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IN THE HIGH COURT OF SOUTH AFRICA (WITWATERSRAND LOCAL DIVISION)
Case number: 2007/31688
Before the Honourable Judge Claassen
In the ex parte application of:
DIAMOND CORE RESOURCES LIMITED
Applicant
(Incorporated in the Republic of South Africa)
(Registration number 1998/013468/06)
Share code: DMR & ISIN Number: ZAE000076956
("Diamond Core" or "the company")
Upon the motion of Counsel for the Applicant and upon reading the notice of motion and other documents filed of record:
IT IS ORDERED THAT:
- A meeting ("the scheme meeting") in terms of section 311(1) of the Companies Act, 1973 ("the Companies Act"), of the ordinary shareholders of the Applicant registered as such at 17:00 on Thursday, 10 January 2008, or if the scheme meeting is adjourned, at 17:00 on the business day (i.e. any day other than a Saturday, Sunday or official public holiday in South Africa) that is 2 (two) business days before the date of such adjourned meeting ("the scheme members"), be convened under the chairmanship of the Chairperson referred to in paragraph 2 of this Order of Court ("Order"), to be held at 09:00 on Monday, 14 January 2008 (or any adjourned date as determined by the Chairperson ("adjourned meeting"), at Block C, St Andrews Office Park, Meadowbrook Lane, Epsom Downs, Bryanston, 2024 for the purpose of considering and, if deemed fit, approving with or without modification, the scheme proposed by BRC Diamond Corporation between the Applicant and the ordinary shareholders of the Applicant registered as such on the record date for the scheme ("scheme participants"), substantially in the form of the scheme attached to the application in respect of which this Order is given ("the scheme"), provided that the scheme meeting shall not be entitled to agree to any modification of the scheme which will have the effect of diminishing the rights to accrue in terms thereof to scheme participants;
- Lourens van Staden or, failing him, Mervyn Taback or, failing both of them, any other independent person nominated for that purpose by Werksmans Incorporated and approved by this Court, be and is hereby appointed as Chairperson of the scheme meeting ("Chairperson");
- The Chairperson is authorised to:
| 3.1 | procure the publication of the notice of scheme meeting; |
| 3.2 | procure dispatch of the relevant document in connection with the scheme; |
| 3.3 | convene the scheme meeting; |
| 3.4 | adjourn the scheme meeting from time to time if the Chairperson considers it necessary or desirable to do so; |
| 3.5 | appoint one or more scrutineers for the purpose of the scheme meeting or any adjournment thereof; |
| 3.6 | determine:
| 3.6.1 | the validity and acceptability of forms of proxy submitted for use at the scheme meeting and/or any adjournment thereof; and |
| 3.6.2 | the procedure to be followed at the scheme meeting and/or any adjournment thereof; |
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| 3.7 | accept the forms of proxy handed to him by no later than 10 (ten) minutes before the scheme meeting is due to commence or recommence after any adjournment; |
- The Applicant shall cause a notice convening the scheme meeting (substantially in the form attached to the papers before the Court) to be published once in each of the Government Gazette, Business Day, Sunday Times, Die Beeld and Rapport in South Africa, at least 14 (fourteen) calendar days before the date of the scheme meeting. The said notice shall state:
| 4.1 | the time, date and venue of the scheme meeting; |
| 4.2 | that the scheme meeting has been convened in terms of this Order to consider and, if deemed fit, approve, with or without modification, the scheme; |
| 4.3 | that a copy of this Order, the scheme and the statement in terms of section 312(1) of the Companies Act may be inspected free of charge during normal business hours at any time prior to the scheme meeting at the registered office of the Applicant at Block C, St Andrews Office Park, Meadowbrook Lane, Epsom Downs, Bryanston, 2024; |
| 4.4 | that a copy of this Order, the scheme and the statement in terms of section 312(1) of the Companies Act may be obtained free of charge on request during normal business hours at any time prior to the scheme meeting at the address given in paragraph 4.3 above; and |
| 4.5 | the basic characteristics of the scheme; |
- Copies of:
| 5.1 | the scheme and the statement in terms of section 312(1) of the Companies Act, substantially in the form of the scheme and the statement attached to the papers before the Court; |
| 5.2 | the notice convening the scheme meeting, substantially, in the form of the notice attached to the papers before the Court, stating the time, date and place of the scheme meeting; |
| 5.3 | the form of proxy to be used at the scheme meeting, substantially in the form of the form of proxy attached to the papers before the Court; and |
| 5.4 | this Order, shall be sent by the Applicant by pre-paid registered post at least 14 (fourteen) calendar days before the date of the scheme meeting to:
| 5.4.1 | each ordinary shareholder of the Applicant whose name appears:
| 5.4.1.1 | on the Applicant's register and whose name and address is identified by the transfer secretaries of the Applicant (the "Transfer Secretaries"); and |
| 5.4.1.2 | on each of the Applicant's sub- registers (as administered by a Central Securities Depository Participant ("CSDP")) and whose name and address on such sub - register is identified to the Transfer Secretaries by Strate Limited ("Strate") after enquiry by the Transfer Secretaries (in terms of the statutory rules and regulations governing dematerialised shares), to that ordinary shareholder's address appearing in the register and relevant sub - register (as the case may be); and | |
