NEWGOLD ISSUER LIMITED (RF)

Transcription

1 THESE LISTING PARTICULARS CONTAIN IMPORTANT INFORMATION ABOUT NEWGOLD ISSUER LIMITED (RF) AND THE PLATINUM DEBENTURES AND SHOULD BE READ CAREFULLY (TOGETHER WITH THE OFFERING CIRCULAR AND PRE-LISTING STATEMENT DATED 18 APRIL 2013, AS AMENDED (THE OFFERING CIRCULAR ) BEFORE INVESTING. YOU ARE ADVISED TO READ AND UNDERSTAND THE CONTENTS OF THESE LISTING PARTICULARS AND THE OFFERING CIRCULAR WHICH SET FORTH INFORMATION THAT A PROSPECTIVE INVESTOR SHOULD KNOW AND CONSIDER BEFORE AN INVESTMENT DECISION IS TAKEN. IT SHOULD BE READ CAREFULLY AND RETAINED FOR FUTURE REFERENCE. IF YOU HAVE ANY QUESTIONS ABOUT THE CONTENTS OF THESE LISTING PARTICULARS YOU SHOULD CONSULT YOUR PROFESSIONAL ADVISOR. The directors of NewGold Issuer Limited (RF), whose names are set out on pages 20 to 22 of these Listing Particulars, accept responsibility for the contents of these Listing Particulars and, to the best of their knowledge and belief, and after making reasonable enquiries, the information contained in this document is in accordance with the facts and that these Listing Particulars make no omission likely to affect the import of information. Prospective purchasers of any exchange traded funds should ensure that they fully understand the nature of exchange traded fund and the extent of their exposure to risks, and that they consider the suitability of Platinum Debentures as an investment in the light of their own circumstances and financial position. NEWGOLD ISSUER LIMITED (RF) (Incorporated in the Republic of South Africa on 27 May 2004) (Registration number 2004/014119/06) ( NewGold or Issuer ) Abbreviated name: NewPlat JSE Symbol: NPL ISIN Code: ZAE LISTING PARTICULARS relating to the Secondary Listing of Platinum Debentures issued by NewGold (which is already listed on the Johannesburg Stock Exchange ( JSE )) on the Stock Exchange of Mauritius Ltd ( SEM ) with effect from the commencement of trading on 24 th February An application has been made to the SEM for the listing of 400, 000 Platinum Debentures at the price to be determined pursuant to the calculation on page 27 and on first day of trading, 400, 000 Platinum Debentures will be made available for trading. Originator JSE Sponsor SEM Executing Broker Mauritian Legal Advisor Date: 15 th November 2013 Listing Particulars Number: LEC/I/06/2013 1

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3 TABLE OF CONTENTS 1. CORPORATE DETAILS OVERVIEW INTERPRETATION DESCRIPTION OF STRUCTURE AND FORM OF PLATINUM DEBENTURES GENERAL REGULATORY CONSIDERATIONS RISK FACTORS ADDITIONAL INFORMATION ANNEXURE A ANNEXURE B ANNEXURE C ANNEXURE D

4 1. CORPORATE DETAILS Company NewGold Issuer Limited (RF) Registration number: 2004/014119/06 7th Floor Barclays Towers West 15 Troye Street Johannesburg, South Africa 2001 (PO Box 5438, Johannesburg, 2000), South Africa Tel: Contact person: Judith Chinkumbi JSE Sponsor and Corporate Adviser Absa Corporate and Investment Bank (the investment banking division of Absa Bank Limited affiliated with Barclays Capital) Registration number: 1986/004794/06 15 Alice Lane Sandton 2196 South Africa Tel: Contact person: Bonnie Brink Manager NewGold Managers (Proprietary) Limited Registration number: 2004/007543/07 7th Floor Barclays Towers West 15 Troye Street Johannesburg, South Africa 2001 (Private Bag X10056, Sandton, 2146), South Africa Tel: Contact person: Michael Mgwaba Mauritian Legal Advisor BLC Chambers 5 th Floor, Unicorn Centre 18N Frère Félix de Valois Street Port Louis Mauritius Tel: Contact person: Iqbal Rajahbalee Authorised Representative and SEM Executing Broker Axys Stockbroking Ltd Bowen Square Dr Ferriere Street Port Louis Fax No: Attention: The Manager NewGold Owner Trust The NewGold Issuer Trust Master's reference number: IT8350/04 First Floor 32 Fricker Road Illovo Johannesburg South Africa JSE and SEM Transfer Agent Computershare Investor Services (Proprietary) Limited Registration number: 2004/003647/07 70 Marshall Street 2001 Marshalltown, 2107, South Africa Tel: Contact person: Charles Lourens Auditor Ernst & Young Inc. Registration number: 2005/002308/21 Wanderers Office Park 52 Corlett Drive Secretary Absa Secretarial Services (Proprietary) Limited Registration number: 1973/014516/07 7th Floor Barclays Towers West 15 Troye Street Johannesburg, South Africa 2001 (PO Box 7735, Johannesburg, 2000), South Africa Tel: Contact person: Judith Chikumbi SEM Securities Depository Central Depository & Settlement Co. Ltd 4th Floor, One Cathedral Square Building 16, Jules Koenig Street Port Louis 4

5 Illovo 2196 South Africa (Private Bag X14, Northlands, 2116) Mauritius Tel:

6 2. OVERVIEW The following is a summary of the terms and conditions of an investment in the NewGold Platinum Debentures. This overview should be read in conjunction with the full text of these Listing Particulars from which it is derived. Words used in this section shall have the same meaning as defined in Section 3 of these Listing Particulars, unless they are defined in this section or the use thereof is clearly inappropriate from the context. NewGold conducts the business of establishing and operating exchange traded funds listed on the exchange operated by the JSE, the SEM and one or more secondary or dual listings on such other exchanges as NewGold may select from time to time, in relation to the debt instruments issued by it, the value of which tracks the price of gold, platinum or any other commodity. As at the date of these Listing Particulars, gold bullion debentures have been issued by NewGold under and pursuant to the NewGold Prospectus and listing particulars under reference number LEC/I/02/2013. NewGold is a special purpose company that was established in South Africa on 27 May 2004 under the name Lexpub 39 Investments Limited. The NewGold s Platinum Exchange Traded Fund currently tracks the price of Platinum. It does so by: issuing Platinum Debentures on the terms and subject to the conditions more fully described in these Listing Particulars, as read with the Offering Circular, each of which references and is linked to a specified quantity of Platinum (the Reference Quantity ) and the value of which (both upon first issue and subsequent redemption) is equal to the value of the Reference Quantity of Platinum at the applicable time; using the proceeds of the issue of each Platinum Debenture to acquire the Reference Quantity of Platinum. The Platinum so acquired is in the form of ingots or plates complying with the rules of the LPPM relating to good delivery and fineness from time to time, which Platinum is retained in safe custody with the Custodian pursuant to the Custody Agreement; and allowing the holders of Platinum Debentures to either trade same in the Exchange Traded Funds sector of the JSE or, following the Secondary Listing, on the SEM. In order to meet the requirements of the regulatory environment in which NewGold operates, the debt instruments issued by NewGold have been structured such that they do not give a Platinum Debenture Holder any ownership or title to any Platinum held by NewGold. Further, so as to comply with the regulatory framework in which it will operate, NewGold has: obtained the approval of the South African Reserve Bank to buy, borrow, lend and sell Platinum as contemplated in Exchange Control Regulation 2 and has been exempted from Exchange Control Regulation 5; obtained the approval of the JSE and the South African Reserve Bank for the primary listing of the Platinum Debentures on the JSE and issued the Offering Circular in connection therewith; Obtained the approval of the SEM for the secondary listing of the Platinum Debentures on the Official List of the SEM; and In order to fund the costs of maintaining the corporate status of NewGold and to meet the liabilities of NewGold in respect of management, marketing and custodial fees (as described in these Listing Particulars) NewGold, at fixed monthly intervals, sells a fixed, prescribed quantity of Platinum in order to meet the Monthly Platinum Sales Charge. The quantity of Platinum so sold effectively reduces the Reference Quantity of Platinum in accordance with the formula set out in the definition of Reference Quantity at page 14. NewGold, being a special purpose company, has no employees and the management of NewGold is outsourced to the Manager which is another special purpose company, NewGold Managers (Proprietary) Limited. Investing in the Platinum Debentures involves risks. See Section 7 of these Listing Particulars entitled Risk Factors for a description for some of the risks inherent therein. 6

7 The Platinum Debentures issued pursuant to the Secondary Listing on SEM will rank pari passu with (i) each other and (ii) all other Platinum Debentures already in issue prior to the Secondary Listing on SEM. NewGold Platinum Debenture is open-ended in nature, is issued over an asset (Platinum), whose price it currently tracks and is fully covered at all times. Rationale for listing of NewGold ETF on the Stock Exchange of Mauritius (SEM) Absa Bank Limited, one of the largest retail banks in South Africa and a member of the Barclays Group, originates the Platinum Exchange Traded Fund (ETF) (the NewPlat ETF), issued by the NewGold Issuer Limited (RF). The NewPlat ETF is the largest platinum ETF in the world, the second largest commodity ETF in Africa and one of only two commodity backed ETFs listed in Africa (the second being the NewGold ETF, a gold-backed ETF, also issued by the NewGold Issuer Limited (RF)). As part of its objective to assist the development of the ETF market in Africa and expand the investor base for its ETFs, Absa identified an opportunity to list its flagship ETF, the NewPlat ETF, on select African stock exchanges. At present, the NewPlat ETF is listed on the Johannesburg Stock Exchange. Absa believes that listing of the NewPlat ETF on one of the most dynamic stock exchanges on the continent, the SEM, will bring benefits to its ETF franchise, to Mauritian investors who for the first time will get access to platinum investment through a SEMlisted ETF. 7

8 3. INTERPRETATION In these Listing Particulars, unless the context clearly indicates a contrary intention, the following expressions have the following meanings: Absa Accounting Records Allocated Platinum Account Absa Bank Limited acting through its Corporate and Investment Banking Division (registration number 1986/004794/06), a public company duly incorporated in accordance with the laws of South Africa and registered as a bank in terms of the South African Banks Act, 94 of 1990; the books of accounts and accounting systems of NewGold; an allocated platinum account held with the Custodian to which the Platinum acquired by NewGold is credited; Applicable Laws any law applicable to NewGold, including the common law, statutes and sub-ordinate legislation; any regulation, directive, guideline, practice note, notice, ordinance, policy, by-law, order or any other enactment or legislative measure or decision of government (including local and provincial government) or any political sub-division thereof, a municipality or a South African statutory, supervisory or regulatory body, enforcement committee, self-regulatory organisation (including a stock exchange) or other competent authority, which is applicable to NewGold; a decree, treaty or multinational convention to which South Africa is a party; any industry code, policy or standard applicable to NewGold; the listings requirements or rules of a stock exchange on which any Platinum Debenture may be listed from time to time, whether or not such stock exchange is located in South Africa; the King Report on Governance for South Africa, 2009, and the King code of Governance Principles, 2009 (or any report or code which replaces these) and any other code of corporate governance applicable to the Company; accounting standards, such as IFRS, applicable to NewGold; any court order, judgements, decree or other decision of a competent South African court or other South African dispute resolution forum; Applicable Procedures Auditors Block the rules and operating procedures for the time being of the JSE, Strate and/or the Strate settlement agents, as the case may be and in respect of the Secondary Listing, the rules and operating procedures for the time being of the SEM and the CDS; the statutory auditors of NewGold for the time being, being Ernst and Young Inc. as at the date of the Listing Particulars, or such other internationally recognised auditing firm appointed by NewGold from time to time; 400,000 Platinum Debentures; Bridging Loan Agreement the written bridging loan agreement concluded between Absa, NewGold and the Manager dated 17 April 2013, in terms of which, inter alia, Absa undertakes to lend money to NewGold; 8

