| Wed 16 Apr 2008, 7:44 | | AQP - Aquarius - Launches capital raising for Impa |
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AQP
AQP
AQP - Aquarius - Launches capital raising for Impala buyback
Aquarius Platinum Limited
(Incorporated in Bermuda)
Share code ASX: AQP
Share code LSE: AQP
Share code JSE: AQP
ISIN number: BMG0440M1029
("Aquarius" or "the Company")
NOT FOR RELEASE, PUBLICATION OR DISTRIBUTION INTO OR IN THE UNITED STATES,
CANADA, OR JAPAN.
THIS ANNOUNCEMENT DOES NOT CONSTITUTE OR FORM PART OF AN OFFER OF SECURITIES IN
THE UNITED STATES OR ANY OTHER JURISDICTION.
AQUARIUS LAUNCHES CAPITAL RAISING FOR IMPALA BUYBACK
Aquarius is launching an accelerated bookbuild placing of up to 23,144,000 new
ordinary shares of US$0.05 each (the "Placing Shares") of Aquarius Platinum
Limited, listed on the ASX Limited, the LSE and the JSE Limited, to global
institutional investors (the "Placing"). RMB Morgan Stanley will act as global
bookrunner for the Placing with Euroz Securities Limited and Investec Bank (UK)
Limited acting as co-lead managers.
As set out in the announcement dated 15 April 2008 regarding the transaction
with Impala Platinum Holdings Limited ("Implats") to buy back the shares Implats
currently holds in both Aquarius and its subsidiary Aquarius Platinum (South
Africa) (Pty) Ltd ("AQPSA") (the "Buy Back`), the Buy Back will be partly funded
by the issue of new equity.
The Placing Shares will, when issued, be credited as fully paid and will rank
pari passu in all respects with the existing issued ordinary shares of the
Company, including the right to receive future dividends and other distributions
declared, made or paid after the date of their issue. Application will be made
to the FSA for the Placing Shares to be admitted to the official list maintained
by the FSA (the "Official List") and to the LSE, the ASX Limited and the JSE
Limited for the Placing Shares to be admitted to trading.
The book for the Placing will open with immediate effect and is expected to
close before close of business in London on Wednesday 16 April 2008. Pricing and
allocations are expected to be announced as soon as practicable following the
closing of the book. The proceeds and the placing price will be decided at the
close of the accelerated bookbuilding period following agreement between
Aquarius and RMB Morgan Stanley. A further announcement will be made at that
time. The timing of the closing of the book, pricing and allocations may be
amended at the absolute discretion of Aquarius and RMB Morgan Stanley.
For further information please contact:
Aquarius: Willi Boehm +61 (0)8 9367 5211
RMB Morgan Stanley: Chris Meyer +27 (0)11 282 8286
Morgan Stanley: Alastair Cochran +44 (0)20 7677 5039
Rand Merchant Bank: Justin Bothner +27 (0)11 282 4150
This announcement has been issued by the Company and is the sole responsibility
of the Company.
RMB Morgan Stanley, Morgan Stanley and Rand Merchant Bank are acting exclusively
for the Company and no one else in connection with the Placing. RMB Morgan
Stanley, Morgan Stanley and Rand Merchant Bank will not be responsible to anyone
other than the Company for providing the protections afforded to their
respective clients nor for providing advice in relation to the Placing or any
other matter referred to in this announcement.
This announcement is for information purposes only and does not constitute an
offer or an invitation to acquire or dispose of any securities or investment
advice in any jurisdiction.
This announcement is not for publication or distribution or release in the
United States of America (including its territories and possessions, any state
of the United States and the District of Columbia). This announcement does not
constitute or form part of an offer to sell or issue or solicitation of an offer
to purchase or subscribe for securities in the United States, Australia, Canada,
Japan or any other jurisdiction and should not be relied upon in connection with
any decision to acquire the Placing Shares or any other Aquarius securities. The
securities referred to herein have not been and will not be registered under the
United States Securities Act of 1933, as amended (the "Securities Act"), and may
not be offered, sold or transferred within the United States, except pursuant to
an exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act. No public offering of the Placing Shares is
being made or will be made in the United States.
This announcement does not and is not intended to constitute an offer to the
public in South Africa in terms of Chapter VI of the South African Companies
Act, 1973 (as amended).
This announcement includes "forward-looking statements". All statements other
than statements of historical fact included in this announcement, including,
without limitation, those regarding Aquarius`s financial position, business
strategy, plans and objectives of management for future operations, are forward-
looking statements. Such forward-looking statements involve known and unknown
risks, uncertainties and other factors which may cause the actual results,
performance or achievements of Aquarius, or industry results, to be materially
different from any future results, performance or achievements expressed or
implied by such forward-looking statements. Such forward-looking statements are
based on numerous assumptions regarding Aquarius`s present and future business
strategies and the environments in which Aquarius will operate in the future and
such assumptions may or may not prove to be correct. There are a number of
factors which could cause actual results, performance of Aquarius, or industry
results to differ materially from those expressed or implied in forward looking
statements. These forward-looking statements speak only as of the date of this
announcement. Aquarius expressly disclaims any obligation (except as required by
the rules of the UK Listing Authority and the London Stock Exchange or the rules
of the ASX or the JSE) or undertaking to disseminate any updates or revisions to
any forward-looking statement contained herein to reflect any change in
Aquarius`s expectations with regard thereto or any change in events, conditions
or circumstances on which any such statement is based.
