Enquiries and questions
|
AGA Shareholders who intend to ask questions related to the business of the Shareholders’ Meeting or on related matters are asked to furnish their name, address and
question/s to TMS, which will be available to provide any advice and assistance required
|
Queries about the Shareholders’ Meeting
|
If you have any queries about the Shareholders’ Meeting, please telephone any of the contact names listed on the inside back cover
|
FORM OF PROXY
|
I/We (Full name in block letters)
|
of (address)
|
Telephone number
|
Cellphone number
|
E-mail address
|
1.
|
or failing him/her
|
|||
2.
|
or failing him/her
|
|||
3.
|
the chairman of the Shareholders’ Meeting.
|
For
|
Against
|
Abstain
|
|
Special Resolution Number 1 – Approval of the AGAH Sale
|
|||
Special Resolution Number 2 – Approval of the Scheme
|
|||
Special Resolution Number 3 – Revocation of Special Resolution Number 1 and Special Resolution Number 2
if the Reorganisation does not become unconditional or is not continued
|
|||
Ordinary Resolution Number 1 – Directors’ authority
|
Place an “X” in the appropriate box to indicate your vote – see note 2.
Every person entitled to vote who is present at the Shareholders’ Meeting or its proxy shall be entitled to:
(a) on a show of hands, one vote, irrespective of the number of AGA Ordinary Shares such person holds or represents, provided that a proxy shall
irrespective of the number of shareholders he/she represents, have only one vote;
(b) on a vote by poll, one vote for each AGA Ordinary Share such person holds or represents.
A proxy may not delegate his/her authority to act on his/her behalf to another person (see note 4).
This proxy form will lapse and cease to be of force and effect immediately after the Shareholders’ Meeting of the Company and any adjournment(s) thereof, unless it is revoked earlier (as to which see notes 12 and 13).
|
Signed at
___________________ on _______________________________ 2023
Name in block letters
____________________________________________________________
Signature
____________________________________________________________
Assisted by me (where applicable)
____________________________________________________________
|
1. A signatory to this form of proxy may insert the name of a proxy or the name of an alternative proxy of the signatory’s choice in the blank
spaces provided with or without deleting “the chairman of the Shareholders’ Meeting, but any such deletion must be signed in full by the signatory. Any deletion not complying with the foregoing will be deemed not to have been validly
effected. The person present at the Shareholders’ Meeting whose name appears first on the list of names overleaf, shall be the validly appointed proxy for the shareholder at the Shareholders’ Meeting.
2. Please insert an “X” in the relevant space according to how you wish your votes to be cast. However, if you wish to cast your votes in respect
of a lesser number of shares than you own in the company, insert the number of shares held in respect of which you wish to vote. A shareholder or the proxy is not obliged to use all the votes exercisable by the shareholder or by the proxy,
or to cast all those votes in the same way, but the total of votes exercised, and in respect whereof abstention is directed, may not exceed the total of the votes exercisable by the shareholder or the proxy. Failure to comply with the above
or to provide voting instructions or the giving of contradictory instructions will be deemed to authorise the proxy to vote or abstain from voting at the Shareholders’ Meeting as he/she deems fit in respect of all the shareholder’s votes
exercisable at the Shareholders’ Meeting. If the shareholding is not indicated in the form of proxy, the proxy will be deemed to be authorised to vote the total shareholding registered in the shareholder’s names.
3. A proxy appointment must be in writing, dated and signed by the holder appointing the proxy or proxies.
4. A proxy may not delegate his/her authority to act on behalf of the shareholder, to another person.
5. A vote given in terms of an instrument of proxy shall be valid in relation to the Shareholders’ Meeting notwithstanding the death, insanity or
other legal disability of the person granting it, or the revocation of the proxy, or the transfer of the shares in respect of which the proxy is given, unless notice as to any of the aforementioned matters shall have been received by the
share registrars not less than twenty-four hours before the commencement of the Shareholders’ Meeting, or at any adjournment thereof.
6. Any alteration or correction made to this form of proxy must be signed in full and not initialled by the signatory.
7. Documentary evidence establishing the authority of a person signing this form of proxy in a representative capacity must be attached to this
form of proxy unless previously recorded by the share registrars of the company in South Africa or Ghana.
8. A minor must be assisted by his/her parent/guardian unless the relevant documentary evidence establishing his/her legal capacity is attached
to this form of proxy or has been previously recorded by the share registrar’s of the company in South Africa or Ghana.
|
9. When there are joint holders of shares and if more than one such joint shareholder present or represented then the person whose name appears first in the securities register in
respect of such shares or his / her proxy, as the case may be, shall alone be entitled to vote in respect thereof.
10. The completion and lodging of this form of proxy will not preclude the shareholder who grants the proxy from attending the Shareholders’ Meeting and speaking and voting in person
thereat to the exclusion of any proxy appointed in terms hereof, should such shareholder wish to do so.
11. The chairman of the Shareholders’ Meeting may reject or accept any form of proxy which is completed and/or received otherwise than in accordance with these notes, provided that
he/she, in the event of acceptance, is satisfied as to the manner in which the shareholder concerned wishes to vote.
12. The appointment of a proxy or proxies:
12.1. is suspended at any time and to the extent that the shareholder chooses to act directly and in person in the exercise of any right as a shareholder at the Shareholders’ Meeting;
12.2. is revocable in which case a shareholder may revoke the proxy appointment by:
12.2.1. cancelling it in writing or making a later inconsistent appointment of a proxy; and
12.2.2. delivering a copy of the revocation instrument to the proxy and to the company.
13. The revocation of a proxy appointment constitutes a complete and final cancellation of the proxy’s authority to act on behalf of the
shareholder as of the later of:
13.1. the date stated in the revocation instrument, if any;
or
13.2. the date on which the revocation instruments was
delivered to the proxy and the company as
aforesaid.
14. It is requested that completed forms of proxy should be returned to one of the undermentioned addresses no later than 2:00 p.m. (South Africa Standard Time) on Wednesday, 16 August
2023. Any forms of proxy not lodged by this time may be sent to Computershare Investor Services before the conclusion of the meeting.
Computershare Investor Services Proprietary Limited Rosebank Towers, 15 Biermann Avenue, Rosebank Johannesburg 2196
Private Bag X9000, Saxonwold, 2132, South Africa
E-mail: proxy@computershare.co.za
|
FORM OF SURRENDER AND TRANSFER
|
1. |
This form is only for use in respect of the Reorganisation.
|
2. |
Full details of the Reorganisation are contained in the Circular.
|
3. |
This form is attached for the convenience of Certificated AGA Shareholders who may wish to surrender their Documents of Title prior to or post the date of the Shareholders’ Meeting to be held on Friday, 18
August 2023 at 2:00 pm (South African Standard Time).
|
4. |
This Form of Surrender and Transfer is for use only by Certificated AGA Shareholders recorded in the AGA Register on the Reorganisation Consideration Record Date.
|
5. |
A separate Form of Surrender and Transfer is required for each Certificated AGA Shareholder.
|
6. |
Part A and Part C must be completed by all Certificated AGA Shareholders who return this form.
|
7. |
Part B must be completed by all Certificated AGA Shareholders who are emigrants from the Common Monetary Area.
|
8. |
If this Form of Surrender and Transfer is submitted together with the relevant Document/s of Title of the Certificated AGA Shareholders prior to the Operative Date, it will be treated as a conditional
surrender which is made subject to the Reorganisation becoming unconditional, details of which are set out in the Circular to which this form is attached and forms part of. In the event of the Reorganisation not becoming unconditional or not
being implemented for any reason whatsoever, the Transfer Secretaries shall, by not later than 5 (five) Business Days of either the date upon which it becomes known that the Reorganisation will not be implemented or on receipt by the Transfer
Secretaries of the required Documents of Title, whichever is the later, return the Documents of Title to the Certificated AGA Shareholders concerned, by registered post, at the risk of such Certificated AGA Shareholders.
|
9. |
Persons who have acquired Certificated AGA Ordinary Shares after the date of the issue of the Circular to which this Form of Surrender and Transfer is attached can obtain copies of the Form of Surrender and
Transfer and the Circular from the Company’s website (https://www.anglogoldashanti.com).
|
10. |
If a Scheme Participant fails 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 transferred in Dematerialised form to an account in the name of Computershare Nominees, who will hold such NewCo Ordinary Shares as the registered holder thereof for and on your behalf, and you will become an Issuer Nominee Dematerialised
NewCo Shareholder. Issuer Nominee Dematerialised NewCo Shareholders will be sent instructions by Computershare Nominees explaining the procedure for surrendering their share certificates and obtaining full access to their NewCo Ordinary
Shares following completion of the Reorganisation.
|
Hand deliveries to:
|
Postal deliveries to:
|
Email deliveries to:
|
Rosebank Towers
15 Bierman Avenue
Rosebank
Johannesburg, 2196
|
Private Bag x3000
Saxonwold
South Africa
2132
|
corporate.actions@computershare.co.za
|
Name of AGA Shareholder
|
Certificate number/s
|
Number of Scheme Shares covered by each certificate/s enclosed
|
Total
|
Surname or Name of corporate body:
|
First name/s in full:
|
Title (Mr, Mrs, Miss, Ms, etc):
|
Cellphone number:
|
Email address:
|
Address:
|
Postal code:
|
Signature of AGA Shareholder
|
Name and address of agent lodging this Form (if any)
|
Assisted by me (if applicable):
|
|
(State full name and capacity):
|
|
Date:
|
|
Telephone number (Home):
|
|
Telephone number (Work):
|
|
Email address:
|
|
Cellphone number:
|
Stamp and address of agent lodging this Form (if any)
|
|
Name of authorised dealer:
|
|
Address:
|
|
Name of bank:
|
|
Account number:
|
|
Branch code:
|
|
Telephone:
|
|
Contact person:
|
Name of account holder (no third party accounts):
|
Name of Broker:
|
Name of CSDP:
|
Account number of Broker:
|
Account number of CSDP:
|
Telephone number of CSDP:
|
SCA number of Broker/CSDP:
|
(State full name and capacity):
|
Signature of Shareholder
|
Stamp and address of agent lodging this form (if any
|
|
1. |
No receipt will be issued for documents lodged unless specifically requested. Signatories may be called upon for evidence of their authority or capacity to sign this form.
|
2. |
Persons who are emigrants from the Common Monetary Area should nominate the authorised dealer in foreign exchange in South Africa which has control of their blocked asserts in Part B of this form. Failing such nomination, the Reorganisation Consideration due to such Scheme Participants in accordance with the provisions of the Reorganisation will be held by Computershare Nominees for and on behalf
of such Scheme Participants, pending lawful instruction from the Scheme Participants concerned.
|
3. |
Any alteration to this form must be signed in full and not initialled.
|
4. |
If this form is signed under power of attorney, then such power of attorney or a notarially certified copy thereof must be sent with this form for noting (unless it has already been noted by the Company or
its Transfer Secretaries). This does not apply in the event of this form bearing a JSE broker’s stamp.
|
5. |
Where the Scheme Participant is a company or a close corporation, unless it has been registered with the Company or its Transfer Secretaries, a certified copy of the directors’ or members’ resolution
authorising the signing of this form must be submitted if so requested by the Company.
|
6. |
If this form is not signed by the Scheme Participant, the Scheme Participant will be deemed to have irrevocably appointed the Company Secretary or the Transfer Secretaries to implement the Scheme
Participant’s obligations under the Reorganisation on his/her behalf.
|
7. |
Where there are any joint holders of any Scheme Shares, only that holder whose name stands first in the AGA Register in respect of such shares need sign this form.
|
8. |
A minor must be assisted by his/her parent or guardian, unless the relevant documents establishing his/her legal capacity are produced or have been registered by the Transfer Secretaries.
|
PRE-LISTING STATEMENT
|
● |
is issued in compliance with the JSE Listings Requirements for a listing by way of an introduction;
|
● |
has been prepared on the assumption that the shareholders’ resolutions proposed in the notice of the Shareholders’ Meeting, forming
part of the Circular to which this Pre-listing Statement is enclosed, will be passed at the Shareholders’ Meeting of the AGA
Shareholders and the Reorganisation shall become effective and be implemented; and
|
● |
should be read in conjunction with the Circular (to which this Pre-listing Statement is enclosed) detailing the Reorganisation
together with the Form F-4 (which is available for inspection in terms of the Circular) relating to the registration of the NewCo Ordinary
Shares with the U.S. Securities and Exchange Commission (the “SEC”).
|
● |
the Spin-Off, in terms of which a distribution in specie will be effected by AGA to the AGA Shareholders recorded in the AGA Register as at the
Reorganisation Consideration Record Date, pursuant to which AGA will direct NewCo, its wholly-owned Subsidiary at that time, to issue 46,000 (forty six thousand) NewCo Ordinary Shares to such AGA Shareholders on a pro rata basis, with the aggregate subscription price of USD 46,000 (forty six thousand United States Dollars) paid by AGA resulting in NewCo ceasing to be a Subsidiary of AGA;
|
● |
the AGAH Sale, in terms of which NewCo has made an irrevocable offer to AGA to purchase 100% (one hundred percent) of the issued shares in AGAH. It is the present, non-binding intention
of AGA to accept the Irrevocable Offer to Purchase. The AGAH Sale, if completed, will constitute a disposal of all or a greater part of the assets or undertaking of AGA subject to approval under Chapter 5 of the Companies Act in terms of
Section 112 and Section 115 of the Companies Act; and
|
● |
the Scheme, being a scheme of arrangement in terms of Section 114(1) read with Section 115 of the Companies Act between AGA and the AGA Shareholders, proposed by the AGA Board whereby
NewCo will acquire all of the issued AGA Ordinary Shares from the AGA Shareholders in consideration for the right and obligation to receive, ipso facto and without any action on the part of such AGA
Shareholders, the respective pro rata portions of the Scheme Consideration Shares.
|
● |
the NewCo Ordinary Shares will have a primary listing on the NYSE and secondary inward listings on the JSE under the ticker symbol “ANG” and ISIN No. GB00BRXH2664 and on the A2X, and a
secondary listing on the GhSE; and
|
● |
the AGA Shares currently listed on the JSE under the ticker symbol “ANG” will be delisted from the Main Board of the JSE.
|
Legal Adviser
as to South African law
|
Legal Adviser
as to U.S. law
|
Legal Adviser
as to English law
|
|
|
Tax Adviser
as to South African Tax
|
Transaction Sponsor
|
Independent Reporting Accountant
|
Financial Adviser
|
JSE Sponsor
|
|
Financial Adviser
|
Financial Adviser
|
|
|
CORPORATE INFORMATION AND ADVISERS
|
CORPORATE INFORMATION
|
|
AngloGold Ashanti plc
(previously known as AngloGold Ashanti (UK) Limited)
Company No. 14654651
Date and place of Incorporation
10 February 2023, the United Kingdom
Directors
Executive
Alberto Calderon
Robert Hayes
Non-executive
None
Registered Office
4th Floor, Communications House
South Street
Staines-upon-Thames, Surrey TW18 4PR
United Kingdom
Tel: +44 (0) 203 968 3323
Company Secretary
Oakwood Corporate Secretary Limited
Registration No. 07038430
3rd Floor
1 Ashley Road
Altrincham, Cheshire
'WA14 2DT
United Kingdom
+44 (0)161 942 4700
Transfer Secretaries
Computershare Trust Company, N.A.
150 Royall Street
Canton, Massachusetts 02021
United States of America
Transaction Sponsor
J.P. Morgan Equities South Africa Proprietary Limited
Registration No. 1995/011815/07
1 Fricker Road, Illovo, Johannesburg, 2196
South Africa
(Private Bag X9936, Sandton, 2196, South Africa)
JSE Sponsor
The Standard Bank of South Africa Limited
Registration No. 1962/000738/06
33 Baker, Rosebank
Johannesburg, 2196
South Africa
(PO Box 61344, Marshalltown, 2107)
Telephone: +27 11 721 0000
|
AngloGold Ashanti Limited
Registration No. 1944/017354/06 Date and place of Incorporation
29 May 1944, South Africa
Directors
Executive
Alberto Calderon
Gillian Doran
Non-executive
Maria Ramos (Chairperson)
Kojo Busia
Alan Ferguson
Albert Garner
Rhidwaan Gasant
Scott Lawson
Maria Richter
Jochen Tilk
Registered Office
112 Oxford Road, Houghton Estate, Johannesburg, 2198
(Private Bag X 20, Rosebank 2196)
South Africa
Telephone: +27 11 637 6000
Fax: +27 11 637 6624
Company Secretary
LM Goliath
(B.Com; MBA)
Transfer Secretaries
Computershare Investor Services Proprietary Limited
Registration No. 2004/003647/07
Rosebank Towers, 15 Biermann Avenue,
Rosebank, 2196
(Private Bag X9000, Saxonwold, 2123)
South Africa
Telephone: 0861 100 930 (in SA)
E-mail: queries@computershare.co.za
Website: www.computershare.com
Independent External Auditor
PricewaterhouseCoopers Incorporated
Registration No. 1998/012055/21
Waterfall City Heliport, 4 Lisbon Lane, Waterfall City,
Midrand, 2090
South Africa
|
ADVISERS
|
|
Legal Adviser as to South African law
Edward Nathan Sonnenbergs Incorporated
Registration No. 2006/018200/21
The MARC, Tower 1, 129 Rivonia Road, Sandton,
Johannesburg
South Africa
(PO Box 783347, Sandton, 2146)
Legal Adviser as to English law
Slaughter and May
SRA number: 55388
One Bunhill Row, London, EC1Y 8YY
United Kingdom
Financial Adviser
Centerview Partners UK LLP
Company number OC345806
Principal place of business:
100 Pall Mall, London, SW1Y 5NQ
United Kingdom
Financial Adviser
JPMorgan Chase Bank, N.A., Johannesburg Branch
Registration No. 2001/016069/10
1 Fricker Road, Illovo, Johannesburg, 2196
South Africa
(Private Bag X9936, Sandton, 2196, South Africa)
|
Legal Adviser as to U.S. law
Cravath, Swaine & Moore LLP
DOS ID Number: 2886667
CityPoint, One Ropemaker Street, London, EC2Y 9HR
United Kingdom
Independent Reporting Accountant
Ernst & Young Incorporated
Registration No. 2005/002308/21
EY, 102 Rivonia Road, Sandton, Johannesburg
(Private Bag X14, Sandton, 2146)
South Africa
Financial Adviser
Rothschild and Co South Africa Proprietary Limited
7th Floor, 144 Oxford,
Johannesburg
South Africa
(PO Box 411332, Craighall, 2024)
Tax Advisor as to South African tax law
Bowman Gilfillan Inc.
Registration No.1998/021409/21
11 Alice Lane, Sandhurst, Sandton, 2196
South Africa
|
NOTICE TO INVESTORS
|
TABLE OF CONTENTS
|
CLAUSE NUMBER AND DESCRIPTION
|
PAGE
|
PRE-LISTING STATEMENT
|
4
|
CORPORATE INFORMATION AND ADVISERS
|
7
|
NOTICE TO INVESTORS
|
9
|
IMPORTANT INFORMATION
|
13
|
IMPORTANT FINANCIAL AND OTHER INFORMATION
|
16
|
DEFINITIONS AND INTERPRETATION
|
17
|
SALIENT DATES AND TIMES
|
24
|
EXECUTIVE SUMMARY
|
26
|
PER SHARE MARKET INFORMATION AND DIVIDENDS
|
40
|
INFORMATION ABOUT NEWCO, THE GROUP AND THE COMPANIES INVOLVED IN THE REORGANISATION
|
41
|
MINERAL RESOURCE AND MINERAL RESERVE STATEMENT
|
49
|
NEWCO DIRECTORS AND NEWCO MANAGEMENT
|
50
|
REMUNERATION OF NEWCO DIRECTORS AND NEWCO MANAGEMENT
|
58
|
MATERIAL U.S. FEDERAL INCOME TAX CONSEQUENCES
|
64
|
MATERIAL U.K. TAX CONSEQUENCES
|
69
|
IMPORTANT INFORMATION
|
● |
NewCo Articles of Association;
|
● |
AGA Memorandum of Incorporation;
|
● |
the Implementation Agreement;
|
● |
the Irrevocable Offer to Purchase;
|
● |
the Mineral Resource and Mineral Reserve Report as at 31 December 2022;
|
● |
copies or summaries of service agreements with NewCo’s and AGA’s directors, managers, secretaries entered into within the three years preceding the Last Practicable Date;
|
● |
written consents of the Financial Advisers, Sponsors, Independent Reporting Accountant and Legal Advisers to the inclusion of their names in this Pre-listing Statement in the context and form in which they
appear;
|
● |
the audited financial statements of AGA for the three years ended 2022, 2021, 2020, prepared in accordance with IFRS, as issued by IASB;
|
● |
the reviewed condensed consolidated interim financial statements of AGA for the three financial periods ended 30 June 2022, 2021 and 2020, prepared in accordance with IFRS;
|
● |
pro forma financial information of NewCo to illustrate the effects of the Reorganisation as of and for the 12 (twelve) months ended 31 December 2022;
|
● |
Independent Reporting Accountant’s assurance report on the pro forma financial information incorporated by reference in this Pre-listing Statement;
|
● |
the NewCo Share Plan;
|
● |
a signed copy of the Form F-4;
|
● |
a signed copy of the Circular; and
|
● |
a signed copy of this Pre-listing Statement.
|
Document
|
Location
|
Circular (including pro-forma financial information of NewCo to illustrate the effects of the Reorganisation and the relevant Independent Reporting Accountant’s assurance report)
|
https://www.anglogoldashanti.com
|
AGA Integrated Report for 2022 / AGA Annual Financial Report
|
Integrated Report 2022 | AngloGold Ashanti
|
AGA Audited annual financial statements of AGA for the 3 (three) financial years ended 31 December 2020, 2021 and 2022
|
Annual reports – AngloGold Ashanti
|
AGA Mineral Resource and Mineral Reserve Report
|
Annual reports – AngloGold Ashanti
|
AGA – Q1 2023 Market Update Report
|
https://www.anglogoldashanti.com
|
● |
on AGA’s website at https://www.anglogoldashanti.com; and
|
● |
at NewCo’s registered address, AGA’s registered address and at the offices of the Sponsors, which documents will be available at no charge, during business hours for a period of 14
(fourteen) days after the date of this Pre-listing Statement.