9 Business Day Certificated Debenture Companies Act a day (other than a Saturday, Sunday or official public holiday within the meaning of the South African Public Holidays Act, 36 of 1994) on which commercial banks are generally open to settle payments in Rand in Johannesburg; a Platinum Debenture that has not been Dematerialised, title to which is represented by a physical document of title; the South African Companies Act, 71 of 2008 (as amended), or any legislation which replaces it; Conditions to Issue the conditions which must be fulfilled prior to the issue of any Platinum Debentures (both in respect of the Offer and each Subsequent Issue), being: - the receipt by NewGold of one or more valid Application Forms in respect of such Platinum Debentures; - in the case of In Specie Subscriptions, the receipt by NewGold of confirmation from the Custodian that the Initial Quantity of Platinum in respect of the Platinum Debentures applied for, has been deposited with the Custodian together with an instruction from the relevant Applicant to transfer such Platinum to the Allocated Platinum Account of NewGold; and - the receipt by NewGold of the Creation Fee in respect of such Platinum Debentures; Conditions to Redemption the conditions which must be fulfilled prior to a Platinum Debenture Holder being entitled to redeem a Platinum Debenture in accordance with the provision of condition 6 of the Platinum Debenture Conditions being: - a Platinum Debenture may only be redeemed together with and as part of so many other Platinum Debentures as will constitute a Block, or more than one Block; and - a Platinum Debenture may only be redeemed on a Trading Day;; CDS Central Depository & Settlement Co. Ltd established in Mauritius pursuant to the CDS Act with the registered address referred to below its name in Section 1; CDS Act Securities (Central Depository, Clearing and Settlement) Act 1996; CDS Participant CDS Rules Creation Fee an entity which has contracted with the CDS to use the depository service or settlement service and which is continued, reinstated or remains as a participant; the rules of the CDS from time to time and for the time being; the fee payable by an Applicant to NewGold for the issue of the Platinum Debentures applied for by such Applicant, being an amount equal to 0.15% of the Offer Price (excluding VAT) of such Platinum Debentures. The Creation Fee may, however, be waived at the discretion of NewGold; 9

10 Custodian Custody Agreement Dematerialised Dematerialised Debenture ETF Event of Default Barclays Bank PLC (company number ), incorporated under the laws of England and Wales, or such other custodian as may be appointed by NewGold from time to time and notified to Platinum Debenture Holders via SENS and the Financial Exchanges; the written custody agreement (as amended, novated and/or replaced from time to time) concluded between NewGold and the Custodian dated 21 January 2013, in terms of which, inter alia, the Custodian is appointed as custodian of the Platinum of NewGold from time to time; the process whereby physical debenture certificates and other documents of title are replaced with electronic records evidencing ownership of Platinum Debentures for the purposes of the CDS Act and the CDS Rules; a Platinum Debenture that has been Dematerialised; the exchange traded fund established by the Transaction Documents and to be operated by NewGold, as described in these Listing Particulars; the occurrence of any of the following events: (a) NewGold being wound up, liquidated and/or placed under business rescue (in any case whether provisions or final), provided that an offer of compromise in terms of section 155 of the Companies Act on terms and conditions approved by the Platinum Debenture Holders by a Special Resolution to that effect and in circumstances where NewGold is solvent shall not constitute a winding-up of NewGold for purposes of this (a); or (b) subject to the proviso in (a) which shall apply mutatis mutandis, NewGold having any application or other proceedings brought against it, in terms of which NewGold is sought to be wound up or placed in liquidation or under business rescue (whether provision or final); or (c) (d) (e) (f) subject to the proviso in (a) which shall apply mutatis mutandis, NewGold committing any act which is or would, if NewGold were a natural person, be an act of insolvency as defined in the Insolvency Act, 24 of 1936; or subject to the proviso in (a) which shall apply mutatis mutandis, NewGold compromising or attempting to compromise with or attempting to defer payment of debt owing by it to its creditors generally; or subject to the proviso in (a) which shall apply mutatis mutandis, any procedural steps being taken by NewGold with a view to effecting a compromise or arrangements with its creditors generally; or NewGold ceasing to carry on NewGold s Business in a normal and regular manner or materially changing the nature of NewGold s Business or, through an official act of NewGold s Board, NewGold threatening to cease to carry on NewGold s Business; Exchange Control Regulations the Exchange Control Regulations, 1961 promulgated in terms of section 9 of the South African Currency and Exchanges Act, 9 of 1933 or its successor; 10

11 Financial Exchange Financial Markets Act Form of Proxy FSC IFRS In Specie Subscription Initial Beneficiary Initial Listing Date Initial Quantity Issue Date Issue Price JSE JSE Listings Requirements Last Practicable Date Licensed Dealing Member Listing Particulars the JSE and/or such other (or additional) financial exchange(s) as may be determined by the Issuer, subject to Applicable Laws; the South African Financial Markets Act 19 of 2012 (as amended), or any legislation which replaces it; an instrument in writing signed by a Platinum Debenture Holder holding a Certificated Debenture or, in the case of a Platinum Debenture Holder holding a Certificated Debenture which is a company or other juristic person, signed on its behalf by a Representative of the company or juristic person appointing a Proxy; The Financial Services Commission of Mauritius; the International Financial Reporting Standards (formerly International Accounting Standards) issued by the International Accounting Standards Board ( IASB ) and interpretations issued by the International Financial Reporting Interpretations Committee of IASB (as amended, supplemented or re-issued from time to time); subscription for Platinum Debentures effected by the delivery by a Qualifying Applicant of Platinum to NewGold; the initial capital and income beneficiary of the NewGold Owner Trust, namely Absa; the date on which the Platinum Debentures are first listed on the JSE, as specified on the cover page of the Offering Circular; one-hundredth of one troy ounce of Platinum (being the quantity of Platinum to which the first Platinum Debentures issued by NewGold were referenced and linked as at the Initial Listing Date); in relation to a Platinum Debenture, the date of actual issue thereof; in relation to each Platinum Debenture, the price (expressed in Rand) at which such Platinum Debenture is issued on the Issue Date thereof, being an amount calculated with reference to the value of the Reference Quantity of Platinum linked to that Platinum Debenture as at the Issue Date thereof and published on SENS; JSE Limited (Registration number 2005/ /06), a public limited liability company incorporated in accordance with the company laws of South Africa and licensed as an exchange under the South African Security Services Act; the Debt Listings Requirements of the JSE from time to time and for the time being, as published by the JSE; the last practicable date prior to finalisation of these Listing Particulars, being 31 October 2013; a duly authorised trading member of the SEM; means the present document (together with the annexures attached hereto) which has been prepared in respect of the Secondary Listing on the SEM of the Platinum Debentures and which supplements the Offering Circular and is to be construed as a supplemental prospectus for the purposes of Annexure D; 11

12 LPPM Management Agreement the London Platinum and Palladium Market; the written management agreement (as amended, novated and/or replaced from time to time) concluded between NewGold and the Manager dated 15 October 2004, and as amended and restated on 11 April 2013 in terms of which, inter alia, the Manager is appointed by NewGold to manage and administer the affairs of NewGold and NewGold s Business and to advise NewGold in relation to the conduct of NewGold s Business; Manager NewGold Managers (Proprietary) Limited (registration number 2004/007543/07), a private company duly incorporated in accordance with the laws of the RSA, or such other manager of NewGold as may be appointed by NewGold in terms of the Management Agreement; Market Maker Absa, having been appointed by the Manager as a market maker for the ETF in terms of the Market Making Agreement to be responsible for establishing and maintaining the secondary market of the Platinum Debentures listed on the JSE and the SEM; Market Making Agreement the written market making agreement (as amended, novated and/or replaced from time to time) concluded between NewGold, the Manager and the Market Maker dated 8 March 2013, in terms of which, inter alia, the Market Maker is appointed by the Manager as a market maker with a view to such Market Marker, in normal market circumstances, endeavouring to provide and maintain a reasonable bid and offer; Mauritius Monthly Platinum Sales Charge The Republic of Mauritius; an amount sufficient inter alia, to meet the monthly fees and expenses of NewGold and to declare and pay dividends to NewGold s shareholders from time to time, which are funded through the sale of Platinum. The amount currently thought to be sufficient to meet such fees and expenses and to declare and pay dividends to the NewGold shareholders is 0.40% per annum of the Platinum held by NewGold from time to time in excess of troy ounces. The Monthly Platinum Sales Charge may be increased at any time, provided the requisite notice period referred to in paragraph18.4 of annexure D of these Listing Particulars is given; NAV NewGold" NewGold s Board NewGold s Business NewGold Owner Trust the Net Asset Value of NewGold; NewGold Issuer Limited (RF) (formerly Lexpub 39 Investments Limited) (registration number 2004/014119/06), a public company duly incorporated in accordance with the laws of the RSA; the board of directors of NewGold from time to time; the business conducted by NewGold from time to time, being, inter alia, establishing and operating exchange traded funds listed on the exchange operated by the JSE and one or more secondary or dual listings on such other exchanges as the Company may select from time to time in relation to the Debentures, the acquisition and holding of Platinum and the sale of Platinum as described or envisaged in the Offering Circular, these Listing Particulars and the Transaction Documents; The NewGold Owner Trust, a trust inter vivos duly established in terms of the NewGold Owner Trust Deed and registered with the Master of the High Court of South Africa (North Gauteng High Court) under reference 12

13 number IT8350/04, which NewGold Owner Trust has been established with the sole purpose of beneficially holding all of the shares in the issued share capital of NewGold; NewGold Owner Trust Deed NewGold Prospectus Nominated Platinum Account Offer Offer Price the written trust deed (as amended, novated and/or replaced from time to time) concluded by Absa (in its capacity as donor) and Maitland Group South Africa Limited (in its capacity as trustee) on 7 September 2004, in terms of which the NewGold Owner Trust is established; the NewGold prospectus dated 27 October 2004, together with the annexures attached thereto, as amended, supplemented or replaced from time to time; the relevant Allocated Platinum Account or Unallocated Platinum Account of a Qualifying Debenture Holder into which the Sale Platinum to be delivered to such Qualifying Debenture Holder pursuant to the exercise of a Platinum Option shall be credited; the first offer to be made by NewGold to institutional and retail investors in the RSA to subscribe for Platinum Debentures referencing in total a maximum of 1,000,000 troy ounces of Platinum, as described in the Offering Circular; in relation to each Platinum Debenture, the price (expressed in Rand) at which such Platinum Debenture is issued on the Initial Listing Date thereof, being an amount calculated with reference to the value of the Initial Quantity and as published on SENS; Offering Circular Originator Platinum Platinum Debenture Platinum Debenture Conditions Platinum Debenture Holder or Platinum Holder Platinum Option the Offering Circular and Pre-Listing Statement on 18 th April 2013 in respect of the initial offer and listing on the JSE of Platinum Debentures (as amended and supplemented from time to time), copies of which may be obtained from the offices of the SEM Executing Broker; Absa; platinum in the form of ingots or plates complying with the rules of the LPPM relating to good delivery and fineness in effect from time to time; a Platinum debenture issued by NewGold in accordance with the Platinum Debenture Conditions, referencing the Reference Quantity. In respect of the Secondary Listing on the SEM and for Mauritius purposes, the Platinum Debenture will be referred to as NewPlat Security and accordingly both the terms Platinum Debenture and NewPlat Security shall bear the same meaning and may be used interchangeably; the terms and conditions of the Platinum Debentures (as amended from time to time) attached as Annexure D, subject to and in accordance with which the Platinum Debentures are issued; in relation to any Platinum Debenture, the person or entity whose name is entered in the Register as the holder of such Platinum Debenture; the right and option of any Qualifying Debenture Holder redeeming one or more Blocks of Platinum Debentures to require NewGold, under Debenture Condition 7, to sell to such Qualifying Debenture Holder a quantity of Platinum equal to the Reference Quantity of the Platinum Debentures so redeemed; 13