Neither this announcement nor any copy of it may be taken, transmitted or
distributed, directly or indirectly in or into the United States, Canada or
Japan.
Melbourne / London / Johannesburg
15 April 2008
APPENDIX
Important information on the Placing
NOT FOR RELEASE, PUBLICATION OR DISTRIBUTION, DIRECTLY OR INDIRECTLY, IN OR INTO
THE UNITED STATES, CANADA OR JAPAN
IMPORTANT INFORMATION FOR PLACEES ONLY REGARDING THE PLACING
MEMBERS OF THE PUBLIC ARE NOT ELIGIBLE TO TAKE PART IN THE PLACING. THIS
APPENDIX AND THE TERMS AND CONDITIONS SET OUT HEREIN ARE DIRECTED IN THE UK ONLY
AT PERSONS WHOSE ORDINARY ACTIVITIES INVOLVE THEM IN ACQUIRING, HOLDING,
MANAGING AND DISPOSING OF INVESTMENTS (AS PRINCIPAL OR AGENT) FOR THE PURPOSES
OF THEIR BUSINESS AND WHO HAVE PROFESSIONAL EXPERIENCE IN MATTERS RELATING TO
INVESTMENTS AND ARE (1) QUALIFIED INVESTORS AS DEFINED IN SECTION 86(7) OF THE
FINANCIAL SERVICES AND MARKETS ACT 2000 ("FSMA"), BEING PERSONS FALLING WITHIN
THE MEANING OF ARTICLE 2.1(e)(i), (ii) OR (iii) OF DIRECTIVE 2003/71/EC (THE
"PROSPECTUS DIRECTIVE") AND (2) FALL WITHIN ARTICLE 19(5) OF THE FINANCIAL
SERVICES AND MARKETS ACT 2000 (FINANCIAL PROMOTION) ORDER 2005, AS AMENDED (THE
"ORDER") OR ARE PERSONS WHO FALL WITHIN ARTICLE 49(2)(a) TO (d) ("HIGH NET WORTH
COMPANIES, UNINCORPORATED ASSOCIATIONS, ETC") OF THE ORDER (ALL SUCH PERSONS
TOGETHER BEING REFERRED TO AS "RELEVANT PERSONS"). THIS APPENDIX AND THE TERMS
AND CONDITIONS SET OUT HEREIN MUST NOT BE ACTED ON OR RELIED ON BY PERSONS WHO
ARE NOT RELEVANT PERSONS. PERSONS DISTRIBUTING THIS ANNOUNCEMENT (INCLUDING THIS
APPENDIX) MUST SATISFY THEMSELVES THAT IT IS LAWFUL TO DO SO. ANY INVESTMENT OR
INVESTMENT ACTIVITY TO WHICH THIS APPENDIX AND THE TERMS AND CONDITIONS SET OUT
HEREIN RELATES IS AVAILABLE ONLY TO RELEVANT PERSONS AND WILL BE ENGAGED IN ONLY
WITH RELEVANT PERSONS. THIS APPENDIX DOES NOT ITSELF CONSTITUTE AN OFFER FOR
SALE OR SUBSCRIPTION OF ANY SECURITIES IN AQUARIUS PLATINUM LIMITED (THE
"COMPANY").
This announcement and any offer if made subsequently is only addressed to and
directed at persons in member states of the European Economic Area ("EEA") who
are "qualified investors" within the meaning of Article 2(1)(e) of the
Prospectus Directive (Directive 2003/71/EC) ("Qualified Investors").
By participating in the Bookbuilding and the Placing, Placees will be deemed to
have read and understood this Appendix in its entirety, to be participating,
making an offer and acquiring Placing Shares on the terms and conditions
contained herein and to be providing the representations, warranties,
acknowledgements and undertakings contained herein.
In particular each such Placee represents, warrants and acknowledges that:
1. if it is in the UK, it is a Relevant Person and undertakes that it will
acquire, hold, manage or dispose of any Placing Shares that are allocated to it
for the purposes of its business;
2. in the case of a Placee in a member state of the EEA which has implemented
the Prospectus Directive (each a "Relevant Member State") who acquires any
Placing Shares pursuant to the Placing:
(i) it is a Qualified Investor; and
(ii) in the case of any Placing Shares acquired by it as a financial
intermediary, as that term is used in Article 3(2) of the Prospectus Directive,
(i) the Placing Shares acquired by it in the Placing have not been acquired on
behalf of, nor have they been acquired with a view to their offer or resale to,
persons in any Relevant Member State other than Qualified Investors or in
circumstances in which the prior consent of Morgan Stanley & Co. International
plc, Firstrand Bank Limited acting through Rand Merchant Bank (together, the
"Banks") has been given to the offer or resale; or (ii) where Placing Shares
have been acquired by it on behalf of persons in any member state of the EEA
other than Qualified Investors, the offer of those Placing Shares to it is not
treated under the Prospectus Directive as having been made to such persons; and
3. is acquiring the Placing Shares for its own account or is acquiring the
Placing Shares for an account with respect to which it exercises sole investment
discretion, and that it (and any such account) is outside the United States or
if it is not outside the United States, it is a qualified institutional buyer
("QIB") as defined in Rule 144A under the US Securities Act of 1933 (the
"Securities Act").