|
IMPORTANT FINANCIAL AND OTHER INFORMATION
|
DEFINITIONS AND INTERPRETATION
|
|
1. |
the following terms shall have the meanings assigned to them hereunder and cognate expressions shall have corresponding meanings, namely:
|
|
1.1. |
“ADS Depositary” means The Bank of New York Mellon, which acts as the depositary in respect of the AGA ADS Program;
|
|
1.2. |
“AGA” or “Company” means AngloGold Ashanti Limited (Registration No.1944/017354/06), a public company duly
incorporated in accordance with the company laws of South Africa;
|
|
1.3. |
“AGA ADS Holder” means a registered holder of AGA ADSs;
|
|
1.4. |
“AGA ADS Program” means the American Depositary Share Program of AGA governed by the AGA Deposit Agreement;
|
|
1.5. |
“AGA ADSs” means American depositary shares representing AGA Shares deposited or subject to deposit 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;
|
|
1.6. |
“AGA Board” means the directors of AGA, comprising, as at the Last Practicable Date, those persons whose names appear in section headed “Corporate Information and Advisers” in this Pre-listing Statement;
|
|
1.7. |
“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;
|
|
1.8. |
“AGA Director” means a member on the AGA Board, as constituted from time to time;
|
|
1.9. |
“AGA GhDSs” means Ghanaian depositary shares representing AGA Ordinary Shares at a ratio of 1 (one) AGA Ordinary Share to 100 (one hundred) such Ghanaian depositary
shares, which are listed and traded on the GhSE;
|
|
1.10. |
“AGA MOI” means the memorandum of incorporation of AGA which is in force and effect from time to time;
|
|
1.11. |
“AGA 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”);
|
|
1.12. |
“AGA Shareholders” means the holders of AGA Shares, who are recorded as such in the AGA Register;
|
|
1.13. |
“AGA Shares” or “AGA Ordinary Shares” means the ordinary shares, with a par value of R0.25 (twenty five cents) each, in the
issued share capital of AGA, which are listed for trading with ISIN No. ZAE 000043485 on, inter alia, the Main Board of the JSE;
|
|
1.14. |
“AGAH” means AngloGold Ashanti Holdings plc (Registration No. 001177V), a company duly incorporated in accordance with the company laws of the Isle of Man, which as of
the Last Practicable Date is a wholly-owned subsidiary of AGA and which acts as a holding company for certain of AGA’s operations and assets located outside South Africa;
|
|
1.15. |
“AGAH Sale” means the irrevocable offer by NewCo to AGA to purchase 100% (one hundred percent) of the shares in AGAH, and the present, non-binding intention of AGA to
accept the Irrevocable Offer to Purchase, which if completed will constitute a disposal of all or the greater part of the assets or undertaking of AGA subject to approval under Chapter 5 of the Companies Act in terms of Section 112 and
Section 115(2)(b) of the Companies Act;
|
|
1.16. |
“AGAH Sale Shares” means 100% (one hundred percent) of the issued share capital of AGAH;
|
|
1.17. |
“AGAH Sale Special Resolution” means the special resolution to be passed by the AGA Shareholders in accordance with Section 112(2)(a) of the
Companies Act;
|
|
1.18. |
“Annual Financial Statements” means the document entitled “Annual Financial Statements” submitted by AGA with the JSE on 17 March 2023;
|
|
1.19. |
“Annexures” means the annexures to this Pre-listing Statement;
|
|
1.20. |
“Appraisal Rights” means the dissenting shareholders’ appraisal rights remedy afforded to shareholders in terms of Section 164 of the Companies Act;
|
|
1.21. |
“Associate/s” means an associate in relation to either an individual or to a company;
|
|
1.22. |
“ASX” means the Australian Securities Exchange;
|
|
1.23. |
“AUD” or “Australian Dollars” means the Australian Dollar, being the lawful currency of Australia;
|
|
1.24. |
“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 Markets which is operated by A2X Solutions Proprietary Limited and which is licensed to operate as a securities exchange under the Financial Markets
Act;
|
|
1.25. |
“A2X Listing” means the proposed secondary inward listing of NewCo Ordinary Shares on the A2X;
|
|
1.26. |
“Bowmans” means Bowman Gilfillan Inc. (Registration No.1998/021409/21) a personal liability
company incorporated under the laws of South Africa;
|
|
1.27. |
“Broker” means any person registered as a “broker member equities” in terms of the rules of the JSE in accordance with the provisions of the
Financial Markets Act;
|
|
1.28. |
“Business Day” means any day other than a Saturday, Sunday or proclaimed public holiday in South Africa from time to time;
|
|
1.29. |
“Category 1 Transaction” or “Category 1” means a category 1 transaction as that term is defined in the JSE Listings Requirements;
|
|
1.30. |
“Category 2 Transaction” or “Category 2” means a category 2 transaction as that term is defined in the JSE Listings Requirements;
|
|
1.31. |
“Cede” means Cede & Co., a New York general partnership organised and maintained by DTC;
|
|
1.32. |
“CIPC” means the Companies and Intellectual Property Commission established in terms of Section 185 of the Companies Act, or its successor body;
|
|
1.33. |
“Circular” means the bound document, dated 7 July 2023, including the Annexures thereto incorporating the Notice of Shareholders’ Meeting, Forms
of Proxy (yellow), Form of Surrenders and Transfer (blue);
|
|
1.34. |
“City Takeover Code” means the U.K. City Code on Takeovers and Mergers;
|
|
1.35. |
“CMA” means South Africa, the Republic of Namibia and the Kingdoms of Lesotho and Eswatini;
|
|
1.36. |
“Code” means the U.S. Internal Revenue Code of 1986;
|
|
1.37. |
“Companies Act” means the South African Companies Act, No. 71 of 2008;
|
|
1.38. |
“Companies Regulations” or “Regulations” means the Companies Regulations, 2011, promulgated under the Companies Act;
|
|
1.39. |
“Computershare” means Computershare Investor Services Proprietary Limited (Registration No. 2004/003647/07), a limited liability private company incorporated and
registered under the laws of South Africa;
|
|
1.40. |
“Computershare Nominees” means Computershare Nominees Proprietary Limited (Registration No. 1999/008543/07), a limited liability private company incorporated and
registered under the laws of South Africa, being the nominee of Computershare’s CSDP;
|
|
1.41. |
“Cravath, Swaine & Moore” means Cravath, Swaine & Moore LLP, DOS ID No. 2886667;
|
|
1.42. |
“Credit Support Agreement” means an agreement titled “Credit Support Agreement” concluded or to be concluded 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);
|
|
1.43. |
“CS Depositary” means Computershare Trust Company, N.A., a national association organised under the laws of the United States;
|
|
1.44. |
“CS Depositary Nominee” means GTU Ops Inc., a Delaware corporation , operating as nominee to hold NewCo Ordinary Shares for the CS Depositary;
|
|
1.45. |
“CSDP” means a central securities depository participant authorised by a licenced 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;
|
|
1.46. |
“Disclosure Package” means this Pre-listing Statement and the Circular, which shall be posted together;
|
|
1.47. |
“DTC” means The Depository Trust Company, a limited purpose trust company established under the New York Banking Law;
|
|
1.48. |
“ENSafrica” means Edward Nathan Sonnenbergs Inc. (Registration No. 2006/018200/21), a personal liability company incorporated and registered under the laws of South
Africa;
|
|
1.49. |
“Entitlements” means the trading entitlements to the NewCo Ordinary Shares available for trading on the JSE and A2X;
|
|
1.50. |
“Exchange Act” means the U.S. Securities Exchange Act of 1934;
|
|
1.51. |
“Exchange Control Regulations” means the Exchange Control Regulations of South Africa, promulgated in terms of Section 9 of the South African Currency and Exchanges
Act, No. 9 of 1933;
|
|
1.52. |
“EY” means Ernst & Young Inc. (Registration No. 2005/002308/21), a personal liability company incorporated and registered under the laws of South Africa;
|
|
1.53. |
“Financial Advisers” means AGA’s and/or NewCo’s (as the case may be) appointed financial advisers in respect of the Reorganisation, being Centerview Partners UK LLP
(Company number OC345806), JPMorgan Chase Bank, N.A., Johannesburg Branch (Registration No. 2001/016069/10) and Rothschild and Co South Africa Proprietary Limited (Registration No. 1999/021764/07), a limited liability private company
incorporated and registered under the laws of South Africa;
|
|
1.54. |
“Financial Markets Act” or “FMA” means the South African Financial Markets Act, No. 9 of 2012 and the regulations promulgated
thereunder;
|
|
1.55. |
“Form F-4” means the Registration Statement on Form F-4 (SEC File no. 333-272867) initially
filed by NewCo with the SEC on 23 June 2023;
|
|
1.56. |
“Foreign Shareholder” means an AGA Shareholder who is a non-resident of South Africa as contemplated in the Exchange Control Regulations;
|
|
1.57. |
“Founder Share” means the 1 (one) NewCo Ordinary Share which AGA holds in NewCo as at the Last Practicable Date, which NewCo Ordinary Share was
issued to AGA upon the incorporation of NewCo;
|
|
1.58. |
“Fulfilment Date” means the date on which the last of the
Reorganisation Conditions has been fulfilled or waived, as the case may be;
|
|
1.59. |
“GBP” or “Pounds” means the British Pound Sterling, being the lawful currency of the United Kingdom;
|
|
1.60. |
“GhSE” means the Ghana Stock Exchange;
|
|
1.61. |
“GhSE Listing” means the proposed secondary listing of NewCo Ordinary Shares on the GhSE;
|
|
1.62. |
“Group” means AGA and its Subsidiaries prior to the implementation of the Reorganisation and subsequent to the implementation of the
Reorganisation, NewCo and its Subsidiaries, as the context requires;
|
|
1.63. |
“HMRC” means His Majesty’s Revenue and Customs, being the tax authority of the United Kingdom;
|
|
1.64. |
“IASB” means the International Accounting Standards Board;
|
|
1.65. |
“IFRS” means the International Financial Reporting Standards, as issued by the IASB;
|
|
1.66. |
“Implementation Agreement” means the agreement titled “Implementation Agreement” entered into on 12 May 2023 between AGA and NewCo, and as amended on 23 June 2023, in
terms of which, inter alia, NewCo undertakes to co-operate with AGA to implement the Reorganisation;
|
|
1.67. |
“Income Tax Act” or “ITA” means the South Africa Income Tax Act, No. 58 of 1962, together with the regulations promulgated
thereunder;
|
|
1.68. |
“Independent External Auditor” means AGA’s appointed independent external auditor, being PwC for the financial year ending 31 December 2023, and EY for financial years
ended 31 December 2022, 2021, 2020 and 2019;
|
|
1.69. |
“Independent Expert Report” shall be given the meaning which is attributed thereto in the Circular;
|
|
1.70. |
“Independent Reporting Accountant” means each of AGA’s and NewCo’s appointed independent reporting accountant, being EY;
|
|
1.71. |
“Irrevocable Offer to Purchase” means the document titled “Irrevocable Offer to Purchase”, signed by NewCo and delivered to AGA on 12 May 2023, in terms of which, inter alia, NewCo irrevocably offers, in favour of AGA, to purchase all (and not part only) of the AGAH Sale Shares in consideration for the issue by NewCo to AGA of the NewCo Notes;
|
|
1.72. |
“IRS” means the United States Internal Revenue Service;
|
|
1.73. |
“Integrated Reports” means collectively or separately and individually as the context may
require the Integrated Report published by AGA for its financial years ended on 31 December 2022, 2021 and 2020;
|
|
1.74. |
“JSE” means the JSE Limited (Registration No. 2005/022939/06), a public company duly incorporated in South Africa and which is licensed to operate
as a securities exchange under the Financial Markets Act;
|
|
1.75. |
“JSE Listing” means the proposed secondary inward listing of the NewCo Ordinary Shares on the JSE by way of an introduction;
|
|
1.76. |
“JSE Listings Requirements” means the listings requirements of the JSE, as published from time to time by the JSE;
|
|
1.77. |
“JSE Sponsor” means The Standard Bank of South Africa Limited (Registration No. 1962/000738/06) a public company incorporated and registered under the laws of South
Africa;
|
|
1.78. |
“King IV” means the King IV Report on Corporate Governance for South Africa, 2016;
|
|
1.79. |
“Last Practicable Date” means 15 June 2023, being the last practicable date, before the issue of this Pre-listing Statement;
|
|
1.80. |
“Legal Advisers” means each of AGA’s and NewCo’s appointed legal advisers, being ENSafrica, Cravath, Swaine & Moore, or Slaughter and May, as the context may
require;
|
|
1.81. |
“Listings” means the NYSE Listing, the JSE Listing, the A2X Listing and the GhSE Listing;
|
|
1.82. |
“Longstop Date” means 29 February 2024 or such later date that the AGA and NewCo may agree to in writing prior to such date, being the date by which all the
Reorganisation Conditions must be fulfilled (or, where appropriate, waived);
|
|
1.83. |
“Major Subsidiary” shall bear the meaning attributed thereto in the JSE Listings Requirements;
|
|
1.84. |
“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 of the Implementation Agreement, 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 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 AGA or NewCo to perform its obligations under the Implementation Agreement, or (c) increases, or could reasonably be expected to increase, the costs to the Group of implementing the Reorganisation by at
least USD 150,000,000 (one hundred and fifty million Dollars);
|
|
1.85. |
“Mineral Resource and Mineral Reserve Report” means the report titled “Mineral Resource and Mineral Reserve Report” as at 31 December 2022, an annual report prepared
by AGA in terms of paragraph 12.13 of the JSE Listings Requirements;
|
|
1.86. |
“NewCo” means AngloGold Ashanti plc (Registration No. 14654651), a public company duly incorporated in accordance with the laws of England and Wales;
|
|
1.87. |
“NewCo Articles” means the articles of association of NewCo as contemplated under the U.K. Companies Act;
|
|
1.88. |
“NewCo Board” means the board of directors of NewCo, comprising, as at the Last Practicable Date, those persons whose names appear in section headed “NewCo Board at the Date of this Pre-listing Statement” in paragraph 44 on page 50 of this Pre-listing Statement;
|
|
1.89. |
“NewCo GhDSs” means Ghanaian depositary shares representing NewCo Ordinary Shares at a ratio of 1 (one) NewCo Ordinary Share to 100 (one hundred) such Ghanaian
depositary shares, which are to be listed and traded on the GhSE;
|
|
1.90. |
“NewCo Notes” means zero coupon unsecured loan notes, which have an aggregate face value equal to the fair market value of the AGAH Sale Shares (as determined pursuant
to the Irrevocable Offer to Purchase), to be issued by NewCo to AGA;
|
|
1.91. |
“NewCo Ordinary Shares” means ordinary shares with a nominal value of USD 1 (one United States Dollar) each in the share capital of NewCo;
|
|
1.92. |
“NewCo Shareholders” means, other than in the section entitled “Description of NewCo Ordinary Shares, Description of NewCo’s Articles
and Related Regulation”, the AGA Shareholders who shall become beneficial owners of NewCo Ordinary Shares on the Operative Date;
|
|
1.93. |
“Non-South African NewCo Shareholders” means a NewCo Shareholder who is a non-resident of South Africa as contemplated in the Exchange Control Regulations;
|
|
1.94. |
“Non-U.K. Holders” means holders of AGA Ordinary Shares, AGA ADSs or NewCo Ordinary Shares, as the case may be, who, at the relevant time, (i) are not resident or
domiciled for tax purposes in the United Kingdom, and to whom split-year treatment does not apply; (ii) do not have a permanent establishment or branch or agency in the United Kingdom to which their AGA Ordinary Shares, AGA ADSs or NewCo
Ordinary Shares (as applicable) are attributable; (iii) have not, in the case of individuals, within the past 5 (five) years been resident for tax purposes in the United Kingdom; (iv) are not carrying on a trade, profession, or vocation in
the United Kingdom; (v) are the absolute beneficial owner of their AGA Ordinary Shares, AGA ADSs, or NewCo Ordinary Shares (as applicable) and any dividends paid in respect of them; (vi) hold their AGA Ordinary Shares or NewCo Ordinary Shares
(as applicable) as an investment (rather than, for example, as securities realised in the course of trade); (vii) hold their AGA Ordinary Shares, AGA ADSs, or NewCo Ordinary Shares (as applicable) other than under a self-invested personal
pension plan, individual savings account, or other regime providing for exemption from tax; and (viii) are not members of a special class of holders subject to special rules (including those detailed in
Material Tax Consequences – Material U.K. Tax Consequences – Scope of Discussion);
|
|
1.95. |
“Non-U.S. Shareholders” means an AGA Shareholder who is a non-resident of the United States;
|
|
1.96. |
“NYSE” means the New York Stock Exchange;
|
|
1.97. |
“NYSE Listing” means the proposed primary listing of the NewCo Ordinary Shares on the NYSE;
|
|
1.98. |
“Operative Date” means the date, after the Fulfilment Date, on which the Scheme is to be implemented, being the later of: (a) the date set out in the Circular as being
the “Operative Date”; (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 Spin-Off Completion); or (c) such other date as may be agreed in writing between AGA and
NewCo;
|
|
1.99. |
“Pre-listing Statement” means this pre-listing statement posted by NewCo dated 7 July 2023, including all annexures and attachments hereto, which was prepared by NewCo
in accordance with the JSE Listings Requirements for the purpose of the JSE Listing;
|
|
1.100. |
“PwC” means PricewaterhouseCoopers Inc. (Registration No. 1998/012055/21), a personal liability company incorporated and registered under the laws of South Africa;
|
|
1.101. |
“Rand” or “R” means the lawful currency of South Africa;
|
|
1.102. |
“Redeemable Preference Shares” means 50,000 (fifty thousand) non-voting redeemable
preference shares with a nominal value of GBP 1 (one Pound) each issued in the share capital of NewCo;
|
|
1.103. |
“Reorganisation” means the series of inter-conditional transaction steps which will be implemented in the following sequence being the Spin-Off, the AGAH Sale and the
Scheme, in order to procure that, following implementation of the foregoing, NewCo is established as the new holding company of the Group, with its primary listing on the NYSE and with secondary inward listings on the JSE and the A2X and a
secondary listing on the GhSE, which is described in more detail in the Circular;
|
|
1.104. |
“Reorganisation Conditions” means the suspensive conditions to which the completion of the Reorganisation is subject, as set out in paragraph 4.2 of this Pre-listing
Statement;
|
|
1.105. |
“Reorganisation Consideration” means collectively the Scheme Consideration Shares and the Spin-Off Shares;
|
|
1.106. |
“Reorganisation Consideration Record Date” means 05:00 p.m. (South Africa Standard Time) on the date upon which an AGA Shareholder must be recorded in the AGA
Register, in order to participate in the Spin-Off and the Scheme and to consequently receive the Spin-Off Shares and 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 and the JSE Listings Requirements;
|
|
1.107. |
“SARB” means the South African Reserve Bank;
|
|
1.108. |
“Sarbanes-Oxley Act” means the U.S. Sarbanes-Oxley Act of 2002;
|
|
1.109. |
“Scheme” means the scheme of arrangement in terms of Section 114 read with Section 115 of the Companies Act to be proposed by AGA to the AGA Shareholders, in terms of
which the Scheme Participants will exchange their Scheme Shares for the right and obligation to receive, ipso facto and without any action on the part of such Scheme Participants, the respective pro rata portions of the Scheme Consideration Shares;
|
|
1.110. |
“Scheme Consideration Shares” means such number of new NewCo Ordinary Shares as equate to the total number of Scheme Shares less the total number of Spin-off Shares;
|
|
1.111. |
“Scheme Participants” means the AGA Shareholders who are recorded as such in the AGA Register on the Reorganisation Consideration Record Date and are entitled to
receive the Scheme Consideration Shares being those AGA Shareholders who are registered as such in the AGA Register at the Reorganisation Consideration Record Date and who, by the Reorganisation Consideration Record Date, either:
|
|
1.111.1. |
have not timeously delivered an appraisal rights demand to AGA in terms of Section 164(5) to 164(8) of the Companies Act; or
|
|
1.111.2. |
have timeously delivered an appraisal rights demand to AGA in terms of Section 164(5) to 164(8) of the Companies Act but have had their rights reinstated in terms of Section 164(10) of the Companies Act;
|
|
1.112. |
“Scheme Shares” means all of the AGA Shares held by the Scheme Participants at the Reorganisation Consideration Record Date;
|
|
1.113. |
“Scheme Special Resolution” means the special resolution to be passed by the AGA Shareholders in accordance with Section 115(2)(a) of the
Companies Act;
|
|
1.114. |
“SDRT” means U.K. Stamp Duty Reserve Tax;
|
|
1.115. |
“SEC” means the Securities and Exchange Commission of the United States;
|
|
1.116. |
“Securities Act” means the U.S. Securities Act of 1933, as amended;
|
|
1.117. |
“SENS” means the Stock Exchange News Service of the JSE;
|
|
1.118. |
“Shareholders’ Meeting” means the meeting of the AGA Shareholders that will be held entirely by way of electronic communication on Friday, 18 August 2023 at 2:00 p.m.
(South Africa Standard Time) or such other postponed date and time or location as determined in accordance with the provisions of the AGA Memorandum of Incorporation, the Companies Act and the JSE Listings Requirements, at which AGA
Shareholders will be requested to consider and, if deemed fit, to pass, with or without modification, the resolutions set out in the Notice of Meeting of Shareholders attached to the Circular;
|
|
1.119. |
“Slaughter and May” means Slaughter and May, an English general partnership whose offices
are at One Bunhill Row, London EC1Y 8YY;
|
|
1.120. |
“South Africa” means the Republic of South Africa;
|
|
1.121. |
“South African AGA Shareholders” means an AGA Shareholder who is a resident of South Africa as contemplated in the Exchange Control Regulations;
|
|
1.122. |
“South African NewCo Shareholders” means a NewCo Shareholder who is a resident of South Africa as contemplated in the Exchange Control Regulations;
|
|
1.123. |
“Spin-Off” means the distribution in specie to all the Scheme Participants, pursuant to which AGA will direct NewCo, its
wholly owned subsidiary, to issue 46,000 (forty six thousand) NewCo Ordinary Shares to such Scheme Participants on a pro rata basis, with the Spin-Off Subscription Consideration paid by AGA;
|
|
1.124. |
“Spin-Off Completion” shall bear the meaning attributed thereto in the Circular;
|
|
1.125. |
“Spin-Off Shares” means 46,000 (forty six thousand) NewCo Ordinary Shares;
|
|
1.126. |
“Spin-Off Subscription Consideration” means USD 46,000 (forty six thousand Dollars) to be paid by AGA to NewCo in consideration for the Spin-Off
Shares;
|
|
1.127. |
“Sponsors” means the Transaction Sponsor and the JSE Sponsor, as the context may require;
|
|
1.128. |
“Strate” means, as appropriate, the electronic clearing and settlement system for transactions that take place on the JSE and A2X which is managed by Strate
Proprietary Limited (Registration No. 1998/022242/07), a private company duly incorporated in accordance with the laws of South Africa;
|
|
1.129. |
“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;
|
|
1.130. |
“Takeover Regulations” means the Takeover Regulations set forth in chapter 5 (Fundamental Transactions and Takeover Regulations)
of the Companies Regulations;
|
|
1.131. |
“Tax Adviser” means Bowmans;
|
|
1.132. |
“Transaction Advisers” means collectively the Financial Advisers, Sponsors, Independent Reporting Accountant, Tax Adviser and Legal Advisers;
|
|
1.133. |
“Transaction Sponsor” means J.P. Morgan Equities South Africa Proprietary Limited (Registration No. 1995/011815/07), a private company incorporated and registered
under the laws of South Africa, in its capacity as transaction sponsor to AGA;
|
|
1.134. |
“Transfer Secretaries” means Computershare Investor Services Proprietary Limited (Registration No. 2004/003647/07), a private company incorporated under the company
laws of South Africa, in its capacity as transfer secretary of AGA;
|
|
1.135. |
“U.K. Companies Act” means the U.K. Companies Act of 2006;
|
|
1.136. |
“U.K. Takeover Panel” means the U.K. Panel on Takeovers and Mergers;
|
|
1.137. |
“United Kingdom” or “U.K.” means the United Kingdom of Great Britain and Northern Ireland, as constituted from time to time;
|
|
1.138. |
“United States” or “U.S.” means the United States of America;
|
|
1.139. |
“USD” or “Dollar” means the United States Dollar, being the lawful currency of the United States;
|
|
1.140. |
“U.S. Exchange Agent” means Computershare Trust Company, N.A., a national association organised under the laws of the United States;
|
|
1.141. |
“U.S. Federal Forum Provision” means the federal district courts of the U.S.;
|
|
1.142. |
“U.S. Listing Rules” means, collectively, the U.S. federal securities laws, the SEC rules and/or the NYSE listing standards;
|
|
1.143. |
“U.S. Shareholders” means an AGA Shareholder who is a resident of the United States; and
|
|
1.144. |
“ZAR” or “Rand” or “R” means the South African Rand, being the
lawful currency of South Africa.
|
1. |
any word or expression defined in the JSE Listings Requirements, the Companies Act, the Takeover Regulations and/ or the Circular and not expressly defined in this Pre-listing Statement
shall have the meaning given in the JSE Listings Requirements, the Companies Act, the Takeover Regulations and/or the Circular (as applicable);
|
2. |
headings are to be ignored in construing this Pre-listing Statement;
|
3. |
words importing:
|
|
3.1. |
any one gender include the other of masculine, feminine and neuter;
|
|
3.2. |
the singular include the plural and vice versa; and
|
|
3.3. |
natural persons include created entities (corporate or unincorporate) and the state and vice versa;
|
4. |
if figures are referred to in numerals and in words in this Pre-listing Statement and if there is any conflict between the two, the words shall prevail;
|
5. |
expressions defined in the main body of this Pre-listing Statement shall bear the same meanings in schedules and/or annexures to this Pre-listing Statement which do not themselves
contain their own conflicting definitions;
|
6. |
references to a paragraph or Annexure are to a paragraph of, or Annexure to, this Pre-listing Statement or to an Annexure to the Circular as the context may require;
|
7. |
any reference to a time of day is a reference to South Africa Standard Time (SAST), unless a contrary indication appears;
|
8. |
a reference to any statute or statutory provision shall be construed as a reference to the same as it may have been, or may from time to time be, amended, modified,
replaced or re-enacted;
|
9. |
a reference to any other document referred to in this Pre-listing Statement is a reference to that other document as amended, revised, varied, novated or supplemented at any time;
|
10. |
where any number of days is prescribed, those days shall be reckoned exclusively of the first and inclusively of the last day unless the last day falls on a day which is not a Business Day, in which event
the last day shall be the next succeeding Business Day;
|
11. |
the use of the word including, include/s, in particular or any similar such word followed by a specific example/s shall not be construed as limiting the meaning of the general wording preceding it and the eiusdem generis rule shall not be applied in the interpretation of such general wording or such specific example/s; and
|
12. |
references to law or regulation or any similar such word shall be deemed to include the rules of any stock exchange by which AGA and NewCo are bound, and specifically includes the JSE Listings
Requirements.
|
SALIENT DATES AND TIMES
|
Key action
|
Day
|
2023
|
Date on which AGA Shareholders must be recorded in the AGA Register to receive the Disclosure Package
|
Friday
|
30 June
|
Posting of the Disclosure Package to AGA Shareholders and Notice of the Shareholders’ Meeting released on SENS
|
Friday
|
7 July
|
Last day to trade in AGA Ordinary Shares in order to be recorded in the AGA Register on the Voting Record Date (Voting Last Day to Trade)
|
Monday
|
7 August
|
Voting Record Date for AGA Shareholders to be recorded in the AGA Register in order to be eligible to vote at the Shareholders’ Meeting (Shareholders’ Meeting Voting Record Date)
|
Friday
|
11 August
|
For administrative purposes, date by which Forms of Proxy for the Shareholders’ Meeting are requested to be lodged
|
Wednesday
|
16 August
|
Last date and time for AGA Shareholders to give notice to AGA objecting to the Scheme Special Resolution and/or the AGAH Sale Special Resolution in terms of Section 164 of the Companies
Act, at any time before the voting on Scheme Special Resolution and/or the AGAH Sale Special Resolution takes place
|
Friday
|
18 August
|
Shareholders’ Meeting at 2:00 p.m. South African time (09:00 a.m. New York time)
|
Friday
|
18 August
|
Results of Shareholders’ Meeting released on SENS
|
Monday
|
21 August
|
Results of Shareholders’ Meeting published in the South African press
|
Tuesday
|
22 August
|
If the Reorganisation is approved by AGA Shareholders at the Shareholders’ Meeting:
|
||
Last day for AGA Shareholders who voted against the Scheme and/or AGAH Sale to require AGA to seek court approval for the Scheme and/or AGAH Sale in terms of Section 115(3)(a) of the
Companies Act
|
Friday
|
25 August
|
Last day for AGA to send notice of adoption of Scheme Special Resolution and/or the AGAH Sale Special Resolution to Dissenting AGA Shareholders, in accordance with Section 164(4) of the
Companies Act
|
Friday
|
1 September
|
Last day for an AGA Shareholder who voted against the Scheme and/or AGAH Sale to apply to court for leave to apply for a review of the Scheme and/or AGAH Sale in terms of Section
115(3)(b) of the Companies Act
|
Friday
|
1 September
|
Last day for an AGA Shareholder who gave notice to AGA objecting to the Scheme and/ or AGAH Sale in terms of Section 164 of the Companies Act, to make a demand against AGA as
contemplated in Section 164(7) of the Companies Act (assuming AGA provides the notice contemplated in Section 164(4) of the Companies Act on the last possible day)
|
Friday
|
29 September
|
The following dates assume that no court approval or review of the Scheme and/or AGAH Sale is required and will be confirmed in the Finalisation
Date announcement if the Scheme and/or AGAH Sale becomes unconditional:
|
||
Finalisation Date announcement released on SENS (Reorganisation unconditional in every respect) at 10:00 am
|
Tuesday
|
12 September
|
Finalisation Date announcement published in the South African press
|
Wednesday
|
13 September
|
Last Day to Trade in AGA Ordinary Shares in order to receive the NewCo Ordinary Shares to be issued pursuant to the Reorganisation (Reorganisation Last Day to Trade)
|
Tuesday
|
19 September
|
Trading of AGA Ordinary Shares on the JSE and A2X is suspended
|
Wednesday
|
20 September
|
Secondary inward listing of NewCo (NewCo Ordinary Shares) ISIN No. GB00BRXH2664 with alpha code: ANG and short name “ANGGOLD” on the JSE and A2X with effect from the commencement of business (09:00 am South
Africa Standard Time)
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Wednesday
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20 September
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Key action
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Day
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2023
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Record Date on which AGA Shareholders must be recorded in the AGA Register to receive the NewCo Ordinary Shares to be issued pursuant to the Reorganisation (Reorganisation Consideration
Record Date)
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Friday
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22 September
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Scheme Operative Date / Implementation date of the Reorganisation
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Monday
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25 September
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Primary listing of NewCo (NewCo Ordinary Shares) on NYSE with effect from the commencement of business (09:30 am (GMT -04:00), being 3:30 pm South Africa Standard Time)
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Monday
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25 September
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NewCo Ordinary Shares issued and shareholder accounts with CSDPs / brokers credited with NewCo Ordinary Shares
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Tuesday
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26 September
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Secondary listing of NewCo (NewCo Ordinary Shares and NewCo GhDSs) on the GhSE with effect from the commencement of business (09:00 am South Africa Standard Time)
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Tuesday
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26 September
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Listing of AGA Ordinary Shares on the JSE terminated
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Wednesday
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27 September
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1. |
All dates and times in respect of the Reorganisation are subject to change by mutual agreement between AGA and NewCo and/or to the extent required obtaining the approval of the JSE, NYSE and the Takeover
Regulation Panel established by Section 196 of the Companies Act. The dates have been determined based on assumptions regarding the dates by which certain regulatory approvals will be obtained and that no court approval or review of the
Reorganisation will be required. Any change to the dates and times will be released on SENS and filed or furnished with the SEC.
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2. |
As the salient dates and times are subject to change, they may not be regarded as consent or dispensation for any time periods which may be required in terms of the Companies Act or the Companies
Regulations, where applicable, and any such consents or dispensations must be specifically applied for and granted.
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3. |
All times given in this Pre-listing Statement are, unless the context indicates to the contrary, a reference to South Africa Standard Time.
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4. |
For the timetable relating to AGA ADSs, AGA ADS Holders should refer to the Form F-4 (File No. 333-272867) and the notice and instructions provided by the ADS Depositary. Holders of AGA ADSs in a securities
account through a broker or other securities intermediary should refer to the Form F-4 and the notice and instructions provided by their intermediary.
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5. |
Any AGA Shareholder which wishes to give notice to AGA objecting to the AGAH Sale Special Resolution and/or the Scheme Special Resolution may to do so at the Shareholders’ Meeting immediately before the AGAH
Sale Special Resolution or the Scheme Special Resolution, as the case may be, is voted on.
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EXECUTIVE SUMMARY
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1. |
SUMMARY OF THE REORGANISATION
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1.1. |
On 12 May 2023, AGA publicly announced the Reorganisation, comprising the three sequential, separate and inter- conditional transaction steps consisting of:
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1.1.1. |
Spin-Off
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1.1.2. |
AGAH Sale
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1.1.3. |
Scheme
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1.2. |
Upon completion of the Reorganisation, NewCo will be the listed parent company of the Group and each of AGA and AGAH will be a direct, wholly-owned Subsidiary of NewCo.
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1.3. |
AGA and NewCo have entered into the Implementation Agreement, in relation to, amongst other things, the Spin-Off and the Scheme, and NewCo made, and delivered to AGA, the Irrevocable Offer to Purchase, in
relation to the AGAH Sale, on 12 May 2023:
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1.3.1. |
The Implementation Agreement contains, amongst other things, the Reorganisation Conditions, provisions regarding the implementation of the Reorganisation, and certain representations and warranties given by
each of AGA and NewCo.
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1.3.2. |
The Irrevocable Offer to Purchase sets out, amongst other things, the terms of NewCo’s irrevocable offer to AGA to purchase 100% (one hundred percent) of the shares in AGAH in consideration for the issue of
the NewCo Notes.
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1.4. |
The implementation of the Reorganisation is subject to the fulfilment or waiver (to the extent permitted by applicable law and the Implementation Agreement), as the case may be, of the Reorganisation
Conditions including, amongst others, approval of the AGAH Sale and the Scheme by the AGA Shareholders in terms of the AGAH Sale Special Resolution and the Scheme Special Resolution. If all of the Reorganisation Conditions are not fulfilled
or fulfilment is not waived (to the extent permitted by applicable law and the Implementation Agreement), as the case may be, by the Longstop Date, the Reorganisation will not be implemented and the AGA Shareholders, AGA ADS Holders and AGA
GhDS Holders will retain their AGA Ordinary Shares, AGA ADSs and AGA GhDSs, respectively.
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1.5. |
As a result of the Reorganisation, each Scheme Participant will beneficially own one NewCo Ordinary Share for each AGA Share held on the Reorganisation Consideration Record Date, and the existing AGA
Shareholders will hold the same percentage of NewCo Ordinary Shares as they held of AGA Ordinary Shares on the Reorganisation Consideration Record Date (subject to any adjustments to reflect the exercise of appraisal rights as contemplated in
paragraph 14 (Dissenting AGA Shareholders’ Appraisal Rights). Based on the current number of issued AGA Ordinary Shares, NewCo will issue up to approximately 419,612,543 (four hundred and nineteen million six hundred and twelve thousand five
hundred and forty three) NewCo Ordinary Shares in the Reorganisation (subject to the aforesaid adjustments to reflect the exercise of appraisal rights). NewCo will have sufficient authority to allot and issue the Spin-Off Shares and the
Scheme Consideration Shares to the Scheme Participants.
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1.6. |
The NewCo Ordinary Shares to be issued pursuant to the Reorganisation will have a primary listing on the NYSE and
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1.7. |
For a full understanding of the Reorganisation, the Disclosure Package should be read in its entirety.
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2. |
RATIONALE FOR THE REORGANISATION
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2.1. |
The purpose of the Reorganisation is to enhance the Group’s strategic position. While the business carried out by the Group following the implementation of the Reorganisation will remain the same, AGA
intends to change its primary listing from the JSE to the NYSE in connection with the Reorganisation. AGA believes 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.