14 Platinum Sale Agreement Priority of Payments Proxy Qualifying Debenture Holder Rand or ZAR Redemption Date Redemption Fee Redemption Value Reference Reference Quantity the sale agreement deemed to have been concluded between NewGold and a Qualifying Debenture Holder pursuant to the exercise by such Qualifying Debenture Holder of a Platinum Option, as set out in condition 7 of the Platinum Debenture Conditions; the priority in which creditors of NewGold are to be repaid, as set out in Debenture Condition 8; a person duly appointed under a Form of Proxy to act for and on behalf of a Platinum Debenture Holder holding a Certified Debenture in connection with any meeting or proposed meeting of Platinum Debenture Holders; a Platinum Debenture Holder holding one or more Blocks of Platinum Debentures and who satisfies the Manager that it is in possession of all necessary licences, consents and approvals to buy, own, be in possession of and/or otherwise deal in Platinum; the legal currency of the RSA, being the South African Rand or successor currency; in relation to a Platinum Debenture, the date on which such Platinum Debenture is actually redeemed in accordance with the Platinum Debenture Conditions; the fee payable by a Debenture Holder on the redemption of a Platinum Debenture held by it, being an amount equivalent to 0.15% of the Redemption Value (excluding VAT payable thereon, if any) of such Platinum Debenture; an amount equal to the Sale Proceeds realised or that would have been realised by NewGold pursuant to a sale of NewGold of the Reference Quantity of Platinum to which such Platinum Debenture is linked; the relevant level, value, price or other event relating to commodities to which the principal, interest, redemption amount or any other amount payable on the Notes or to which the Notes are linked, in this case, Platinum; in relation to a Platinum Debenture, the specific quantity of Platinum to which that Platinum Debenture is referenced and linked as at any given point in time, being a quantity calculated in accordance with the following formula: IQ RQ= R where: RQ = IQ = D the Reference Quantity to be determined, expressed in troy ounces; the Initial Quantity of that Platinum Debenture, expressed in troy ounces; D = the number of days between 26 th April 2013 (being the Issue Date of the first Platinum Debenture to have been issued) and the Redemption Date of the Platinum Debenture in respect of which the Reference Quantity is to be determined; and 14

15 1 R = 1 L 1/365 1 x 365 where for purposes of determining R: L = the Monthly Platinum Sales Charge, which Monthly Platinum Sales Charge accrues daily and will be deducted monthly in arrears; Register Representative Residual Beneficiary Rupee or MUR Sale Platinum Sale Proceeds Securities Act 2005 the register of Platinum Debentures, which register shall, in the case of JSE listed Dematerialised Debentures, be kept by Strate, in the case of SEM listed Dematerialised Debentures, be kept by CDS; a person authorised by a resolution of a corporate Platinum Debenture Holder s directors or other governing body to act as its representative in connection with any meeting or proposed meeting of Platinum Debenture Holders; the residual beneficiary of the NewGold Owner Trust, namely The Nelson Mandela Children s Fund (Non-Profit Organisation, registration number ); The legal currency of Mauritius; the Platinum to be sold by NewGold to a Qualifying Debenture Holder exercising a Platinum Option in terms of a Platinum Sale Agreement; the proceeds realised by NewGold from the sale of Platinum in the spot market in the Platinum P.M.-FIX on redemption of all or any of the Platinum Debentures issued by it, less the costs of arranging and completing such sale, storage costs, insurance costs and all applicable Taxation payable in connection with such sale; The Securities Act no. 22 of 2005 of Mauritius; SEM Secondary Listing The Stock Exchange of Mauritius Ltd; the secondary listing of the NewPlat ETF on the SEM with effect from commencement of trading on 24 th February 2014; SEM Executing Broker SEM Listing Rules SENS South Africa or RSA Axys Stockbroking Ltd or such other entity which may be appointed by NewGold from time to time; the Listing Rules of the SEM from time to time and for the time being; the Securities Exchange News Service, an office of the JSE; the Republic of South Africa; South African Precious Metals Act Special Resolution the Precious Metals Act No. 37 of 2005 of South Africa; a resolution passed at a properly constituted meeting of Platinum Debenture Holders which shall be required to be adopted with the support of at least 75% of the voting rights held by the Platinum Debenture Holders exercised on the resolution presented at that meeting (either 15

16 present in person or able to participate in the meeting by electronic communication, or to be represented by a Proxy who is present in person or able to participate in the meeting by electronic communication, and voting whether on a show of hands or on a poll); Strate Strate Limited, (registration number 1998/022242/06), a public company duly incorporated in accordance with the laws of the RSA, which is a registered central securities depository in terms of the Securities Services Act and which is responsible for the electronic settlement system of the JSE; Strate System Subsequent Issue an electronic custody, clearing and settlement system for all transactions concluded in respect of securities listed on the JSE and managed by Strate; an issue of further Platinum Debentures by NewGold to one or more specifically-named subscribers therefor made subsequent to the date of the Offer; Taxation Trading Day Transaction Documents all taxes, duties, assessments, levies and/or governmental charges (including any penalty in respect thereof and interest thereon) payable to any governmental authority or any political sub-division thereof or any authority or agency therein or thereof having the power to tax, including income tax, VAT and regional services levies; for purposes of redemption of Platinum Debentures: listed on the JSE, a day on which trading takes place on the JSE; and listed on the SEM, a day on which trading takes place on the JSE and the SEM; and for all other purposes, a day on which trading takes place on the JSE and the SEM; collectively: the Platinum Debenture Conditions; the Management Agreement; the Custody Agreement; the Market Making Agreement; the NewGold Owner Trust Deed; the Bridging Loan Agreement; the memorandum of incorporation of NewGold; and the Offering Circular, all as amended, novated and/or replaced from time to time; Transfer Agent with regard to registry services in respect of both Certificated Debentures and Dematerialised Debentures, Computershare Investor Services Proprietary Limited (registration number 2004/003647/07), a private company duly incorporated in accordance with the laws of the RSA, and with regard to the administration of the Register of Dematerialised Debentures, Computershare Limited (registration number 2000/006082/06), a public company duly incorporated in accordance with the laws of the RSA; Transfer Form the written form for transfer of any Platinum Debenture evidenced by a certificate in a form approved by the Transfer Agent and signed by the transferor and the transferee; 16

17 Trustee Unallocated Platinum Account United States Dollars VAT the trustee for the time being of the NewGold Owner Trust, currently Maitland Group South Africa Limited; an unallocated Platinum Account held with the Custodian to which a quantity of Platinum may be credited; the legal currency of the United States of America; and value-added tax levied in terms of the South African Value-Added Tax Act 89 of All references in these Listing Particulars to any Act, regulation, or other statutory provision shall be a reference to such Act, regulation or other statutory provision as amended and/or re-promulgated from time to time and for the time being. All expressions in these Listing Particulars which denote the singular shall include the plural, any gender shall include the other genders, and a natural person shall include artificial or juristic persons and vice versa. Unless otherwise provided or the context otherwise required, the reference to a Section is to a section of these Listing Particulars. Capitalised terms used in these Listing Particulars but not defined herein shall have the meanings assigned to them in the Offering Circular. In the event of there being any conflict between the terms of these Listing Particulars and any of the terms of Annexure D, the terms as defined in Annexure D of these Listing Particulars shall prevail. 17

18 4. DESCRIPTION OF STRUCTURE AND FORM OF PLATINUM DEBENTURES Words used in this section shall have the same meaning as defined in Section 3 of these Listing Particulars and in the Platinum Debenture Conditions, unless they are defined in this section or the use thereof is clearly inappropriate from the context. The following description of structure and of the Platinum Debentures consists of a summary of the ETF and of the Platinum Debenture Conditions. As such, it does not purport to be complete. Accordingly, this summary is qualified in its entirety by reference to the Transaction Documents (which are available for inspection at the places and during the times described in these Listing Particulars) and the Platinum Debenture Conditions. 1. Introduction and Schematic Diagram 1.1. NewGold uses the proceeds of the issue of Platinum Debentures to acquire Platinum. The Platinum acquired and held by NewGold is held in safe custody by the Custodian for, on behalf and in the name of, NewGold in terms of the Custody Agreement. NewGold funds and defrays its fees and expenses and pays dividends to its shareholder, The NewGold Owner Trust, by selling Platinum at monthly intervals, thereby reducing the Reference Quantity of Platinum to which each Platinum Debenture is linked by a pro rata portion of the Monthly Platinum Sales Charge NewGold, being a special purpose company, does not have any employees. Accordingly, in terms of the Management Agreement, the Manager manages and administers the business and affairs of NewGold and advises NewGold in relation to the conduct of NewGold s Business The diagram below describes, in schematic form, the various entities and relationships referred to above. Absa Bank Limited Bridging Loan Agreement The NewGold Owner Trust 49% 100% (beneficially held) NewGold Managers (Proprietary) Limited 51% Platinum Debentures (tracking the value of Platinum and Management Agreement and payment of agreed management fee NewGold Issuer Limited (RF) listed on the JSE and SEM) Platinum Debenture Holders NewGold purchases Platinum and concludes the Custody Agreement in relation thereto Custodian Gold Bullion Debentures issued under and pursuant to the NewGold Prospectus (tracking the value of Gold listed on the JSE and SEM) Gold Bullion Debenture Holders 18

19 2. NewGold Owner Trust 2.1. NewGold is a subsidiary of the NewGold Owner Trust. The NewGold Owner Trust is an independent trust which was specifically established in the RSA on 10 September 2004 in terms of the NewGold Owner Trust Deed with the sole purpose of beneficially holding the entire issued share capital of NewGold. The NewGold Owner Trust is the registered and beneficial owner of 94 ordinary par value shares of ZAR1 each in the issued share capital of NewGold (constituting 94% of the issued shares in NewGold) and is the beneficial (but not registered) owner of the remaining 6 ordinary par value shares of ZAR1 each in the issued share capital of NewGold (such balance constituting the remaining 6% of the issued shares in NewGold). The NewGold Owner Trust is registered with the Master of the South Gauteng High Court under reference number IT8350/04. The principal place of business of the NewGold Owner Trust is at First Floor, 32 Fricker Road, Illovo Boulevard, Johannesburg. The trustee of the NewGold Owner Trust is currently Maitland Group South Africa Limited The Initial Beneficiary is a discretionary capital and income beneficiary. The Trustee is under no obligation to make any award to the Initial Beneficiary but shall consider (without being under any obligation to do so), making awards to the Initial Beneficiary on the last Business Day of each calendar quarter The person appointed as the Trustee may be disqualified from acting as such in certain circumstances including if the Initial Beneficiary in its discretion, so determines Upon the winding-up of the NewGold Owner Trust, after all of the liabilities of the NewGold Owner Trust have been discharged, the Residual Beneficiary shall be entitled to the remainder of the assets of the NewGold Owner Trust. 3. NewGold 3.1. NewGold is a special purpose, public company having a share capital, which was incorporated in the RSA in terms of the Companies Act on 27 May 2004 for the specific purpose of conducting the ETF. NewGold is ring-fenced and insolvency remote in that the memorandum of incorporation of NewGold limit NewGold s legal capacity to conduct any business or incur any liability other than that permitted in terms of the Transaction Documents, without the prior consent of the Platinum Debenture Holders by a Special Resolution to that effect NewGold has an authorised share capital of 1,000 ordinary par value shares of ZAR1 each, of which 100 ordinary par value shares of ZAR1 each have been issued. As set out above, all of these issued shares are beneficially owned by the NewGold Owner Trust, although 6 of such issued shares are held by nominees In terms of the Transaction Documents, NewGold is entitled to issue Platinum Debentures at any time provided that the Conditions of Issue have been fulfilled In terms of the memorandum of incorporation of NewGold, NewGold s Board must at all times comprise at least three independent directors. These directors are appointed (and from time to time replaced) by the NewGold Owner Trust. All directors appointed by the NewGold Owner Trust must be independent of the Originator of the ETF, Absa. A fourth director of NewGold may be appointed (and from time to time replaced) by Absa. The directors are appointed in terms of the provisions of the memorandum of incorporation of NewGold. In addition, the memorandum of incorporation of NewGold requires that each and every resolution passed by NewGold s Board must be passed with the approval of at least 2 independent directors and that no meeting of NewGold s Board will be quorate unless at least 2 independent directors are present. The memorandum of incorporation of NewGold further does not require a director or an alternate director to hold qualifying shares in NewGold. The directors are not paid any remuneration by NewGold for their services as such but are paid a fee by the Manager. 19