This announcement (including this Appendix) does not constitute an offer to sell
or issue or the solicitation of an offer to buy or subscribe for Placing Shares
in any jurisdiction including, without limitation, the United Kingdom, the
United States, Canada, Australia or Japan. This announcement and the information
contained herein is not for publication or distribution, directly or indirectly,
or to persons in the United States, Canada, Japan or in any jurisdiction in
which such publication or distribution is unlawful.
The Placing Shares referred to in this announcement have not been and will not
be registered under the Securities Act or with any securities regulatory
authority of any State or other jurisdiction of the United States, and may not
be offered, sold or transferred within the United States except pursuant to Rule
144A under the Securities Act ("Rule 144A") or another exemption from the
registration requirements of the Securities Act. Any offering to be made in the
United States will be made to QIBs pursuant to Rule 144A or another exemption
from registration under the Securities Act or in a transaction not involving any
public offering. The Placing Shares are being offered and sold outside the
United States in accordance with Regulation S under the Securities Act. The
Placing Shares have not been approved or disapproved by the US Securities and
Exchange Commission, any state securities commission in the United States or
other regulatory authority in the United States, nor have any of the foregoing
authorities passed upon or endorsed the merits of the Placing or the accuracy or
adequacy of this announcement. Any representation to the contrary is a criminal
offence in the United States.
The distribution of this announcement and the Placing and/or issue of the
Placing Shares in certain jurisdictions may be restricted by law. No action has
been taken by the Company, the Banks, or any of their respective Affiliates,
that would permit an offer of the Placing Shares or possession or distribution
of this announcement or any other offering or publicity material relating to
such Placing Shares in any jurisdiction where action for that purpose is
required. Persons into whose possession this announcement comes are required by
the Company and the Banks to inform themselves about and to observe any such
restrictions.
In this Appendix, unless the context otherwise requires, the "Company" means
Aquarius Platinum Limited and "Placee" includes a person (including individuals,
funds or others) on whose behalf a commitment to acquire Placing Shares has been
given.
No prospectus
No prospectus or other offering document has been or will be submitted to be
approved by the Financial Services Authority (the "FSA") in the United Kingdom,
the JSE Limited in South Africa or the ASX Limited in Australia in relation to
the Placing and the Placees` commitments will be made solely on the basis of the
information contained in this announcement, the Pricing Announcement and any
information publicly announced to a Regulatory Information Service by or on
behalf of the Company on or prior to the date of this announcement (the
"Publicly Available Information"). Each Placee, by participating in the Placing,
agrees that it has neither received nor relied on any information,
representation, warranty or statement made by or on behalf of any of the Banks
or the Company other than the Publicly Available Information and the content of
this announcement (including this Appendix) and none of the Banks, the Company
nor any person acting on such person`s behalf nor any of their Affiliates has or
shall have any liability for any Placee`s decision to accept this invitation to
participate in the Placing based on any other information, representation,
warranty or statement. Each Placee acknowledges and agrees that it has relied on
its own investigation of the business, financial or other position of the
Company in accepting a participation in the Placing. Nothing in this paragraph
shall exclude the liability of any person for fraudulent misrepresentation.
Details of the Placing Agreement and the Placing Shares
The Banks have entered into a placing agreement dated 15 April 2008 (the
"Placing Agreement") with the Company under which the Company proposes, on the
terms and subject to the conditions set out in the Placing Agreement to issue
and allot new shares of US$0.05 each in the capital of the Company (the "Placing
Shares") to the Banks, and the Banks propose to sell and deliver such Placing
Shares to placees procured by the Banks (the "Placees").
The Placing Shares will, when issued, be credited as fully paid and will rank
pari passu in all respects with the existing issued ordinary shares of US$0.05
per share in the capital of the Company, including the right to receive all
dividends and other distributions declared, made or paid on or in respect of
such ordinary shares after the date of issue of the Placing Shares.
Application for admission to listing and trading
Application will be made:
(i) to the FSA for admission of the Placing Shares to the official list
maintained by the FSA (the "Official List") and to the London Stock Exchange for
admission to trading of the Placing Shares on the London Stock Exchange`s market
for listed securities;
(ii) to the JSE Limited for listing of the Placing Shares; and
(iii) to the ASX Limited for listing of the Placing Shares,
(together "Admission"). It is expected that Admission will take place on or
before 23 April 2008 and that dealings in the Placing Shares will commence at
the same time.
Bookbuilding
RMB Morgan Stanley (the "Bookrunner") will today commence the Bookbuilding to
determine demand for participation in the Placing by Placees. This Appendix
gives details of the terms and conditions of, and the mechanics of participation
in, the Placing. No commissions will be paid to Placees or by Placees in respect
of any Placing Shares.
The Bookrunner, the Banks and the Company shall be entitled to effect the
Placing by such alternative method to the Bookbuilding as they may, in their
sole discretion, determine.