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2.2. |
The AGA Board unanimously approved the proposal of the Reorganisation at a meeting held on 11 May 2023. In reaching its decision, the AGA Board consulted with AGA’s management and legal, financial and tax
advisers, and considered a variety of factors, including the following:
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2.2.1. |
Enhancing access to deeper pools of capital
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2.2.2. |
Improving the Group’s competitive position in line with its global peers
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2.2.3. |
Redomiciling to a leading, low-risk jurisdiction where the Group has a corporate presence
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2.2.4. |
Minimal disruption for existing stakeholders
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2.2.5. |
Continuity of shareholding structure
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2.2.6. |
Tax treatment
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2.2.7. |
Accounting treatment
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2.2.8. |
The AGA Board also considered potential negative consequences and risks that may arise from the Reorganisation, including the following factors:
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2.2.8.1. |
Significant transaction costs and expenses
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2.2.8.2. |
Risk of failure to timely implement the Reorganisation
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2.3. |
However, the AGA Board concluded unanimously that the expected benefits of the Reorganisation outweigh the potential negative consequences and risks.
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2.4. |
This discussion of the information and factors considered by the AGA Board in making its decision is not intended to be exhaustive but includes the material factors considered by the AGA Board. The AGA Board
did not consider it practicable to, nor did it attempt to, quantify, rank or otherwise assign relative weights to the specific factors it considered in reaching its decision, nor did it evaluate whether these factors were of equal importance.
In addition, each member of the AGA Board may have given different weight to the various factors. The determination of the AGA Board was made after consideration of all of the factors together.
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2.5. |
The only relevant remaining South African subsidiaries and associates of the Group are AGA’s interest in Rand Refinery Proprietary Limited (42.41%), AGRe Insurance Company Limited (100%) and Agent K
Proprietary Limited (16.95%), a company managing the silicosis settlement. In addition, AGA has certain “legacy” liabilities being the post-retirement medical obligation and the silicosis liability.
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2.6. |
AGA will be released from all guarantees regarding group debt and the Group (through AGAH and the Credit Support Agreement) will provide credit support to AGA post implementation and to the extent required.
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2.7. |
The foregoing discussion of the AGA Board’s consideration of the factors supporting the Reorganisation is forward- looking in nature. This information should be read in light of the factors discussed in the
section entitled “Forward- Looking Statements” on page 10 of this Pre-listing Statement.
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2.8. |
The following simplified diagrams illustrate:
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2.8.1. |
the current structure of the Group; and
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2.8.2. |
the structure of the Group following the implementation of the Reorganisation.
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3. |
EFFECT OF THE REORGANISATION
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3.1. |
NewCo will own all of AGA’s existing assets with:
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3.1.1. |
the same underlying shareholders as AGA immediately prior to implementation of the Reorganisation (subject to any adjustments to reflect the exercise of appraisal rights (see paragraph 14 (Dissenting AGA Shareholders’ Appraisal Rights));
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3.1.2. |
the business carried out by NewCo and its Subsidiaries immediately following the Reorganisation being the same as the business carried out by AGA and its Subsidiaries immediately prior to the implementation
of the Reorganisation;
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3.1.3. |
a primary listing on the NYSE; and
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3.1.4. |
secondary inward listings on the JSE and A2X and a secondary listing on the GhSE.
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3.2. |
NewCo will be the listed parent company of the Group and each of AGA and AGAH will be a direct, wholly-owned Subsidiary of NewCo with AGAH being a Major Subsidiary;
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3.3. |
the AGA Ordinary Shares will be delisted from the JSE in terms of paragraph 1.17(b) of the JSE Listings Requirements and AGA will procure the delisting of the AGA Ordinary Shares from the A2X and from the
GhSE and the delisting of the AGA GhDSs from the GhSE;
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3.4. |
the AGA ADSs will also be delisted from the NYSE and the AGA ADS Program will be terminated and NewCo will not establish an American depositary share programme for the NewCo Ordinary Shares;
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3.5. |
no changes to the withholding tax rates for South African shareholders and no South African withholding tax on dividends for other shareholders; and
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3.6. |
South African shareholders being able to hold NewCo Ordinary Shares on the South African register of NewCo without using their foreign investment allowance and continue to trade their NewCo Ordinary Shares
on the South African capital markets.
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4. |
SALIENT TERMS AND CONDITIONS OF THE REORGANISATION
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4.1. |
Overview of the Reorganisation
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4.1.1. |
In anticipation of the Reorganisation, AGA has incorporated a new Subsidiary, NewCo, under the laws of England and Wales. The Reorganisation comprises three sequential, separate and inter-conditional
transaction steps consisting of:
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4.1.1.1. |
the Spin-Off;
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4.1.1.2. |
the AGAH Sale; and
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4.1.1.3. |
the Scheme,
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4.1.2. |
In the Spin-Off, AGA will effect a distribution in specie to the Scheme Participants, pursuant to which AGA will direct NewCo, its wholly-owned Subsidiary at that
time, to issue the Spin-Off Shares to the Scheme Participants on a pro rata basis, with the Spin-Off Subscription Consideration being paid by AGA.
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4.1.3. |
In the AGAH Sale, NewCo has made, pursuant to the Irrevocable Offer to Purchase, an irrevocable offer to AGA to purchase 100% (one hundred percent) of the shares in AGAH, which holds all of the operations
and assets of AGA and its Subsidiaries located outside of South Africa, in consideration for the issue by NewCo to AGA of the NewCo Notes. The AGAH Sale, if AGA accepts the Irrevocable Offer to Purchase following the Spin-Off Completion, will
constitute a disposal as contemplated in Section 112 and Section 115 of the Companies Act given that NewCo will not be a Subsidiary of AGA following the Spin-Off Completion. It is the present, non-binding intention of AGA to accept the
Irrevocable Offer to Purchase.
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4.1.4. |
In the Scheme, which is a scheme of arrangement pursuant to Section 114(1) read with Section 115 of the Companies Act between AGA and the AGA Shareholders, proposed by the AGA Board, NewCo will acquire all
of the issued AGA Ordinary Shares from the Scheme Participants in consideration for a right and obligation to receive ipso facto and without any action on the part of such Scheme Participants, the
respective pro rata portions of the Scheme Consideration Shares.
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4.1.5. |
Following completion of the Reorganisation, AGA will declare as a distribution in specie to its shareholder, NewCo, a portion of the NewCo Notes, which will then be
cancelled. AGA will retain a number of NewCo Notes that have the face value equal to the aggregate amount of South African dividends withholding tax payable by AGA as a result of the aforementioned distribution of NewCo Notes to NewCo.
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4.1.6. |
The failure or inability to implement any one or more of the Spin-Off, the AGAH Sale and the Scheme will result in the failure of all of the steps comprising the Reorganisation and any steps already
completed shall be unwound.
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4.1.7. |
As a result of the Reorganisation, each Scheme Participant will beneficially own one NewCo Ordinary Share for each AGA Share (including the AGA Ordinary Shares represented by AGA ADSs) held on the
Reorganisation Consideration Record Date, and the existing AGA Shareholders will hold the same percentage of NewCo Ordinary Shares as they held of AGA Ordinary Shares on the Reorganisation Consideration Record Date (subject to any adjustments
to reflect the exercise of appraisal rights as contemplated in paragraph 14 (Dissenting AGA Shareholders’ Appraisal Rights)).
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4.1.8. |
The completion of the Reorganisation is subject to the fulfilment or, alternatively, the waiver (to the extent permitted by applicable law, the Implementation Agreement and the Irrevocable Offer to Purchase
(as the case may be)) of the fulfilment, as the case may be, of certain Reorganisation Conditions, the details of which are set out in the Circular and which are repeated in paragraph 4.2 of this Pre-listing Statement.
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4.1.9. |
With effect from the Operative Date, Scheme Participants, shall be deemed to have:
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4.1.9.1. |
disposed of their AGA Shares to NewCo, who will acquire ownership of such AGA Shares, in exchange for the NewCo Ordinary Shares, subject to the provisions of the Implementation Agreement;
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4.1.9.2. |
authorised AGA and/or the Transfer Secretaries on their behalf to transfer the AGA Shares to NewCo; and
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4.1.9.3. |
authorised the CS Depositary Nominee (as nominee for the CS Depositary) to receive the NewCo Ordinary Shares from NewCo on the terms and in the manner set out in the Implementation Agreement.
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4.2. |
Reorganisation Conditions (see page 34 of the Circular)
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Reorganisation Conditions
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Status
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1.
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The Irrevocable Offer to Purchase has been signed by NewCo and delivered to AGA.
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Completed
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2.
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NewCo has procured that the NewCo Ordinary Shares are approved for listing on the NYSE, subject only to official notice of issuance.
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Outstanding on Last
Practicable Date
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3.
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The Independent Expert:
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Completed /
completed by Last
Practicable Date
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● has issued a final report dealing with the matters listed in Section 114(3) of
the Companies Act and (to the extent necessary) Regulation 90 and such report is distributed to all of the AGA Shareholders; and
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● has expressed a fair and reasonable opinion as required in Regulation 110(1)
and defined in Regulation 81(h).
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4.
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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 Companies Act, such approval has been
obtained.
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Outstanding on Last
Practicable Date
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5.
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AGA has not, by the expiry of the 20 business day period contemplated in Section 164(7)(a) or 164(b) of the Companies Act (as the case may be), received valid demands as contemplated
in Section 164(5) to (8) of the Companies Act (whether in relation to the AGAH Sale or the Scheme) which in aggregate represent more than 3.5% (three point five percent) of the voting rights attaching to the AGA Ordinary Shares.
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Outstanding on Last
Practicable Date
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6.
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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.
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Outstanding on Last
Practicable Date
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Reorganisation Conditions
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Status
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7.
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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 Companies Regulations to approve
the Scheme, including in particular, the resolution contemplated in Section 115(2) of the Companies Act.
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Outstanding on Last
Practicable Date
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8.
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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 rows 6 and 7 above.
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Outstanding on Last
Practicable Date
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9.
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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 (among other things):
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Completed /
completed by Last
Practicable Date
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● 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 to 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
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● the admission to listing by way of the secondary inward listing of all NewCo
Ordinary 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 the JSE Listing.
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10.
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The SEC has made a declaration confirming the effectiveness of the 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.
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Outstanding on Last
Practicable Date |
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11.
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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.
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Outstanding on Last
Practicable Date
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12.
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If and to the extent required, any other regulatory approvals, consents or rulings necessary to implement the Reorganisation have been obtained (excluding the requirement that the
Takeover Regulation Panel has issued a compliance certificate in respect of the AGAH Sale and/or the Scheme, in terms of Section 119(4)(b) of the Companies Act).
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Outstanding on Last
Practicable Date
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13.
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AGA has not, prior to 10:00 a.m. South Africa Standard Time on Longstop Date exercised its right to cancel the Implementation Agreement as a result of the occurrence of a Material
Adverse Effect.
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Outstanding on Last
Practicable Date
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4.2.1. |
AGA and NewCo are required to use their reasonable commercial endeavours and to cooperate with each other in good faith to achieve the fulfilment of the Reorganisation Conditions on or before the Longstop
Date.
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4.2.2. |
If the Reorganisation Conditions are not fulfilled or fulfilment is not waived, as the case may be (where permitted), by the Longstop Date, the rights and obligations of AGA and NewCo under the
Implementation Agreement, as set out in the immediately operative provisions of the Implementation Agreement, will remain in full force and effect and the status quo ante will be restored as near as
may be possible and neither AGA nor NewCo will have any claim against any other, save for any claims arising from a breach of the obligations referred to in paragraph 4.2.1 above and/or any prior breach of any of the provisions of the
Implementation Agreement and/or the Irrevocable Offer to Purchase which became effective prior to the Fulfilment Date.
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4.2.3. |
If the requisite majority of AGA Shareholders do not approve each of the Scheme and the AGAH Sale at the Shareholders’ Meeting, or if the Reorganisation 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 AGA Shareholders 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 listings on the A2X and the GhSE. AGA resolved to terminate its listing on the ASX
regardless of whether the Reorganisation is implemented. AGA received approval to voluntarily delist from the ASX (which occurred on or about 27 June 2023).
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4.2.4. |
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.
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4.3. |
SARB Conditions
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4.3.1. |
neither AGA nor any other South African Subsidiary of the Group will provide any guarantees in order to enable the Reorganisation;
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4.3.2. |
NewCo has undertaken to nominate 2 (two) representatives from South Africa for election by shareholders to the NewCo Board at each annual general meeting for 5 (five) years following completion of the
Reorganisation and to nominate at least 1 (one) representative from South Africa for election by shareholders to the NewCo Board at each annual general meeting thereafter;
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4.3.3. |
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 Reorganisation;
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4.3.4. |
dividends funded from South African sources and which are due to South African NewCo shareholders will be paid in South Africa; and
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4.3.5. |
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 authorised 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.
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4.4. |
Reorganisation Consideration (see page 34 of the Circular)
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4.4.1. |
The Reorganisation Consideration consists of the NewCo Ordinary Shares to be issued to the Scheme Participants in connection with the Spin-Off (being the Spin-Off Shares) and the Scheme (being the Scheme
Consideration Shares). As a result of the Reorganisation, each Scheme Participant will beneficially own one NewCo Ordinary Share for each AGA Ordinary Share (including AGA Ordinary Shares represented by AGA ADSs) held on the Reorganisation
Consideration Record Date, and the Scheme Participants will hold the same percentage of NewCo Ordinary Shares as they held of the AGA Ordinary Shares on the Reorganisation Consideration Record Date (subject to any adjustments to reflect the
exercise of appraisal rights as contemplated in paragraph 14 (Dissenting AGA Shareholders’ Appraisal Rights). The rights, terms, privileges and limitations attaching to the NewCo Ordinary Shares are
described in paragraphs 65 to 69 (Description of NewCo Ordinary Shares, Description of NewCo’s Articles and Related Regulation). In order to receive the Reorganisation Consideration, holders of AGA
Ordinary Shares must be recorded in the AGA Register on the Reorganisation Consideration Record Date and AGA ADS Holders and holders of AGA GhDSs must be recorded on the applicable depositary register at 5:00 p.m. on the Reorganisation
Consideration Record Date in the jurisdiction of the applicable depositary.
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4.4.2. |
Each Scheme Participant will receive the Reorganisation Consideration in dematerialised form, on the terms and in the manner set out in the Circular (see paragraph 7.6 (Settlement
of the Reorganisation Consideration) of the Circular. NewCo will have sufficient authority to allot and issue to each Scheme Participant as many NewCo Ordinary Shares as may be required to fully satisfy the Reorganisation
Consideration. AGA Shareholders are reminded that the settlement of the Reorganisation Consideration is subject to the Exchange Control Regulations. The salient Exchange Control provisions are set out in the “Exchange Control Regulations” on
page 63 of this Pre-listing Statement.
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4.4.3. |
AGA has resolved to terminate the AGA ADS Program upon completion of the Reorganisation. AGA expects to instruct the ADS Depositary to distribute a notice to the holders of all outstanding AGA ADSs in
accordance with the AGA Deposit Agreement for the AGA ADS Program, at least 30 (thirty) days prior to the Operative Date to amend and terminate the AGA Deposit Agreement on the Operative Date. Upon completion of the Reorganisation and the
termination of the AGA Deposit Agreement, the ADS Depositary will be discharged from all obligations under the AGA Deposit Agreement and the U.S. Exchange Agent will manage the exchange of AGA ADSs for NewCo Ordinary Shares.
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5. |
DEMATERIALISATION OF THE NEWCO ORDINARY SHARES
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6. |
ACCOUNTING MATTERS
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6.1. |
NewCo was incorporated on 10 February 2023 and prior to the implementation of the Reorganisation, NewCo will own no material assets and will not operate any business. For this reason, financial statements of
NewCo are not available. The historical column in the condensed statement of financial position and statement of profit or loss included in this Pre-listing Statement has been derived from the audited consolidated financial statements of AGA.
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6.2. |
AGA has an accounting year end of 31 December. AGA prepares its consolidated financial statements in conformity with IFRS, the South African Institute of Chartered Accountants (SAICA) Financial Reporting
Guides, as issued by the Accounting Practices Committee and Financial Pronouncements as issued by Financial Reporting Standards Council and the requirements of the Companies Act of South Africa. In evaluating the requirements of IFRS 3
Business Combinations, no party to the Reorganisation can be identified as an accounting acquirer. Upon the implementation of the Reorganisation, the existing AGA Shareholders are expected to beneficially own the same percentage of NewCo
Ordinary Shares as they held in AGA Ordinary Shares immediately prior to the implementation of the Reorganisation (subject to adjustments to reflect any exercise of appraisal rights as described under the “Dissenting AGA Shareholders’
Appraisal Rights” section of this Pre-listing Statement). Further, the business carried out by NewCo and its Subsidiaries immediately following the Reorganisation will be the same as the business carried out by AGA and its Subsidiaries
immediately prior to the implementation of the Reorganisation. The existing AGA Shareholders will have the same commercial and economic interest in the Group as they had prior to the implementation of the Reorganisation (save for the costs of
the implementation of the Reorganisation and the NewCo Notes Distribution) and no additional new AGA Ordinary Shares will be issued as part of the Reorganisation. Accordingly, the Reorganisation does not result in a Business Combination as defined under IFRS 3 and, as such, the consolidated financial statements of the successor (NewCo) will reflect that the Reorganisation is in substance a continuation of the Group (the Reorganisation
does not result in any change in ownership, economic substance or carrying values for 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.
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6.3. |
The financial information included, or incorporated by reference, in this Pre-listing Statement includes certain measures that are not defined by IFRS, including “adjusted earnings before interest, tax,
depreciation and amortisation” (“adjusted EBITDA”), “total cash costs”, “All-in sustaining costs”, “All-in costs”, “headline earnings per share”, “free cash flow” and “adjusted net debt” (each as defined in the Annual Financial Statements,
which are incorporated by reference in this Pre-listing Statement). These measures are not measures of financial performance or cash flows under IFRS and may not be comparable to similarly titled measures of other companies. These measures
have been included for the reasons described in the Annual Financial Statements, which are incorporated by reference in this Pre-listing Statement, and should not be considered by investors as alternatives to costs of sales, net operating
profit, profit before taxation, cash from operating activities or any other measure of financial performance presented in accordance with IFRS.
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|
6.4. |
Operating costs is defined as the average cost of production and is calculated by dividing the cost of sales, before amortisation and depreciation in a period by the tonnes milled/treated in the same period,
and operating cost per kilogram (and ounce) is calculated by dividing the cost of sales, before amortisation and depreciation in a period by the gold produced in the same period.
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|
6.5. |
The Group reports adjusted EBITDA based on the formula included in the facility agreements for compliance with the debt covenant formula. For a reconciliation profit before tax to adjusted EBITDA, see “Consolidated financial statements – Notes to the consolidated financial statements – Note 34 Capital management” in the Annual Financial Statements for the financial year ended 31 December 2022, which is
incorporated by reference in this Pre-listing Statement.
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|
6.6. |
Total cash costs include site costs for all mining, processing and administration, and are inclusive of royalties and production taxes. Amortisation, rehabilitation, corporate administration, retrenchment,
capital and exploration costs are excluded. All-in sustaining costs is an extension of the existing total cash cost metric and incorporates all costs related to sustaining production and in particular recognising the sustaining capital
expenditure associated with developing and maintaining gold mines. This metric also includes the cost associated with corporate office structures that support these operations, the community and rehabilitation costs attendant with responsible
mining and any exploration and evaluation costs associated with sustaining current operations. All-in costs are all-in sustaining costs including additional non-sustaining costs which reflect the varying costs of producing gold over the
life-cycle of a mine. Non-sustaining costs are those costs incurred at new operations and costs related to major projects at existing operations where these projects will materially increase production. Net debt is borrowings adjusted for the
unamortised portion of borrowing costs and IFRS 16 lease adjustments, less cash restricted for use and cash and cash equivalents. Free cash flow is cash inflow from operating activities, less cash outflow from investing activities and after
finance costs, adjusted to exclude once-off acquisitions and disposals and movements in restricted cash. For more information on the Group’s non-IFRS measures, see the Annual Financial Statements.
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|
6.7. |
The pro forma condensed consolidated financial statements of NewCo as at, and for, the 12 (twelve) months ended on 31 December 2022, which are set out in Annexure C to the Circular and incorporated in this Pre-listing Statement by reference, have been prepared for illustrative purposes to show the financial effects, including the associated transaction
costs, of the Reorganisation. The pro forma condensed consolidated financial statements of NewCo do not represent the actual financial position or results of operations of the Group, and have been
prepared on the assumption that the Reorganisation has been implemented, as at and for the dates indicated, and is being furnished solely for illustrative purposes. Furthermore, the pro forma condensed
consolidated financial statements of NewCo does not purport to project NewCo’s results of operations or financial position for any future period or as of any future date and because of their nature, the pro
forma condensed consolidated financial statements of NewCo do not fairly present the financial position, changes in equity and results of operations or cash flows of NewCo.
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7. |
MANAGEMENT OF NEWCO
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|
7.1. |
As of the Last Practicable Date, the directors of NewCo are Alberto Calderon and Robert Hayes. It is expected that all members of the AGA Board will become members of the NewCo Board at, or prior to, the
completion of the Reorganisation. It is also expected that all members of the Executive Committee of AGA will become members of the Executive Committee of NewCo at or prior to the Operative Date, except for Ludwig Eybers, who will leave his
role as Chief Operating Officer on 30 June 2023 and is expected to retire in December 2023. Robert Hayes will not remain a director or member of management of NewCo after the Reorganisation is completed.
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|
7.2. |
As of the Last Practicable Date, NewCo has not paid any remuneration to the current or proposed NewCo non- executive directors or the proposed NewCo management. Under English law, following the
Reorganisation, NewCo will be required to compensate its directors in accordance with a shareholder approved remuneration policy, which will be presented to NewCo shareholders at the first annual general meeting following the Reorganisation.
It is expected that NewCo’s proposed remuneration policy will mirror that of AGA, subject to any changes necessary to reflect English law, or that the NewCo Compensation and Human Resources Committee determines to be necessary to align the
policy with applicable market practice and the new Group structure following the Reorganisation and that is in the best interests of NewCo and its shareholders.
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|
7.3. |
NewCo is a company organised and existing under the laws of England and Wales. The NewCo Ordinary Shares will be listed on the NYSE and NewCo will apply the requirements of applicable U.S. legislation, such
as the Sarbanes- Oxley Act, regulations enacted under the U.S. federal securities laws and (assuming listing is approved) listing standards of the NYSE, applicable to foreign private issuers. For further information on the corporate
governance of NewCo, see the section entitled “Corporate Governance” beginning on page 57 of this Pre-listing Statement.
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8. |
INTERESTS OF AGA IN NEWCO ORDINARY SHARES
|
|
8.1. |
As of the Last Practicable Date, AGA holds 100% (one hundred percent) of the issued shares in NewCo, being:
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|
8.1.1. |
the Founder Share, which Founder Share, will following the Spin-Off, be gifted by AGA to NewCo for nil consideration and cancelled by NewCo; and
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|
8.1.2. |
the Redeemable Preference Shares, which Redeemable Preference Shares will be redeemed at nominal value, immediately following the Spin-Off and prior to the Listings.
|
|
8.2. |
NewCo does not have any share trading history.
|
9. |
COMPARISON OF RIGHTS OF AGA SHAREHOLDERS AND NEWCO SHAREHOLDERS (see page 95 of this Pre-listing Statement)
|
10. |
RISK FACTORS (see page 97 of this Pre-listing Statement)
|
11. |
FOREIGN SHAREHOLDERS
|
12. |
AGA SHARE PLANS
|
13. |
AMENDMENTS TO THE REORGANISATION
|
|
13.1. |
before or at the Shareholders’ Meeting, make any amendment, variation or modification of the Reorganisation. AGA Shareholders will be notified of any such variation or modification either at the
Shareholders’ Meeting or via an updated announcement released on SENS (and filed or furnished with the SEC); or
|
|
13.2. |
after the Shareholders’ Meeting, make any amendment, variation or modification of the Reorganisation, provided that no amendment, variation or modification made after the Shareholders’ Meeting may have the
effect of diminishing the rights which will accrue to all AGA Shareholders in terms of the Reorganisation.
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14. |
DISSENTING AGA SHAREHOLDERS’ APPRAISAL RIGHTS (see page 18 of the Circular)
|
15. |
COURT APPROVAL (see page 45 of the Circular)
|
|
15.1. |
AGA Shareholders are advised that, in terms of Section 115(3) of the Companies Act, AGA may in certain circumstances not proceed to implement the:
|
|
15.1.1. |
AGAH Sale Special Resolution approving the AGAH Sale; and
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|
15.1.2. |
Scheme Special Resolution approving the Scheme, despite it being adopted at the Shareholders’ Meeting, without the approval of the court.
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|
15.2. |
An extract from Section 115 of the Companies Act is attached as Annexure F to the Circular.
|
16. |
TAX CONSEQUENCES (see page 64 of this Pre-listing Statement)
|
|
16.1. |
Income Tax or Capital Gains Tax
|
|
16.1.1. |
For South African AGA Shareholders that hold their shares on capital account, a capital gain will arise to the extent that the market value of the NewCo Ordinary Shares exceeds the base
cost of the AGA Ordinary Shares held by the respective tax resident shareholders. Alternatively, to the extent that the market value of the NewCo Ordinary Shares is less than the base cost of the AGA Ordinary Shares held by the respective
shareholders a capital loss will arise.
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|
16.1.2. |
For South African Shareholders that hold their respective AGA Ordinary Shares as trading stock/inventory, any gain or loss will be treated on revenue account and taxed at the higher
effective tax rates applicable to transactions that occur on revenue account.
|
|
16.1.3. |
Foreign Shareholders are generally exempt from South African taxes unless the Foreign Shareholder holds AGA Ordinary Shares that are effectively connected with a permanent establishment
(of such holder) in South Africa.
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|
16.2. |
Future NewCo Dividend Payments
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|
16.3. |
It is intended that, for U.S. federal income tax purposes, the U.S. Tax Reorganisation will qualify as a “reorganization” within the meaning of Section 368(a) of the Code and AGA has received a private
letter ruling from the IRS confirming that the U.S. Tax Reorganisation satisfies certain requirements of Section 368(a)(1)(F) of the Code. However, the completion of the Reorganisation is not conditioned on the qualification of the U.S. Tax
Reorganisation as a “reorganization” within the meaning of Section 368(a) or upon the receipt of a ruling from the IRS or an opinion of counsel to that effect. If the U.S. Tax Reorganisation is treated as a “reorganization” within the meaning
of Section 368(a) of the Code, subject to certain exceptions, the U.S. Shareholders (as defined in “Material Tax Considerations— Material U.S. Federal Income Tax Consequences” below) will not be
subject to U.S. federal income taxation on the exchange of AGA Ordinary Shares or AGA ADSs for NewCo Ordinary Shares, as applicable. A U.S. Shareholder that exercises its appraisal rights and receives cash in respect of its AGA Ordinary
Shares should recognize gain or loss.
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|
16.4. |
Non-U.K. Holders will not be subject to U.K. income tax, corporation tax, or capital gains tax in respect of the Spin-Off or the Scheme. Non-U.K. Holders may be subject to foreign taxation depending on their
personal circumstances.
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|
16.5. |
No U.K. stamp duty or SDRT will be payable by Non-U.K. Holders on (i) the transfer under the Scheme of their AGA Ordinary Shares or, in the case of a holder of AGA ADSs, the AGA Ordinary Shares
underlying those AGA ADSs; or (ii) the allotment and issue of the NewCo Ordinary Shares as part of the Reorganisation (whether under the Spin-Off or under the Scheme).
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|
16.6. |
AGA intends to seek a clearance from HMRC that an agreement to transfer Entitlements will not be subject to SDRT for the interim period where such Entitlements are available for trading. If such a clearance
is not obtained, HMRC may take the position that an agreement to transfer Entitlements will be subject to SDRT at a rate of 0.5% (point five per cent) (see the section entitled “Risk Factors – Risks Related
to Taxation – AGA” may not obtain a clearance from HMRC that an agreement to transfer Entitlements is not subject to SDRT” on page 103 of this Pre-listing Statement).
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17. |
SUMMARY OF CONSOLIDATED FINANCIAL DATA OF NEWCO AND AGA
|
|
17.1. |
NewCo and AGA
|
|
17.1.1. |
NewCo was incorporated on 10 February 2023 and prior to the consummation of the Reorganisation, NewCo will own no material assets and will not operate any business. For this reason,
financial statements of NewCo are not available. The historical column in the condensed statement of financial position and statement of profit or loss included in this Pre-listing Statement has been derived from the audited consolidated
financial statements of AGA.
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17.1.2. |
AGA has an accounting year end of 31 December. AGA prepares its consolidated financial statements in conformity with IFRS as issued by the IASB, the South African Institute of Chartered
Accountants (SAICA) Financial Reporting Guides, as issued by the Accounting Practices Committee and Financial Pronouncements as issued by Financial Reporting Standards Council and the requirements of the Companies Act of South Africa. For
further details see paragraph 6.2 of this Pre-listing Statement.
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|
17.1.3. |
There have been no material changes in the accounting policies of AGA subsequent to its latest published financial results for the 12 (twelve) months ended 31
December 2022.