20 3.5. The full names, ages, addresses and occupations of the directors of NewGold are set out below: Edward Montagu Southey (Chairman) age: 71; nationality: South Africa; qualifications: BA LLB; business address: 16 Fricker Road, Illovo Boulevard, Johannesburg, 2196; occupation and experience: Practising Attorney; directorships/partnerships in the five years preceding the date of these Listing Particulars: Accelerator Fund 1 (Proprietary) Limited, Accelerator Fund 1 Security SPV (Proprietary) Limited, Accelerator Fund 2 (Proprietary) Limited, Accelerator Fund 2 Security SPV (Pty) Limited, Accelerator Fund 3 (Proprietary) Limited, Accelerator Fund 3 Security SPV (Proprietary) Limited, Assore Limited, Attorneys Insurance Indemnity Fund, Auto Series Investments Ltd, Blue Granite Investments No. 1 (Proprietary) Limited, Blue Granite Investments No. 2 (Proprietary) Limited, Blue Granite Investments No. 3 (Proprietary) Limited, Blue Granite Investments No. 4 (Proprietary) Limited, Blue Granite Investments No. 5 (Proprietary) Limited, Blue Granite No. 1 Security SPV (Proprietary) Limited, Blue Granite No. 2 Security SPV (Proprietary) Limited, Blue Granite No. 3 Security SPV (Proprietary) Limited, Blue Granite No. 4 Security SPV (Proprietary) Limited, Collaterised Auto Receivables Securitisation 1 Guarantor (Proprietary) Limited, DHB Investments (Proprietary) Limited, Eagle Newco Number One (Proprietary) Limited, Eagle Security Co Number One (Proprietary) Limited, Edu Loan Capital Proprietary Limited, Epoch Investment Holdings Limited, Epoch Two Investment Holdings Limited, Fintech Lease Rentals (Proprietary) Limited, FNB Retail Equities Nominees (Pty) Limited, Grainflow Investments Limited, Grayston Conduit 1 (Pty) Ltd, Home Obligors Mortgage Enhanced Securities (Pty) Ltd, Indwa Investments Limited, ivuzi Investments Limited, Lexshell 596 Investments (Pty) Ltd, Lexshell 624 Investments (Pty) Ltd, Main Street 65 (Pty) Ltd, Main Street 220 (Pty) Ltd, Main Street 367 (Pty) Limited, Main Street 766 (Pty) Ltd Main Street 728 (Pty) Ltd, Main Street 789 (Pty) Ltd, Maitland Executors Limited, Maitland Trust Limited, Maitland Trust (KZN) (Proprietary) Limited,Maitland FS Holdings Proprietary Limited, MBT Channel Capital (Pty) Ltd, Micawber 388 (Pty) Ltd, Mondi SSC (SA) (Proprietary) Limited, NBC Future Guard Security SPV (Proprietary) Limited, Newgold Issuer Limited (RF), Newgold Managers (Proprietary) Limited,Newfunds Proprietary Limited, Nqaba Finance 1 (Proprietary) Limited, Private Commercial Mortgages (Proprietary) Limited, Private Mortgages 1 (Proprietary) Limited, Private Mortgages 2 (Proprietary) Limited, Private Mortgages 3 (Proprietary) Limited, Procul Limited, Philco One Hundred and Twenty Eight (Proprietary) Limited, Sanlam Home Loans 101 Security SPV (Proprietary) Limited, Sanlam Home Loans 102 (Proprietary) Limited, Sanlam Home Loans 102 Security SPV (Proprietary) Limited, Sanlam Home Loans 103 (Proprietary) Limited, Sanlam Home Loans 103 Security SPV (Proprietary) Limited, Schindler Lifts SA (Proprietary) Limited, Security SPV 1 (Proprietary) Limited Security SPV 2 (Proprietary) Limited, Security SPV 3 (Pty) Ltd, Security SPV 4 (Proprietary) Limited, Secured Mortgages One (Pty) Ltd, South African Securitisation Programme (RF) (Proprietary) Limited,, Tarl Investment Holdings Limited, The Oppenheimer Trust (Proprietary) Limited, Theseus Trustees (South Africa) (Proprietary) Limited, Trackhedge (RF) Limited, Trackhedge Managers (Pty) Ltd, Usat Trust Limited, Vukile Investment Property Securitisation (Pty) Ltd Edwin Marcus Letty age: 72; 20

21 nationality: South African; qualifications: Admitted Attorney, Notary and Conveyancer; business address: 32 Fricker Road, Illovo Boulevard, Johannesburg, 2196; occupation and experience: Attorney, notary and conveyancer, CEO and director of various companies; directorships / partnerships in the five years preceding the date of these Listing Particulars: Amber House Fund 2 Security SPV (RF) Proprietary Limited, (, Blue Granite Investments No. 5 Security SPV (Proprietary) Limited, Brandmark (Proprietary) Limited, Collateralised Auto Receivables Securitisation 1 Guarantor (Proprietary) Limited, Eagle Newco Number One (Proprietary) Limited, Eagle Securityco Number One (Proprietary) Limited, Fedtrust (Proprietary) Limited, Fedprop (Proprietary) Limited, Fedgroup Life Limited, Fedbond Nominees (Proprietary) Limited, Fedbond Participation Mortgage Bond Managers (Proprietary) Limited, Grayston Conduit 1 Security SPV 1 (Proprietary) Limited, Grayston Conduit 1 Security SPV 4 (Proprietary) Limited, Grayston Conduit 1 Security SPV 5 (Proprietary) Limited, La Maison Vinasse (Proprietary) Limited, La Vinasse Vineyards (Proprietary) Limited, NBC Future Guard Proprietary Limited, Newgold Issuers (RF) Limited, Newgold Managers (Proprietary) Limited, NewFunds (Proprietary) Limited, Private Commercial Mortgages Security SPV Series 1 Proprietary Limited,, Private Commercial Mortgages Security SPV Series 2 Proprietary Limited, Private Mortgages 1 SPV Proprietary Limited, Private Mortgages 2 SPV Proprietary Limited, Private Mortgages 3 SPV Proprietary Limited, Rich Rewards Trading 669 Proprietary Limited,Renewable Energy Debt Finance Proprietary Limited, Sanlam Home Loans 101 Security SPV (Proprietary) Limited, Sanlam Home Loans 102 Security SPV (Proprietary) Limited, Sanlam Home Loans 102 (Proprietary) Limited, Sanlam Home Loans 103 (Proprietary) Limited, Sanlam Home Loans 103 Security SPV (Proprietary) Limited Tennant Benefit Consultants (Proprietary) Limited, The Thekwini Fund 6 Security SPV (Pty) Ltd, The Thekwini Fund 7 Security SPV (Pty) Ltd, The Thekwini Fund 8 Security SPV (Pty) Ltd, The Thekwini Fund Private Placements Security SPV (Pty) Ltd, The Thekwini Warehousing Conduit (Pty) Ltd, The Thekwini Warehousing Conduit Security SPV (Pty) Ltd, The South African Home Loans Hedge Company Proprietary Limited, Tiddlers Proprietary Limited, Trackhedge Managers (Proprietary) Limited, Trackhedge (RF) Limited, Vukile Investment Property Securitisation Proprietary Limited Timothy John Fearnhead age: 65; nationality: South African; qualifications: CA(SA); Diploma in Adv. Banking business address: 13 Argyle Avenue, Craighall occupation and experience: Independent Consultant; directorships/partnerships in the five years preceding the date of these Listing Particulars: NewGold Issuer (RF) Limited, The South African Bank of Athens Limited, Alexander Forbes Preference Share Investments Limited, Fintech Receivables 2 (Pty) Limited, FirstRand Insurance Services Company Limited, Onthecards Investments II (Pty) Ltd, Hentig 3287 (Pty) Limited, Constantia Insurance Company Limited, Constantia Life and Health Assurance Company Limited, Constantia Insurance Holdings (Pty) Ltd,Newgold Issuer Limited, Trackhedge (RF) Limited, Truck and General Insurance Company Limited, 21

22 Vladimir Nedeljkovic age: 50; Constantia Life Limited, AGRE Insurance Company Limited, Bleau Enterprises (Pty) Ltd, Campaign Investments (Pty) Ltd, Vumelana Advisory Fund NPC (RF), Accelerate Property Fund nationality: South African; qualifications: B.Sc (Hons), M.Sc, PhD, MBA business address: 15 Alice Lane, Sandton occupation and experience: Principal, Head :Investments 3.6. The directors of NewGold are appointed for a term of 3 years and they retire by rotation as per the terms of the memorandum of incorporation. Each of the directors of NewGold will accordingly hold office until the end of the term and eligible for re-election. None of the directors of NewGold will, in his capacity as such, be remunerated by NewGold None of the directors of NewGold has been involved in or has been subject to any: bankruptcies, insolvencies or individual voluntary compromise arrangements; 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 the director is or was a director with an executive function at the time of or within twelve months preceding such events; compulsory liquidations, administrations, or partnership voluntary arrangements of any partnerships where the director was a partner at the time of or within twelve months preceding such events; receiverships or any asset/s of such person or of a partnership of which the individual is or was a partner at the time of or within the twelve months preceding such event; public criticism by statutory or regulatory authorities or disqualified by a court from acting as a director or in the management or conduct of the affairs of any company; or offence involving dishonesty NewGold has no employees (and is not in terms of its memorandum of incorporation permitted to have any employees) and, accordingly, in order to ensure the efficient running and management of NewGold s Business, NewGold concluded the Management Agreement. 4. Platinum Debentures 4.1. The Platinum Debentures are issued by NewGold in the form of debentures as contemplated in the Companies Act. The Platinum Debentures constitute senior, unsecured obligations of NewGold and are issued in denominations linked to the value of the Reference Quantity in accordance with the Platinum Debenture Conditions The creation and redemption feature of the Platinum Debentures enables new Platinum Debentures to be created and for existing Platinum Debentures listed on the JSE to be redeemed subject to compliance with the Conditions to Redemption. A Platinum Debenture may only be issued if the Conditions to Issue have been fulfilled The Platinum Debentures do not bear interest and rank pari passu amongst each other. A Platinum Debenture only evidences the financial indebtedness of NewGold to the relevant Platinum Debenture 22

23 Holder (the amount of which is dependant on the value at any point in time of the Reference Quantity of Platinum to which such Platinum Debenture is linked) and does not grant or constitute any ownership, right or beneficial or other interest in or to any Platinum. A Platinum Debenture Holder, accordingly, does not have or acquire any ownership, right or beneficial or other interest in or to any Platinum held by NewGold from time to time The Platinum Debentures are listed on the Main Board of the JSE on the JSE s Exchange Traded Funds sector (as a primary listing) under the abbreviated name NewPlat, JSE Code NPL and ISIN Code ZAE The Platinum Debentures are issued in Dematerialised form and all trades and transactions are made through the Strate System in accordance with the Applicable Procedures The SEM has granted a Secondary Listing for the Platinum Debentures in the ETF sector of the Official Market of the SEM under the abbreviated name NewPlat and ISIN Code ZAE The Platinum Debentures will be issued in Dematerialised form and all trades and transactions on the SEM are made through the CDS in accordance with the CDS Rules and the Applicable Procedures Further Platinum Debentures may obtain a secondary listing on other exchanges, as determined by the directors NewGold is entitled to require the redemption of the Platinum Debentures if any of the Transaction Documents become illegal or unenforceable and such illegality or unenforceability cannot be remedied through reasonable measures, or if, as a result of any change to or amendment of the application or interpretation of any existing or future law, NewGold is required to make any withholdings or any deduction from payments to be made under the Platinum Debentures as provided under the Platinum Debenture Conditions and such requirement cannot be avoided through reasonable measures available to NewGold. In either such eventuality, NewGold is required to give the Platinum Debenture Holders not less than thirty days and not more than ninety days notice of such redemption. NewGold is also entitled to redeem Platinum Debentures held by a specific Platinum Debenture Holder in the event that NewGold is reasonably of the view that the investment by such Platinum Debenture Holder in the Platinum Debentures may result in NewGold falling foul of the provisions of the South African Financial Intelligence Centre Act, 38 of 2001, or any other Applicable Law In the event of redemption, the Platinum Debentures will be redeemed at their Redemption Value as at the Redemption Date thereof in accordance with the Priority of Payments. The Redemption Value is calculated having regard to the Sale Proceeds realised (in the event where the Platinum Option is not exercised) or the Sale Proceeds that would have been realised (in the event of an exercise of the Platinum Option) through the sale of the Reference Quantity of Platinum in the Platinum P.M.-FIX on the relevant Redemption Date thereof. Any premium or discount to the price in the London PM Fix obtained or incurred by NewGold will be passed on to the relevant Platinum Debenture Holder. This Reference Quantity will be less than the Initial Quantity as it will take into account the Monthly Platinum Sales Charge. NewGold sells Platinum at the end of each month in an amount equal to the Monthly Platinum Sales Charge and uses the proceeds of such sale to pay its fees and expenses and to declare and pay dividends to its shareholders. No dividends are paid to holders of Platinum Debentures. The Monthly Platinum Sales Charge accrues daily on all Platinum held by NewGold from time to time in excess of troy ounces, is deducted monthly in arrears and is currently set at 0.40% per annum (including VAT). The Monthly Platinum Sales Charge will be used to pay, inter alia, fees to the Custodian and the Manager and to pay dividends to the NewGold shareholders, which dividends will be equal to the remainder of the Monthly Platinum Sales Charge after all fees and expenses (as described in paragraph 13 of Section 4 hereof) have been deducted Accordingly, the Reference Quantity reduces each day as the Monthly Platinum Sales Charge accrues Both the Monthly Platinum Sales Charge and the Reference Quantity of each Platinum Debenture as at the end of each month will be published and released by NewGold on NewGold s website Should the fees and expenses of NewGold be higher than anticipated, the Monthly Platinum Sales Charge may be varied by NewGold at any time on ninety days prior notice through SENS and with simultaneous notifications to the SEM, provided that should NewGold be or become obliged to pay any 23