Principal terms of the Bookbuilding and Placing
1. The Company appoints the Bookrunner and confers on the Bookrunner all
powers, authorities and discretions which are necessary for, or incidental to,
such appointment, including the power to appoint Euroz Securities Limited and
Investec Bank UK Limited (the "Placing Agents"), and any other parties as may be
agreed between the Company and the Banks sub-agents or to delegate the exercise
of any of its powers, authorities or discretions to such persons at if may think
fit.
2. Participation in the Placing will only be available to persons who may
lawfully be, and are, invited to participate by the Banks.
3. The Bookbuilding will establish prices per Placing Share being equivalent
prices in Sterling, South African Rand and Australian Dollars based on the
exchange rate prevailing at pricing (the "Placing Price") payable to the Banks
by Placees whose bids are successful depending on the currency in which they
have bid. The Placing Price and the number of Placing Shares to be issued
pursuant to the Placing in order to raise the net proceeds equal to
US$400,000,000 (the "Agreed Amount") will be agreed between the Banks and the
Company following completion of the Bookbuilding. The Placing Price will be
announced (the "Pricing Announcement") on a Regulatory Information Service
following the completion of the Bookbuilding.
4. To bid in the Bookbuilding, Placees should communicate their bid by
telephone to their usual sales contact at the Bookrunner or the Banks. Each bid
should state the number of shares in the Company which a prospective Placee
wishes to acquire at either the Placing Price which is ultimately established by
the Company and the Banks or at prices up to a price limit specified in its bid.
Bids may be scaled down by the Banks on the basis referred to in paragraph 8
below. Each of Morgan Stanley & Co. International plc and Firstrand Bank
Limited, acting through Rand Merchant Bank is arranging the Placing severally,
and not jointly, or jointly and severally.
5. The Bookbuilding is expected to close no later than 4.30 p.m. (GMT) on 16
April 2008 but may be closed earlier or later at the discretion of the
Bookrunner. The Banks may, in agreement with the Company, accept bids that are
received after the Bookbuilding has closed.
6. Allocations will be confirmed orally by the relevant Bank as soon as
practicable following the close of the Bookbuilding. Oral confirmation of an
allocation will give rise to a legally binding commitment by the Placee
concerned, in favour of the relevant Bank, under which it agrees to acquire the
number of Placing Shares allocated to it on the terms and subject to the
conditions set out in this Appendix and the Company`s Memorandum and Articles of
Association.
7. The Company will make a further announcement following the close of the
Bookbuilding detailing the number of such shares to be issued and the price at
which such shares have been placed.
8. Subject to paragraphs 5 and 7 above, the Banks may choose to accept bids,
either in whole or in part, on the basis of allocations determined at its
discretion (in agreement with the Company) and may scale down any bids for this
purpose on such basis as they may determine. They may also, notwithstanding
paragraphs 5 to 7 above, subject to the prior consent of the Company (a)
allocate Placing Shares after the time of any initial allocation to any person
submitting a bid after that time and (b) allocate Placing Shares after the
Bookbuilding has closed to any person submitting a bid after that time.
9. A bid in the Bookbuilding will be made on the terms and subject to the
conditions in this Appendix and will be legally binding on the Placee on behalf
of which it is made and except with the Bookrunner`s consent will not be capable
of variation or revocation after the time at which it is submitted. Each Placee
will have an immediate, separate, irrevocable and binding obligation, owed to
the relevant Bank, to pay to it (or as it may direct) in cleared funds an amount
equal to the product of the Placing Price and the number of Placing Shares such
Placee has agreed to acquire.
10. Except as required by law or regulation, no press release or other
announcement will be made by the Banks or the Company using the name of any
Placee (or its agent), in its capacity as Placee (or agent), other than with
such Placee`s prior written consent.
11. Irrespective of the time at which a Placee`s allocation(s) pursuant to the
Placing is/are confirmed, settlement for all Placing Shares to be acquired
pursuant to the Placing will be required to be made at the same time, on the
basis explained below under "Registration and Settlement".
12. All obligations under the Bookbuilding and Placing will be subject to
fulfilment of the conditions referred to below under "Conditions of the Placing"
and to the Placing not being terminated on the basis referred to below under
"Termination of the Placing".
13. By participating in the Bookbuilding each Placee will agree that its rights
and obligations in respect of the Placing will terminate only in the
circumstances described below and will not be capable of rescission or
termination by the Placee.
14. To the fullest extent permissible by law, none of the Banks, the Bookrunner
nor any of their Affiliates shall have any liability to Placees (or to any other
person whether acting on behalf of a Placee or otherwise). In particular, none
of the Banks, the Bookrunner nor any of their Affiliates shall have any
liability (including, to the extent permissible by law, any fiduciary duties) in
respect of the Banks` or the Bookrunner`s conduct of the Bookbuilding or of such
alternative method of effecting the Placing as the Banks and the Company may
agree.
Registration and Settlement
If Placees are allocated any Placing Shares in the Placing they will be sent a
contract note or electronic confirmation which will confirm the number of
Placing Shares allocated to them, the Placing Price and the aggregate amount
owed by them to the relevant Bank. Each Placee will be deemed to agree that it
will do all things necessary to ensure that delivery and payment is completed in
accordance with either the standing CREST, STRATE or CHESS which they have in
place with the relevant Bank.