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18. |
SUMMARY CONSOLIDATED FINANCIAL INFORMATION OF AGA
|
19. |
Pro forma financial information relating to AGA and NewCo
|
PER SHARE MARKET INFORMATION AND DIVIDENDS
|
20. |
SHARE PRICE
|
|
20.1. |
The following table sets forth the closing market prices per AGA Ordinary Share on the JSE, as reported by Factset, and the closing market prices per AGA ADS on the NYSE, as reported by Factset, on the
following dates:
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|
20.1.1. |
as of 11 May 2023 (the last trading day prior to the date of the public announcement of the Reorganisation); and
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|
20.1.2. |
As at the Last Practicable Date, the authorised share capital of AGA is 600,000,000 (six hundred million) AGA Ordinary Shares and issued share capital of AGA is 419,612,543 (four hundred nineteen million six
hundred twelve thousand five hundred and forty three) AGA Ordinary Shares which were trading at the following prices:
|
AGA Shares
|
AGA ADSs
|
|
(ZAR)
|
(U.S. $)
|
|
11 May 2023
|
512.67
|
26.64
|
AGA Ordinary Shares
|
NewCo Ordinary Shares
|
|
Total shares held by directors
|
71,800
|
71,800
|
Total issued ordinary shares
|
419,612,543
|
419,612,543
|
Total authorised shares
|
600,000,000
|
*
|
Total treasury shares
|
–
|
–
|
21. |
DIVIDENDS
|
|
21.1. |
The following table sets forth dividends paid by AGA per AGA Share and dividends paid by AGA per AGA ADS for the years ended 2022, 2021, 2019, and 2018:
|
Year ended 31 December
|
|||||
Dividends declared and paid for the financial year
|
2022
|
2021
|
2020
|
2019
|
2018
|
Dividend per AGA Share (R cents)
|
710
|
792
|
165
|
95
|
70
|
Dividend per AGA ADS (U.S. $ cents)
|
43
|
54
|
9
|
7
|
6
|
|
1. |
Cash dividends received by the ADS Depositary are distributed to AGA ADS Holders, net of fees, expenses and withholding and converted to Dollars, subject to the terms and conditions of
the AGA Deposit Agreement.
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|
2. |
The conversion of Rand into Dollars is based on average exchange rates of R16.38/U.S.$ for 2022, R14.77/U.S.$ for 2021, R17.84/ U.S.$ for 2020, R14.29/U.S.$ for 2019 and R11.97/U.S.$ for
2018.
|
INFORMATION ABOUT NEWCO, THE GROUP AND
THE COMPANIES INVOLVED IN THE REORGANISATION
|
22. |
THE GROUP
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|
22.1. |
AGA is an independent, global gold mining company with a diverse portfolio of operations, projects and exploration activities across nine countries on four continents. AGA is headquartered in Johannesburg,
South Africa. AGA has developed a high-quality, well-diversified asset portfolio, including production from seven countries (Argentina, Australia, Brazil, the Democratic Republic of Congo, Ghana, Guinea and Tanzania) supported by greenfield
projects in the United States and Colombia along with a focused global exploration program. While gold is its principal product, AGA also produces silver (Argentina) and sulfuric acid (Brazil) as by-products.
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|
22.2. |
AGA (formerly AngloGold Limited) (Registration No. 1944/017354/06) was incorporated in South Africa in 1944 under the name of Vaal Reefs Exploration and Mining Company Limited and AGA operates under the
Companies Act and has been listed on the Main Board of the JSE since 1998. On 26 April 2004, AGA acquired the entire issued share capital of Ashanti Goldfields Company Limited and changed its name to AngloGold Ashanti Limited on the same day.
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22.3. |
For a further discussion of the Group’s operations, see the Integrated Report and the Annual Financial Statements, including the audited consolidated financial statements of AGA as at, and for the years
ended, 31 December 2022, 2021 and 2020, including the notes to those financial statements, incorporated by reference in this Pre-listing Statement.
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|
22.4. |
Other than as disclosed in this Pre-listing Statement, AGA has not altered its share capital within the three years prior to the Last Practicable Date.
|
|
22.5. |
The business of the Group is not subject to any government protections and/or any investment encouragement laws.
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|
22.6. |
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 Reorganisation.
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|
22.7. |
As at the Last Practicable Date, the business of NewCo is not managed by a third party under a contract or arrangement.
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|
22.8. |
NewCo and its subsidiaries have not entered into any material contract in relation to the acquisition of any securities by NewCo or its subsidiaries in terms of which NewCo and its subsidiaries did not
acquire 100% (one hundred percent) of the securities in that company.
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|
22.9. |
As at the Last Practicable Date, the Group has not made any material loans.
|
23. |
NATURE OF DISCLOSURE
|
|
23.1. |
Upon the completion of the Reorganisation, NewCo will become the listed parent of the Group and AGA and AGAH will become direct wholly-owned Subsidiaries of NewCo. Accordingly, in having regard to the fact
that AGA has been listed on the Main Board of the JSE since 1998 and, by virtue of its listing on the Main Board of the JSE, AGA has had to comply with the JSE Listings Requirements and, has had to publicly disclose, inter alia: its annual financial statements, all of its material borrowings, material loans, any material changes to its business and/or the prospects of the Group, material transactions, any litigation which relates to AGA
and its major subsidiaries, the working capital of the Group and AGA’s arrangements with its vendors, the JSE has granted NewCo with a dispensation from having to disclose any information which has already been publicly disclosed by AGA in
terms of JSE Listings Requirements. Consequently, the JSE has granted its consent for all of these matters to be incorporated by reference under this Pre-listing Statement. In this regard, all of information that has been disclosed by AGA in
its Annual Financial Statements, Integrated Reports, any circulars and/or notices issued by AGA to the AGA Shareholders, announcements made by AGA on SENS and/or any public communiques issued by AGA from time to time shall be deemed to be
incorporated in this Pre-listing Statement by reference.
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|
23.2. |
The information which the JSE has granted its consent to be included in this Pre-listing Statement is contained in the following documents –
|
Details of Material Loans made to the Group:
|
Annual Financial Statements
|
Details of Material Commitments, Lease Payments and Contingent Liabilities:
|
Annual Financial Statements
|
Details of Material Loans made by AGA:
|
Annual Financial Statements
|
Details of Remuneration of Directors:
|
Annual Financial Statements
|
Prospects of the Business of the Group:
|
Financial Results Announcement dated 22 February 2023
|
Details of the Immovable Property Occupied by the Group:
|
Annual Financial Statements
|
Details of inter-company financial and other transactions :
|
Annual Financial Statements
|
Details of Material Contracts:
|
Annual Financial Statements
|
Announcement dated January 18 in relation to Corvus Gold Inc. transaction
|
|
Announcement dated 16 March 2023 Gold Fields and AGA Ghana Joint Venture
|
|
Particulars of Royalties payable by the Group:
|
Mineral Resource and Mineral Reserve Report
|
Details of Vendors:
|
Announcement dated January 18 in relation to Corvus Gold Inc. transaction
|
Announcement dated 16 March 2023 Gold Fields and AGA Ghana Joint Venture
|
|
Annual Financial Statements
|
|
23.3. |
Accordingly, all information which relates to: (i) AGA’s material borrowings and loans; (ii) AGA’s or the Group’s prospects; (iii) any changes to AGA’s business; (iii) AGA’s material contracts; (iv) AGA’s
Group Activities; (v) the material risks to the business of the Group; and (v) the vendors of the Group, and which is has been publicly disclosed by AGA is deemed to be incorporated in this Pre-listing Statement by reference. Notwithstanding
the dispensation that has been granted by the JSE to NewCo from complying the aforementioned disclosure requirements, by virtue of incorporating such disclosures by reference, NewCo has, in its sole and absolute discretion, elected to make
the disclosures which are set out in this Pre-listing Statement in addition to what has already been publicly disclosed by AGA and the disclosures contained in this Pre-listing Statement are therefore not intended to be comprehensive and
should be considered together with all of the information that has already been publicly disclosed by AGA in complying with the JSE Listings Requirements.
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|
23.4. |
As at the Last Practicable Date, the Group does not have any outstanding loan capital.
|
|
23.5. |
Other than in terms of the Reorganisation, there are no NewCo Ordinary Shares that will be issued simultaneously, or almost simultaneously with the issue of the NewCo Ordinary Shares in terms of the
Reorganisation.
|
24. |
RECENT DEVELOPMENTS
|
25. |
LITIGATION STATEMENTS
|
26. |
THE COMPANIES INVOLVED IN THE REORGANISATION
|
|
26.1. |
NewCo Share Capital
|
|
26.1.1. |
NewCo was incorporated as a private limited company under the laws of England and Wales on February 10, 2023 and on 22 June 2023 was re-registered as a public limited company solely for the purposes of
carrying out the Reorganisation. NewCo will operate in conformity with the NewCo Articles.
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|
26.1.2. |
NewCo’s registered office is located at 4th Floor, Communications House South Street Staines-upon- Thames, Surrey TW18 4PR, United Kingdom. NewCo’s telephone number is +44 (0) 203 968 3323. Upon completion
of the Reorganisation, the Group’s global headquarters are expected to be moved to 4601 DTC Blvd., Suite 550, Denver CO 80237, United States but its principal executive office will remain located at 4th Floor, Communications House, South
Street, Staines-Upon-Thames, Surrey, TW18 4PR, United Kingdom.
|
|
26.1.3. |
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 Reorganisation.
|
|
26.1.4. |
NewCo has not commenced operations, has no material assets or liabilities and has not carried on any activities, other than in connection with the Reorganisation and in particular, its only assets are the
proceeds which it received in respect of the subscription for its shares by AGA, and its only liabilities are auditors’ fees and other minor ancillary expenses. NewCo does not currently have securities listed on any securities exchange. If
the Reorganisation becomes unconditional and is implemented, among other things, the NewCo Ordinary Shares will have a primary listing on the NYSE and secondary inward listings on the JSE, A2X and the GhSE.
|
|
26.1.5. |
Upon completion of the Reorganisation, NewCo will be the listed parent company of the Group and each of AGA and AGAH will be a direct, wholly-owned subsidiary of NewCo.
|
|
26.1.6. |
NewCo was re-registered as a public limited company on 22 June 2023. Prior to the Operative Date, NewCo and AGA (in its capacity as the sole shareholder of NewCo) will approve the necessary resolutions to
authorise the issuance of the Spin-Off Shares and the Scheme Consideration Shares. Accordingly, NewCo will, by the Operative Date, have obtained the requisite authorisations to issue the NewCo Ordinary Shares which comprise the Reorganisation
Consideration.
|
|
26.1.7. |
Apart from the Reorganisation, and the equity plan summarised in the Circular, NewCo is not party to any contract or arrangement (or proposed contract or arrangement), whereby an option or preferential right
of any kind is (or is proposed to be) given to any person to subscribe for any NewCo Ordinary Shares. Moreover, none of the subsidiaries of the Group are a party to any contract or arrangement (or proposed contract or arrangement) whereby an
option or preferential right of any kind is (or is proposed to be) given to any person to subscribe for any shares in the subsidiary.
|
|
26.2. |
NewCo’s Share Capital
|
|
26.2.1. |
AGA has subscribed for, and NewCo has issued to AGA, the Founder Share. AGA has also subscribed for, and NewCo has issued to AGA, the Redeemable Preference Shares at a premium of GBP 1.20 (one Pound and
twenty pence) per Redeemable Preference Share, with the total subscription price for each Redeemable Preference share being an amount of GBP 2.20 (two Pounds and twenty pence). AGA has also subscribed for the Spin-Off Shares that will be
issued to the AGA Shareholders, as at the Reorganisation Consideration Record Date, pursuant to the Reorganisation.
|
|
26.2.2. |
As at the Last Practicable Date, NewCo’s issued share capital was: (i) the Founder Share, which Founder Share will be cancelled prior to the Operative Date; and (ii) the Redeemable Preference Shares, which
will be redeemed in full prior to the Operative Date. NewCo has undertaken a reduction of its share capital to reduce GBP 1.00 (one Pound) of the premium paid on each Redeemable Preference Share thereby creating distributable reserves
totalling GBP 50,000 (fifty thousand Pounds) which NewCo will apply to funding the redemption of Redeemable Preference Shares at nominal value, being an amount of GBP 1.00 (one Pound) for each Redeemable Preference Share. Upon the redemption
of the Redeemable Preference Shares by NewCo, which shall occur immediately following the Spin-Off, the Redeemable Preference Shares will then automatically be treated as cancelled under English law. Therefore, neither the Redeemable
Preference Shares nor the Founder Share will be in issue upon completion of the Reorganisation. Upon the completion of the Reorganisation, NewCo will not hold any NewCo Ordinary Shares as treasury shares.
|
|
26.2.3. |
Upon completion of the Reorganisation, NewCo’s issued share capital will comprise approximately 419,612,543 (four hundred and nineteen million six hundred and twelve thousand five hundred and forty three)
NewCo Ordinary Shares with a par/nominal value of USD 1.00 (one US Dollar) each and accordingly, upon the implementation of the Reorganisation, NewCo will have a subscribed share capital in excess of R500,000,000 (five hundred million Rand).
As there is no requirement to set out an authorised share capital under the laws of England and Wales, NewCo does not have an authorised share capital. Subject to NewCo having sufficient authority to allot, whether by means of an authority
contained in the NewCo Articles or a separate shareholders’ resolution, there is no limit on the number of shares that can be issued by NewCo or the classes of shares that may be created by NewCo.
|
|
26.2.4. |
The NewCo Ordinary Shares have not yet been listed, therefore; none of the NewCo Ordinary Shares have been traded on any securities exchange; and none of the NewCo Ordinary Shares have been repurchased by
NewCo. As part of the Reorganisation NewCo will redeem the Redeemable Preference Shares, at nominal value, and AGA will gift the Founder Share to NewCo, for nil consideration, the effect of which being that following the completion of the
Reorganisation, NewCo’s issued share capital will comprise only of the Spin-Off Shares and the Scheme Consideration Shares, expected to represent 419,612,543 (four hundred and nineteen million six hundred and twelve thousand five hundred and
forty three) NewCo Ordinary Shares.
|
|
26.2.5. |
The only class of share in NewCo’s share capital that will be listed for trading on a securities exchange is the NewCo Ordinary Shares which will have its primary listing on the NYSE and inward secondary
inward listings on the JSE and A2X and a secondary listing on the GhSE.
|
|
26.2.6. |
In terms of the NewCo Articles, the NewCo Board is authorised 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, (two hundred fifty three million six hundred fifty nine thousand seven hundred and thirty five US Dollars) (representing approximately 60% (sixty percent) of the aggregate nominal amount of NewCo’s expected issued share capital
immediately following implementation of the Reorganisation), such authority to apply until the date that is 5 (five) years after the date of adoption of the NewCo Articles. Notwithstanding the preceding sentence, the NewCo Articles provide
that NewCo will comply with Rule 312.03(c) under the New York Stock Exchange’s Listed Company Manual (the “20% rule”). Pursuant to the 20% rule, any allotment of shares, or of securities convertible
into or exercisable for shares, that results in the issuance of more than 20% (twenty percent) of either the number of shares outstanding or the voting power outstanding before the issuance, will require shareholder approval via ordinary
resolution of shareholders, other than any such issuance that is (1) a public offering for cash or (2) another financing for cash at a price which is at least equal to the “Minimum Price” (as defined below), other than issuances in connection
with an acquisition, when the shares issued, combined with any other issuance in connection with the acquisition, exceed 20% (twenty percent) by number or voting power. “Minimum Price” is defined in accordance with Rule 312.04 under the New
York Stock Exchange’s Listed Company Manual as the lower of: (i) the official closing price on the New York Stock Exchange immediately preceding the signing of the binding agreement with respect to the applicable issuance; or (ii) the average
official closing price on the New York Stock Exchange for the five trading days immediately preceding the signing of the binding agreement with respect to the applicable issuance). 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.
|
|
26.2.7. |
All NewCo Ordinary Shares to be issued will be fully paid and existing shareholders will not be subject to any calls on shares. Although, English law does not recognise the concept of “non-assessability”
with respect to newly-issued shares, any holder of NewCo Ordinary Shares who has fully paid up all amounts due with respect to such shares will not be subject under English law to any personal liability to contribute to the assets or
liabilities of NewCo in such purchaser’s capacity solely as a holder of such NewCo Ordinary Shares. All NewCo Ordinary Shares are in certificated form. NewCo cannot, except in the circumstances permitted by the U.K. Companies Act, grant any
financial assistance for the acquisition or proposed acquisition of its own shares.
|
|
26.2.8. |
Under English company law, sufficient distributable reserves are required for a company to make distributions (including dividends). Upon completion of the Reorganisation, NewCo will have a relatively large
“merger reserve” (representing the difference between the fair value of the AGA Shares at the date they are acquired by NewCo and the aggregate nominal value of the NewCo Ordinary Shares issued) which is not a statutory reserve nor a
distributable reserve as it is not represented by qualifying consideration. To convert (some or all of) its merger reserve into distributable reserves, NewCo will issue bonus shares (paid up out of a capitalisation of the merger reserve) and,
shortly thereafter, cancel such bonus shares, resulting in their nominal value being credited to NewCo’s distributable reserve account (such process, the “Capital Reduction”). The necessary shareholder resolutions in respect of the Capital
Reduction will be passed prior to the Operative Date by AGA, the current sole shareholder of NewCo. The application to the Companies Court of England and Wales required to sanction the Capital Reduction will be made after implementation of
the Reorganisation.
|
|
26.3. |
AGA
|
|
26.3.1. |
AGA (formerly AngloGold Limited) (Registration No. 1944/017354/06) was incorporated in South Africa in 1944, under the name of Vaal Reefs Exploration and Mining Company Limited and AGA operates under the
Companies Act. On 26 April 2004, AGA acquired the entire issued share capital of Ashanti Goldfields Company Limited and changed its name to AngloGold Ashanti Limited on the same day. AGA’s principal executive office is located at 112 Oxford
Road, Houghton Estate, Johannesburg, 2198 (Private Bag X 20, Rosebank, 2196), South Africa. AGA’s telephone number is +27 (0)11 637-6000, and AGA’s internet address is at www.anglogoldashanti.com.
|
|
26.3.2. |
The AGA Ordinary Shares are listed on the JSE under the symbol “ANG” and on the A2X under the symbol “ANG”.
|
|
26.3.3. |
Additional information about AGA is incorporated by reference in this Pre-listing Statement. See the section entitled “Important Information – Documents Available for
Inspection and Documents Included or Incorporated by Reference in this Pre-listing Statement” beginning on page 13 of this Pre-listing Statement.
|
|
26.4. |
AGAH
|
|
26.4.1. |
AGAH is a wholly owned subsidiary of AGA. The principal activity of AGAH is to act as a holding company for certain of AGAH’s operations and assets located outside South Africa. Following the completion of
the Reorganisation AGAH will be a Major Subsidiary of NewCo.
|
|
26.4.2. |
AGAH was incorporated on 10 January 1992, as a private limited company under the Isle of Man Companies Acts 1931 to 1986, under the name of S.M.I. Holdings Limited with company number 056961C. On 2 February
2004, S.M.I. Holdings Limited’s name was changed to AngloGold Holdings Limited in accordance with the provisions of the Isle of Man Companies Acts 1931 to 1993. On 6 February 2004, AngloGold Holdings Limited was converted to a public company
and changed its name to become AngloGold Holdings plc on 10 February 2004. AngloGold Holdings plc’s name was changed to AngloGold Ashanti Holdings plc on 18 October 2005. On 17 July 2007, AngloGold Ashanti Holdings plc re-registered in the
Isle of Man as a company incorporated and existing under the Isle of Man Companies Act 2006 with company number 001177V. On 1 December 2017, AngloGold Ashanti Holdings plc registered under the UK Companies Act 2006 as an overseas company with
company number FC034822 having established a UK establishment in the United Kingdom with UK establishment number BR019915. As a result, AGAH transferred its tax residence from the Isle of Man to the United Kingdom. AGAH’s registered office is
located at Falcon Cliff, Palace Road, Douglas, Isle of Man, IM2 4LB and its principal executive offices (UK establishment office) are located at 4th Floor, Communications House, South Street, Staines-upon-Thames, TW18 4PR, United Kingdom
(Telephone +44 (0)203 968-3320).
|
27. |
MATERIAL LOANS
|
28. |
MATERIAL ISSUANCES OF SECURITIES
|
|
28.1. |
NewCo
|
|
28.2. |
AGA
|
|
28.3. |
The offering of the 2040 notes was registered under the Securities Act. The 2040 notes were listed on the NYSE.
|
29. |
MATERIAL CONTRACTS
|
|
29.1. |
NewCo
|
|
29.1.1. |
Implementation Agreement
|
|
29.1.2. |
Irrevocable Offer to Purchase
|
|
29.1.3. |
For more information on the Implementation Agreement and the Irrevocable Offer to Purchase, see page 42 of the Circular, which is incorporated by reference in this Pre-listing Statement.
|
|
29.1.4. |
NewCo has not entered into any other material contracts as of the date of this Pre-listing Statement. However, upon the implementation of the Reorganisation, NewCo will acquire all of the issued AGA Shares
and will, as a result, obtain an interest in AGA’s current material assets, liabilities and operations.
|
30. |
MATERIAL ACQUISITIONS
|
31. |
OPTIONS OR PREFERENTIAL RIGHTS IN RESPECT OF SECURITIES IN NEWCO
|
32. |
AMOUNTS PAID OR PAYABLE TO PROMOTER
|
33. |
NO COMMISSIONS PAID OR PAYABLE IN RESPECT OF UNDERWRITING
|
34. |
INFORMATION ON SUBSIDIARIES OF NEWCO
|
35. |
PRINCIPAL IMMOVABLE PROPERTY OWNED OR LEASED
|
36. |
PROPERTY ACQUIRED OR TO BE ACQUIRED
|
37. |
DISPOSAL OF PROPERTY
|
38. |
MATERIAL CAPITAL COMMITMENTS AND CONTINGENT LIABILITIES
|
39. |
MATERIAL CHANGES
|
40. |
DEBENTURES AND DEBENTURE STOCK
|
41. |
INTERESTS OF DIRECTORS AND PROMOTERS
|
42. |
CONSENTS
|
MINERAL RESOURCE AND MINERAL RESERVE STATEMENT
|
NEWCO DIRECTORS AND NEWCO MANAGEMENT
|
43. |
GENERAL
|
|
43.1. |
As of the Last Practicable Date, the NewCo Board is constituted by Alberto Calderon and Robert Hayes. It is expected that all members of the AGA Board will become members of the NewCo Board at, or prior to,
the time that the Reorganisation is completed. The NewCo Board will then consist of the members listed under “Corporate Information and Advisers” on page 7 of this Pre-listing Statement.
|
|
43.2. |
Effective at, or prior to the time that, the Reorganisation is completed, the NewCo Board will establish an Audit and Risk Committee, a Compensation and Human Resources Committee, a Social, Ethics and
Sustainability Committee, an Investment Committee and a Nominations and Governance Committee. The functions that these committees will perform will be specified in their respective charters, which will be adopted by the NewCo Board at the
time such committees are established and their powers and responsibilities are expected to be substantially similar to those of the committees of the AGA Board at, or immediately prior to, the time the Reorganisation is completed.
|
|
43.3. |
None of the directors of AGA or the directors of NewCo have been involved in:
|
|
43.3.1. |
any bankruptcies, insolvencies or individual voluntary compromise arrangements of such person;
|
|
43.3.2. |
any business rescue plans and/or resolution proposed by any entity to commence business rescue proceedings, application having been made for any entity to begin business rescue proceedings, notices having
been delivered in terms of Section 129(7) of the Companies Act, receiverships, compulsory liquidations, creditors’ voluntary liquidations, administrations, company voluntary arrangements or any compromise or arrangement with creditors
generally or any class of creditors of any company; where such person is or was a director, with an executive function within such company at the time of, or within the 12 (twelve) months preceding, any such event(s);
|
|
43.3.3. |
any compulsory liquidations, administrations or partnership voluntary arrangements of any partnerships where such person is or was a partner at the time of, or within the 12 (twelve) months preceding, such
event(s);
|
|
43.3.4. |
receiverships of any asset(s) of such person or of a partnership of which the person is or was a partner at the time of, or within the 12 (twelve) months preceding, such event;
|
|
43.3.5. |
any public criticisms of such person by statutory or regulatory authorities, including recognised professional bodies, and whether such person has ever been disqualified by a court from acting as a director
of a company or from acting in the management or conduct of the affairs of any company;
|
|
43.3.6. |
any offence involving dishonesty committed by such person;
|
|
43.3.7. |
a removal from an office of trust, on the grounds of misconduct and involving dishonesty; and
|
|
43.3.8. |
any court order declaring such person delinquent or placing him or her under probation in terms of Section 162 of the Companies Act and/or Section 47 of the Close Corporations Act, 1984 (Act No. 69 of 1984)
(or disqualifying him or her to act as a Director in terms of Section 69 of the Companies Act.
|
44. |
THE NEWCO BOARD AT THE DATE OF THIS PRE-LISTING STATEMENT
|
NewCo Board as of the date of this Pre-listing Statement
|
|||
Name
|
Age
|
Position
|
Year First Appointed
|
Alberto Calderon
|
63
|
Principal executive officer
|
2023
|
Robert Hayes
|
57
|
Principal financial officer and principal accounting officer
|
2023
|
|
44.1. |
Alberto Calderon
|
|
44.1.1. |
Alberto Calderon was appointed executive director by NewCo on 10 February 2023 and as principal executive officer on 11 May 2023. Mr Calderon’s executive experience includes leadership roles across the
mining, petroleum, and energy sectors. He served as the chief executive officer of Orica and was also an executive at BHP Group Plc. During his time with BHP Group Plc, Mr Calderon held a number of key leadership positions, including group
executive and chief executive aluminum, nickel and corporate development, group executive and chief commercial officer.
|
|
44.1.2. |
Mr. Calderon was also CEO of Cerrejón Coal Company, an integrated thermal coal mine in Colombia, and CEO of the Colombian oil company, Ecopetrol. Prior to this, Mr. Calderon held senior leadership positions
in the International Monetary Fund and the Colombian government and has been a board member of a range of private, public and non-government organisations.
|
|
44.1.3. |
Set out below is a list of all Directorships held by Alberto Calderon in the prior five years:
|
|
44.1.3.1. |
Orica Limited (resigned/retired).
|
|
44.2. |
Robert Hayes
|
|
44.2.1. |
Robert Hayes was appointed as a director of NewCo on 10 February 2023 and as Principal Financial Officer and Principal Accounting Officer by NewCo on 11 May 2023.
|
|
44.2.2. |
Mr. Hayes has 27 years of experience with AGA and currently serves as the group treasurer of AGA and the general manager of AGAH. As part of his role as group treasurer of AGA, Mr. Hayes is responsible for
global insurance for AGA and sits on the board of AGA’s first-party cell captive. As the general manager of AGAH, Mr. Hayes also serves as the executive director of the AGAH board of directors.
|
|
44.2.3. |
Set out below is a list of all Directorships held by Robert Hayes in the prior five years:
|
|
44.2.3.1. |
AngloGold Ashanti Holdings plc (current); and
|
|
44.2.3.2. |
AGRe Insurance Company Limited (current).
|
45. |
THE NEWCO BOARD AS OF THE OPERATIVE DATE
|
NewCo Board as of the date of this Pre-listing Statement
|
|||
Name
|
Age
|
Position
|
Year First Appointed
|
Alberto Calderon
|
63
|
Executive director and chief executive officer
|
2023
|
Gillian Doran
|
47
|
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
|
Maria Richter
|
68
|
Independent non-executive director
|
2023
|
Jochen Tilk
|
59
|
Independent non-executive director
|
2023
|
Diana Li Sands
|
57
|
Independent non-executive director
|
2023
|
Jinhee Magie
|
55
|
Independent non-executive director
|
2023
|
|
45.1. |
Alberto Calderon, Chief executive officer and executive director
|
|
45.1.1. |
See paragraph 44.1 above for Mr Calderon’s biography.
|
|
45.2. |
Gillian Doran, chief financial officer and executive director
|
|
45.2.1. |
Gillian Doran was appointed as chief financial officer by AGA on 1 January 2023. Gillian Doran brings more than 25 years of experience in finance and commercial roles across a number of industries,
predominantly natural resources and also construction and manufacturing. Prior to joining AGA, Ms. Doran served as chief financial officer for Rio Tinto’s Global Aluminum division. Ms. Doran’s career at Rio Tinto spanned over 15
years in a number of senior finance roles within operations, regional business unit and Group headquarters.
|
|
45.2.2. |
A seasoned international executive leader having previously worked and lived in Europe, North America and Australia, Ms. Doran brings to AngloGold Ashanti deep experience in financial accounting, planning,
performance management, investment, transformation and strategy.
|
|
45.2.3. |
Set out below is a list of all Directorships held by Gillian Doran in the prior five years:
|
|
45.2.3.1. |
Rio Tinto Alcan Inc. (resigned/retired);
|
|
45.2.3.2. |
Rio Tinto Alcan Fund Inc. (resigned/retired);
|
|
45.2.3.3. |
Rio Tinto Japan Limited (resigned/retired);
|
|
45.2.3.4. |
Rio Tinto Pte Limited (resigned/retired); and
|
|
45.2.3.5. |
Rio Tinto Global Employment Company Pte Limited (resigned/retired).
|
|
45.3. |
Maria Ramos, Independent non-executive director and chairperson
|
|
45.3.1. |
Maria Ramos was appointed a director of AGA on 1 June 2019 and Chairperson of the Board on 5 December 2020. Maria Ramos is an independent non-executive director of Standard Chartered Plc and serves on the
board of Compagnie Financière Richemont SA. She served as Group CEO of Absa Group (previously Barclays Africa Group Limited), retiring in 2019. Prior to that she was CEO of Transnet and served as Director General of South Africa’s National
Treasury.
|
|
45.3.2. |
She recently served as independent non-executive director on the boards of the Public Investment Corporation and Saudi British Bank. She also co-chaired the United Nations Secretary General’s Task Force on
Digital Financing of the Sustainable Development Goals.
|
|
45.3.3. |
Ms. Ramos has in the past served as a non-executive and independent director on the boards of Sanlam Ltd, Remgro Ltd and SABMiller Plc. She was a member of the World Economic Forum’s International Business
Council and member of its executive committee and its chairperson for two years.