24 amount in respect of Taxation on short notice, only thirty days prior written notice of the variation of the Monthly Platinum Sales Charge shall be required Subject to what is set out above, all amounts payable by NewGold in respect of the Platinum Debentures listed on the SEM will be paid by NewGold in Rupee in cash in accordance with the Priority of Payments. All such payments in respect of the Platinum Debentures will further be made without withholding or deduction for or on account of any present or future Taxation, unless such withholding or deduction is required by Applicable Law. If so required, NewGold will make such payments after such withholding or deduction has been made (where applicable) and NewGold will not be obliged to make any additional payments to Platinum Debenture Holder in respect of such withholding or deduction. 5. Creation and Redemption Fees 5.1. NewGold does not charge fees on creation or fees on redemption to investors who buy and sell the Platinum Debentures on the secondary market, including the JSE and SEM. Such fees are only payable on the creation and redemption of Platinum Debentures directly with NewGold on the primary market. Given that the creation and redemption of Platinum Debentures are only available in respect of Platinum Debentures listed on the JSE (subject to the Conditions to Issue or the Conditions to Redemption, as the case may be) and Platinum Debenture Holders holding their Platinum Debentures on the SEM will only be able to trade on the secondary market, these fees will in normal circumstances not apply to SEM investors If NewGold exercises its rights to require the redemption of some or all of the Platinum Debentures in accordance with the Platinum Debenture Conditions, it will charge each Platinum Debenture Holder a Redemption Fee equal to 0.15% of the Redemption Value (excluding VAT) NewGold may vary the redemption fees payable at any time by giving one month s prior notice through SENS and with simultaneous notification to the SEM. 6. Manager 6.1. The Manager is a special purpose private company having a share capital, which was incorporated in the RSA in terms of the Companies Act on 18 March 2004 for the specific purpose of acting as manager of NewGold in terms of the ETF The Manager has an authorised share capital of 1,000 ordinary par value shares of ZAR1 each, of which 100 ordinary par value shares of ZAR1 each have been issued. These issued shares are held as to 49 thereof (constituting 49% of the issued shares of the Manager) by Absa and as to 51 thereof (constituting 51% of the issued shares of the Manager) by the NewGold Owner Trust. The Manager s main business is the provision of asset management and administration services to NewGold The full names, ages, addresses and occupations of the directors of the Manager are set out below: Edward Montagu Southey age: 71; nationality: South African; qualifications: BA LLB; business address: 10 Fricker Road, Illovo Boulevard, Johannesburg, 2196; occupation and experience: Practising attorney Edwin Marcus Letty 24

25 age: 72; nationality: South Africa; qualifications: Admitted Attorney, Notary and Conveyancer; business address: 32 Fricker Road, Illovo Boulevard, Johannesburg, 2196; occupation and experience: Attorney, Notary and Conveyancer, CEO and Director of various companies Kurt Wade van Staden (alternate to Edward Montagu Southey) 7. Management Agreement Age: Nationality: South African Qualifications: BJuris, LLB, MBA Business address: 32 Fricker Road, Illovo Boulevard, Johannesburg, Occupation and experience: Head of Legal and Compliance for an Asset Management Company, provision of various fiduciary services (independent trustee/ and directorships) to special purpose vehicles used in both private and public investment structures In terms of the Management Agreement, NewGold appointed the Manager as the agent of NewGold to act as its manager, inter alia: to oversee the issuing of Platinum Debentures from time to time; to utilise the proceeds derived from the issue of Platinum Debentures to acquire Platinum on behalf of and in the name of NewGold so as to ensure that NewGold s liabilities under the Platinum Debentures are at all times fully hedged; to monitor the performance of the Custodian in terms of the Custody Agreement; to dispose of Platinum at monthly intervals so as to meet the obligations of NewGold in respect of fees and expenses payable from time to time; to monitor the fees and expenses payable by NewGold from time to time and, where applicable, to publish through SENS and the SEM any alterations necessary to the Monthly Platinum Sales Charge or the fees applicable to creation or redemption of the Platinum Debentures; to manage the redemption of the Platinum Debentures; to act as calculation agent under the Platinum Debentures in relation to, inter alia, the Issue Price, the Redemption Value and any fees applicable to the creation and redemption of the Platinum Debentures; to render administrative, bookkeeping and clerical advice and services to NewGold, including: the maintenance of all Accounting Records; the preparation of all Taxation returns and the submission thereof to the relevant authorities; 25

26 the operation and opening of all bank accounts on behalf of and in the name of NewGold; the appointment and dismissal of professional and other advisers, including brokers, auditors and attorneys, after consultation with NewGold; and liaising with the JSE and other exchanges on which the Platinum Debentures may from time to time be listed, with Strate and all regulatory bodies having jurisdiction over NewGold and/or the Platinum Debentures; and to ensure compliance by NewGold with all Applicable Laws The Manager has been appointed as the exclusive agent and manager of NewGold and is not entitled to act as manager to any other person or entity. In rendering its services to NewGold in terms of the Management Agreement, the Manager has to comply with the instructions given to it by NewGold s Board and is obliged to report to NewGold s Board in relation to the activities of the Manager and the performance by it of its duties under the Management Agreement The Manager is, in terms of the Management Agreement, entitled to sub-contract certain or all of its obligations under the Management Agreement with the prior written consent of NewGold s Board. However, notwithstanding the entering into of such subcontracts, the Manager will remain liable to NewGold for the performance of each sub-contractor In consideration for the services rendered by the Manager to NewGold in terms of the Management Agreement, the Manager is entitled to a management fee and to be reimbursed for all costs incurred by it in relation to the services performed by it in terms of the Management Agreement. The management fee shall never exceed an amount equivalent to the Monthly Platinum Sales Charge, after deduction of the additional fees and expenses of NewGold further detailed in the table in paragraph 13 hereof. NewGold will meet its obligations in respect of payment of the aforementioned management fee by disposing of Platinum monthly and reducing the Reference Quantity of Platinum in the Monthly Platinum Sales Charge The appointment of the Manager in terms of the Management Agreement will terminate upon the liquidation or dissolution of NewGold. In addition, the Management Agreement may be terminated by either the Manager or NewGold on not less than thirty Trading Days prior written notice to the other of them to such effect. The Management Agreement may also be terminated by NewGold at any time in the event that the Manager is wound-up (whether provisionally or finally) or placed under judicial management or otherwise breaches its obligations under the Management Agreement The Manager is not liable for any loss suffered by NewGold in connection with the performance of the Manager s duties under the Management Agreement, except where such loss results from fraud, wilful default or gross negligence on the part of the Manager or in connection with the performance or nonperformance of, or the reckless disregard by the Manager of its obligations and duties under the Management Agreement. NewGold has further indemnified the Manager against all liabilities, damages, costs, claims and expenses incurred by it in the performance or non-performance of its obligations and duties under the Management Agreement, save for instances where such loss arises from the fraud, wilful default or gross negligence by the Manager in the performance or non-performance of its obligations and duties or, from the reckless disregard by the Manager of its obligations and duties under the Management Agreement. 8. Custody Agreement 8.1. In terms of the Custody Agreement, NewGold has appointed the Custodian as its custodian of Platinum. Further, in terms of the Custody Agreement, NewGold has opened an Allocated Platinum Account with the Custodian to which all Platinum held by NewGold from time to time will be credited In terms of the Custody Agreement, in order to mitigate a co-mingling risk, all Platinum held in the Allocated Platinum Account of NewGold is physically segregated from and separately identified from all 26

27 other Platinum and other assets of the Custodian (and its other clients). This Platinum will remain the property of NewGold In terms of the Custody Agreement, the Custodian is responsible for the secure safe holding of the Platinum belonging to NewGold. NewGold is, however, entitled to inspect the security arrangements at any time to ensure that it conforms with the standards required by its insurers. With regard to insurance, the Custodian is obliged to arrange insurance cover to the reasonable satisfaction of NewGold, of such a nature that the interests of NewGold equal to the total value of NewGold s Platinum holdings, is adequately insured In consideration for the services rendered by the Custodian to NewGold in terms of the Custody Agreement (including insurance premiums and the like), NewGold will pay to the Custodian a fee calculated on the daily balance of the Allocated Platinum Account of NewGold. Such fee is deducted from the balance of NewGold s Unallocated Platinum Account on the first day of each calendar month. 9. Material Contracts Save for the Transaction Documents and a bridging loan agreement, no material contracts have been entered into by NewGold, either verbally or in writing. 10. Number of Units to be listed The directors of NewGold Issuer Limited (RF) shall initially seek to list 400,000 Platinum Debentures on the SEM. Following the initial listing, the directors of NewGold Issuer Limited (RF) may list additional Platinum Debentures in line with demand and subject to all Applicable Laws. 11. Recent NAV History As at the Last Practicable Date, NewGold's Platinum Debentures have a NAV of MUR Date NAV (MUR) 30 Apr May Jun Jul Aug Sep Oct Details of the Platinum Debentures issued and redeemed by NewGold since NewGold s listing on the JSE are set out in Annexure C. 12. Pricing of NewGold s listed securities The value of each Platinum Debenture will be equal to the equivalent price of spot platinum price multiplied by the $/MUR Exchange Rate (each Platinum Debenture is equivalent to approximately 1/100 ounce of Platinum). For example: Platinum Price: $1,411 per ounce USD/MUR Exchange Rate: As at the Last Practicable Date, the amounts in United States Dollar (USD) have been translated in MUR at the rate of USD 1 = MUR

28 Allocation Factor: security = (($1,411* )* )/100 = MUR On the date of listing on the SEM the same components will be used to determine the security value but will be based on the real time spot values of the Platinum price and the spot price of the Mauritian Rupee on the day. 13. Fees and Expenses The fees and expenses which NewGold may incur in conducting the ETF may include: management fees payable by NewGold to the Manager in terms of the Management Agreement; fees payable to the Custodian in terms of the Custody Agreement; costs of NewGold in publishing information and/or giving notice to the Platinum Debenture Holders; all financial reporting and compliance costs of NewGold; and all fees payable to the JSE, SEM and other regulatory bodies Information regarding, inter alia, the total expense ratio of the ETF (which is an annualised figure calculated every quarter), the NAV and the reference price in connection with the ETF will be published by NewGold on a daily basis on the website The following table sets out the anticipated fees and other amounts payable by NewGold on an annual basis. The figures in this table have been provided for illustration purposes only and may be subject to change: FEE AND/OR AMOUNT EXPENSE Management Fees Custodial Fees In terms of the Management Agreement, NewGold is obliged to pay the Manager a fee equal to 100.1% of all expenses (including the compensation of all the Manager s employees, consultants and subcontractors associated with discharging the Manager s obligations under the Management Agreement) incurred by the Manager in discharging its obligations under the Management Agreement, subject to a maximum fee in an amount equivalent to the Monthly Platinum Sales Charge, after deduction of the fees and expenses set out below. In addition NewGold is obliged to reimburse the Manager with all costs and expenses reasonably and properly incurred by the Manager in rendering the services in terms of the Management Agreement. In terms of the Custody Agreement, NewGold is obliged to pay the Custodian an all inclusive fee of 0.08% of the daily balance of the Allocated Platinum Account of NewGold, payable quarterly. JSE Fees The annual listing fees payable to the JSE will be calculated at 1 basis point of the value of the ETF with a maximum of R356, SEM/CDS Fees (1) Introduction fee payable by NewGold to SEM will be MUR100,000; (2) Annual fee payable presently by NewGold to SEM will be MUR 120,000 which may vary depending on market capitalisation; (3) Annual fee payable presently by NewGold to CDS will be approximately MUR 90,500 (including VAT) which may vary 28