Settlement of transactions between the Banks and Placees in the Placing Shares
following Admission will take place within the CREST, STRATE AND CHESS system.
Such settlement will be on a T +5 basis unless otherwise notified by the Banks
and is expected to occur on or before 24 April 2008. Settlement will be on a
delivery versus payment basis. However, if in the reasonable opinion of the
Company and the Banks it is impractical for the Placing Shares to be admitted to
CREST, STRATE or CHESS the Company may issue and the Banks may deliver some or
all of the Placing Shares in certificated form.
Interest is chargeable on payments not received from the due date until the date
of actual payment in accordance with the arrangements set out above at a rate
per annum of 1 per cent. above the base rate from time to time of Barclays Bank
PLC and shall accrue from day to day and be calculated on the basis of a 365 day
year.
If Placees do not comply with their obligations the relevant Bank may sell their
Placing Shares on their behalf and retain from the proceeds, for its own account
and benefit, an amount equal to the Placing Price of each share sold plus any
interest due. Placees will, however, remain liable for any shortfall below the
Placing Price and for any stamp duty or stamp duty reserve tax (together with
any interest or penalties) which may arise upon the sale of their Placing Shares
on their behalf.
If Placing Shares are to be delivered to a custodian or settlement agent,
Placees must ensure that, upon receipt, the conditional contract note is copied
and delivered immediately to the relevant person within that organisation.
Conditions of the Placing
The Placing is conditional upon the Placing Agreement becoming unconditional and
not having been terminated in accordance with its terms.
The obligations of the Banks under the Placing Agreement are conditional on,
inter alia:
(a) successful completion of the Bookbuilding and entry into a term sheet
between the Bookrunner, the Banks and the Company setting out the Placing price
and the number of Placing Shares to be issued to the Banks;
(b) the delivery by the Company to the Banks immediately prior to Admission of
a certificate, signed for and on behalf of the Company by a duly authorised
officer of the Company, in the form set out in schedule to the Placing
Agreement;
(c) (save to the extent not, in the opinion of the Banks acting in good faith,
materially adverse in the context of the Placing) the warranties on the part of
the Company contained in the Placing Agreement being true and accurate and not
misleading in any respect on and as of the date of the Placing Agreement and at
any time before Admission;
(d) the fulfilment by the Company of its obligations under the Placing
Agreement which are required to be performed or satisfied on or prior to
Admission, save to the extent, in the opinion of the Banks, that any non-
compliance is not material in the context of the Placing;
(e) the Buy Back agreement having been executed and there being no outstanding
conditions precedent to its closing, save for the issue to, and subscription by,
the Banks of the Placing Shares and any other condition which are expected to be
satisfied prior to the expected closing date for the Buy Back; and
(f) the facility agreement between the Company and AQPSA having been executed
and there being no outstanding conditions thereto which are not expected to be
satisfied prior to the expected closing date for the Buy Back.
If the conditions in the Placing Agreement are not fulfilled or, where
permitted, waived by the Banks in accordance with the Placing Agreement within
the stated time periods (or such later time and/or date as the Company and the
Banks may agree), the Placing Agreement shall cease and determine, the Placing
will lapse and the Placee`s rights and obligations shall cease and terminate at
such time and each Placee agrees that no claim can be made by or on behalf of
the Placee (or any person on whose behalf the Placee is acting) in respect
thereof.
By participating in the Bookbuilding process, each Placee agrees that its rights
and obligations cease and terminate only in the circumstances described above
and under "Termination of the Placing" below and will not be capable of
rescission or termination by it.
The Banks may, at their discretion and upon such terms as they think fit, waive
fulfilment of all or any of the conditions, other than those in relation to the
announcements and delivery of certain legal opinions, or extend the time
provided for fulfilment of any such condition in respect of all or any part of
the performance by the Company. Any such extension or waiver will not affect
Placees` commitments as set out in this Appendix.
None of the Banks nor any of their Affiliates nor the Company shall have any
liability to any Placee (or to any other person whether acting on behalf of a
Placee or otherwise) in respect of any decision any of them may make as to
whether or not to waive or to extend the time provided for fulfilment of any
condition to the Placing nor for any decision any of them may make as to the
fulfilment of any condition or in respect of the Placing generally.