| 5.4.2 | each person whose name and address is identified to the Transfer Secretaries by Strate (after enquiry by Strate (in terms of the statutory rules and regulations governing dematerialised shares) of the relevant CSDPs and broking members (equities) of the JSE Limited ("JSE") whose nominee companies hold dematerialised shares on behalf of a beneficial owner) as being a person who is beneficially entitled to ordinary shares in the Applicant and to whom such relevant CSDPs and JSE broking members are obliged by statute, regulation, agreement or otherwise to procure such posting, to that person's address so identified to the Transfer Secretaries by Strate; |
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- The identification of each such ordinary shareholder and person beneficially entitled to the Applicant's ordinary shares and their respective addresses referred to in paragraph 5.4 shall take place as at 17:00 on the day not more than 5 (five) business days before the date of posting;
- A copy of the documents referred to in paragraph 5 above shall lie for inspect ion at the registered office of the Applicant at Block C, St Andrews Office Park, Meadowbrook Lane, Epsom Downs, Bryanston, 2024 during normal business hours for at least 14 (fourteen) calendar days prior to the date of the scheme meeting;
- The Chairper son shall report the results of the scheme meeting to the Court on Tuesday, 22 January 2008 at 10:00 or so soon thereafter as Counsel may be heard;
- The report required by the Court from the Chairperson shall give details of:
| 9.1 | the number of the scheme members present in person (including those represented) at the scheme meeting and any adjournment thereof and the number of ordinary shares held by them; |
| 9.2 | the number of the scheme members represented by proxy at the scheme meeting and any adjournment thereof and the number of ordinary shares held by them, together with information as to the number represented by the Chairperson in terms of proxies; |
| 9.3 | the number of ordinary shares held by all scheme members; |
| 9.4 | any proxies which have been disallowed; |
| 9.5 | all resolutions passed at the meeting and any adjournment thereof with particulars of the number of votes cast in favour of and against each such resolution and of any abstentions, indicating how many votes were cast by the Chairperson in terms of proxies; |
| 9.6 | all rulings made and directions given by the Chairperson at the scheme meeting and any adjournment thereof; |
| 9.7 | the relevant portions of documents and reports submitted or tabled at the scheme meeting and any adjournment thereof which bear on the merits or demerits of the scheme, including copies thereof; and |
| 9.8 | the main points of any other proposals which were submitted to the scheme meeting and any adjournment thereof; |
- The Applicant shall arrange to make available at the place mentioned in paragraph 4.3 (and the notice of the scheme meeting which is published and/or sent to the ordinary shareholders of the Applicant shall include a statement that it will be so available) a copy of the Chairperson's report to the Court, free of charge, to any scheme member on request during normal business hours, for at least 7 (seven) calendar days before the date, or any extension of such date, fixed by the Court for the Chairperson to report back to it, being Tuesday, 22 January 2008;
- Each scheme member who holds certificated ordinary shares in the Applicant or dematerialised ordinary shares in the Applicant through a CSDP or broker with "own-name" registration and who wishes to vote by proxy at the scheme meeting, should complete and sign the form of proxy (referred to in 5.3 above) in accordance with the instructions contained therein and post such form of proxy to, or lodge it with, the Transfer Secretaries, Computershare Investor Services 2004 (Proprietary) Limited, Ground Floor, 70 Marshall Street, Johannesburg, 2001 (PO Box 61051, Marshalltown, 2107), so as to be received by no later than 09:00 on Friday, 11 January 2008. Alternatively, the form of proxy may be handed to the Chairperson of the scheme meeting by no later than 10 (ten) minutes before the time for which the scheme meeting or any adjournment thereof has been convened; and
- Each scheme member who holds dematerialised shares in the Applicant through a CSDP or broker and who does not have "own - name" registration ("dematerialised scheme member") must give his/her voting instructions to his/her CSDP or broker by the time and in the manner prescribed in the custody agreement concluded between the relevant scheme member and his/her CSDP or broker. If a dematerialised scheme member wishes to attend and vote at the scheme meeting in person or be represented thereat by proxy he/she should timeously inform his/her CSDP or broker of his/her intention to attend and vote in person at the scheme meeting or be represented by proxy thereat in order for the CSDP or broker to issue him/her with the necessary Letter of Representation to do so.
By order of the court
Registrar
WERKSMANS INCORPORATED
Applicant's Attorneys
155, 5th Street
Sandown
Sandton, 2196
or
Suite 1714 - 17th Floor, Marble Towers
208 - 212 Jeppe Street
Johannesburg
Private Bag 10015
Sandton, 2146
Tel: (011) 535- 8000
Fax: (011) 535- 8600
Ref: Mr K Trudgeon/Mr S Teichner
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