29 depending on market capitalisation. 14. Estimated amount of expenses for the SEM Listing The estimated amount of expenses associated with the application for the Secondary Listing on the SEM payable by NewGold will be MUR414, Dividends NewGold may declare and pay a dividend to its shareholder, namely NewGold Owner Trust. This will be sourced from the Monthly Platinum Sales Charge and any applicable fees for the creation and redemption of the Platinum Debentures after all fees and expenses have been paid. Dividend is paid monthly to the New Gold Owner Trust and averages approximately to Rand two million per month. 16. Director Remuneration The directors do not receive remuneration for their services but are paid a fee by the Manager. 29

30 5. GENERAL Words used in this section shall have the same meaning as defined in Section 3 of these Listing Particulars, unless they are defined in this section or the use thereof is clearly inappropriate from the context. 1. Dematerialisation 2. CDS 1.1. The Platinum Debentures are in registered form and may only be purchased by investors in NewGold in Dematerialised form Platinum Debentures are freely transferrable and can be traded on the SEM under the terms of rules established by the SEM and the CDS. Therefore, an investor must have a securities account, or open a securities account via a CDS Participant, with the CDS to receive and hold the Platinum Debentures on the CDS. Investor wishing to acquire Platinum Debentures should contact their licensed brokers Should any Platinum Debenture Holder require a physical certificate for its Platinum Debentures, it will have to transfer the Platinum Debentures on to the JSE and re-materialise same. This can be done by an investor contacting its broker and the Transfer Agent in respect of the JSE to do so. It should be noted that there are risks associated with holding Platinum Debentures in certificated form, including the risk of loss or tainted scrip. All Platinum Debenture Holders who elect to convert their Platinum Debentures into Certificated Debentures should realise that they will have to dematerialise their Platinum Debentures should they wish to trade them on the SEM under the terms of the CDS Rules The Platinum Debentures may only be traded on the SEM in electronic or Dematerialised form and will be trading for electronic settlement in terms of the CDS Rules and other procedures of the CDS immediately following the Secondary Listing. The CDS operates a system of paperless transfer of securities. If you have any doubt as to how it works please consult your broker or other appropriate advisor and you are referred to the SEM website at Some of the principal features of the CDS are as follows: electronic records of ownership replace certificates and physical delivery of certificates; trades in respect of the Platinum Debentures executed on the SEM must be settled in accordance with the CDS Rules relating to trades and settlement; all investors owning securities or wishing to trade their securities on the SEM are required to appoint a Licensed Dealing Member to act on their behalf and to handle their settlement requirements; and all costs incurred in respect of secondary market trades will be for the account of the relevant Platinum Debenture Holders. 3. Overview of Mauritius s Capital Market 3.1. The FSC The FSC is the statutory regulator for all non-bank financial activities in Mauritius. Under the Financial Services Act 2007, the FSC is mandated to, inter alia,: ensure the orderly administration of the financial services and global business activities; ensure the sound conduct of business in the financial services sector and in the global business sector; 30

31 elaborate policies which are directed to ensure fairness, efficiency and transparency of financial and capital markets in Mauritius; study new avenues for development in the financial services sector, to respond to new challenges and to take full advantage of new opportunities for achieving economic sustainability and job creation; ensure soundness and stability of the financial system in Mauritius; and work out objectives, policies and priorities for the development of the financial services sector and global business As part of its regulatory mandate, the FSC licenses and regulates all investment dealers, brokers, investment advisors, custodians, trustees, securities exchanges and other players in the securities industry. The Securities Act 2005 and regulations made thereunder also set out disclosure requirements for listed companies and unlisted public companies who undertake invitations to the public The SEM 4. Listing on the JSE The SEM was incorporated in Mauritius on March 30, 1989 under the Stock Exchange Act 1988, as a private limited company responsible for the operation and promotion of an efficient and regulated securities market in Mauritius. Since October 6th, 2008, the SEM has become a public company, and over the years the SEM has witnessed a significant overhaul of its operational, regulatory and technical framework to reflect the ever-changing standards of the stock market environment worldwide. SEM is today one of the leading exchanges in Africa and a member of the World Federation of Exchanges (WFE) The SEM operates two markets: the Official Market and the Development & Enterprise Market (DEM). The Official Market started its operations in 1989 with five listed companies and a market capitalisation of nearly USD 92 million. Currently, there are 42 companies listed on the Official Market representing a market capitalisation of nearly US$ 6.4 billion as at 30 September The DEM has been launched on 4 August 2006 and there are presently 47 companies listed on this market with a market capitalisation of nearly US$ 1.6 billion as at 30 September The Central Depository & Settlement Co. Ltd (CDS) was established by the SEM in 1996 to provide centralized depository, clearing and settlement services for the Mauritian equity and debt markets. The company became operational in January The setting up of CDS has brought about prompt and efficient clearing and settlement of trades while at the same time reducing some of the inherent risks in the process. The CDS has brought the Mauritian stock market on an equal footing with developed markets as far as the clearing and settlement infrastructure is concerned In June 2013, the SEM introduced new rules for the listing of Exchange Traded Funds (ETFs). The NewGold gold bullion debentures were the first ETF to be admitted to the SEM. It is envisaged that the Platinum Debentures will be the second ETF to be listed on the SEM Mauritius s current exchange control regime allows non-residents to freely invest in the capital markets without restriction. The Platinum Debentures were listed on the Main Board of the JSE on the JSE s Exchange Traded Funds sector under the abbreviated name NewPlat, symbol NPL and ISIN Code ZAE with effect from 26 April

32 5. Listing on the SEM Application has been made under and in terms of the SEM Listings Rules for a listing of the Platinum Debentures as an Exchange Traded Fund on the SEM in the ETF sector of the SEM and the SEM has, on 15 th November 2013, granted approval for such a listing. 6. Applicable Law The Platinum Debentures are governed by, construed and interpreted in accordance with the laws of the RSA and each Platinum Debenture Holder will be deemed, by applying for or purchasing Platinum Debentures to have consented and submitted to the jurisdiction of the South Gauteng High Court, Johannesburg, RSA in relation to all matters arising out of or in connection therewith. 7. Use of Proceeds The proceeds derived by NewGold from the issue of the Platinum Debentures are used by NewGold to acquire Platinum, which is retained and used by NewGold on the basis more fully described in these Listing Particulars as read with the Offering Circular. 8. Optional Redemption at the instance of NewGold 8.1. NewGold may redeem all, but not some only, of the Platinum Debentures at their Redemption Value as at the date thereof, having given not less than thirty and not more than ninety Business Days written notice to Platinum Debenture Holders (given in accordance with the Platinum Debenture Conditions and which notice shall be irrevocable) if: any of the Transaction Documents become illegal or unenforceable for any reason whatsoever and such illegality or unenforceability cannot be remedied by reasonable measures open to NewGold; or as a result of any change in or amendment to, the application or interpretation of any existing or new Applicable Law, NewGold is or would be required to deduct or withhold from any payments on the Platinum Debentures any amounts as provided or referred to in condition 11 of the Platinum Debenture Conditions, and such requirement cannot be avoided by NewGold taking reasonable measures available to it NewGold may redeem all, but not some only, of the Platinum Debentures held by a specific Platinum Debenture Holder (as opposed to all of the Platinum Debenture Holders) at their Redemption Value as at the date thereof, having given not less than thirty and not more than ninety Business Days written notice to the relevant Platinum Debenture Holder (given in accordance with the Platinum Debenture Conditions and which notice shall be irrevocable) if NewGold is reasonably of the view that the continued holding by such Platinum Debenture Holder of Platinum Debentures may result in NewGold falling foul of the provisions of the South African Financial Intelligence Centre Act, 38 of 2001 or any other Applicable Law. 9. Mandatory redemption following an Event of Default Upon the occurrence of an Event of Default, NewGold will advise the Platinum Debenture Holders of the occurrence of such event and will, if requested to do so by Platinum Debenture Holders by a Special Resolution to that effect, be obliged to redeem all the Platinum Debentures at their Redemption Value at the date of the occurrence of such Event of Default. 10. Additional information for Investors in Mauritius Transfers on the SEM Platinum Debenture Holders wishing to dispose of their Platinum Debentures should do so on the SEM. Transfers of Platinum Debentures that are listed on the SEM will be effected through 32

33 the Automatic Trading System (ATS) in accordance with the trading procedures established by SEM Any dealings on the SEM must be done as per the provisions of Rule 3.A of the Stock Exchange (Conduct of Trading Operations) Rules All dealings that take place on the SEM shall be cleared and settled through the CDS as per section 3(3) of the Securities (Central Depository, Clearing and Settlement) Act Redemption Platinum Debentures may only be redeemed in the circumstances set out in clause 6 (Redemptions) of Annexure D (Terms and Conditions of the Platinum Debentures) of these Listing Particulars. The Rupee equivalent of the Redemption Value referred to in clause 10 (Payment) of Annexure D (Terms and Conditions of the Platinum Debentures) of these Listing Particulars, shall be paid by electronic funds transfer to the account of the relevant Platinum Debenture Holder Physical Settlement A Platinum Debenture Holder wishing to exercise the option to have the Platinum Debentures physically settled must comply with Clause 7 (Platinum Option) of Annexure D (Terms and Conditions of the Platinum Debentures) of these Listing Particulars, as applicable Any prospective investor considering physical settlement should therefore familiarise itself with all conditions to physical settlement as set out in the Platinum Debenture Conditions in Annexure D (Terms and Conditions of the Platinum Debentures) of these Listing Particulars Notices and Meetings of Platinum Debenture Holders The Transfer Agent in respect of the SEM listed Platinum Debentures will disseminate notices (as applicable) to Platinum Debenture Holders in Mauritius. Notice of meetings of Platinum Debenture Holders will also be published in at least two national daily newspapers in Mauritius. All meetings of Platinum Debenture Holders will take place in South Africa. However, Platinum Debenture Holders who are unable to attend the meeting will have the option of participating in a poll vote by Proxy. 33

34 6. REGULATORY CONSIDERATIONS Words used in this section shall have the same meaning as defined in section 3 of these Listing Particulars, unless they are defined in this section or the use thereof is clearly inappropriate from the context. The following summary and guidelines are not a comprehensive statement of the regulatory considerations to be taken into account when investing in the Platinum Debentures and not intended as advice and do not purport to describe all the considerations that may be relevant to prospective investors in the Platinum Debentures. Prospective investors in the Platinum Debentures should consult their professional advisers with regard to the investment in Platinum Debentures and the tax, exchange control and other regulatory implications thereof. Accordingly, neither NewGold nor any of its professional advisers makes any representation and accordingly gives no warranties or undertakings expressed or implied and accordingly accept no responsibility for the accuracy or completeness of the information contained in this section of the Listing Particulars. 1. Mauritius Exchange Control Considerations in relation to the Platinum Debentures 1.1. All exchange control regulations have been suspended in Mauritius since 1994 and cross border payments made to or by the company will therefore not be restricted by exchange control regulations in Mauritius The Platinum Debentures will be denominated in Rupee notwithstanding that they will reference a United States Dollar referenced asset. Foreign investors that intend to invest in the Platinum Debentures in foreign currency are required to appoint a Licensed Dealing Member of the SEM to deal in the Platinum Debentures. Such investors are also advised to consult their chosen local bank for the requirements for inflowing the foreign currency for the investment, and for remitting the proceeds of any Platinum Debentures upon divestment. 2. Restrictions on dealing in Platinum 2.1. In terms of the South African Precious Metals Act, no person is permitted to buy, sell, deal in, receive or otherwise dispose of by way of barter, pledge or otherwise, either as principal or agent, any unwrought precious metal (which includes Platinum), unless: he is the holder of a Refining Licence and concludes the transaction in accordance with the terms of his licence issued in terms of the South African Precious Metals Act; or he is an authorised dealer in terms of the South African Exchange Control Regulations; such unwrought precious metal has been won by him or his servants acting on his behalf from land on which he is lawfully entitled to prospect or mine for precious metals; he has obtained a certificate from the SA Diamond and Precious Metals Regulator authorising him to be in possession or to dispose of such unwrought precious metal; such unwrought precious metal does not exceed a prescribed mass and is acquired in accordance with a special permit issued by the Regulator for scientific or beneficiation purposes or to make jewellery; or he or she is the holder of a precious metal beneficiation licence and acts in accordance with the terms and conditions of his or her licence. Further, in terms of South African Exchange Control Regulations 2 and 5: no person other than an authorised dealer shall buy or borrow platinum from, or sell or lend any platinum to any person not being an authorised dealer in foreign exchange, unless done with the permission granted by the relevant exchange control authority and in accordance with such conditions as the relevant authority may impose; and every person resident in the RSA who becomes entitled to sell or to procure the sale of any platinum shall, within thirty days after becoming so entitled, offer that platinum for sale to 34