Termination of the Placing
The Banks (after such consultation with the Company as shall in the circumstance
be reasonably practicable) shall be entitled at their absolute discretion, by
joint notice in writing to the Company, served prior to Admission terminate the
Placing Agreement at any time up to and including Admission if, inter alia:
(a) they become aware that the Company is in breach of any of its undertakings
or obligations under the Placing Agreement save to the extent that any breach is
not, in the opinion of the Banks (acting in good faith), material in the context
of the Placing; or
(b) they become aware that any of the warranties given by the Company in the
Placing Agreement is, or if repeated at any time up to and including Admission
(by reference to the facts and circumstances then existing) would be, untrue,
inaccurate, incorrect or misleading, save to the extent, in the opinion of the
Banks acting in good faith, not materially adverse in the context of the
Placing; or
(c) any of the conditions have not been satisfied or waived by the Banks by the
date specified therein (or such later time or date as the Company and the Banks
may agree); or
(d) in the opinion of the Banks acting in good faith there has been a material
adverse change since the date of the Placing Agreement; or
(e) there shall have occurred or, in the opinion of the Banks (acting in good
faith), it is reasonably likely that there will occur:
(i) any outbreak or escalation of hostilities, war, act of terrorism or
declaration of emergency or martial law or other calamity or crisis; or
(ii) trading generally shall have been suspended or materially limited on, or
by, as the case may be, the London Stock Exchange, the JSE or the ASX; or
(iii)trading in any securities of the Company has been suspended or limited on
any exchange or over-the-counter market; or
(iv) a material disruption has occurred in commercial banking or securities
settlement or clearance services in the United States, Europe, the Republic of
South Africa or Australia; or
(v) the application of the Company for Admission is withdrawn or refused by the
FSA, the London Stock Exchange the JSE or ASIC; or
(vi) a banking moratorium has been declared by the United States Federal, the
United Kingdom, the Republic of South Africa, Australia or New York Authorities
or by the European Central Bank; or
(vii)there shall have occurred any change in financial markets, political or
economic conditions, currency exchange rates or controls,
in each case the effect of which (either singly or together with any of the
events in (i) to (vii) above) is such as to make it in the opinion of the Banks
(acting in good faith) impracticable or inadvisable to market the Placing Shares
or to enforce contracts for sale of the Placing Shares, or which may prejudice
the success of the Placing or dealings in the Placing Shares in the secondary
market.
If the Placing Agreement is terminated in accordance with its terms, the rights
and obligations of each Placee in respect of the Placing as described in this
announcement (including this Appendix) shall cease and terminate at such time
and no claim can be made by any Placee in respect thereof.
By participating in the Placing, each Placee agrees with the Company and the
Banks that the exercise by the Company or the Banks of any right of termination
or any other right or other discretion under the Placing Agreement shall be
within the absolute discretion of the Company or the Banks (as the case may be)
and that neither the Company nor the Banks need make any reference to such
Placee and that neither the Company, the Banks nor any of their respective
Affiliates shall have any liability to such Placee (or to any other person
whether acting on behalf of a Placee or otherwise) whatsoever in connection with
any such exercise.
By participating in the Placing, each Placee agrees that its rights and
obligations terminate only in the circumstances described above and will not be
capable of rescission or termination by it after oral confirmation by the Banks
following the close of the Bookbuilding.
Representations and further terms
By submitting a bid in the Bookbuilding, each prospective Placee (and any person
acting on such Placee`s behalf) represents, warrants, acknowledges and agrees
that:
1. it has read this announcement (including this Appendix) in its entirety and
that its purchase of the Placing Shares is subject to and based upon all the
terms, conditions, representations, warranties, acknowledgements, agreements and
undertakings and other information contained herein;
2. it has not received a prospectus or other offering document in connection
with the Placing and acknowledges that no prospectus or other offering document
has been or will be prepared in connection with the Placing;
3. if the Placing Shares were offered to it in the United States, it
represents and warrants that in making its investment decision, (i) it has
consulted its own independent advisers or otherwise has satisfied itself
concerning, without limitation, the effects of United States federal, state and
local income tax laws and foreign tax laws generally and the US Employee
Retirement Income Security Act of 1974, the US Investment Company Act of 1940
and the Securities Act, (ii) it has had access to such financial and other
information (including the business, financial condition, prospects,
creditworthiness, status and affairs of the Company, the Placing and the Placing
Shares, as well as the opportunity to ask questions) concerning the Company, the
Placing and the Placing Shares that it believes is necessary or appropriate in
order to make an investment decision in respect of the Company and the Placing
Shares and (iii) it is aware and understands that an investment in the Placing
Shares involves a considerable degree of risk and no US federal or state or non-
US agency has made any finding or determination as to the fairness for
investment or any recommendation or endorsement of the Placing Shares;
4. (i) it has made its own assessment of the Company, the Placing Shares and
the terms of the Placing based on Publicly Available Information and this
announcement (including this Appendix) and the only information on which it is
entitled to rely, and on which such Placee has relied, in committing itself to
acquire the Placing Shares is contained in the Publicly Available Information
and this announcement (including this Appendix), such information being all that
it deems necessary to make an investment decision in respect of the Placing
Shares, (ii) none of the Banks, the Bookrunner, their respective Affiliates or
the Company has made any representation to it, express or implied, with respect
to the Company, the Placing or the Placing Shares or the accuracy, completeness
or adequacy of the Publicly Available Information of this announcement
(including this Appendix); (iii) it has conducted its own investigation of the