|
|
45.3.4. |
She is a member of the Group of Thirty and serves on the International Advisory Board of the Blavatnik School of Government, Oxford University.
|
|
45.3.5. |
Set out below is a list of all Directorships held by Maria Ramos in the prior five years:
|
|
45.3.5.1. |
Compagnie Financière Richemont S.A (current);
|
|
45.3.5.2. |
Standard Chartered Plc (current);
|
|
45.3.5.3. |
Standard Chartered Bank Plc (current);
|
|
45.3.5.4. |
Public Investment Corporation SOC Limited (resigned/retired);
|
|
45.3.5.5. |
Saudi British Bank (resigned/retired); and
|
|
45.3.5.6. |
Absa Group Limited (resigned/retired).
|
|
45.4. |
Kojo Busia, Independent non-executive director
|
|
45.4.1. |
Kojo Busia was appointed as Independent non-executive director by AGA on 1 August 2020. Kojo Busia has over 25 years of professional experience in African natural resources governance and management working
at both bilateral and multilateral organisations. He recently held the position of Chief of the Natural Resources Management Section, Technology, Climate Change and Natural Resource Management Division, at the United Nations Economic
Commission for Africa (UNECA).
|
|
45.4.2. |
He previously served as co-ordinator of the African Mineral Development Centre (AMDC) at the UNECA. Prior to heading the AMDC, Dr Busia spent nearly a decade leading the African Peer Review Mechanism Support
Section, Governance and Public Administration Division, also at the UNECA. In addition, Dr Busia has served on several advisory boards including the Responsible Mining Foundation Advisory Council, Advisory Director of Global Mining
Sustainability, and Mining Indaba’s Sustainability Advisory Committee. He is a founding director of the Africa Resource Management, Environment and Climate Change Institute, a think-do-tank recently established in Accra, Ghana.
|
|
45.4.3. |
Kojo Busia is a director of African Mining Vision Resources Partners (current) in the prior five years.
|
|
45.5. |
Alan Ferguson, Independent non-executive director
|
|
45.5.1. |
Alan Ferguson was appointed as Independent non-executive director by AGA on 1 October 2018. Alan Ferguson was a former chief financial officer of a number of FTSE-listed entities, including Lonmin Plc. Since
2011 he has held non-executive directorships on a number of boards including Johnson Matthey, Croda International and Marshall Motors Holdings where he chaired their audit committees and was the Senior Independent Director. He currently
serves on the board of Harbour Energy where he chairs the audit committee. In addition, Mr. Ferguson serves as a member of the Business Policy Panel of the Institute of Chartered Accountants of Scotland and is a member of the leadership team
of the U.K. Audit Committee Chair’s Independent Forum.
|
|
45.5.2. |
Set out below is a list of all Directorships held by Alan Ferguson in the prior five years:
|
|
45.5.2.1. |
Harbour Energy Plc (current);
|
|
45.5.2.2. |
Johnson Matthey Plc (resigned/retired);
|
|
45.5.2.3. |
Croda International Plc (resigned/retired); and
|
|
45.5.2.4. |
Marshall Motors Holdings Plc (resigned/retired).
|
|
45.6. |
Albert Garner, Independent non-executive director
|
|
45.6.1. |
Albert Garner was appointed as Independent non-executive director by AGA on 1 January 2015. Albert Garner has extensive experience in capital markets, corporate finance and mergers and acquisitions having
worked with Lazard Frères & Co. LLC for over 40 years in various leadership positions. He is one of the most senior bankers at Lazard, currently leading their special committee practice and chairing their fairness opinion committee. He
formerly led Lazard’s corporate finance practice. Mr. Garner became a general partner in 1989 and is now Vice Chair of Investment Banking.
|
|
45.6.2. |
Albert Garner did not hold any directorships other than AGA in the prior five years.
|
|
45.7. |
Rhidwaan Gasant, Independent non-executive director
|
|
45.7.1. |
Rhidwaan Gasant was appointed the Lead Independent Non-Executive Director of AGA on 12 August 2010. Rhidwaan Gasant was previously the CEO of Energy Africa Limited. He is currently the independent
non-executive chairman of Growthpoint Properties Limited and chairs the board audit committee of MTN Nigeria Communications Plc.
|
|
45.7.2. |
Set out below is a list of all Directorships held by Rhidwaan Gasant in the prior five years:
|
|
45.7.2.1. |
Growthpoint Properties Ltd (current);
|
|
45.7.2.2. |
V&A Waterfront Holdings (Pty) Ltd and Subsidiaries (current);
|
|
45.7.2.3. |
MTN Nigeria Communications Plc (current);
|
|
45.7.2.4. |
Rapid African Energy (Pty) Ltd (resigned/retired);
|
|
45.7.2.5. |
Edcon Group Ltd (resigned/retired);
|
|
45.7.2.6. |
MTN Dubai Ltd (resigned/retired);
|
|
45.7.2.7. |
Rapid African Energy Zambia (resigned/retired);
|
|
45.7.2.8. |
RAE Zambia Ltd (resigned/retired);
|
|
45.7.2.9. |
MTN Cameroon (resigned/retired); and
|
|
45.7.2.10. |
MTN Yemen (resigned/retired).
|
|
45.8. |
Scott Lawson, Independent non-executive director
|
|
45.8.1. |
Scott Lawson was appointed as Independent non-executive director by AGA on 1 December 2021. Scott Lawson has over 35 years in the mining industry and is an experienced global mining executive who has served
in a broad range of roles. He is the former executive vice president and chief integration officer of Newmont Corporation. Prior to this Mr. Lawson served as executive vice president and chief technology officer and other executive technical
roles for Newmont Corporation.
|
|
45.8.2. |
Mr. Lawson spent 22 years with Rio Tinto in executive roles with Rio Tinto Alcan, Rio Tinto Technology and Innovation and Rio Tinto Kennecott. He is the former senior vice president, engineering services at
Peabody Energy responsible for global engineering and technical services support.
|
|
45.8.3. |
Scott Lawson did not hold any directorships other than AGA in the prior five years.
|
|
45.9. |
Jinhee Magie, Independent non-executive director
|
|
45.9.1. |
Jinhee Magie was appointed as Independent non-executive director by AGA on 1 June 2023. Jinhee Magie is the former Chief Financial Officer of Lundin Mining Corporation, a Canadian-based international metals
company, having served over 14 years with the company in various roles of increasing responsibility. She is a finance executive with extensive public company experience in the areas of corporate strategy, capital markets, mergers and
acquisitions and information technology, particularly within the mining industry. Ms. Magie is a corporate director who currently serves on the boards of Lithium Americas Corporation and Star Royalties Limited.
|
|
45.9.2. |
Set out below is a list of all Directorships held by Jinhee Magie in the prior five years:
|
|
45.9.2.1. |
Lithium Americas Corporation (current); and
|
|
45.9.2.2. |
Star Royalties Ltd (current).
|
|
45.10. |
Maria Richter, Independent non-executive director
|
|
45.10.1. |
Maria Richter was appointed as Independent non-executive director by AGA on 1 January 2015. Maria Richter is an experienced non-executive director who has served on a diverse range of U.S. and international
company boards. She previously served on the board of Barclays International, Barclays Bank plc and National Grid plc where she was the chairperson of the finance committee and member of the audit and nominations committees. She currently
sits on the boards of Rexel Group, France, a global leader in the professional distribution of energy products and services, and Bessemer Trust, a U.S. wealth management company, and is a member of the audit and nominations committees of
Rexel and the remuneration committee of Bessemer Trust.
|
|
45.10.2. |
During Ms. Richter’s professional career she served in various positions at the former Dewey Ballantine, Prudential, Salomon Brothers Inc. and Morgan Stanley & Co.
|
|
45.10.3. |
Set out below is a list of all Directorships held by Maria Richter in the prior five years:
|
|
45.10.3.1. |
Rexel Group (current);
|
|
45.10.3.2. |
Bessemer Trust (US) (current);
|
|
45.10.3.3. |
Barclays International (resigned/retired); and
|
|
45.10.3.4. |
Barclays Bank Plc (resigned/retired).
|
|
45.11. |
Diana Sands, Independent non-executive director
|
|
45.11.1. |
Diana Sands was appointed as Independent non-executive director by AGA on 1 June 2023. Diana Sands brings over 30 years of business experience to her board roles. She serves on U.S. public boards, SP+
Corporation and PDC Energy and on the board of privately held Vmo Aircraft Leasing. Ms. Sands previously held senior executive finance and governance positions at the Boeing Company including SVP Office of Internal Governance and
Administration which oversaw ethics and investigations, compliance risk management, internal audit, security and internal services. She was also corporate controller, and head of investor relations and financial planning. Previously Ms. Sands
worked in the automotive and telecommunications sectors and started her career as a Certified Public Accountant.
|
|
45.11.2. |
Set out below is a list of all Directorships held by Diana Sands in the prior five years:
|
|
45.11.2.1. |
Vmo Aircraft Leasing (resigned/retired);
|
|
45.11.2.2. |
PDC Energy Inc (current); and
|
|
45.11.2.3. |
SP+ Corporation (current).
|
|
45.12. |
Jochen Tilk, Independent non-executive director
|
|
45.12.1. |
Jochen Tilk was appointed as Independent non-executive director by AGA on 1 January 2019. Jochen Tilk is the former executive chair of Nutrien Inc., a Canadian global supplier of
agricultural products and services. He is the former president and CEO of Potash Corporation. Mr. Tilk, previously spent 25 years with Inmet Mining Corporation, a Canadian-based, international metals company, with five of those years as the
company’s president and CEO. He is also a director of Emera Inc., a publicly listed energy utility company and the Princess Margaret Cancer Foundation, a not-for-profit organisation.
|
|
45.12.2. |
Jochen Tilk was a director of Emera Inc. (current) and Nutrien Inc. (resigned/retired) in the prior five years.
|
46. |
BOARD COMMITTEES AS AT THE DATE OF THIS PRE-LISTING STATEMENT
|
|
46.1. |
Executive Committee
|
|
46.1.1. |
Lisa Ali, Chief people officer
|
|
46.1.2. |
Terry Briggs, Chief development officer
|
|
46.1.3. |
Stewart Bailey, Chief sustainability and corporate affairs officer
|
|
46.1.4. |
Marcelo Godoy, Acting chief operating officer
|
|
46.1.5. |
Lizelle Marwick Chief legal officer
|
|
46.2. |
Audit and Risk Committee
|
|
● |
ensure that NewCo has established the appropriate financial reporting procedures and that those procedures are operating, which will include consideration of all of the entities included
in the consolidated Group IFRS financial statements; and
|
|
● |
ensure that the appointment of the independent registered accounting firm is presented and included as a resolution at the annual general meeting of NewCo.
|
|
46.3. |
Other Committees of the NewCo Board
|
47. |
CORPORATE GOVERNANCE
|
|
47.1. |
Corporate governance of NewCo
|
|
47.2. |
JSE corporate governances practices compared with NYSE listing standards
|
REMUNERATION OF NEWCO DIRECTORS AND
NEWCO MANAGEMENT
|
INTERESTS OF AGA DIRECTORS AND AGA MANAGEMENT
IN THE REORGANISATION
|
48. |
OVERVIEW
|
49. |
BENEFICIAL INTERESTS IN THE REORGANISATION
|
|
49.1. |
Interests of NewCo Directors in AGA Shares
|
|
49.2. |
Interests of Directors of NewCo in NewCo Shares
|
|
49.3. |
Interests of AGA Directors in NewCo Ordinary Shares
|
|
49.4. |
Interests of AGA Directors and AGA management in AGA Ordinary Shares
|
|
Beneficial |
|||
Direct
|
Indirect
|
|||
Number of AGA
Ordinary Shares
|
% of Issued
Share Capital
|
Number of AGA
Ordinary Shares
|
% of Issued
Share Capital
|
|
Non-Executive AGA Directors
|
||||
Maria Ramos (Chairperson)
|
0
|
0
|
0
|
0
|
Rhidwaan Gasant
|
0
|
0
|
0
|
0
|
Kojo Busia
|
2,000
|
0.0005
|
0
|
0
|
Alan Ferguson
|
5,000
|
0.0012
|
0
|
0
|
Albert Garner
|
22,500
|
0.0054
|
0
|
0
|
Maria Richter
|
10,300
|
0.0025
|
1,000
|
0.0002
|
Scott Lawson
|
2,830
|
0.0007
|
0
|
0
|
Jochen Tilk
|
2,800
|
0.0007
|
0
|
0
|
Jinhee Magie
|
0
|
0
|
0
|
0
|
Diana Sands
|
0
|
0
|
0
|
0
|
Total Non-Executive AGA Directors
|
45,430
|
0.0108
|
1,000
|
0.0002
|
Executive AGA Directors
|
||||
Alberto Calderon
|
26,370
|
0.0063
|
0
|
0
|
Gillian Doran
|
0
|
0
|
0
|
0
|
Total Executive Directors
|
26,370
|
0.0063
|
0
|
0
|
Prescribed Officers/Executive Committee of AGA
|
||||
Lisa Ali
|
0
|
0
|
0
|
0
|
Stewart Bailey
|
8,927
|
0.0021
|
0
|
0
|
Terry Briggs
|
0
|
0
|
0
|
0
|
Ludwig Eybers*
|
0
|
0
|
0
|
0
|
Marcelo Godoy
|
32,643
|
0.0078
|
0
|
0
|
Lizelle Marwick
|
0
|
0
|
0
|
0
|
Total Prescribed Officers/ Executive Committee of AGA
|
41,570
|
0.0099
|
0
|
0
|
TOTAL
|
67,940
|
0.0162
|
0
|
0
|
50. |
POTENTIAL CONFLICTS OF INTEREST AND OTHER INFORMATION
|
|
50.1. |
NewCo is not aware of any existing or potential conflicts between the private and personal interests or other duties of AGA Directors or members of AGA management and the interests of NewCo. There are no
family ties between any of the AGA Directors or members of AGA management and NewCo. Within the 5 (five) years prior to the Last Practicable Date, no AGA Director or member of AGA management has been:
|
|
50.1.1. |
convicted in relation to fraudulent offences;
|
|
50.1.2. |
associated with bankruptcies, receiverships or liquidations in his or her capacity as a member of an administrative, management or supervisory body or as a founder; or
|
|
50.1.3. |
officially and publicly incriminated and/or sanctioned by statutory or regulatory authorities (including designated professional bodies) or ever been disqualified by a court from acting as a member of the
administrative, management or supervisory bodies of an issuer or from acting in the management or conduct of the affairs of an issuer.
|
|
50.2. |
NewCo is not aware of any arrangement or understanding with major AGA Shareholders, suppliers, customers or others pursuant to which any AGA Director or member of AGA management was selected as an AGA
Director or member of AGA management.
|
EXISTING MAJOR SHAREHOLDERS OF AGA AND NEWCO
|
51. |
EXISTING MAJOR SHAREHOLDERS OF AGA
|
|
51.1. |
The table below presents, to the knowledge of AGA, each AGA Shareholder holding, directly or indirectly, a beneficial interest in excess of 5% (five percent) of the issued AGA Shares as of Last Practicable
Date:
|
AGA Shareholder
|
Number of
AGA Shares
|
% of issued
share capital
|
Public Investment Corporation SOC Limited
|
78,550,223
|
18.72
|
Van Eck Associates Corporation
|
27,267,584
|
6.50
|
BlackRock Advisors LLC
|
26,273,339
|
6.26
|
|
51.2. |
As at the Last Practicable Date, a total of 114,783,216 (one hundred fourteen million seven hundred eighty three thousand two hundred and sixteen AGA Ordinary Shares 27.35 (twenty seven point three five
percent) of ordinary issued share capital of AGA) were held by the ADS Depositary. Each AGA ADS represents one AGA Ordinary Share. At the Last Practicable Date, the number of persons who were registered holders of AGA AIDSs was reported at
1,888 (one thousand eight hundred and eighty eight). AGA is aware that many AGA ADSs are held of record by brokers and other nominees, and accordingly the above numbers are not necessarily representative of the actual number of persons who
are beneficial holders of AGA ADSs or the number of AGA ADSs beneficially held by these persons. All AGA shareholders have the same voting rights of one vote per AGA Ordinary Share.
|
|
51.3. |
As at 26 May 2023, there were 21,608 (twenty one thousand six hundred and eight) holders on record of AGA Ordinary Shares. Of these holders 476 (four hundred and seventy six) had registered addresses in the
United States and held a total of 66,434,804 (sixty six million four hundred thirty four thousand eight hundred and four) AGA Ordinary Shares, or 15.83% (fifteen point eight three percent) of the total outstanding AGA Ordinary Shares. In
addition, certain accounts on record with registered addresses outside the United States, including custodians for the ADS Depositary hold AGA Ordinary Shares, in whole or in part, beneficially for residents of the United States. As of the
Last Practicable Date, it is estimated that 34.95% (thirty four point nine five percent) of AGA Ordinary Shares were beneficially owned by residents of the United States.
|
|
51.4. |
The bulk of the NewCo Ordinary Shares are expected to be held by a relatively small number of investors. According to the information available as at the Last Practicable Date, AGA’s five largest
shareholders beneficially owned 40.70% (forty point seven percent) and the top 10 largest beneficially owned 55.64% (fifty five point six four percent) of the AGA Ordinary Shares. Upon completion of the Reorganisation, such shareholders are
expected to beneficially own the same percentage of NewCo Ordinary Shares as they held of AGA Ordinary Shares immediately prior to the implementation of the Reorganisation (subject to any adjustments to reflect any exercise of Appraisal
Rights).
|
|
51.5. |
Insofar as is known to AGA, there was no person who, directly or indirectly, jointly or severally, exercised or could exercise control over AGA, nor is AGA aware of any arrangements which might result in a
change of control of AGA except in relation to the Reorganisation.
|
|
51.6. |
As of the Last Practicable Date, AGA is the sole shareholder of NewCo. As of the Last Practicable Date NewCo does not hold any AGA Ordinary Shares. Alberto Calderon periodically receives, and has in the past
received, awards under certain AGA equity plans, as a result of which he held a balance of 233,253 (two hundred thirty three thousand two hundred and fifty three) AGA share awards and 26,370 (twenty six thousand three hundred and seventy) AGA
Ordinary Shares as of the Last Practicable Date. Mr. Robert Hayes periodically receives, and has in the past received, awards under certain AGA equity plans, as a result of which he held a balance of 45,235 (forty five thousand two hundred
and thirty five) AGA share awards and no AGA Ordinary Shares as of the Last Practicable Date.
|
|
51.7. |
AGA is not, directly or indirectly, owned or controlled by another corporation or by any government.
|
52. |
HOLDINGS IN NEWCO AT THE OPERATIVE DATE
|
|
52.1. |
It is contemplated that upon the completion of the Reorganisation, the Major Shareholders of NewCo (each NewCo Shareholder holding, directly or indirectly, in excess of 5% (five percent) of the issued NewCo
Ordinary Shares) will be the same as the Major Shareholders of AGA immediately prior to the implementation of the Reorganisation.
|
|
52.2. |
The table below presents, to the knowledge of NewCo, each NewCo Shareholder holding, directly or indirectly, a beneficial interest in excess of 5% (five percent) of the issued NewCo Ordinary
Shares as of the Operative Date:
|
NewCo Shareholder
|
Number of NewCo
Ordinary Shares
|
% of issued
share capital
|
Public Investment Corporation SOC Limited
|
78,550,223
|
18.72
|
BlackRock Advisors LLC
|
26,273,339
|
6.26
|
Van Eck Associates Corporation
|
27,267,584
|
6.50
|
|
52.3. |
All NewCo Ordinary Shares will have the same voting rights. None of the above NewCo Shareholders will hold voting rights that are different from those held by any other NewCo Shareholders.
|
|
52.4. |
NewCo is not expected to be, directly or indirectly, owned or controlled by another corporation or by any government. NewCo does not know of any arrangement that may, at a subsequent date, result in a change
of control.
|
|
52.5. |
Upon the completion of the Reorganisation the level of public shareholders, as contemplated in paragraph 4.25 and paragraph 4.26 of the JSE Listings Requirements, will be achieved by NewCo.
|
EXCHANGE CONTROL REGULATIONS
|
● |
“resident” means any person (i.e. a natural person or legal entity) who has taken up permanent residence, is domiciled or registered in South Africa. For the purpose of the Authorised
Dealer Manual, this excludes any approved offshore investments held by South African residents outside the CMA. However, such entities are still subject to exchange control rules and the Exchange Control Regulations; and
|
● |
non-resident means a person, (i.e. a natural person or a legal entity) whose normal place of residence, domicile or registration is outside the CMA.
|
MATERIAL TAX CONSIDERATIONS
|
53. |
SCOPE OF DISCUSSION
|
|
53.1. |
The following discussion addresses the material U.S. federal income tax consequences of the U.S. Tax Reorganisation generally expected to be applicable to the holders of AGA Ordinary Shares or AGA ADSs and
their receipt and ownership of NewCo Ordinary Shares. This section applies to you only if you hold your AGA Ordinary Shares or AGA ADSs and NewCo Ordinary Shares as capital assets for U.S. federal income tax purposes. This section does not
apply to you if you are a member of a special class of holders subject to special rules, including:
|
|
53.1.1. |
a bank or other financial institution;
|
|
53.1.2. |
a tax-exempt organisation;
|
|
53.1.3. |
a real estate investment trust or real estate mortgage investment conduit;
|
|
53.1.4. |
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);
|
|
53.1.5. |
an insurance company;
|
|
53.1.6. |
a regulated investment company;
|
|
53.1.7. |
a dealer or broker in stocks and securities, or currencies;
|
|
53.1.8. |
a trader in securities that elects mark-to-market treatment;
|
|
53.1.9. |
a person subject to the alternative minimum tax;
|
|
53.1.10. |
a person that received shares through the exercise of an employee stock option, through a tax qualified retirement plan or otherwise as compensation;
|
|
53.1.11. |
a person that owns or has owned directly, indirectly or constructively 10% (ten percent) or more of the voting stock of AGA prior to the Reorganisation;
|
|
53.1.12. |
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;
|
|
53.1.13. |
a person that acquires or sells AGA Ordinary Shares, AGA ADSs or NewCo Ordinary Shares as part of a wash sale for tax purposes;
|
|
53.1.14. |
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;
|
|
53.1.15. |
a U.S. Shareholder whose functional currency is not the U.S, Dollar; or
|
|
53.1.16. |
a U.S. expatriate.
|
|
53.2. |
This section is based on the Code, administrative rulings and court decisions in effect on the date hereof, all of which are subject to change, possibly with retroactive effect, and to differing
interpretations.
|
|
53.3. |
In addition, this section is based in part upon the assumption that each obligation in the AGA Deposit Agreement (and any related agreement) will be performed in accordance with its terms. For purposes
of this section a holder of ADRs evidencing AGA ADSs is treated as the owner of the underlying shares represented by those AGA ADSs for U.S. federal income tax purposes. Exchanges of (1) AGA Ordinary Shares for ADRs evidencing AGA
ADSs and (2) ADRs evidencing AGA ADSs for AGA Ordinary Shares, generally will not be subject to U.S. federal income tax.
|
|
53.4. |
You are a “U.S. Shareholder” if you are a beneficial owner of AGA Ordinary Shares, AGA ADSs or NewCo Ordinary Shares and you are for U.S. federal income tax purposes:
|
|
53.4.1. |
a citizen or resident of the United States;
|
|
53.4.2. |
a corporation, or any entity treated as a corporation, created or organised under the laws of the United States or any of its political subdivisions;
|
|
53.4.3. |
an estate the income of which is subject to U.S. federal income taxation regardless of its source; or
|
|
53.4.4. |
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 authorised 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.
|
|
53.5. |
A “non-U.S. Shareholder” is a beneficial owner of AGA Ordinary Shares, AGA ADSs or NewCo Ordinary Shares that is not a U.S. person for U.S. federal income tax purposes.
|
|
53.6. |
If an entity or arrangement treated as a partnership for U.S. federal income tax purposes holds AGA Ordinary Shares, AGA ADSs or NewCo Ordinary Shares, the tax treatment of a partner will generally depend
upon the status of the partner and the activities of the partnership. Each such partner having an interest in AGA Ordinary Shares, AGA ADSs or NewCo Ordinary Shares is urged to consult his, her or its own tax adviser in light of his, her or
its particular circumstances.
|
|
53.7. |
This section addresses only U.S. federal income tax law.
|
54. |
TAX CONSEQUENCES OF THE U.S. TAX REORGANISATION TO HOLDERS OF AGA ORDINARY SHARES AND AGA ADSs
|
|
54.1. |
Following completion of the Reorganisation, 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 Reorganisation and the Conversion, the “U.S. Tax Reorganisation”). It is
intended that, for U.S. federal income tax purposes, the U.S. Tax Reorganisation will qualify as a “reorganization” within the meaning of Section 368(a) of the Code. AGA has received a private letter ruling from IRS confirming that the U.S.
Tax Reorganisation satisfies certain requirements of Section 368(a)(1)(F) of the Code. This ruling is based on certain facts, assumptions and representations provided by AGA and NewCo to the IRS. If any of the facts, assumptions or
representations upon which the IRS based its ruling are inconsistent with the actual facts with respect to the U.S. Tax Reorganisation, AGA and its shareholders may not be able to rely on the IRS ruling and the U.S. federal income tax
consequences of the U.S. Tax Reorganisation could be adversely affected.
|
|
54.2. |
If the Conversion or the Election do not happen following the Reorganisation or if the IRS successfully challenges the treatment of the U.S. Tax Reorganisation, adverse U.S. federal income tax consequences
may result. Shareholders should consult their own tax advisers regarding the U.S. federal, state and local and non-U.S. and other tax consequences of the U.S. Tax Reorganisation in their particular circumstances (including the possible tax
consequences if treatment of the U.S. Tax Reorganisation as a “reorganization” is successfully challenged). The rest of this discussion assumes that the U.S. Tax Reorganisation will be treated as a “reorganization” within the meaning of
Section 368(a) of the Code.
|
|
54.3. |
The discussion regarding the tax consequences of the U.S. Tax Reorganisation is based on the determination by AGA that it has not been a PFIC for U.S. federal income tax purposes and the expectation of AGA
that it will not be a PFIC for its current taxable year. See the discussion below under “PFIC Considerations Related to the Reorganisation” if AGA or NewCo were treated as a PFIC.
|
|
54.4. |
If the U.S. Tax Reorganisation is treated as a “reorganization” within the meaning of Section 368(a) of the Code and unless you are a U.S. Shareholder that receives cash in exchange for AGA Ordinary Shares
in exercise of your appraisal rights (as discussed below), the exchange of AGA Ordinary Shares for NewCo Ordinary Shares (including the exchange of AGA Ordinary Shares represented by AGA ADSs) will be tax-free to you. Your tax basis in NewCo
Ordinary Shares you receive in the Reorganisation will equal your basis in the AGA Ordinary Shares or AGA ADSs exchanged therefor, and your holding period for NewCo Ordinary Shares received in the Reorganisation will include your holding
period in respect of the AGA Ordinary Shares or AGA ADSs exchanged for NewCo Ordinary Shares. If you acquired different blocks of AGA Ordinary Shares or AGA ADSs at different times or at different prices, your tax basis and holding period in
your NewCo Ordinary Shares may be determined with reference to each block of AGA Ordinary Shares or AGA ADSs.
|
|
54.5. |
Five-Percent. (5%) Transferee Shareholders
|
|
54.6. |
Appraisal Rights
|
|
54.7. |
PFIC Considerations Related to the Reorganisation
|
|
54.7.1. |
AGA has determined that AGA Ordinary Shares and AGA ADSs have not been treated as stock of a PFIC for U.S. federal income tax purposes. While this conclusion is a
factual determination that is made annually, AGA expects that it will not be a PFIC for its current taxable year. If you are a U.S. Shareholder of AGA Ordinary Shares or AGA ADSs, AGA would generally be a PFIC with respect to you if for any
taxable year in which you held AGA Ordinary Shares or AGA ADSs, after the application of applicable “look-through rules”,(1) at least 75 percent. (75%) of AGA’s gross income for the taxable year was passive income or (2) at least 50 percent.