35 the South African National Treasury (the Treasury ) and the Treasury may purchase that platinum at such price as the Treasury may fix, being a price which, in the opinion of the Treasury is not less than the market value of the platinum on the day of purchase, unless the relevant person has been exempted from Exchange Control Regulation 5 by the relevant exchange control authorities. NewGold has also obtained the permission of the relevant South African exchange control authorities to buy, borrow, lend and sell platinum as contemplated in Exchange Control Regulation 2 and has been exempted from Exchange Control Regulation 5 by the relevant South African exchange control authorities. NewGold will, accordingly, be permitted to purchase Platinum with the proceeds of the issue of Platinum Debentures, to hold and retain same as envisaged in the Custody Agreement and to sell Platinum to a Qualifying Debenture Holder exercising a Platinum Option on the basis envisaged in condition 7 of the Platinum Debenture Conditions and the relevant Platinum Sale Agreement. Furthermore, given that NewGold is an authorised dealer in platinum, it is exempt from the prohibitions in the South African Precious Metals Act. In Mauritius, as at date, no license or approval is required under the laws of Mauritius for an investor to convert its securities into Platinum. The investment into the Platinum Debentures is not tantamount to dealing in Platinum. However, in the event that the Platinum is shipped to Mauritius, registration as a dealer under the Jewellery Act 2007 would be required. A person, who imports Platinum is required to apply for registration as a dealer with the Controller of Assay. Please note that this position may change over time. Each investor must obtain its own independent advice in this respect. 3. Approval of the Exchange Control Department of the South African Reserve Bank 3.1. The Exchange Control Department of the South African Reserve Bank has approved the creation and: primary listing of the ETF on the JSE on the following terms and conditions: the limit is ounces of Platinum; investment in the ETF by long-term insurers and retirement funds must be included in the prudential limits on investment in platinum products as administered by the Financial Services Board; NewGold may only hold Platinum produced in the Republic of South Africa in an account with the Custodian; in the instance where the Platinum Option is exercised by a Qualifying Debenture Holder the delivery of Platinum may only be made to accounts at the Custodian; and the Exchange Control Department of the South African Reserve Bank must be furnished with feedback on a quarterly basis on the status of NewGold; and 3.2. the secondary listing of NewGold on the SEM is subject to certain terms and conditions which include: NewGold must publish and report the following information to the SEM on a daily basis: (a) the net asset value (NAV) of the security; (b) the accrued reserves distributable to ETF holders, if applicable; (c) the index level (if applicable) for the preceding day; and (d) the costs incurred in the ETF NewGold may increase or reduce the issue size of existing exchange traded funds, subject to the approval of the SEM and the announcement of such change in the issue size through the SEM; exchange traded funds should be backed 100% by the securities they represent or in the alternative be backed by a sample selection of such securities and other collateral acceptable to the SEM such as cash; 35

36 4. Tax Considerations A licensed dealing member must undertake to quote buy and sell prices in respect of the exchange traded funds on a daily basis; Since there is no capital gains tax in Mauritius, disposals of the Platinum Debentures will not attract capital gains tax in Mauritius under Income Tax Act Depending on the particular circumstances of each holder of the Platinum Debentures, gains from the disposal of the Platinum Debenture may be subject to income tax. The information provided under this section on the tax consequences of disposals of the Platinum Debentures is intended for general guidance only and not intended to be tax advice. Each investor should seek professional tax advice as to the tax consequences of holding and disposing of the Platinum Debentures. 5. Financial Statements The financial statements of NewGold are in compliance with International Financial Reporting Standards. The financial statements for the years ending 31 March 2011 and 31 March 2012 were audited by KPMG, of 85 Empire Road, Parktown, 2193 (Private Bag X9, Parkview, 2112), South Africa and for the year ending 31 March 2013 were audited by Ernst & Young Inc. 36

37 7. RISK FACTORS Words used in this section shall have the same meaning as defined in section 3 of these Listing Particulars, unless they are defined in this section or the use thereof is clearly inappropriate from the context. Investors attention is drawn to the risk factors (set forth in Section 10 of the Offering Circular) relating to an investment in Platinum Debentures, some of which are set out below. This does not purport to be an exhaustive list of the risk factors relating to an investment in Platinum Debentures. 1. General Market Risk General movements in local and international markets and factors that affect the investment climate and investor sentiment could all affect the level of trading and therefore the market price of the Platinum Debentures. These risks are generally applicable to any investment in listed securities and investors should be aware that the Platinum Debentures can go down in price as well as up. 2. Price risk 2.1. The market value of your Platinum Debentures may fluctuate between the date you purchase them and the applicable valuation date. Several factors, many of which are beyond the Issuer s control, will influence the market value of the Platinum Debentures. The Issuer expects that generally the value of the applicable Reference will affect the market value of those Platinum Debentures more than any other factor. However, other factors that may influence the market value of the Platinum Debentures include: economic, financial, political, regulatory, geographical, biological or judicial events that affect the relevant Reference, its value or its components, if applicable; investors expectation with respect to the future rates of inflation and movement in world equity, financial and property markets; the general interest rate environment, currency exchange rates, particularly the strength of and confidence in the United States Dollar; investment and trading activities of hedge funds, commodity funds and other speculators; the creditworthiness of the Issuer; the supply and demand for the Platinum Debentures, including any suspension or disruption of market trading in the Platinum Debentures; and concentration risk or the risk of investing in a commodity which may cause price volatility as the price is subject to a number of additional factors that may include, among others: disruptions in the supply chain, from mining to storage to smelting or refining; adjustments to inventory; variations in production costs, including storage, labour and energy costs; costs associated with regulatory compliance, including environmental regulations, changes in industrial, government and consumer demand, both in individual consuming nations and internationally; precious metal leasing rates; and 37

38 the degree to which consumers, governments, corporate and financial institutions hold physical Platinum as a safe haven asset (hoarding) which may be caused by a banking crisis/recovery, a rapid change in the value of other assets (both financial and physical) or changes in the level of geopolitical tension These factors interrelate in complex ways and the effect of one factor on the market value of your Platinum Debentures may offset, enhance or exacerbate the effect of another factor. 3. Secondary Market Trading Risk 3.1. At any time, the price at which the Platinum Debentures trade on the JSE and SEM may not reflect accurately the price of Platinum represented by such Platinum Debentures. The structure and the procedures set out in these Listing Particulars and the Offering Circular for creations and redemptions of the Platinum Debentures and, in particular, the ability of a qualifying Debenture Holder to exercise a Platinum Option, will help limit this difference (or tracking error). However, this risk cannot be fully eliminated since the market price will be a function of supply and demand amongst investors wishing to buy and sell the Platinum Debentures There can be no certainty that a liquid market in the Platinum Debentures will develop on the SEM or that the Platinum Debentures will remain listed on the JSE and/or the SEM. If the Platinum Debentures are to be de-listed, such de-listing will be subject to the provisions of the JSE Listings Requirements and the SEM Listings Rules, as applicable. 4. Custody and Insurance 4.1. All the Platinum underlying the Platinum Debentures will be held by the Custodian in its vaults in England or in the vaults of a sub-custodian appointed by the Custodian or by a delegate of a sub-custodian. Access to such Platinum could be restricted by natural or force majeure events, such as an earthquake, or human actions, such as a terrorist attack There is a risk that the Platinum belonging to NewGold could be lost, stolen or damaged. In that event, NewGold may not be able to request either the sale or delivery of Platinum for itself or on behalf of any Qualifying Debenture Holder. The Custodian is obliged to insure its obligations under the Custody Agreement. If the Custodian fails to take out suitable insurance, then Platinum Debenture Holders may have to rely on NewGold having a claim against the Custodian and NewGold recovering from the Custodian pursuant to such claim. 5. Compulsory Redemption of Platinum Debentures NewGold is entitled in the circumstances referred to in paragraph 8 of the Section 5 headed General in these Listing Particulars, to redeem certain or all of the Platinum Debentures outstanding at the time it elects to do so. 6. Terms and Conditions and RSA Law The Platinum Debentures are fungible and listed on several exchanges. RSA law governs the terms and conditions of the Platinum Debentures. However, the promotion and sale of the Platinum Debentures in Mauritius will be subject to the laws of Mauritius. Further, the exercise of the Platinum Option by Mauritian resident investors will also be subject to the requirements of Mauritian law. 38

39 8. ADDITIONAL INFORMATION 1. Share capital NewGold has an authorised share capital of ZAR 1,000 divided into 1,000 ordinary par value shares of ZAR1 each, of which 100 ordinary par value shares of ZAR1 each have been issued at par. All of these issued shares are beneficially owned by the NewGold Owner Trust. NewGold does not have any shares of no par value, founders, management or deferred shares. The directors of NewGold control the issue of authorised but unissued shares. 2. Alteration of capital NewGold is a specially incorporated special purpose vehicle and there has been no alteration of the share capital of NewGold during the three years immediately preceding the date of these Listing Particulars. NewGold has also not made any offers of shares or debentures to the public for subscription or sale during such three year period. No options have been granted or agreed to be granted on the capital of NewGold. Details of the Platinum Debentures issued and redeemed by NewGold since NewGold s listing on the JSE are set out in Annexure C. 3. Borrowing powers exercisable by directors 3.1. NewGold may not, and is prohibited in terms of its memorandum of incorporation (MOI) from, incurring any liability or indebtedness, save as specifically provided for in the Transaction Documents The relevant provisions are contained in paragraphs 5 and 17 of the memorandum of incorporation which provides as follows: 17 BORROWING POWERS The powers of the Directors to borrow are limited to the extent set out in clause 5. 5 RESTRICTIVE CONDITIONS 5.1 Notwithstanding anything to the contrary contained in this MOI, the Company shall not (and no organ, body or committee of the Company shall accordingly have the power, authority or ability to do so), without the approval of a Special Resolution of the Debenture Holders, conduct or engage in any business other than the Business, for example incur any borrowings or other liabilities (not limited ejusdem generis) other than in terms of the written management agreement entered into on 15 October 2004 between the Company and the Manco 2 including as amended, novated and/or replaced from time to time by the Company and the Manco or such other manager as may be appointed by the Company from time to time; in terms of the Custody Agreement; 2 The Manager is defined in the memorandum of incorporation of NewGold as Manco" 39

40 in terms of the Debentures; and/or in terms of the Debenture Conditions; in terms of any offering document issued by the Company in relation to the listing of the Debentures on one or more Other Exchange; and in terms of any other agreement and/or document necessary or ancillary for the Company to conduct its Business; enter into any transaction or contract otherwise than in the ordinary, regular and normal course of the Business; encumber any of its assets or permit any of its assets to become subject to any lien, hypothecation or encumbrance; become liable, whether contingently or otherwise and whether as surety, co-principal debtor, guarantor or indemnifier, for the liabilities of any third party; enter into any compromise with its creditors in terms of section 155 of the Companies Act; propose any scheme of arrangement in terms of section 114 of the Companies Act; sell, cede, assign, transfer or otherwise deal in or dispose of its interest in any Hedge Commodity, save as permitted in terms of the Debenture Conditions or as provided for in terms of the Custody Agreement; utilise the proceeds derived from the issue of Debentures for any purpose other than in pursuance of the Business; establish any Subsidiaries, employ any employees or purchase or rent any premises; consolidate or merge with any other Person; alienate, dispose of, deal with or grant any options or present or future rights to acquire any of its assets or undertakings or any right, title or interest in and to such assets or undertakings and any interests, estate, right, title or benefit therein (save as contemplated in clause 5.1.7) The memorandum of incorporation of NewGold may be amended pursuant to the terms of article 6 thereof and further with the approval of a Special Resolution of the Platinum Debenture Holders and the unanimous approval of the holders of the ordinary shares. 4. Loans of NewGold 4.1. As at the Last Practicable Date, other than the gold bullion debentures (listed on JSE, SEM and exchanges in Botswana, Nigeria, Ghana), the Platinum Debentures listed on the JSE, the Bridging Loan and Platinum Debentures (once issued) which are described in these Listing Particulars and the Offering Circular, there are no material loans made to or by NewGold and there is no loan capital outstanding. Neither the Platinum Debentures nor the Bridging Loan is secured. As at the Last Practicable Date, there are no charge or mortgage over the assets of NewGold and further does not have any contingent liabilities other than those disclosed in the Listing Particulars. 40