Company, the Placing and the Placing Shares, satisfied itself that the
information is still current and relied on that investigation for the purposes
of its decision to participate in the Placing and (iv) it has received all
information that it believes is necessary or appropriate in order to make an
investment decision in respect of the Company and the Placing Shares;
5. it has neither received nor relied on any other information,
representation, warranty or statement made by either of the Bank or the Company
and none of the Bank nor the Company will be liable for any Placee`s decision to
accept this invitation to participate in the Placing based on any other
information, representation, warranty or statement;
6. the content of this announcement (including this Appendix)is exclusively
the responsibility of the Company and that none of the Banks nor any person
acting on their behalf is responsible for or has or shall have any liability for
any information or representation relating to the Company contained in this
announcement (including this Appendix) or the Publicly Available Information nor
will be liable for any Placee`s decision to participate in the Placing based on
any information, representation, warranty or statement contained in this
announcement (including this Appendix), the Publicly Available Information or
otherwise. Nothing in this Appendix shall exclude any liability of any person
for fraudulent misrepresentation;
7. it is not, and at the time the Placing Shares are acquired will not be a
resident of Canada or Japan, and each of it and the beneficial owner of the
Placing Shares is, and at the time the Placing Shares are acquired will be, (i)
not in the United States and acquiring the Placing Shares in an `offshore
transaction` in accordance with Rule 903 or Rule 904 of Regulation S under the
Securities Act or (ii) a QIB acquiring the Placing Shares in accordance with
Rule 144A under, or another exemption from the registration requirements of the
Securities Act who has duly executed an "investor letter" substantially in the
form provided, and has such knowledge and experience in financial and business
matters as to be capable of evaluating the merits and risks of an investment in
the Placing Shares, will not look to the banks for all or part of any such loss
it may suffer, is able to bear the economic risk of an investment in the Placing
Shares, is able to sustain a complete loss of the investment in the Placing
Shares and has no need for liquidity with respect to its investment in the
Placing Shares and represents and, in the case of (ii) above, warrants that it
is acquiring the Placing Shares for its own account or for one or more accounts
as to each of which it exercises sole investment discretion and each of which is
a QIB, for investment purposes and not with a view to any distribution or for
resale in connection with, the distribution thereof in whole or in part, in the
United States;
8. the Placing Shares have not been registered or otherwise qualified for
offer and sale nor will a prospectus be cleared in respect of any of the Placing
Shares under the securities laws of the United States, Australia, Canada or
Japan and, subject to certain exceptions, may not be offered, sold, taken up,
renounced or delivered or transferred, directly or indirectly, within the United
States, Australia, Canada or Japan;
9. it and/or each person on whose behalf it is participating:
(i) is entitled to acquire Placing Shares pursuant to the Placing under the
laws of all relevant jurisdictions;
(ii) has fully observed such laws;
(iii)has capacity and authority and is entitled to enter into and perform its
obligations as an acquirer of Placing Shares and will honour such obligations;
and
(iv) has obtained all necessary consents and authorities (including, without
limitation, in the case of a person acting on behalf of a Placee, all necessary
consents and authorities to agree to the terms set out or referred to in this
Appendix) to enable it to enter into the transactions contemplated hereby and to
perform its obligations in relation thereto;
10. the Placing Shares have not and will not be registered under the Securities
Act, or under the securities laws of any state or other jurisdiction of the
United States, nor approved or disapproved by the US Securities and Exchange
Commission, any state securities commission in the United States or any other
United States regulatory authority and are being offered and sold on behalf of
the Company to persons in offshore transactions (as defined in Regulation S
under the Securities Act) and to QIBs in accordance with Rule 144A under or
another exemption from the registration requirements of the Securities Act;
11. the Placing Shares offered and sold in the United States are "restricted
securities" within the meaning of Rule 144(a)(3) under the Securities Act;
12. so long as the Placing Shares are "restricted securities" within the
meaning of Rule 144(a)(3) under the Securities Act, it will not deposit the
Placing Shares into any unrestricted depositary receipt facility maintained by
any depositary bank in respect of the Company`s Ordinary Shares and it
understands that the Placing Shares will not settle or trade through the
facilities of DTC, the NYSE, NASDAQ or any other US exchange or clearing system;
13. it will not offer, sell, pledge or otherwise transfer the Placing Shares
except (i) in an offshore transaction in accordance with Rule 903 or 904 of
Regulation S under the Securities Act; (ii) in a transaction not involving any
general solicitation or general advertising pursuant to Rule 144A under the
Securities Act, (iii) pursuant to Rule 144 under the Securities Act (if
available), or (iv) pursuant to an effective registration statement under the
Securities Act and that, in each such case, such offer, sale, pledge, or
transfer will be made in accordance with any applicable securities laws of any
state of the United States;
14. if it is acquiring Placing Shares for the account of one or more QIBs, it
has full power to make the acknowledgements, representations, warranties and
agreements herein on behalf of each such account;
15. if it is a pension fund or investment company, its acquisition of Placing
Shares is in full compliance with applicable laws and regulations;
16. no representation has been made as to the availability of any exemption
under the Securities Act for the reoffer, resale, pledge or transfer of the
Placing Shares;
17. the Placing Shares are being delivered to it either through CREST, STRATE
or CHESS or in certificated, definitive form and acknowledges and agrees that
the Placing Shares will, to the extent they are delivered in certificated form,
bear a legend to the following effect unless agreed otherwise with the Company:
"THIS SECURITY HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933 (THE "SECURITIES ACT"), OR WITH ANY SECURITIES
REGULATORY AUTHORITY OF ANY STATE OR OTHER JURISDICTION OF THE UNITED STATES.