(50%) of the value, determined on the basis of a quarterly average, of AGA’s assets was attributable to assets that produce or are held for the production of passive income.
|
|
54.7.2. |
Passive income generally includes dividends, interest, royalties, rents (other than certain rents and royalties derived in the active conduct of a trade or business), annuities and gains
from assets that produce passive income. If a foreign corporation owns at least 25 percent. (25%) by value of the stock of another corporation, the foreign corporation is treated for purposes of the PFIC tests as owning its proportionate
share of the assets of the other corporation, and as receiving directly its proportionate share of the other corporation’s income.
|
|
54.7.3. |
Because the determination whether a foreign corporation is a PFIC is primarily factual and there is little administrative or judicial authority on which to rely to make a determination,
the IRS might not agree that AGA is not a PFIC. Moreover, no assurance can be given that AGA would not become a PFIC for any future taxable year if there were to be changes in AGA’s assets, income or operations.
|
|
54.7.4. |
If it was determined that AGA was a PFIC for any taxable year (and regardless of whether AGA remains a PFIC for subsequent taxable years), then a U.S. Shareholder of AGA Ordinary Shares
or AGA ADSs may be required to recognise gain, and may be subject to special rules in respect of any gain recognised, as a result of participating in the Reorganisation. In particular, a U.S. Shareholder that receives NewCo Ordinary Shares in
exchange for its AGA Ordinary Shares or AGA ADSs in the Reorganisation may be required to recognise gain (but not loss), notwithstanding that the exchange qualifies as a tax-free exchange under the Code. In particular, Section 1291(f) of the
Code generally requires that, to the extent provided in regulations, a U.S. person who disposes of stock of a PFIC recognises gain notwithstanding any other provision of the Code. No final U.S. Treasury regulations have been promulgated under
this statute. Proposed U.S. Treasury regulations were promulgated in 1992 with a retroactive effective date. If finalised in their current form, these regulations would generally require gain (but not loss) recognition by U.S. persons
exchanging shares in a corporation that is a PFIC at any time during such U.S. person’s holding period of such shares where such person has not made either (1) a “qualified electing fund” (a “QEF”)
election under Section 1295 of the Code for the first taxable year in which such U.S. person owns such shares or in which the corporation is a PFIC, whichever is later or (2) a “mark-to-market” election under Section 1296 of the Code. Any
such gain recognised pursuant to the previous sentence would be subject to special rules (discussed below). There is an exception to the gain recognition rule in certain instances where the exchanging shareholder receives shares of another
corporation that is a PFIC, but, as described below in “– Tax Consequences to Holders of NewCo Ordinary Shares – PFIC Rules”, NewCo expects that it will not be a PFIC at the time of the Reorganisation, and NewCo does not expect to become a
PFIC. It is not certain at this time whether, in what form, and with what effective date, final U.S. Treasury regulations under Section 1291(f) of the Code will be adopted, or how the proposed U.S. Treasury regulations will be applied.
|
55. |
TAX CONSEQUENCES TO HOLDERS OF NEWCO ORDINARY SHARES
|
|
55.1. |
Taxation of Dividends
|
|
55.1.1. |
U.S. Shareholders. Under the U.S. federal income tax laws, and subject to the PFIC rules discussed below, if you are a U.S. Shareholder, the
gross amount of any dividend NewCo pays out of its current or accumulated earnings and profits (as determined for U.S. federal income tax purposes) is subject to U.S. federal income taxation. If you are a noncorporate U.S. Shareholder,
dividends that constitute qualified dividend income will be taxable to you at the preferential rates applicable to long-term capital gains, provided that you hold the shares for more than 60 days during the 121-day period beginning 60 days
before the ex-dividend date and meet other holding period requirements. Dividends NewCo pays with respect to the shares generally will be qualified dividend income, provided that in the year that you receive the dividend, the shares are
|
|
55.1.2. |
Non-U.S. Shareholders. If you are a non-U.S. Shareholder, dividends paid to you in respect of shares will not be subject to U.S. federal income
tax unless the dividends are “effectively connected” with your conduct of a trade or business within the United States, and the dividends are 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. In such cases you generally will be taxed in the same manner as a U.S. Shareholder. If you are a corporate non-U.S.
Shareholder, “effectively connected” dividends may, under certain circumstances, be subject to an additional “branch profits tax” at a 30 percent. (30%) rate or at a lower rate if you are eligible for the benefits of an income tax treaty that
provides for a lower rate.
|
|
55.2. |
Taxation of Capital Gains
|
|
55.2.1. |
U.S. Shareholders. Subject to the PFIC rules discussed below, if you are a U.S. Shareholder and you sell or otherwise dispose of your NewCo
Ordinary Shares, you will recognize capital gain or loss for U.S. federal income tax purposes equal to the difference between the U.S. Dollar value of the amount that you realise and your tax basis, determined in U.S. Dollars, in your NewCo
Ordinary Shares. Capital gain of a non- corporate U.S. Shareholder is generally taxed at preferential rates where the property is held for more than one year. Your ability to deduct capital losses is subject to limitations.
|
|
55.2.2. |
Non-U.S. Shareholders. If you are a non-U.S. Shareholder, you will not be subject to U.S. federal income tax on gain recognised on the sale or
other disposition of your NewCo Ordinary Shares unless:
|
|
55.2.2.1. |
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
|
|
55.2.2.2. |
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.
|
|
55.2.3. |
If you are a corporate non-U.S. Shareholder, “effectively connected” gains that you recognise may also, under certain circumstances, be subject to an additional “branch profits tax” at a
30 percent. (30%) rate or at a lower rate if you are eligible for the benefits of an income tax treaty that provides for a lower rate.
|
|
55.3. |
Medicare Tax
|
|
55.4. |
PFIC Rules
|
|
55.5. |
Information with Respect to Foreign Financial Assets
|
|
55.6. |
Backup Withholding and Information Reporting
|
|
55.6.1. |
If you are a non-corporate U.S. Shareholder, information reporting requirements, on IRS Form 1099, generally will apply to dividend payments or other taxable distributions made to you
within the United States, and to the payment of proceeds to you from the sale of NewCo Ordinary Shares effected at a United States office of a broker.
|
|
55.6.2. |
Additionally, backup withholding (currently at a 24 percent. (24%) rate) may apply to such payments if you fail to comply with applicable certification requirements or are notified by
the IRS that you have failed to report all interest and dividends required to be shown on your federal income tax returns.
|
|
55.6.3. |
If you are a non-U.S. Shareholder, you are generally exempt from backup withholding and information reporting requirements with respect to dividend payments made to you outside the
United States by NewCo or another non-United States payor. You are also generally exempt from backup withholding and information reporting requirements in respect of dividend payments made within the United States and the payment of the
proceeds from the sale of NewCo Ordinary Shares effected at a United States office of a broker, as long as either (i) the payor or broker does not have actual knowledge or reason to know that you are a United States person and you have
furnished a valid IRS Form W-8 or other documentation upon which the payor or broker may rely to treat the payments as made to a non-U.S. person, or (ii) you otherwise establish an exemption.
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55.6.4. |
Payment of the proceeds from the sale of NewCo Ordinary Shares effected at a foreign office of a broker generally will not be subject to information reporting or backup
withholding. However, a sale effected at a foreign office of a broker could be subject to information reporting in the same manner as a sale within the United States (and in certain cases may be subject to backup withholding as well) if (i)
the broker has certain connections to the United States, (ii) the proceeds or confirmation are sent to the United States or (iii) the sale has certain other specified connections with the United States.
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55.6.5. |
You generally may obtain a refund of any amounts withheld under the backup withholding rules that exceed your income tax liability by filing a refund claim with the
IRS.
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55.6.6. |
The determination of the actual tax consequences to a shareholder will depend on the shareholder’s specific situation. Shareholders should consult their own tax advisers as to the tax
consequences in their particular circumstances, including the applicability and effect of the alternative minimum tax and any state, local, foreign or other tax laws and changes in those laws.
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56. |
SCOPE OF DISCUSSION
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56.1. |
The following discussion addresses the material U.K. income tax, corporation tax, capital gains tax, stamp duty, and SDRT consequences of the Reorganisation generally expected to be applicable to Non-U.K.
Holders of AGA Ordinary Shares or AGA ADSs (together, “AGA Issued Shares”) and their receipt and ownership of NewCo Ordinary Shares.
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56.2. |
It applies to you only if (i) you are the absolute beneficial owner of your AGA Issued Shares or NewCo Ordinary Shares (as applicable) and any dividends paid in respect of them; (ii) you hold your AGA Issued
Shares or NewCo Ordinary Shares (as applicable) as an investment (rather than, for example, as securities to be realised in the course of a trade); and (iii) you hold your AGA Issued Shares or NewCo Ordinary Shares (as applicable) other than
under a self-invested personal pension plan, individual savings account, or other regime providing for exemption from tax. This section does not apply to you if you are a member of a special class of holders subject to special rules,
including:
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56.2.1. |
charities;
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56.2.2. |
trustees;
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56.2.3. |
persons carrying on certain financial activities (including market makers, brokers, dealers in securities, intermediaries and persons connected with depository
arrangements or clearance services);
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56.2.4. |
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;
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56.2.5. |
persons connected with AGA or NewCo;
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56.2.6. |
collective investment schemes;
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56.2.7. |
persons subject to U.K. tax on the remittance basis; and
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56.2.8. |
insurance companies.
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56.3. |
This section is based on current U.K. legislation, current published HMRC practice (which may not be binding on HMRC), and court decisions, in each case, in effect on the date hereof, all of which are
subject to change, possibly with retroactive effect, and to differing interpretations. In addition, this section is based in part upon the assumption that (i) the Spin-Off and the Scheme, and the trading of NewCo Ordinary Shares through the
DTC system, will be carried out as described in the Circular and the Implementation Agreement; (ii) the AGA Issued Shares do not, and the NewCo Ordinary Shares will not, at any time, derive at least 75% (seventy five percent) of their value
from U.K. land; and (iii) each obligation in the AGA Deposit Agreement (and any related agreement) will be performed in accordance with its terms.
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56.4. |
Unless stated otherwise, this section addresses only Non-U.K. Holders.
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56.5. |
Shareholders should be aware that the tax legislation of the shareholder’s jurisdiction and/or the tax legislation of the U.K., as well as the interpretation or amendment of any such tax legislation, may
alter the benefits of investment in NewCo Ordinary Shares.
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57. |
U.K. TAX CONSEQUENCES OF THE REORGANISATION
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57.1. |
U.K. Taxation of the Spin-Off and the Scheme
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57.1.1. |
Non-U.K. Holders will not be subject to U.K. income tax, corporation tax, or capital gains tax in respect of the Spin-Off or the Scheme. Non-U.K. Holders may be subject to foreign taxation depending on their
personal circumstances.
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57.1.2. |
No U.K. stamp duty or SDRT will be payable by AGA Shareholders on (i) the transfer under the Scheme of their AGA Ordinary Shares or, in the case of a holder of AGA ADSs, the AGA Ordinary Shares underlying
those AGA ADSs; or (ii) the allotment and issue of the NewCo Ordinary Shares as part of the Reorganisation (whether under the Spin-Off or under the Scheme).
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57.1.3. |
AGA intends to seek a clearance from HMRC that an agreement to transfer Entitlements will not be subject to SDRT for the interim period where such Entitlements are available for trading If such a clearance
is not obtained, HMRC may take the position that an agreement to transfer Entitlements will be subject to SDRT at a rate of 0.5% (zero point five per cent) (see the paragraph entitled “Risk Factors – Risks
Related to Taxation – AGA may not obtain a clearance from HMRC that an agreement to transfer Entitlements is not subject to SDRT” on page 105 of this Pre-listing Statement).
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58. |
U.K. TAX CONSEQUENCES OF HOLDING NEWCO ORDINARY SHARES
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58.1. |
Subsequent Disposals of NewCo Ordinary Shares
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|
58.2. |
Dividends
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58.3. |
U.K. Stamp Duty and SDRT
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58.3.1. |
Pursuant to arrangements that NewCo is expected to enter into with DTC, the NewCo Ordinary Shares are eligible to be held in book-entry form through the facilities of DTC. Based on our
understanding that DTC has not made an election under Section 97A(1) of the Finance Act 1986, transfers of NewCo Ordinary Shares held in book-entry form through DTC should not attract a charge to U.K. stamp duty or SDRT. (See the paragraph
entitled “Risk Factors – Risks Related to Taxation – Issues or Transfers of NewCo Ordinary Shares may be subject to stamp duty or SDRT in the United Kingdom, which would increase the cost of dealing in or
issuing further NewCo Ordinary Shares” on page 104 of this Pre-listing Statement).
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58.3.2. |
Transfers on sale of the NewCo Ordinary Shares outside of DTC will, subject to any available exemptions or reliefs, generally be liable to U.K. stamp duty at the rate of 0.5% (zero point
five per cent) of the amount or value of the consideration payable. (rounded up to the nearest multiple of £5) or, in respect of an unconditional agreement to transfer NewCo Ordinary Shares, SDRT at the rate of 0.5% (zero point five per cent)
of the amount or value of the consideration payable. However, where a transfer is executed in pursuance of the agreement (which gave rise to the SDRT) and the document is duly stamped within six years of the date of the agreement, the SDRT
should be cancelled and any SDRT paid should be repaid. In cases where NewCo Ordinary Shares are, outside of DTC, transferred to a connected company (or its nominee), different rules may apply.
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58.3.3. |
U.K. stamp duty and SDRT will, where applicable, generally be borne by the purchaser of the relevant NewCo Ordinary Shares.
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58.4. |
Depositary receipt systems and clearance services
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59. |
MATERIAL SOUTH AFRICAN TAX CONSEQUENCES
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59.1. |
The following discussion addresses the material South African income tax consequences of the Reorganisation generally expected to be applicable to the holders of AGA Ordinary Shares and their receipt and
ownership of NewCo Ordinary Shares. To the extent this section consists of statements as to matters of South African tax law, subject to the limitations specified herein, this section is the opinion of Bowmans. The following paragraphs apply
to you only if you hold your AGA Ordinary Shares as capital assets for South African income tax purposes. This section does not apply to you if you hold (directly or indirectly alone or together with any connected person) 20% (twenty percent)
or more of the share capital of AGA and you are a Foreign Shareholder.
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59.2. |
This section is based on the South African Income Tax Act.
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59.3. |
You are a “South African Shareholder” if you are a beneficial owner of AGA Ordinary Shares and you are:
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|
59.3.1. |
a natural person who is ordinarily resident in South Africa;
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59.3.2. |
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;
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59.3.3. |
an entity which is incorporated, established or formed in South Africa; or
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59.3.4. |
an entity which has its place of effective management in South Africa.
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59.4. |
You are a “Foreign Shareholder” if you are not a South African Shareholder. Foreign Shareholders are generally exempt from South African taxes unless such Foreign Shareholder holds AGA Ordinary Shares that
are effectively connected with a permanent establishment (of such holder) in South Africa.
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59.5. |
This section addresses only South African income tax.
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59.6. |
Subject to the assumption that the representations made to Bowmans (Bowman Gilfillan Inc.) are and will be true, correct and complete as of the effective date of the Reorganisation, it is the opinion of
Bowmans (Bowman Gilfillan Inc.) that for South African income tax purposes, to the extent that the market value of the NewCo Ordinary Shares will exceed the base cost of the AGA Ordinary Shares a capital gain would arise for the AGA
shareholders.
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59.7. |
The determination of the actual tax consequences to a shareholder will depend on the shareholder’s specific situation. Shareholders should consult their own tax advisers as to the tax
consequences in their particular circumstances.
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60. |
SOUTH AFRICAN TAX CONSEQUENCES OF THE SCHEME TO HOLDERS OF AGA ORDINARY SHARES
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60.1. |
On exchange of the AGA Ordinary Shares for NewCo Ordinary Shares, pursuant to the Scheme, a disposal event will arise for South African capital gains tax purposes. To the extent that the market value of the
NewCo Ordinary Shares exceeds the base cost of the AGA Ordinary Shares, a capital gain will arise that will be subject to capital gains tax in the hands of South African Shareholders (unless they are exempt from taxation in South Africa). To
the extent that the market value of the NewCo Ordinary Shares is less than the base cost of the AGA Ordinary Shares, a capital loss will arise.
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60.2. |
For South African Shareholders that hold their respective AGA Ordinary Shares as trading stock/inventory, any gain or loss will be treated on revenue account and taxed at the higher effective tax rates
applicable to transactions that occur on revenue account.
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60.3. |
Foreign Shareholders will not be subject to South African tax in connection with the Scheme unless such Foreign Shareholder holds AGA Ordinary Shares that are effectively connected with a permanent
establishment (of such holder) in South Africa. In such cases you generally will be taxed in the same manner as a South African Shareholder.
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61. |
SOUTH AFRICAN TAX CONSEQUENCES TO HOLDERS OF NEWCO ORDINARY SHARES
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61.1. |
Taxation of Dividends
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61.1.1. |
South African Shareholders: If you are a South African Shareholder, you will be subject to a dividends tax at the rate of 20 percent. (20%) on
all dividends declared and paid by NewCo with respect to NewCo shares that are listed on the JSE (other than dividends that consist of the distribution of an asset in specie) unless an exemption
described below applies. If the dividend tax applies to a dividend received by a South African Shareholder, such holder will be liable for such dividends tax.
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61.1.2. |
A South African Shareholder is exempt from the dividends tax if such holder is:
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61.1.2.1. |
a company which is tax resident in South Africa;
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61.1.2.2. |
a public benefit organisation approved in terms of Section 30(3) of the ITA;
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61.1.2.3. |
a mining rehabilitation trust in compliance with Section 37A of the ITA;
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61.1.2.4. |
an institution, board, or body established by or under any law in compliance with Section 10(1) (cA) of the ITA;
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61.1.2.5. |
a pension fund, provident fund and medical schemes in compliance with Section 10(1)(d) of the ITA;
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61.1.2.6. |
a portfolio of collective investment schemes in securities;
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61.1.2.7. |
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;
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61.1.2.8. |
a fidelity or indemnity fund as contemplated in Section 10(1)(d)(iii) of the ITA; or
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61.1.2.9. |
a small business funding entity as contemplated in Section 10(1)(cQ) of the ITA.
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61.1.3. |
Accordingly, if the beneficial owner of the dividend declared by NewCo is a South African resident natural person or trust and none of the exemptions listed above apply, such beneficial
owner will be subject to dividends tax at a rate of 20 percent. (20%) of the amount of any dividend paid by NewCo.
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61.1.4. |
Foreign Shareholders. Foreign Shareholders will not be subject to South African dividends tax on dividends declared and paid by NewCo.
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61.2. |
Taxation of Capital Gains on Sale or Other Disposition
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61.2.1. |
South African Shareholders: A capital gain arises when a South African Shareholder sells or otherwise disposes of their NewCo Ordinary Shares for
proceeds that exceed the base cost of the NewCo Ordinary Shares. A South African Shareholder will be subject to capital gains tax on such capital gain (unless they are exempt from taxation in South Africa). Capital gains tax is not a separate
tax but forms part of income tax. Capital gains are taxed at a lower effective tax rate than ordinary income by the inclusion of only a certain percentage of the South Africa Shareholders’ capital
gain in its taxable income.
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61.2.2. |
Foreign Shareholders: Foreign Shareholders will not be subject to South African tax on sale or other disposition unless such Foreign Shareholder
holds NewCo Ordinary Shares that are effectively connected with a permanent establishment (of such holder) in South Africa. In such cases you generally will be taxed in the same manner as a South African Shareholder.
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61.3. |
Securities Transfer Tax
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62. |
TAX CONSEQUENCES OF THE REORGANISATION AND THE NEWCO NOTES DISTRIBUTION FOR THE GROUP
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|
62.1. |
South African Securities Transfer Tax
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62.2. |
South African Dividend Withholding Tax
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|
62.3. |
Australian Landholder Duty
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DESCRIPTION OF NEWCO ORDINARY SHARES, DESCRIPTION
OF NEWCO’S ARTICLES AND RELATED REGULATION
|
63. |
GENERAL
|
64. |
SHARE CAPITAL
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64.1. |
As of the Last Practicable Date, NewCo’s issued share capital was one NewCo Ordinary Share of $1 each and 50,000 (fifty thousand) Redeemable Preference Shares of £1 each, which Redeemable Preference Shares
will be redeemed in full prior to the Operative Date, in connection with the implementation of the Reorganisation. No Redeemable Preference Shares will be in issue upon completion of the Reorganisation.
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64.2. |
Pursuant to the NewCo Articles, the NewCo Board is authorised 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% (sixty percent) of the aggregate nominal amount of NewCo’s expected issued share capital immediately following implementation of the Reorganisation), such authority to apply until the date that is
5 (five) years after the date of adoption of the NewCo Articles. Notwithstanding the preceding sentence, any allotment of shares, or of securities convertible into or exercisable for shares, that results in the issuance of more than 20%
(twenty percent) of either the number of shares outstanding or the voting power outstanding before the issuance, will require shareholder approval via ordinary resolution of shareholders, other than any such issuance that is (1) a public
offering for cash or (2) another financing for cash at a price which is at least equal to the “Minimum Price” (as defined below), other than issuances in connection with an acquisition, when the shares issued, combined with any other issuance
in connection with the acquisition, exceed 20% by number or voting power. “Minimum Price” is defined in accordance with Rule 312.04 under the New York Stock Exchange’s Listed Company Manual as the lower
of: (i) the official closing price on the New York Stock Exchange immediately preceding the signing of the binding agreement with respect to the applicable issuance; or (ii) the average official closing price on the New York Stock
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64.3. |
NewCo will submit a pre-transaction clearance application to HMRC in order to confirm the SDRT treatment of the issuances of NewCo Ordinary Shares by NewCo as part of the Reorganisation. This clearance will
also cover certain known future issuances of NewCo Ordinary Shares, including pursuant to employee benefit plans, but it will not cover a future rights issuance or other issuance of shares involving a letter of allotment, or a future issuance
of shares in exchange for an acquisition of other shares or for other non-cash consideration (which may be the case where, for example, NewCo acquires shares in another entity in exchange for shares in itself). In those cases, NewCo will
likely need to obtain a further clearance from HMRC at the relevant time.
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65. |
PRE-EMPTIVE RIGHTS
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65.1. |
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 be for a maximum period of 5 (five) years from: (i) the date of adoption of the relevant articles of association, if the exclusion is contained in the articles of
association; or (ii) the date of the shareholder resolution, if the exclusion is granted by shareholder resolution. In either case, this exclusion needs to be renewed by the company’s shareholders on expiration (i.e. at least every 5 (five)
years), but may be sought more frequently for additional 5 (five)-year periods (or any shorter period).
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65.2. |
Pursuant to the NewCo Articles, the NewCo Board is authorised to exclude pre-emptive rights for a period of 5 (five) years after the date of adoption of the NewCo Articles in respect of the allotment of
equity securities or the sale of NewCo Ordinary Shares held as treasury shares for cash, up to a maximum nominal amount of $253,659,735. This authorisation under the NewCo Articles will be in addition to any power granted to the NewCo Board
by the NewCo Shareholders by means of a special resolution.
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66. |
VOTING RIGHTS AND RESTRICTIONS ON VOTING
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|
66.1. |
All NewCo Ordinary Shares have equal voting rights and all registered holders of NewCo Ordinary Shares are entitled to attend and vote at all general meetings of NewCo. NewCo may issue, subject to the
restrictions discussed above under the caption “Share Capital”, shares with preferential voting rights. This section assumes that all shares have equal voting rights and that no preferential shares are issued.
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66.2. |
Under English law, resolutions to be voted on by NewCo Shareholders at a general meeting can be either (i) an ordinary resolution, which means that the resolution must be passed by a simple majority of the
votes cast by those entitled to vote (if the vote is by show of hands) or a simple majority of the total voting rights of NewCo Shareholders who (being entitled to do so) vote in person, by proxy or in advance on the resolution (if the vote
is by poll) or (ii) a special resolution, which means that the resolution must be passed by a majority of not less than 75% (seventy five percent) of the votes cast by those entitled to vote (if the vote is by show of hands) or NewCo
Shareholders representing not less than 75% (seventy five percent) of the total voting rights of the NewCo Shareholders who (being entitled to do so) vote in person, by proxy or in advance on the resolution (if the vote is by poll). For a
resolution to be regarded as a special resolution, the notice of the general meeting must specify the intention to propose the resolution as a special resolution.
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66.3. |
For the purposes of determining which persons are entitled to attend or vote at a general meeting, NewCo may specify in the notice convening the general meeting a time, not more than 48 (forty eight) hours
before the time fixed for the general meeting (not including any part of a day that is not a business day), by which a person must be entered on the register in order to have the right to attend or vote at the meeting.
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66.4. |
Pursuant to the NewCo Articles, any 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 will be decided on a
show of hands, be decided by way of a vote on a poll. Any such poll will be treated as having been validly demanded at the time fixed for the holding of the meeting. 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.
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66.5. |
A poll may be demanded by:
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|
66.5.1. |
the chair of the meeting;
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|
66.5.2. |
at least 5 (five) persons at the meeting who are entitled to vote;
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|
66.5.3. |
one or more NewCo Shareholders at the meeting who are entitled to vote (or their proxies) and who hold between them at least 10% (ten percent) 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 authorised to exercise voting rights; or
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|
66.5.4. |
one or more NewCo Shareholders at the meeting who are entitled to vote (or their proxies) and whose shares are fully paid up and represent at least 10% (ten percent) 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 authorised to exercise voting rights.
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66.6. |
The chair of the meeting can also demand a poll before a resolution is put to the vote on a show of hands.
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66.7. |
Notwithstanding the foregoing, for so long as any NewCo Ordinary Shares are held in a settlement system operated by DTC, any resolution put to the vote of a general meeting (held in whatever form) must be
decided on a poll.
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66.8. |
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.
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66.9. |
On a vote on a resolution by way of a poll, each NewCo Shareholder present in person or by proxy has one vote for every NewCo Ordinary Share of which it is the holder.
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|
66.10. |
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 the register for the share.
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66.11. |
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. Notwithstanding 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 dated
with the latest date will be treated as the valid form.
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66.12. |
In the event Rule 14a-19 promulgated under the Exchange Act applies to NewCo and NewCo receives proxies for disqualified or withdrawn nominees for the NewCo Board, such votes for such disqualified or
withdrawn nominees in the proxies will be disregarded and not taken into account at any shareholders’ meeting.
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66.13. |
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 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.
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66.14. |
NewCo Shareholders do not have a right to cumulative voting.
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67. |
DIVIDENDS AND OTHER DISTRIBUTIONS
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|
67.1. |
Declaring and paying dividends
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|
67.1.1. |
Under English law, before a company 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 a
company’s profits available for distribution are its accumulated realised profits (which have not been previously utilised by distribution or capitalisation) less its accumulated realised losses (which have not been previously written off in
a reduction or reorganisation of capital duly made). This requirement applies to NewCo and to each of NewCo’s subsidiaries which has been (or will be) incorporated under English law. Dividends received by NewCo from its subsidiaries would
contribute to its accumulated realised profits.
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|
67.1.2. |
Further, NewCo is also subject to certain capital maintenance requirements to ensure the net worth of NewCo is at least equal to the amount of NewCo’s capital. As a public limited company, NewCo can only
make a distribution: (i) if, at the time that the distribution is made, the amount of its net assets (that is, the total excess of assets over liabilities) is not less than the total of its called up share capital and distributable reserves;
and (ii) if and to the extent that the distribution itself, at the time that it is made, does not reduce the amount of NewCo’s net assets to less than that total.
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|
67.1.3. |
Subject to the foregoing, NewCo Shareholders can declare dividends in accordance with their rights by passing an ordinary resolution. No such dividend can exceed the amount recommended by the NewCo Board.
The NewCo Board may pay the fixed or other dividends on the NewCo Ordinary Shares on the dates prescribed for the payment of those dividends. The NewCo Board may also, if the NewCo Board considers that the financial position of NewCo
justifies such payment, pay interim dividends on the NewCo Ordinary Shares on any dates and for any periods which they decide. If the NewCo Board acts in good faith, it will not be liable for any loss that any NewCo Shareholders may suffer
because a lawful dividend has been paid on other shares which rank equally with or behind their shares, including the NewCo Ordinary Shares.
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|
67.1.4. |
Accordingly, there are no fixed dates upon which the entitlement to a dividend arises.
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|
67.2. |
Amount
|
|
67.3. |
Interest
|
|
67.4. |
Currency
|
|
67.5. |
Amounts due on shares can be deducted from dividends
|
|
67.6. |
Dividend not in cash
|
|
67.7. |
Unclaimed dividends
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|
67.8. |
Manner of payment
|
68. |
SCRIP DIVIDENDS
|
|
68.1. |
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 they can do this, NewCo Shareholders must have passed an ordinary resolution authorising the NewCo Board to make this offer (in the case of both final
and interim dividends).
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|
68.2. |
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 3rd (third) anniversary of the date on which the ordinary resolution is passed.
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69. |
RECORD DATE
|
70. |
TRANSFERABILITY
|
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70.1. |
Any person whose NewCo Ordinary Shares are held through DTC may transfer the beneficial interest in some or all of their NewCo Ordinary Shares to another person through DTC although the
legal title to such shares will remain with Cede & Co., as nominee for DTC.
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70.2. |
Any NewCo Shareholder holding shares in certificated form may transfer some or all of its certificated shares to another person by way of a written instrument of transfer in the usual
standard form or in any other form approved by the NewCo Board. Any written instrument of transfer for certificated shares must be signed or made effective in some other way by, or on behalf of, the transferor and (in the case of a partly
paid-up share) the transferee. The person transferring NewCo Ordinary Shares will continue to be treated as a NewCo Shareholder until the NewCo shareholder register is updated to include the name of the person to whom the share is being
transferred as the holder of that share.
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70.3. |
As a matter of general principle, the NewCo Board may decline to register any transfer of the legal title to any share:
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70.3.1. |
which is not a fully paid share;
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70.3.2. |
where the transfer is not lodged at the registered office or such other place as the NewCo Board has appointed;
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70.3.3. |
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;
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70.3.4. |
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;
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70.3.5. |
where the share transfer form is used to transfer more than one class of share;
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70.3.6. |
where the number of joint holders to whom the share is to be transferred exceeds 4 (four);
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70.3.7. |
in other circumstances set out in the uncertificated securities rules; and
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70.3.8. |
in the case of shares held by an Identified Person or a Breaching Person (see “Disclosure of interest in shares” and “Takeover Code”
below).
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71. |
NO FEE FOR REGISTRATION
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72. |
REDEMPTION, CANCELLATION, CONVERSION AND REDESIGNATION
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72.1. |
Under English law, NewCo may redesignate or rename a class or description of its shares by way of an ordinary resolution of the NewCo Shareholders. NewCo may, by way of ordinary
resolution of the NewCo Shareholders, also redenominate its share capital into a different currency by converting shares with a fixed nominal value in one currency into a fixed nominal value in another currency. Following a redenomination of
share capital, NewCo may also cancel part of its share capital by special resolution so as to round its post-redenomination share values to a more suitable value.