41 4.2. In terms of the Bridging Loan Agreement, NewGold is entitled to draw down amounts made available under the Bridging Loan Agreement in order to: maintain the corporate status of NewGold and meet its liabilities in respect of, inter alia, management and custodial fees; and fund timing mismatches between the payment of VAT by NewGold on the purchase of Platinum and the receipt by NewGold of input VAT credits from the South African Revenue Services The maximum amounts that NewGold will be entitled to draw down at any point in time under the Bridging Loan Agreement is capped at ZAR All amounts repayable by NewGold to Absa under the Bridging Loan Agreement will be unsecured but will be paid in priority to the amounts payable by NewGold upon the redemption of the Platinum Debentures and will be paid in accordance with the Priority of Payments. No interest will be payable on amounts drawn down under the Bridging Loan Agreement. 5. Listing on stock exchange Application has been made under and in terms of the SEM Listings Rules for a listing, by way of Introduction, of the Platinum Debentures as an Exchange Traded Fund on the SEM in the ETF sector of the SEM and the SEM has, on 15 th November 2013, granted approval for such a listing. 6. Further Exchange Listings 6.1. The NewGold gold bullion debentures are listed on JSE, SEM and exchanges in Botswana, Nigeria, Ghana As at the Last Practicable Date, other than the primary listing on JSE and the Secondary Listing on SEM, the Platinum Debentures are not listed in any other exchanges. NewGold may obtain additional listings on other exchanges. 7. Trading in Platinum Debentures Potential investors may purchase Platinum Debentures by contacting their nominated Licensed Dealing Member of the SEM. 8. Liquidity Provision and Promoter 8.1. Absa has been charged by the Manager with the responsibility for establishing and maintaining the secondary market in the Platinum Debentures on the JSE and other exchanges including without limitation the SEM. In Mauritius, Absa will act as a liquidity provider through the SEM Executing Broker. In its capacity as a liquidity provider, Absa through the SEM Executing Broker will be ready to buy or sell Platinum Debentures on the SEM at its quoted buy and sell prices in accordance with the rules of the SEM Absa Corporate and Investment Bank is the investment banking division of Absa Bank Limited. Absa Bank Limited is a public company duly incorporated on 26 th November 1986 in accordance with the laws of South Africa and is registered as a bank in terms of the South African Banks Act, 94 of Absa is wholly owned by Barclays Africa Group Limited and its preference shares are listed on the JSE. The ordinary share capital comprises of ZAR 378,8 million. Its directors are David Hodnett, Thoko Mokgosi-Mwantembe, Mohamed Husain, Maria Ramos, Colin Beggs, Yolanda Cuba, Trevor Munday, Shauket Fakie, Wendy Lucas-Bull and Thembisa Dingaan. For further information on Absa, please see 41

42 9. Litigation statement There are no legal or arbitration proceedings of which NewGold is aware (including any proceedings which are pending or threatened) which have or may have or have had in the last 12 months, a material effect on NewGold s financial position. 10. Director s opinion The directors of NewGold are of the opinion that the business of NewGold, conducted in accordance with the provisions conducted in the Transaction Documents, will continue to be viable on the basis set out herein and the working capital available to NewGold is sufficient for the NewGold s present requirements, that is, for at least the next twelve months from the date of issue of these Listing Particulars In addition, the directors of NewGold are of the opinion that NewGold, through the appointment of the Manager, has sufficient expertise to continue to issue the Platinum Debentures and to conduct the ETF on the basis set out herein. 11. No material change The Directors state that there has not been any material adverse change in the financial or trading position of NewGold since the last audited financial statements of NewGold for the year ended 31 March 2013 or the date of issue of these Listing Particulars. No change in the nature of the Issuer s business is in contemplation. 12. Memorandum of Incorporation of NewGold The main business of NewGold is the issue of debt instruments through the acquisition of Platinum or any other commodity in order to hedge its liability under such debt instruments The memorandum of incorporation of NewGold: (at article 5 of the memorandum of incorporation set forth below) prohibits NewGold, without the approval of a Special Resolution of the Debenture Holders, to conduct or engage in any business other than its main business as set forth in paragraph 12.1 above; may be amended pursuant to the terms of article 6 thereof and further with the approval of a Special Resolution of the Platinum Debenture Holders and the unanimous approval of the holders of the ordinary Shares; prohibits, without the prior approval of a Special Resolution of the Platinum Debenture Holders and the unanimous approval of the shareholder, varying its authorised or issued share capital, or any rights attaching to any of its issued shares or the creation or issue of any further shares in its share capital or the creation or issue of any debentures other than as envisaged in the Transaction Documents Set out below are extracts from the memorandum of incorporation (MOI) of NewGold: 5 RESTRICTIVE CONDITIONS 5.1 Notwithstanding anything to the contrary contained in this MOI, the Company shall not (and no organ, body or committee of the Company shall accordingly have the power, authority or ability to do so), without the approval of a Special Resolution of the Debenture Holders, conduct or engage in any business other than the Business, for example incur any borrowings or other liabilities (not limited ejusdem generis) other than in terms of the written management agreement entered into on 42

43 15 October 2004 between the Company and the Manco including as amended, novated and/or replaced from time to time by the Company and Manco or such other manager as may be appointed by the Company from time to time; in terms of the Custody Agreement; in terms of the Debentures; and/or in terms of the Debenture Conditions; in terms of any offering document issued by the Company in relation to the listing of the Debentures on one or more Other Exchange; and in terms of any other agreement and/or document necessary or ancillary for the Company to conduct its Business; enter into any transaction or contract otherwise than in the ordinary, regular and normal course of the Business; encumber any of its assets or permit any of its assets to become subject to any lien, hypothecation or encumbrance; become liable, whether contingently or otherwise and whether as surety, co-principal debtor, guarantor or indemnifier, for the liabilities of any third party; enter into any compromise with its creditors in terms of section 155 of the Companies Act; propose any scheme of arrangement in terms of section 114 of the Companies Act; sell, cede, assign, transfer or otherwise deal in or dispose of its interest in any Hedge Commodity, save as permitted in terms of the Debenture Conditions or as provided for in terms of the Custody Agreement; utilise the proceeds derived from the issue of Debentures for any purpose other than in pursuance of the Business; establish any Subsidiaries, employ any employees or purchase or rent any premises; consolidate or merge with any other Person; alienate, dispose of, deal with or grant any options or present or future rights to acquire any of its assets or undertakings or any right, title or interest in and to such assets or undertakings and any interests, estate, right, title or benefit therein (save as contemplated in clause 5.1.7). 15 Transfer of Securities 15.1 There is no restriction on the transfer of Securities. 17 BORROWING POWERS The powers of the Directors to borrow are limited to the extent set out in clause REMUNERATION OF DIRECTORS AND ALTERNATE DIRECTORS AND MEMBERS OF BOARD COMMITTEES 24.1 Save in the circumstances contemplated in clause

44 the Directors or Alternate Directors or members of Board committees shall not be entitled to any remuneration for their services as Directors or Alternate Directors or members of Board Committees; and the Directors and Alternate Directors shall not be entitled to reimbursement for any expenses incurred in travelling (including hotels) to and from meetings of the Directors and Holders, nor are the members of the Board committees entitled to reimbursement for any expenses incurred in travelling (including hotels) to and from meetings of the members of the Board committees A Director may be employed in any other capacity in the Company or as a director or employee of a company controlled by, or itself a major subsidiary of, the Company and in that event, his/her appointment and remuneration in respect of such other office must be determined by a disinterested quorum of Directors The Board must appoint a chief executive officer and an executive financial Director. The Board may from time to time appoint one or more of the Directors to the office of managing Director or manager (provided always that the number of Directors so appointed as managing Director or joint managing Directors and/or the holders of any other executive office including a chairperson who holds an executive office but not a chairperson who is a non-executive Director shall at all times be less than ½ of the number of Directors in office) for such period (not exceeding 5 years) and at such remuneration (whether by way of salary or commission, or participation in profits or partly in one way and partly in another) and generally on such terms as may be determined by a disinterested quorum of Directors, and it may be made a term of her/his appointment that she/he be paid a pension, gratuity or other benefit on her/his retirement from office. 28 PERSONAL FINANCIAL INTERESTS OF DIRECTORS AND PRESCRIBED OFFICERS AND MEMBERS OF BOARD COMMITTEES 28.4 At any time, a Director may disclose any Personal Financial Interest in advance, by delivering to the Board, or Holders (if the circumstances contemplated in clause 28.3(prevail), a notice in Writing setting out the nature and extent of that Personal Financial Interest, to be used generally by the Company until changed or withdrawn by further Written notice from that Director If, in the reasonable view of the other non-conflicted Directors, a Director or the Related Person in respect of such Director acts in competition with the Company relating to the matter to be considered at the meeting of the Board, the Director shall only be entitled to such information concerning the matter to be considered at the meeting of the Board as shall be necessary to enable the Director to identify that such Personal Financial Interest exists or continues to exist If a Director (whilst the circumstances contemplated in clause 28.3 are not applicable), has a Personal Financial Interest in respect of a matter to be considered at a meeting of the Board, or Knows that a Related Person has a Personal Financial Interest in the matter, the Director must disclose the Personal Financial Interest and its general nature before the matter is considered at the meeting; must disclose to the meeting any Material information relating to the matter, and Known to the Director; may disclose any observations or pertinent insights relating to the matter if requested to do so by the other Directors; if present at the meeting, must leave the meeting immediately after making any disclosure contemplated in clauses and ; must not take part in the consideration of the matter, except to the extent contemplated in clauses and ; while absent from the meeting in terms of this clause

45 is to be regarded as being present at the meeting for the purpose of determining whether sufficient Directors are present to constitute a quorum; and is not to be regarded as being present at the meeting for the purpose of determining whether a resolution has sufficient support to be adopted; and must not execute any document on behalf of the Company in relation to the matter unless specifically requested or directed to do so by the Board If a Director acquires a Personal Financial Interest in an agreement or other matter in which the Company has a Material interest, or Knows that a Related Person has acquired a Personal Financial Interest in the matter, after the agreement or other matter has been approved by the Company, the Director must promptly disclose to the Board, or to the Holders entitled to vote (if the circumstances contemplated in clause 28.3 prevail), the nature and extent of that Personal Financial Interest, and the material circumstances relating to the Director or Related Person s acquisition of that Personal Financial Interest The directors have had no interest in any transaction effected by NewGold since its incorporation. 13. Going Concern NewGold is a going concern and NewGold can in all circumstances be reasonably expected to meet all of its commitments as and when they fall due. 14. Consents The auditor (Ernst and Young Inc.), transfer agent (Computershare), legal advisor (BLC Chambers), JSE sponsor (Absa Bank Limited (acting through its Corporate and Investment Banking division) and SEM Executing Broker (Axys Stockbroking Ltd) have consented in writing to act in their capacities stated and to their names being stated in these Listing Particulars and none of these consents have been withdrawn prior to the approval of these Listing Particulars by the SEM. 15. Declaration of interest As at the date of these Listing Particulars none of the advisors, their principals or employees holds any interest in any Platinum Debentures or in NewGold. As at the date of these Listing Particulars, the directors do not hold any interest in any Platinum Debentures or in NewGold and are not materially interested in any contract or arrangement with NewGold and which is significant in relation to the business of the NewGold. 16. Documents available for inspection Copies of the following documents will be made available for inspection at NewGold s registered office at 3 rd Floor, Absa Towers East, 170 Main Street, Johannesburg, 2001 and at the offices of the SEM Executing Broker during normal business hours for the period (not being less than 14 days) up to and including the date of listing: the memorandum of incorporation of NewGold; Factual findings report of the registered auditor for the agreed upon procedures on the currency conversion of NewGold Issuer Limited (RF) Financial Information dated 18 th July 2013 (which is included as Annexure A to these Listing Particulars); the audited financial statements for the last three years ending 31 March 2011 and 31 March 2012 including the auditor s opinion of KPMG Inc. and 31 March 2013 including the report of 45

46 Ernst & Young Inc the NewGold Owner Trust Deed; the Management Agreement; the Custody Agreement; and Offering Circular. 46

47 Annexure A AUDITOR S REPORT ON THE SUMMARISED HISTORICAL FINANCIAL INFORMATION OF NEWGOLD 47