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72.2. |
Subject to any rights attaching to existing shares, NewCo can issue shares which can be redeemed. This can include shares which can be redeemed if the holders want to do so, as well as
shares which NewCo can insist on redeeming. The NewCo Board can decide on the terms and conditions and the manner of redemption of any redeemable share. These terms and conditions will apply to the relevant shares as if they were set out in
the NewCo Articles.
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72.3. |
Under English law, convertible securities are typically issued with limited rights upon issue and may, in accordance with their terms, be converted into securities “of a different
description” (most often ordinary shares in the company). The conversion of the securities may be automatic upon the occurrence of a particular event, or may be an exercisable right of the holder or issuer. Pursuant to the NewCo Articles, the
NewCo Board is generally and unconditionally authorised to convert any security into shares in NewCo. NewCo may also convert any security into shares pursuant to an ordinary resolution.
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73. |
VARIATION OF RIGHTS
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73.1. |
The rights attaching to any class of 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 representing at least 3 (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 shareholder present in person or by
proxy, and who together hold at least ⅓ (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 authorised 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 1
(one) person entitled to vote holding shares of the class in question (excluding treasury shares) or its proxy.
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73.2. |
English law also confers a right of objection on NewCo Shareholders who did not vote in favour of the variation. If NewCo Shareholders representing 15% (fifteen percent) 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.
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73.3. |
If new 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.
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74. |
ALTERATION TO SHARE CAPITAL
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74.1. |
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 authorising 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.
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74.2. |
The U.K. Companies Act contains the procedural requirements for a reduction of capital. A 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) all shareholders are treated equally, (iii) the reduction has been
properly explained to NewCo Shareholders; and (iv) NewCo’s creditors are safeguarded. Subject to these requirements and to the requirements of the U.K. legislation, NewCo may reduce its share capital, its capital redemption reserve and any
share premium amount in any way.
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74.3. |
Following completion of the Reorganisation, NewCo intends to undertake a capital reduction to create distributable reserves. See paragraph 26.2.8 on page 44 of this Pre-listing
Statement.
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75. |
UNTRACED SHAREHOLDERS
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75.1. |
NewCo is entitled to sell, at the best price reasonably obtainable, any share held by a NewCo Shareholder, or any share to
which a person is entitled by transmission of the title of such share if:
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75.1.1. |
for a period of 12 (twelve) years, the shares have been in issue and at least 3 (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 NewCo Shareholder or person concerned;
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75.1.2. |
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
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75.1.3. |
NewCo has not, during such period and the further period of 3 (three) months after sending the notice and prior to the sale of the NewCo share, received any communication from the shareholder or person
concerned.
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75.2. |
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 NewCo and
NewCo will not be liable in any respect, nor be required to account, for such proceeds to the former holder of the shares.
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76. |
GENERAL MEETINGS AND NOTICES
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76.1. |
Under English law, NewCo is required to hold an annual general meeting of its shareholders within 6 (six) months of the end of its fiscal year. NewCo Shareholders may also request that
NewCo convene a general meeting. If NewCo receives a request to hold a general meeting from a shareholder or shareholders representing at least 5% (five percent) of the 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 (twenty one) days of receiving the request. The general meeting must then be held within 28 (twenty eight) days of the notice being given.
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76.2. |
An annual general meeting must be called by not less than 21 (twenty one) clear days’ notice (i.e. excluding the deemed date of receipt of the notice and the date of the meeting itself).
All other general meetings may be called by not less than 14 (fourteen) clear days’ notice if: (a) NewCo offers an electronic voting facility; and (b) a special resolution reducing the notice period to not less than 14 (fourteen) days clear
days has been passed by NewCo Shareholders at the most recent annual general meeting or a general meeting held since the most recent annual general meeting. Notice of a meeting must be given to every NewCo Shareholder and director of NewCo
and NewCo’s auditors.
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76.3. |
Under English law, shareholders holding 5% (five percent) of the shares or at least 100 (one hundred) shareholders who hold an average (per shareholder) of paid up capital
of at least £100 (one hundred Pounds) 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 moved at
a general meeting unless (i) it would, if passed, be ineffective (whether by reason of inconsistency with any enactment or the NewCo Articles or otherwise) (ii) it is defamatory of any person or (iii) it is frivolous or vexatious.
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76.4. |
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 (whether or not Regulation 14A under the Exchange Act applies to NewCo) 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 filed under the
Exchange Act and the rules and regulations promulgated thereunder.
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76.5. |
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 (ninety) nor more than 120 (one hundred and twenty) 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 relevant shareholder must be so delivered
in writing not earlier than the close of business on the 120th (oner hundred and twentieth) 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
(ninetieth) calendar day prior to the scheduled date for such annual general meeting and (ii) the 10th (tenth) 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.
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76.6. |
The NewCo Articles impose further requirements with respect to the content of a shareholder notice submitted by a NewCo shareholder nominating a director for election. 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 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 NewCo). The above must be provided within the timeframes specified for requisitioning shareholder proposals.
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76.7. |
If the person requisitioning a resolution fails to comply with the notice requirements set out in the Articles (which shall be determined by NewCo), 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.
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76.8. |
An Identified Person or a Breaching Person (see “Disclosure of interest in shares” and “Takeover Code”
below) 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.
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76.9. |
If Rule 14a-19 promulgated under the Exchange Act applies to NewCo:
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76.9.1. |
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% (sixty seven percent) 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 5 (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;
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76.9.2. |
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 2 (two) business days after the occurrence of
such change; and
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76.9.3. |
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.
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76.10. |
Pursuant to the NewCo Articles, 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 (twenty) directors approved to be appointed at the general meeting will be so appointed and no further directors will be appointed at such meeting.
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76.11. |
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.
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76.12. |
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% (twenty five percent) 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 authorised to exercise voting
rights. The shareholders making up the quorum can be NewCo Shareholders who are personally present or proxies for shareholders or a combination of both.
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76.13. |
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, 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 (forty eight) hours before the time of the rearranged meeting.
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77. |
ANNUAL ACCOUNTS
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77.1. |
Under English law, NewCo must deliver to the U.K. Registrar of Companies a copy of:
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77.1.1. |
NewCo’s annual accounts;
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77.1.2. |
the directors’ remuneration report;
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77.1.3. |
the directors’ report;
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77.1.4. |
a strategic report; and
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77.1.5. |
the auditor’s report on those accounts, the auditable part of the directors’ remuneration report, the directors’ report and the strategic report.
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77.2. |
The annual reports and accounts must be presented to NewCo Shareholders at a general meeting. Copies of the annual accounts and reports must, unless a NewCo Shareholder agrees to receive
more limited information in accordance with the U.K. Companies Act, be sent to NewCo Shareholders, debenture holders and everyone entitled to receive notice of general meetings at least 21 (twenty one) days before the date of the meeting at
which copies of the documents are to be presented. English law allows NewCo to distribute such documents in electronic form or by means of a website, provided that the NewCo Articles contain provisions to that effect and individual consent
has been obtained from each NewCo Shareholder to receive such documents in electronic form or by means of a website. The NewCo Articles provide that such documents may be distributed in electronic form or by means of a website.
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77.3. |
NewCo must appoint an independent external auditor to report on the annual accounts of NewCo. The auditor is usually appointed by ordinary resolution at the general meeting of NewCo at
which NewCo’s annual accounts are laid. The NewCo Board can also appoint auditors at any time to fill a casual vacancy.
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77.4. |
The remuneration of an auditor is fixed by the NewCo Shareholders by ordinary resolution or in a manner that the NewCo Shareholders by ordinary resolution
determine.
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78. |
SQUEEZE-OUT
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|
78.1. |
Under English law, where a takeover offer has been made for NewCo and the offeror has acquired or unconditionally contracted to acquire 90% (ninety percent) or more in value of the
shares to which the offer relates and 90% (ninety percent) or more of the voting rights carried by those shares, the offeror may give notice to the holder of any shares to which the offer relates which the offeror has not acquired or
unconditionally contracted to acquire, stating that it wishes to acquire, and is entitled to compulsorily acquire, the outstanding shares on the same terms as the general takeover offer.
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78.2. |
A dissenting NewCo shareholder may then object to the transfer on the basis that the compulsory acquisition would constitute unfair prejudice (typically on the grounds that the offeror
is not entitled to acquire shares or that the terms of acquisition should be different to those offered) by application to court within six weeks of the date on which notice of mandatory transfer was given. Absent any fraud or oppression, the
court is unlikely to order that the mandatory acquisition will not take effect, although it may specify terms of the transfer that it finds to be appropriate.
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78.3. |
Such notice must be sent within three months of the last day on which the offer can be accepted in the prescribed manner. The squeeze-out of the minority shareholders can be completed at
the end of 6 (six) weeks from the date the notice has been given, subject to the minority shareholders failing to successfully lodge an application to court to prevent such squeeze-out any time prior to the end of those 6 (six) weeks.
Following this period, the offeror can execute a transfer of the outstanding shares in its favor and pay the consideration to NewCo to hold in trust for the outstanding minority shareholders. The consideration offered to the outstanding
minority shareholders whose shares are compulsorily acquired must, in general, be the same as the consideration that was available under the takeover offer.
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79. |
SELL-OUT
|
80. |
DISCLOSURE OF INTEREST IN SHARES
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80.1. |
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 3 (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 (fourteen) 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.
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80.2. |
Pursuant to the NewCo Articles, NewCo will have powers to impose restrictions on any person who defaults in supplying NewCo with the required particulars within the
prescribed period (an “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).
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80.3. |
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.
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80.4. |
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.
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81. |
DISCLOSURE OF SIGNIFICANT SHARE OWNERSHIP
|
82. |
PURCHASE OF OWN SHARES
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|
82.1. |
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.
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82.2. |
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. In addition, NewCo may only purchase its own shares otherwise than on 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 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.
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82.3. |
If purchased out of distributable profits, any shares that have been repurchased may be held as treasury shares 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. If purchased from the proceeds of a new issue of shares, they must be cancelled immediately upon completion of the purchase.
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83. |
LIQUIDATION
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83.1. |
The liquidation of an English company is a statutory process governed by the U.K. Insolvency Act of 1986, where assets of the company are realised 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.
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83.2. |
There are 2 (two) types of voluntary liquidation: 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.
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83.3. |
If NewCo is in liquidation, NewCo’s liquidator may, amongst other things, divide among shareholders (excluding holders of treasury shares) in specie or
in kind the whole or any part of NewCo’s assets (whether or not the assets consist of property of one kind or consist of properties of different kinds and the liquidator may for such purpose set such value as the liquidator deems fair upon
any one or more class or classes of property and may determine how such division will be carried out as between the holders of NewCo Ordinary Shares or different classes of NewCo shareholders), or vest all or any part of such assets in
trustees upon such trusts for the benefit of NewCo Shareholders as the liquidator determines (and the liquidation of NewCo may thereby be closed and NewCo thereby dissolved), but no NewCo Shareholder will be compelled to accept any shares or
other assets upon which there is any liability or potential liability.
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|
83.4. |
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.
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84. |
COMPROMISES AND ARRANGEMENTS
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|
84.1. |
Where NewCo and its creditors or NewCo Shareholders or a class of either of them propose a compromise or arrangement between NewCo and its creditors or NewCo Shareholders or a class of
either of them (as applicable), the High Court of Justice in England and Wales may order a meeting of the creditors or class of creditors or of the shareholders or class of 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% (seventy five percent) or more in value of the creditors or 75% (seventy five percent) 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, shareholders of the specific class of either of them (as applicable).
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84.2. |
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.
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85. |
DISCLOSURE AND TAKEOVERS
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|
85.1. |
The Takeover Code aims to ensure fair treatment for all shareholders and to provide an orderly framework for takeover bids in the United Kingdom.
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|
85.2. |
The Takeover Code, applies to, among other things, an offer for a public limited company which has its registered office in the United Kingdom and which is considered by the U.K.
Takeover Panel (an independent body whose main functions are to administer the Takeover Code and regulate takeovers to which the Takeover Code applies) to have its place of central management and control in the United Kingdom, the Channel
Islands or the Isle of Man. This is the “residency test”.
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|
85.3. |
Under the Takeover Code, the U.K. Takeover Panel will determine whether NewCo has its place of central management and control in the United Kingdom, the Channel Islands or the Isle of
Man by looking at, in the first instance, whether a majority of the NewCo directors are resident in the United Kingdom, the Channel Islands or the Isle of Man. If a majority of the NewCo directors are so resident, then the “residency test”
will normally be satisfied.
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|
85.4. |
If at the time of a takeover offer, the U.K. Takeover Panel determines that the residency test is satisfied, NewCo would be subject to the jurisdiction of the Takeover Code which sets
out a number of rules and restrictions, including the following:
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|
85.4.1. |
NewCo’s ability to enter into deal protection arrangements with a bidder would be limited;
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|
85.4.2. |
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
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|
85.4.3. |
NewCo would be obliged to provide equality of information to any competing offerors or bona fide potential offerors.
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85.5. |
Following the Reorganisation, NewCo expects a majority of its directors to be resident outside of the United Kingdom, the Channel Islands and the Isle of Man. Based on its current and
intended plans for the NewCo Board and management, NewCo anticipates that the residency test will not be met under the Takeover Code and accordingly the Takeover Code should not apply to NewCo. However, it is possible that future changes in
the NewCo Board’s composition, changes in the U.K. Takeover Panel’s interpretation of the Takeover Code, or other events may result in NewCo falling within the jurisdiction of the Takeover Code.
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85.6. |
Notwithstanding that it is anticipated that the Takeover Code will not apply to NewCo following the Reorganisation, the NewCo Articles incorporate a number of provisions based on
provisions under the Takeover Code which provisions will apply for so long as the Takeover Code does not apply to NewCo, including the following.
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85.7. |
Acquisitions of shares – When 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:
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|
85.7.1. |
in the aggregate carry less than 30% (thirty percent) 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% (thirty percent) or more of the voting rights of NewCo; or
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85.7.2. |
in the aggregate carry not less than 30% (thirty percent) and not more than 50% (fifty percent) of the voting rights in NewCo, such person may not acquire an interest in any other shares in
NewCo,
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85.8. |
Mandatory offers – If a person (other than a depositary, custodian or nominee in their capacity as such):
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|
85.8.1. |
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% (thirty percent) or more of the
voting rights of NewCo; or
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|
85.8.2. |
is, together with persons acting in concert with such person, interested in shares that in the aggregate carry not less than 30% (thirty percent) and not more than 50% (fifty percent) 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,
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85.9. |
The offer must be made in cash or with a cash alternative where:
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|
85.9.1. |
during the offer period and within the 12 (twelve)-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% (ten percent) 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 (twelve) months prior to its commencement;
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|
85.9.2. |
during the offer period, the offeror (together with any person acting in concert with it) acquires any interest in shares for cash, in which case the offer for that class will be in cash or accompanied by a
cash alternative at not less than the highest price paid by the offeror or any person acting in concert with it for any interest in shares of that class acquired during the offer period; and/or
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|
85.9.3. |
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.
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85.10. |
Each of the above requirements may be disapplied with the consent of NewCo.
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85.11. |
Where the offeror (or any person acting in concert with the offeror) has acquired an interest in 10% (ten percent) or more of any class of shares in NewCo in exchange for securities in the 3 (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.
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85.12. |
Any offer must be open for acceptance for a period of not less than 21 (twenty-one) days and, if the offer becomes or is declared unconditional, the offer must remain open for not less than 14 (fourteen)
days and the offeror must give at least 14 (fourteen) clear days’ notice before the offer is closed.
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85.13. |
It must also be a condition of any offer which, if accepted in full, would result in the offeror holding shares carrying over 50% (fifty percent) of the voting rights of NewCo, that the offer will not become
or be declared unconditional as to acceptances unless the offeror has acquired or agreed to acquire shares carrying at least 50% (fifty percent) of the voting rights, except in the case of prior consent of NewCo.
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|
85.14. |
Save with the prior consent of NewCo, 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 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.
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85.15. |
Partial offers – NewCo consent is required for any offer which would constitute a partial offer under the Takeover Code.
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85.16. |
Disclosure requirements – The 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 2 (two) business days of
any announcement that first identifies it as an offeror. Within 28 (twenty eight) days of any announcement that first identifies it as an offeror, the 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 Ordinary Shares, Description of NewCo’s Articles
and Related Regulation — Disclosure of significant share ownership”.
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85.17. |
Non-compliance – Under the NewCo Articles, NewCo will have powers to impose restrictions on any person who fails to comply with the provisions described above relating to mandatory and voluntary
offers (and persists in such failure for 14 (fourteen) days after the date of service of a notice by NewCo on such person) or any person acting in concert with them (a “Breaching Person”), including (i)
restricting the Breaching Person’s ability to attend, either personally or by proxy, a shareholders’ meeting, (ii) disregarding any votes cast or purported to be cast by or on behalf of such Breaching Person, (iii) restricting the ability of
such Breaching Person to requisition a resolution at an annual general meeting and/or to call a general meeting, (iv) withholding any dividends on any shares held by such Breaching Person and (v) refusing to register any transfer of shares
held by such Breaching Person (unless the NewCo directors are satisfied that the transfer is to an independent third party).
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85.18. |
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 is interested to transfer, at NewCo’s direction,
such shares to the Breaching 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.
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85.19. |
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).
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85.20. |
NewCo’s consent is required for any offer for interests in shares in NewCo 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.
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85.21. |
The NewCo Articles do not include all of the protections provided by the Takeover Code.
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85.22. |
The NewCo Articles include provisions that are intended to replicate certain provisions of the Takeover Code relating to takeover offers and related protections afforded to a company and its shareholders. In
the absence of the jurisdiction of the U.K. Takeover Panel, the NewCo Articles specify that the provisions embedded therein are to be enforced by NewCo (as opposed to the U.K. Takeover Panel). NewCo may face challenges when enforcing certain
of these provisions against beneficial owners holding their shares through DTC.
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86. |
EXCHANGE CONTROLS
|
87. |
NO SINKING FUND
|
88. |
JURISDICTION
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|
88.1. |
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;
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88.2. |
the NewCo Articles are governed by the laws of England and Wales; and
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88.3. |
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.
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89. |
CORPORATE OBJECT AND INTERESTS
|
90. |
DIRECTORS
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|
90.1. |
Under English law, public companies such as NewCo must have at least 2 (two) directors, and at least 1 (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 4 (four) directors and a maximum of 20 (twenty) directors
(disregarding alternate directors).
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90.2. |
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.
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90.3. |
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.
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90.4. |
Under English law:
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|
90.4.1. |
a person may not be appointed as a director unless they are at least 16 (sixteen) years of age at the time the appointment takes effect;
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90.4.2. |
at least one director of each company must be a natural person;
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90.4.3. |
except with the leave of the court, a person is prohibited from acting as a director of a company if:
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|
90.4.4. |
the person is an undischarged bankrupt;
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|
90.4.5. |
a moratorium period under a debt relief order applies in relation to the person;
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|
90.4.6. |
a bankruptcy restrictions order or undertaking, or a debt relief restrictions order or undertaking, is in force in respect of the person; or
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|
90.4.7. |
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
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|
90.4.8. |
a court may or, in some cases, must make an order disqualifying a person from acting as a director, including without limitation:
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|
90.4.8.1. |
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;
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|
90.4.8.2. |
where it appears they have been persistently in default in relation to requirements for any return, account or other document to be filed with, delivered or sent, or notice of any matter to be given, to the
U.K. Registrar of Companies; and
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|
90.4.8.3. |
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.
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90.5. |
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:
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|
90.5.1. |
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
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90.5.2. |
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.
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90.6. |
Directors who have an interest in a proposed transaction or arrangement with NewCo are also required under English law to declare the nature and extent of their interest at a meeting of the NewCo Board or by
notice.
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90.7. |
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.
|
91. |
BOARD REMUNERATION
|
92. |
BORROWING POWERS
|
|
92.1. |
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.
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|
92.2. |
NewCo has not engaged in any borrowings and therefore has not exceeded its borrowing powers. NewCo has not created or issued any debentures other than the NewCo Notes the majority of which will be
extinguished as part of the Reorganisation.
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92.3. |
AGA has not exceeded its borrowing powers within the three years preceding the Last Practicable Date.
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|
92.4. |
The borrowing powers which are conferred upon NewCo in terms of the NewCo Articles may only be varied by way of an amendment to the NewCo Articles which must be approved by a resolution of the NewCo
Shareholders.
|
93. |
NON-SOUTH AFRICAN SHAREHOLDERS
|
94. |
DIRECTORS’ DUTIES
|
|
94.1. |
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;
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|
94.2. |
to act in accordance with the NewCo Articles and exercise powers only for the purposes for which they are conferred;
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|
94.3. |
to exercise independent judgment;
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|
94.4. |
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 knowledge and experience that a director holding that position should possess);
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|
94.5. |
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;
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|
94.6. |
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
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|
94.7. |
to declare an interest in a proposed transaction with the company.
|
95. |
RIGHTS OF MINORITY SHAREHOLDERS
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|
95.1. |
English law does not generally provide for “appraisal rights”. However, English law provides that where: (i) a takeover offer is made for NewCo Ordinary Shares (other than via a scheme of arrangement); and
(ii) following the offer, the offeror has acquired or contracted to acquire 90% (ninety percent) or more in value of the shares to which the takeover offer relates, and 90% (ninety percent) 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 3 (three) months of the last day on which the offer can be accepted in the prescribed manner.
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95.2. |
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 6 (six) weeks of the date on which notice of mandatory transfer was given. Absent any fraud or oppression, the court is
unlikely to order that the mandatory acquisition will not take effect, although it may specify terms of the transfer that it finds to be appropriate.
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|
95.3. |
The squeeze-out of the minority NewCo Shareholders can be completed at the end of 6 (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 6 (six) weeks, following which the offeror can execute a transfer of the outstanding shares in its favour 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.
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|
95.4. |
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 Ordinary 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% (ninety percent) or more in value of NewCo’s Ordinary Shares; and (ii) 90% (ninety percent) 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 1 (one) month of the above thresholds being met, and the outstanding minority NewCo Shareholders then have 3 (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.
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|
95.5. |
English law also permits the shareholders of a company (including minority shareholders) to bring certain claims in relation to the actual or proposed acts or omissions of NewCo which constitute the conduct
of NewCo’s affairs in such a manner which is unfairly prejudicial to the petitioner’s interests as a shareholder. Such conduct includes, without limitation: (i) breaches of fiduciary duty/duties on the part of NewCo’s directors prejudicing
the interests of shareholders; (ii) mismanagement which is serious having regard to the scale of financial loss arising and the frequency and duration of the relevant acts and omissions; and (iii) improper failures to pay dividends/payments
of excessive remuneration.
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|
95.6. |
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.
|
96. |
DESCRIPTION OF THE AGA MOI
|
97. |
U.S. SECURITIES LAWS DISCLOSURES
|
COMPARISON BETWEEN NYSE LISTING STANDARDS AND THE JSE LISTINGS REQUIREMENTS
|
Sub-paragraph
of 18.20
|
U.S. Listing Rules
|
JSE Listings Requirements
|
|||
(a)
|
Pre-emptive rights, ranking of securities in the same class, and expropriation rights in respect of securities
|
Pre-emptive rights, ranking of securities and expropriation of rights in respect of securities are not principally governed by the U.S. Listing Rules. Pre-emptive rights and ranking of
securities are regulated by English law and in NewCo’s Articles. For additional information, please see “Description of NewCo Ordinary Shares, Description of NewCo’s Articles and Related Regulation.”
|
As regards ranking of securities, securities in each class for which a listing is applied on the JSE must rank pari passu in respect of all
rights. The JSE Listings Requirements describe pari passu to mean that the shares are identical in all respects, including that the shares are of the same nominal value, they carry the same rights as
to unrestricted transfer, attendance and voting at general/annual meeting and they are entitled to dividends at the same rate and for the same period. In respect of expropriation of rights in respect of securities, an issuer is required to
inform the JSE of any expropriation rights.
As regards pre-emptive rights, an issuer proposing to issue equity securities for cash must first offer those securities effected by way of rights offer, to existing holders of equity
securities in proportion to their existing holdings, unless the issue is an acquisition issue or the shareholders of the issuer approve the issue of such shares in terms of a general or specific authority. Save for where the issue of any
shares has been approved by the shareholders of the issuer or the issue of such shares is in connection with an acquisition by the issuer, the issuer may only issue those equity shares for cash to other persons if and to the extent that such
securities are not taken up by holders of equity securities under the offer.
|
||
(b)
|
Transferability of securities and transfer of securities
|
Section 5 of the Securities Act regulates the offer and sale of securities. All offers and sales of securities must be registered under Section 5 of the Securities Act or conducted
pursuant to an exemption from such registration. In addition, NewCo’s Articles contain certain provisions regulating the transfer of the NewCo Ordinary Shares. For additional information, please see “Description
of NewCo Ordinary Shares, Description of NewCo’s Articles and Related Regulation.”
|
The securities for which a listing is sought must be fully paid up and, unless otherwise required by statute or at the discretion of the JSE, must be freely transferable.
|
Sub-paragraph
of 18.20
|
U.S. Listing Rules
|
JSE Listings Requirements
|
|||
(c)
|
Preferences, rights, limitations and other share terms
|
Preferences, rights, limitations and other share terms are not principally governed by the U.S. Listing Rules. These matters are regulated in NewCo’s Articles. The NewCo Ordinary Shares
carry equal voting rights. For additional information, please see “Description of NewCo Ordinary Shares, Description of NewCo’s Articles and Related Regulation.” The SEC Disclosure Rules require the
disclosure of these matters on an ongoing basis in NewCo’s annual report.
|
Securities in each class for which a listing is applied on the JSE must rank pari passu in all respects. Every holder of an ordinary share must
have one vote in respect of each share and shareholder votes may not carry any special rights or privileges. Preferences, rights, limitations or other terms of any class of shares of the issuer must not be varied unless approval is obtained
by special resolution of the shareholders.
A special resolution may only be passed with the support of at least 75% (seventy five percent) of the votes cast by all equity securities holders present in person (or represented by
proxy) at the general meeting or annual general meeting.
|
||
(d)
|
Special voting rights in respect of securities
|
Special voting rights in respect of securities are not principally governed by the U.S. Listing Rules. These matters are regulated in NewCo’s Articles. The NewCo Ordinary Shares carry
equal voting rights. For additional information, please see “Description of NewCo Ordinary Shares, Description of NewCo’s Articles and Related Regulation.” The SEC Disclosure Rules require the
disclosure of these matters on an ongoing basis in NewCo’s annual report.
|
The JSE prescribes that an issuer shall not issue any securities with voting rights differing from other securities of the same class.
|
||
(e)
|
Process dealing with amendment/s to the constitutional document of the issuer
|
The process dealing with the amendment of the constitutional document of an issuer is not principally governed by the U.S. Listing Rules. These matters are regulated in terms of NewCo’s
Articles and English law. For additional information, please see “Description of NewCo Ordinary Shares, Description of NewCo’s Articles and Related Regulation.” The SEC Disclosure Rules require the
filing of any amendment to the constitutional document in NewCo’s annual report.
|
Any amendment to the memorandum of incorporation of the issuer must be approved by a special resolution of the shareholders. A special resolution may only be passed with the support of
at least 75% (seventy five percent) of the votes cast by all equity securities holders present in person (or represented by proxy) at the general meeting or annual general meeting.
|
||
(f)
|
Appointment and removal of directors
|
The appointment and removal of directors is not principally governed by the U.S. Listing Rules. These matters are regulated by English law and NewCo’s Articles. For additional
information, please see “Description of NewCo Ordinary Shares, Description of NewCo’s Articles and Related Regulation.” The SEC Disclosure Rules require the disclosure of these matters on an ongoing
basis in NewCo’s annual report.
|
The election of all directors must be subject to shareholder approval at any general meeting or annual general meeting.
|
Sub-paragraph
of 18.20
|
U.S. Listing Rules
|
JSE Listings Requirements
|
|||
(g)
|
Authority to issue shares or other securities (general and specific)
|
The authority to issue shares or other securities (both general and specific) is not principally governed by the U.S. Listing Rules. These matters are regulated by English law and
NewCo’s Articles. However, certain provisions of the NYSE Listing Rules have been built into the NewCo Articles, namely the 20% rule. For additional information, please see “Description of NewCo Ordinary
Shares, Description of NewCo’s Articles and Related Regulation.”
|
In addition to certain specific requirements of JSE Listings Requirements applicable to specific issues of securities for cash and general issues of securities for cash respectively, the
issuer shall be required to obtain the approval of at least 75% (seventy five percent) of the equity securities holders present in person (or represented by proxy) at the general meeting or annual general meeting. However, a rights offer may
pro rata to all shareholders will not require shareholder approval. Subject to, and in compliance with, the JSE Listings Requirements, shareholders in any general meeting may authorise the directors
to issue unissued securities, and/or grant options to subscribe for unissued securities, as the directors in their discretion deem fit.
|
||
(h)
|
Disclosure of changes in beneficial ownership of securities
|
The SEC Disclosure Rules require the disclosure of certain levels of ownership on an ongoing basis in NewCo’s annual report. In addition, pursuant to the SEC Disclosure Rules, it is
generally the responsibility of a shareholder, holding in excess of 5% (five percent) of a company’s shares, to disclose such beneficial ownership and certain changes in its shareholding. 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, and there are enforcement powers available to NewCo in respect of persons who fail to comply with such a notice. Moreover, pursuant
to NewCo’s Articles and subject to certain exemptions, a person must notify NewCo in the event that the percentage of their voting rights exceeds certain thresholds. For additional information, please see “Description
of NewCo Ordinary Shares, Description of NewCo’s Articles and Related Regulation.”
|
An issuer that has received a notice regarding acquisition or the disposal of a beneficial interest of 5% (five percent) or any further multiple of 5% (five percent) of the securities in
that class, in terms of Section 122(1) and (3) of the Companies Act, must, within 48 (forty eight) hours after receipt of such notice, publish the information contained in the notice on SENS.
No such announcement shall be required in respect of notices received by the issuer and which relate to a disposal of less than 1% (one percent) of the relevant class of securities, per
Section 122(3) of the Companies Act.
|
||
(i)
|
Regulation in respect of director’s interests in transactions
|
The SEC Disclosure Rules require the disclosure of certain such matters on an ongoing basis in NewCo’s annual report. Transactions involving a director’s interest constitute related party transactions; for
additional information on related party transactions, please see “Regulation in respect of transactions (acquisitions and disposals) and related party transactions—U.S. Listing Rules.”
|
An issuer is to publish the beneficial interests of directors and major shareholders in its annual financial statements. Any material beneficial interests of the directors present in
transactions effected by a company must also be disclosed.
|
Sub-paragraph
of 18.20
|
|
U.S. Listing Rules
|
JSE Listings Requirements
|
||
(j)
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Regulation in respect of transactions (acquisitions and disposals) and related party transactions | |
The NYSE Listing Rules require approval of related party transactions (as defined therein) by the company’s audit committee or another
independent body of the board of directors of the company. Foreign private issuers can continue to follow home country practice in respect of the standard of review, oversight and approval of related party transactions.
In addition, the SEC Disclosure Rules require certain information regarding related party transactions or presently proposed related party
transactions which are material to the company or the related party or which are unusual in their nature or conditions to be disclosed in NewCo’s annual report.
Every contract not made in the ordinary course of business that is material to NewCo and is to be performed in whole or in part after the filing
of NewCo’s annual report must be publicly filed with NewCo’s annual report.
The NYSE Listing Rules do not require shareholder approval for the equivalent of Category 1 or Category 2 transactions (defined alongside), 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 “Share Capital” in the section “Description Of NewCo Ordinary Shares,
Description Of NewCo’s Articles and Related Regulation.”
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Where any transaction (including, inter alia, both acquisitions and disposals) is proposed between the
issuer, or any of its subsidiaries, and a related party, a circular to shareholders and the approval of shareholders of the issuer in a general meeting will normally be required.
Furthermore, related party transactions require a fairness opinion to be prepared by an independent expert approved by the JSE and made available
for public scrutiny.
In the case of a transaction, the JSE Listings Requirements differentiate between a Category 2 transaction (which is equal to or more than 5%
(five percent) and 30% (thirty percent) of the market capitalisation of the issuer) and a Category 1 transaction (which is 30% (thirty percent) or more of the market capitalisation of issuer).
As regards a Category 1 and Category 2 transaction, the issuer must publish an announcement containing the full details of the transaction
immediately after the terms have been agreed. In addition to the foregoing, and upon the terms of a Category 1 transaction being agreed, a circular must be dispatched to shareholders containing a notice of a general meeting to obtain
shareholder approval for the transaction.
Any agreement effecting the transaction must be conditional upon such shareholder approval.
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(k)
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Mandatory corporate governance provisions and the corporate governance code applied |
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With limited exceptions, the NYSE Listing Rules allow a foreign private issuer to follow home country practice in relation to its corporate governance as long as the foreign private
issuer discloses the significant differences between the home country practice and the corporate governance provisions required by the NYSE Listing Rules for U.S. domestic issuers.
One such exception is the requirement that a foreign private issuer have an audit committee, and that each member of the audit committee be independent (as determined in accordance with
the independence requirements of the SEC Disclosure Rules).
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Issuers with primary listings on the JSE must follow the corporate governance rules and provisions of King IV. Given that NewCo will have a primary listing on the NYSE, it will not be
required to adopt the principles of King IV.
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(l)
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The proactive monitoring process (if any) dealing with the review of financial statements of the issuer by the listing authority or any other relevant regulatory body |
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The SEC has the discretion to review NewCo’s filings with the SEC, including, but not limited to, NewCo’s financial statements.
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The JSE may undertake an assessment of an applicant issuer’s IFRS work previously performed in order to satisfy itself as to the acceptability of the IFRS adviser. This assessment may be
done in consultation with the Financial Reporting Investigations Panel.
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Sub-paragraph
of 18.20
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U.S. Listing Rules
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JSE Listings Requirements
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(m)
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Takeover laws applicable to the issuer
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U.S. federal securities laws regulate tender offers. In the case of the U.K., takeover laws are found in the City Takeover Code. However, based upon NewCo’s current and intended plans
for its directors and the fact that NewCo does not currently intend to list the NewCo Ordinary Shares on a regulated market in the United Kingdom (or the Channel Islands or the Isle of Man), the City Takeover Code will not apply to NewCo
immediately following the completion of the Reorganisation.
It is possible that this could change; for further information, please see “Risk Factors”. Certain provisions of the City Takeover Code have been
built into the NewCo Articles. For additional information, please see “Description of NewCo Ordinary Shares, Description of NewCo’s Articles and Related Regulation.”
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A company incorporated in South Africa and listed on the JSE is subject to the Takeover Regulations. Given that NewCo is incorporated in England, it is not regulated by the Takeover
Regulations.
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(n)
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Special disclosure requirements dealing with mining companies, such as the preparation of special reports dealing with reserves, life of mine and valuation of mining activities
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The disclosure requirements stipulated in sub-part 1300 of Regulation S-K of the SEC Disclosure Rules must be complied with if the issuer’s mining operations are material to the issuer’s
business or financial condition. The SEC Disclosure Rules also impose disclosure and reporting obligations on issuers regarding the use and sourcing of conflict minerals (including gold).
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In addition to the provisions of the JSE Listings Requirements dealing with pre-listing statement particulars, prospectuses or Category 1 circulars (as contemplated in the JSE Listings
Requirements), the following information must be included in such documents where the company in question is a mineral company (a company whose principle activity is that of mining and/or exploration) and by non-mineral companies in respect
of substantial mineral assets (i) measured against the purchase or disposal consideration, as the case may be, of the asset in respect of a transaction; and (ii) measured against the market capitalisation of the applicant issuer in respect of
a new listing:
● a Competent Person’s Report (as defined in the JSE Listings
Requirements);
● details of any direct or indirect beneficial interest;
● financial information;
● a statement by the directors regarding any legal proceedings; and
● confirmation that the applicant issuer, or group, is in possession of
necessary legal title or ownership rights to explore or mine relevant minerals.
The Competent Person’s Report (as defined in the JSE Listings Requirements) must comply with the South African Code for the Reporting of Mineral Asset Valuation and the South African
Code for the Reporting of Exploration Results, Mineral Resources and Mineral Reserves. The JSE further requires the disclosure of a Mineral Resource and Mineral Reserve Statement (as defined in the JSE Listings Requirements) in the company’s
annual report.
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COMPARISON OF RIGHTS OF AGA SHAREHOLDERS AND NEWCO SHAREHOLDERS
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EXPENSES
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Nature of expense
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Paid/Payable to
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Total USD’000
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Australia tax adviser to AGA and NewCo
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Allens
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394
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Depositary fees and expenses
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The Bank of New York Mellon
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5,276
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English legal adviser to AGA and NewCo
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Slaughter and May
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4,000
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Financial Adviser to AGA
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Centerview Partners UK LLP
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6,000
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Financial Adviser to AGA /Transaction Sponsor
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JPMorgan Chase Bank, N.A.,
Johannesburg Branch
J.P. Morgan Equities South Africa
Proprietary Limited
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6,000
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Financial Adviser to AGA
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Rothschild and Co South Africa
Proprietary Limited
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4,500
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Ghanian legal adviser to AGA and NewCo
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Bentsi-Enchill, Letsa & Ankomah
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250
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Independent Expert fee
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Barclays Bank PLC
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1,070
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Independent Reporting Accountant
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Ernst & Young Inc.
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921
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JSE documentation inspection fee and listing fee
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JSE
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239
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Printing, publication and distribution
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R&A Strategic Communications/
Broadridge
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180
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South African legal adviser to AGA and NewCo
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Edward Nathan Sonnenbergs Incorporated
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1,328
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South African registrar, receiving agent fees and postage and transfer secretaries
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Computershare
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252
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Settlement processing fee
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Strate
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152
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South African tax adviser to AGA and NewCo
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Bowmans Incorporated
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143
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Takeover Regulation Panel transaction review fee
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TRP
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17
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Tax advisors (other jurisdictions) to AGA and NewCo
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Miscellaneous
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592
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Legal advisors (other jurisdictions) to AGA and NewCo
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Miscellaneous
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309
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U.S. legal adviser to AGA and NewCo
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Cravath, Swaine & Moore LLP
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22,251
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U.S. Securities and Exchange Commission registration fee
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SEC
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1,110
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Accounting review and advisory fee
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PwC
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379
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GhSE Stock Exchange Fees
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GhSE
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273
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GhSE Arranger and Sponsoring Broker
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Stanbic Ghana Limited
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250
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Media relations
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Brunswick
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1,000
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Miscellaneous
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Miscellaneous
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3,114
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TOTAL
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60,000
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RISK FACTORS
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98. |
The Group may fail to realise the expected benefits of the Reorganisation
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99. |
Whether or not the Reorganisation is implemented, the announcement and pendency of the Reorganisation could cause disruptions in the business of the Group, which could
have an adverse effect on its business and financial results.
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100. |
The Reorganisation and NewCo Notes Distribution will trigger transaction costs and expenses and are not expected to result in any significant cost savings or synergies
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100.1. |
AGA expects the tax costs of implementing the Reorganisation and the NewCo Notes Distribution to be 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 capitalisation) 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 19 June 2023, these tax costs of implementing the Reorganisation are estimated to be approximately $422 million, consisting primarily of tax costs payable in South Africa
and Australia. See paragraph 62 (Tax Consequences of the Reorganisation and the NewCo Notes Distribution for the Group) of this Pre-listing Statement. In the event that the fair market value of AGAH,
and the related Group market value, increases between 19 June 2023 and the Operative Date or the ZAR/USD exchange rate weakens, the tax costs of implementing the Reorganisation and the NewCo Notes Distribution will also increase, and any such
increase may be significant. However, the Reorganisation and the NewCo Notes Distribution are not expected to result in any significant cost savings or synergies. See paragraph 2 (Rationale for the
Reorganisation) of this Pre-listing Statement.
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100.2. |
Additionally, AGA expects to incur approximately $60 million in transaction expenses in connection with the Reorganisation, which have been and will continue to be paid as incurred. These include
professional fees, to comply with South African and English corporate laws, U.S. federal securities laws and other laws, financial advisers’ fees accountants’ fees, filing fees, listing fees, mailing expenses, solicitation fees, transfer
agent fees, ADS termination fees, financial printing expenses and other general expenses. A large portion of these expenses will be incurred regardless of whether the Reorganisation is completed.
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100.3. |
The Group operates in a number of jurisdictions, and is subject to complex tax rules which are subject to change. In addition, the interpretation and application of tax rules by tax authorities and courts in
some of the countries in which the Group operates is uncertain and unpredictable. These factors could result in materially higher tax costs of implementing the Reorganisation and the NewCo Notes Distribution than currently anticipated. The
Group may also incur additional material transaction costs and expenses that, by their nature, are difficult to estimate accurately at the present time, or our expected transaction costs and expenses could be materially higher than our
current estimates. In addition, the expected net benefits associated with the transaction costs and expenses incurred in connection with the Reorganisation and the NewCo Notes Distribution may not be achieved in the near term, or at all.
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101. |
Failure to timely implement the Reorganisation, or failure to implement the Reorganisation at all, could negatively affect the market price of AGA Ordinary Shares and
AGA ADSs.
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101.1. |
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 Companies Act, and: (a) to the extent required by the Companies Act, the AGAH Sale and the implementation of the Scheme is approved by the High Court of South Africa;
and (b) if applicable, AGA has not elected to treat the Scheme Special Resolution as a nullity under the Companies Act;
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101.2. |
AGA has received no valid demands as contemplated in Section 164(5) to (8) of the Companies Act (whether in relation to the AGAH Sale or the Scheme) which in aggregate represent more than 3.5% (three point
five percent) of the voting rights attaching to the AGA Ordinary Shares;
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101.3. |
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 inward
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;
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101.4. |
the SEC has made a declaration confirming the effectiveness of the 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;
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101.5. |
the NYSE has granted all approvals required for the listing of the NewCo Ordinary Shares on the NYSE, subject to notice of issuance;
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101.6. |
to the extent required, other regulatory approvals, consents or rulings necessary to implement the Reorganisation have been obtained; and
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101.7. |
AGA has not, prior to 10:00 a.m. South Africa Standard Time on 29 February 2024 (or such later date that AGA and NewCo may agree to in writing prior to such date) (the “Long
Stop Date”), exercised its right to cancel the Implementation Agreement as a result of the occurrence of a Material Adverse Effect.
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101.8. |
Approval from the South African Reserve Bank (“SARB”), the South African National Treasury and the South African Minister of Finance (collectively, the “South African Authorities”) was obtained on 29 March 2023 subject to certain conditions, including that:
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101.8.1. |
neither AGA nor any other South African subsidiary of the Group will provide any guarantees in order to enable the Reorganisation;
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101.8.2. |
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
Reorganisation and to nominate at least one representative from South Africa for election by shareholders to the NewCo Board at each annual general meeting thereafter;
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101.8.3. |
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 Reorganisation;
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101.8.4. |
dividends funded from South African sources and which are due to South African NewCo shareholders will be paid in South Africa; and
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101.8.5. |
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 authorised 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.
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101.9. |
At any time prior to 10:00 am South Africa Standard Time on the Long Stop Date, or such other date as is specified in the Implementation Agreement or is agreed between AGA and NewCo, AGA may cancel the
Implementation Agreement by means of a written notice to NewCo if a Material Adverse Effect has occurred.
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101.10. |
Such conditions to AGA’s obligations to complete the Reorganisation may be waived, in whole or in part, to the extent legally permissible, either unilaterally or by agreement of NewCo and AGA. In the event
that any such waiver does not require re-solicitation of shareholders, the parties will have the discretion to complete the Reorganisation without seeking further shareholder approval. Conversely, several of the Reorganisation Conditions are
not under our control and there can be no assurances regarding the timing of the requisite regulatory approvals or our ability to obtain such approvals on satisfactory terms or at all.
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101.11. |
In addition, court approval will be required before the AGAH Sale or the Scheme, as applicable, can be implemented if: (a) the AGAH Sale Special Resolution and/or the Scheme Special Resolution was opposed by
at least 15% (fifteen percent) of the voting rights that were exercised on such resolution, in which case any AGA Shareholder who voted against such resolution has the automatic right to require AGA to seek court approval; or (b) the court
grants leave to a single dissenting AGA Shareholder to seek court approval (even if the AGAH Sale Special Resolution and/ or the Scheme Special Resolution, as applicable, was opposed by less than 15% (fifteen percent) of the voting rights
that were exercised on such resolution). In both instances, the court may, among other things, set aside the AGAH Sale Special Resolution and/or the Scheme Special Resolution, as applicable, on the grounds of procedural irregularity or a
manifestly unfair result. This process of court approval could substantially delay the implementation of the Reorganisation and, if such approval is denied by the court, could prevent the Reorganisation from being implemented at all.
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101.12. |
If the Reorganisation is not completed on the expected schedule or at all, trading in AGA Ordinary Shares and in AGA ADSs could be negatively affected. The market prices of AGA Ordinary Shares and AGA ADSs
currently and in the period prior to the implementation of the Reorganisation (or failing to complete the Reorganisation) may reflect a market assumption that the Reorganisation will be implemented. If the Reorganisation is not implemented,
this could result in a negative perception by the stock market of AGA generally and a decline in the market price of AGA Ordinary Shares and of AGA ADSs.
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102. |
If a substantial number of AGA Shareholders exercise their appraisal rights, it could have a negative impact on AGA’s cash flows, business plans, results of operations and financial
condition
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103. |
The value of the NewCo Ordinary Shares may decrease
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104. |
Sales of large quantities of NewCo Ordinary Shares, or the perception that these sales may occur or other dilution of the company’s equity, could adversely affect the
prevailing market price of the NewCo Ordinary Shares
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104.1. |
The bulk of the NewCo Ordinary Shares are expected to be held by a relatively small number of investors. According to information available to the company, AGA’s 5 (five) largest shareholders beneficially
owned 40.70% (forty point seven percent) and the top 10 (ten) largest beneficially owned 55.64% (fifty five point six four percent) of the AGA Ordinary Shares as at the Last Practicable Date. Upon completion of the Reorganisation, such
shareholders are expected to beneficially own the same percentage of NewCo Ordinary Shares as they held of AGA Ordinary Shares immediately prior to the implementation of the Reorganisation (subject to any adjustments to reflect any exercise
of appraisal rights as described in paragraph 14 (Dissenting AGA Shareholders’ Appraisal Rights)).
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104.2. |
Subject to applicable securities laws, holders of the NewCo Ordinary Shares may decide to sell them at any time. As a result, the market price of the NewCo’s securities could fall if large quantities of
NewCo Ordinary Shares are sold in the public market, if there is divestment by certain types or groupings of investors, or if there is the perception in the marketplace that such sales could occur.
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105. |
Fluctuations in the exchange rate of currencies may reduce the market value of the NewCo Ordinary Shares, as well as the market value of any dividends or distributions
paid by NewCo
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105.1. |
NewCo is expected to pay dividends and other distributions, if any, in U.S. Dollars and Rands. As a result, exchange rate movements may affect the Pound and the Ghanaian Cedi value of these dividends, as
well as of any other distributions paid by the relevant depositary to holders of the NewCo’s securities. Moreover, since the NewCo Ordinary Shares are denominated in U.S. Dollars, and any dividends to be paid in respect of them are expected
to be denominated in U.S. Dollars and Rands, an investment in the NewCo Ordinary Shares by a person whose principal currency is not U.S. Dollars or Rands likely exposes the shareholder or investor to foreign currency risk.
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105.2. |
Furthermore, unless the rights attaching to or terms of issue of the relevant shares say otherwise, the NewCo Articles will allow for dividends and any other money payable in respect of a share to be paid in
any currency at the discretion of the board of directors using an exchange rate selected by the directors for any currency conversions required. If, and to the extent that, NewCo opts to declare dividends and distributions in any currency
other than U.S. Dollars, exchange rate movements will affect the U.S. Dollar value of such dividends or distributions. This may reduce the value of NewCo’s securities to investors. Additionally, the market value of NewCo’s securities as
expressed in Ghanaian Cedis, U.S. Dollars and Rands will fluctuate in part as a result of foreign exchange fluctuations.
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106. |
NewCo may not pay dividends or make similar payments to shareholders in the future
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106.1. |
NewCo will pay cash dividends only if there are sufficient funds available for that purpose. Funds availability depends upon many factors that include the amount of cash available in relation to the Group’s
capital expenditure on existing infrastructure and exploration and other projects.
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106.2. |
Under English law, a public company is entitled to pay a dividend or similar payment to its shareholders only if it has sufficient distributable reserves (on a non-consolidated basis) and if the amount of
its net assets is not less than the aggregate of its called-up share capital and un-distributable reserves and if and to the extent that the distribution does not reduce the amount of those assets to less than that aggregate.
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106.3. |
Given these factors, including the capital and investment needs of the Group, and the NewCo Board’s discretion to declare a dividend (including the amount and timing thereof), cash dividends may not be paid
in the future.
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107. |
U.S. securities laws do not require NewCo to disclose as much information to investors as a U.S. issuer is required to disclose, and investors may receive less
information about NewCo than they might otherwise receive from a comparable U.S. company
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108. |
The NewCo Ordinary Shares to be received as a result of the Reorganisation have different rights from the AGA Ordinary Shares
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109. |
The U.K. City Code on Takeovers and Mergers, or the Takeover Code, may apply to NewCo in the future.
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109.1. |
The City Takeover Code applies, among other things, to an offer for a public company whose registered office is in the United Kingdom (or the Channel Islands or the Isle of Man) and whose securities are not
admitted to trading on a regulated market in the United Kingdom (or the Channel Islands or the Isle of Man) if the company is considered by the U.K. Takeover Panel, to have its place of central management and control in the United Kingdom (or
the Channel Islands or the Isle of Man). Under the U.K. Takeover Code, the Takeover Panel will determine whether NewCo’s place of central management and control is in the United Kingdom by looking at various factors, including the structure
of NewCo’s Board, the functions of the directors of the NewCo Board and where they are resident.
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109.2. |
Based upon NewCo’s current and intended plans for its directors and the fact that NewCo does not currently intend to list the NewCo Ordinary Shares on a regulated market in the United Kingdom (or the Channel
Islands or the Isle of Man), the City Takeover Code will not apply to NewCo immediately following the completion of the Reorganisation. However, if at the time of a takeover offer, the U.K. Takeover Panel determines that NewCo’s place of
central management and control is in the United Kingdom, or if NewCo becomes subject to the City Takeover Code as a result of future changes in the NewCo Board’s composition, changes in the U.K. Takeover Panel’s interpretation of the City
Takeover Code, or other events which result in NewCo falling within the jurisdiction of the City Takeover Code. NewCo would be subject to a number of rules and restrictions, including but not limited to the following: (a) NewCo’s ability to
enter into deal protection arrangements with a bidder would be limited; (b) NewCo might not, without the approval of shareholders, be able to perform certain actions that could have the effect of frustrating an offer, such as issuing shares
or carrying out acquisitions or disposals; and (c) NewCo would be obliged to provide equality of information to any competing offerors or bona fide potential offerors.
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110. |
The NewCo Articles provide that the courts of England and Wales will be the exclusive forum for any proceeding, suit or action other than those arising under the Securities Act or the
Exchange Act, and that the federal district courts of the United States will be the exclusive forum for any proceeding, suit or action arising under the Securities Act or the Exchange Act
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110.1. |
The NewCo Articles provide that any proceeding, suit or action (other than those arising under the Securities Act or the Exchange Act) between (a) 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 (b) to the fullest extent permitted by law, 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 “England and Wales Forum Provision”). The NewCo Articles
further provide, that 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 (the “U.S. Federal Forum Provision”). Any person or entity purchasing or otherwise acquiring any interest in NewCo shares will be deemed to
have notice of and consented to the provisions of the England and Wales Forum Provision and the U.S. Federal Forum Provision in the NewCo Articles, 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), provided, however, that NewCo’s shareholders cannot and will not be deemed to have waived compliance with the U.S. federal
securities laws and the rules and regulations thereunder.
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110.2. |
The England and Wales Forum Provision and the U.S. Federal Forum Provision in the NewCo Articles may impose additional litigation costs on NewCo Shareholders in pursuing any such claims. Additionally, the
forum selection clauses in the NewCo Articles may limit the ability of NewCo Shareholders to bring a claim in a judicial forum that they find favourable for disputes with NewCo or its directors, officers or employees, which may discourage the
filing of lawsuits against NewCo and its directors, officers and employees, even though an action, if successful, might benefit NewCo Shareholders. In addition, while the Delaware Supreme Court ruled in March 2020 that federal forum selection
provisions purporting to require claims under the Securities Act be brought in federal court are “facially valid” under Delaware law, there is uncertainty as to whether other courts, including the courts of England and Wales and other courts
within the United .States. will enforce the U.S. Federal Forum Provision. If the U.S. Federal Forum Provision is found to be inapplicable or unenforceable in an action, NewCo may incur additional costs associated with resolving such action in
other jurisdictions, which could adversely affect NewCo’s results of operations and financial condition. The U.S. Federal Forum Provision may also impose additional litigation costs on NewCo’s Shareholders who assert that the provision is not
enforceable or invalid. The courts of England and Wales and the federal district courts of the United States. may also reach different judgments or results than would other courts, including courts where a shareholder considering an action
may be located or would otherwise choose to bring the action, and such judgments may be more or less favourable to NewCo than NewCo’s shareholders.
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111. |
You may not be able to obtain or enforce judgments of U.S. courts against NewCo or its directors or officers
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112. |
If NewCo issues additional NewCo Ordinary Shares in the future, the value and voting power of its NewCo Ordinary Shares issued in connection with the Reorganisation
may become diluted as more NewCo Ordinary Shares become issued and outstanding
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113. |
As NewCo will be a holding company, its operating results, financial condition and ability to pay dividends or other distributions will be dependent on dividends and
other distributions received from its subsidiaries, which may be subject to restrictions
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113.1. |
Since NewCo will be a holding company, its operating results and financial condition will be dependent on the performance of its operating subsidiaries. Additionally, NewCo’s ability to pay dividends or
other distributions in the future will subject to any distributable reserve buffer created by the Capital Reduction depend on the level of dividends and other distributions, if any, received from its operating subsidiaries. The ability of
NewCo’s operating subsidiaries to make loans or distributions (directly or indirectly) to NewCo may, from time to time, be restricted as a result of several factors, including restrictions in financing agreements, capital controls or other
foreign exchange limitations (other than the South African exchange control limitations that currently impact AGA), the requirements of applicable law and regulatory and fiscal or other restrictions. In addition, NewCo’s right to participate
in a distribution of assets upon a subsidiary’s liquidation or reorganisation is subject to all prior claims of the subsidiary’s creditors.
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113.2. |
Furthermore, NewCo expects that it will guarantee some of the payment obligations of certain subsidiaries from time to time. For example, in connection with 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 28 April 2010 among AGAH, as issuer, AGA, as guarantor, and The Bank of New York Mellon, as trustee.
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113.3. |
If earnings and cash flow from operating subsidiaries were substantially reduced for a sufficient length of time, NewCo may not be in a position in the longer term to make distributions to holders of NewCo
Ordinary Shares in line with any future announced proposals or at all.
|
114. |
There may not be an active trading market for the NewCo Ordinary Shares, which may have an adverse impact on the value of the NewCo Ordinary Shares
|
115. |
RISKS RELATED TO AGA’S BUSINESS
|
116. |
RISKS RELATED TO TAXATION
|
|
116.1. |
The U.S. Tax Reorganisation may not qualify as a “reorganization” for U.S. federal income tax purposes
|
|
116.2. |
There may be potential “Passive Foreign Investment Company” tax considerations for U.S. Shareholders
|
|
116.3. |
Issues or Transfers of NewCo Ordinary Shares may be subject to stamp duty or SDRT in the United Kingdom, which would increase the cost of dealing in or issuing further
NewCo Ordinary Shares.
|
|
116.4. |
If the NewCo Ordinary Shares are not eligible for continued deposit and clearing within the facilities of DTC, then transactions in the NewCo Ordinary Shares may be
disrupted
|
|
116.5. |
NewCo intends to operate so as to be treated exclusively as a resident of the United Kingdom for tax purposes, but the relevant tax authorities may treat NewCo as also
being a resident of another jurisdiction for tax purposes
|
|
116.6. |
AGA may not obtain a clearance from HMRC that an agreement to transfer Entitlements is not subject to SDRT
|
TABLE OF ENTITLEMENTS
|
Number of AGA Shares held before
the Reorganisation
|
Entitlements
|
Number of AGA Shares held before
the Reorganisation
|
1
|
1
|
1
|
2
|
2
|
2
|
3
|
3
|
3
|
4
|
4
|
4
|
5
|
5
|
5
|
6
|
6
|
6
|
7
|
7
|
7
|
8
|
8
|
8
|
9
|
9
|
9
|
10
|
10
|
10
|
LEGAL
ADVISERS
|
|||
As to U.S. law
|
As to English law
|
As to South African law
|
As to South African tax law
|
Cravath, Swaine & Moore LLP
(DOS ID Number: 2886667)
|
Slaughter and May
(SRA number: 55388)
|
Edward Nathan Sonnenbergs Incorporated
(Registration No. 2006/018200/21)
|
Bowman Gilfillan Inc.
(Registration No. 1998/021409/21)
|
CityPoint, One Ropemaker Street, London, EC2Y 9HR, United Kingdom
|
One Bunhill Row, London, EC1Y 8YY, United Kingdom
|
The MARC, Tower 1, 129 Rivonia Road, Sandton, Johannesburg, South Africa
|
11 Alice Lane, Sandton, Johannesburg, South Africa
|
TRANSACTION SPONSOR
|
INDEPENDENT REPORTING ACCOUNTANT
|
J.P. Morgan Equities South Africa Proprietary Limited
|
Ernst & Young Incorporated
|
Registration no. 1995/011815/07
|
Registration No. 2005/002308/21
|
1 Fricker Road, Illovo, Johannesburg, 2196
|
EY, 102 Rivonia Road, Sandton, Johannesburg
|
South Africa
|
South Africa
|
(Private Bag X9936, Sandton, 2196, South Africa)
|
FINANCIAL ADVISER
|
Rothschild and Co South Africa Proprietary Limited
|
7th Floor, 144 Oxford,
|
Johannesburg
|
South Africa
|
(PO Box 411332, Craighall, 2024)
|
FINANCIAL ADVISER
|
FINANCIAL ADVISER
|
Centerview Partners UK LLP
|
JPMorgan Chase Bank, N.A., Johannesburg Branch
|
Company number OC345806
|
Registration No. 2001/016069/10
|
Principal place of business:
|
1 Fricker Road Illovo, Johannesburg, 2196, South Africa
|
100 Pall Mall, London, SW1Y 5NQ
|
(Private Bag X9936, Sandton, 2146, South Africa)
|
United Kingdom
|