THIS SECURITY IS A "RESTRICTED SECURITY" WITHIN THE MEANING OF RULE 144(a)(3)
UNDER THE SECURITIES ACT AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED EXCEPT IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR 904
OF REGULATION S UNDER THE SECURITIES ACT, IN A TRANSACTION NOT INVOLVING ANY
GENERAL SOLICITATION OR GENERAL ADVERTISING PURSUANT TO RULE 144A, PURSUANT TO
RULE 144 (IF AVAILABLE), OR PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT, AND IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES. NO REPRESENTATION HAS BEEN
MADE AS TO THE AVAILABILITY OF ANY EXEMPTION UNDER THE SECURITIES ACT FOR THE
REOFFER, RESALE, PLEDGE OR TRANSFER OF THE PLACING SHARES. THIS SECURITY MAY NOT
BE DEPOSITED INTO ANY UNRESTRICTED DEPOSITARY FACILITY MAINTAINED BY ANY
DEPOSITARY BANK UNLESS AND UNTIL SUCH TIME AS THIS SECURITY IS NO LONGER A
"RESTRICTED SECURITY" WITHIN THE MEANING OF RULE 144(a)(3) UNDER THE SECURITIES
ACT."
18. participation in the Placing is on the basis that it is not and will not be
a client of any of the Banks and that the Banks have no duties or
responsibilities to a Placee for providing protections afforded to their
respective clients or for providing advice in relation to the Placing nor in
respect of any representations, warranties, undertakings or indemnities
contained in the Placing Agreement;
19. it will make payment to the Banks in accordance with the terms and
conditions of this announcement (including this Appendix) on the due times and
dates set out in this announcement (including this Appendix), failing which the
relevant Placing Shares may be placed with others on such terms as the Banks
determine;
20. the person who it specifies for registration as holder of the Placing
Shares will be (i) the Placee or (ii) a nominee of the Placee, as the case may
be. The Banks and the Company will not be responsible for any liability to stamp
duty or stamp duty reserve tax resulting from a failure to observe this
requirement;
21. if in the UK, it and any person acting on its behalf falls within Article
19(5) and/or 49(2) of the Financial Services and Markets Act 2000 (Financial
Promotion) Order 2005, as amended, and undertakes that it will acquire, hold,
manage and (if applicable) dispose of any Placing Shares that are allocated to
it for the purposes of its business only;
22. it has not offered or sold and will not offer or sell any Placing Shares to
persons in the United Kingdom prior to Admission except to persons whose
ordinary activities involve them in acquiring, holding, managing or disposing of
investments (as principal or agent) for the purposes of their business or
otherwise in circumstances which have not resulted and which will not result in
an offer to the public in the United Kingdom within the meaning of section 85(1)
of the Financial Services and Markets Act 2000 (the "FSMA");
23. if in the UK, it is a qualified investor as defined in section 86(7) of
FSMA, being a person falling within Article 2.1(e)(i), (ii) or (iii) of the
Prospectus Directive;
24. it has only communicated or caused to be communicated and it will only
communicate or cause to be communicated any invitation or inducement to engage
in investment activity (within the meaning of section 21 of the FSMA) relating
to Placing Shares in circumstances in which section 21(1) of the FSMA does not
require approval of the communication by an authorised person;
25. it has complied and it will comply with all applicable provisions of the
FSMA with respect to anything done by it or on its behalf in relation to the
Placing Shares in, from or otherwise involving the United Kingdom;
26. it has not offered or sold and will not offer or sell any Placing Shares to
persons in the European Economic Area prior to Admission except to persons whose
ordinary activities involve them acquiring, holding, managing or disposing of
investments (as principal or agent) for the purpose of their business or
otherwise in circumstances which have not resulted and which will not result in
an offer to the public in any member state of the European Economic Area within
the meaning of the Prospectus Directive (which means Directive 2003/71/EC and
includes any relevant implementing measure in any member state);
27. it has complied with its obligations in connection with money laundering
and terrorist financing under the Proceeds of Crime Act 2002, the Terrorism Act
2000, and the Money Laundering Regulations (2003) (the "Regulations") and, if
making payment on behalf of a third party, that satisfactory evidence has been
obtained and recorded by it to verify the identity of the third party as
required by the Regulations;
28. the Company, the Banks and others will rely upon the truth and accuracy of
the foregoing representations, warranties, acknowledgements and agreements;
29. the Placing Shares will be issued subject to the terms and conditions of
this Appendix; and
30. this Appendix and all documents into which this Appendix is incorporated by
reference or otherwise validly forms a part will be governed by and construed in
accordance with English law. All agreements to acquire shares pursuant to the
Bookbuilding and/or the Placing will be governed by English law and the English
courts shall have exclusive jurisdiction in relation thereto except that
proceedings may be taken by the Company or the Banks in any jurisdiction in
which the relevant Placee is incorporated or in which any of its securities have
a quotation on a recognised stock exchange.
By participating in the Placing, each Placee (and any person acting on such
Placee`s behalf) agrees to indemnify and hold the Company and the Banks harmless
from any and all costs, claims, liabilities and expenses (including legal fees
and expenses) arising out of or in connection with any breach of the
representations, warranties, acknowledgements, agreements and undertakings in
this Appendix and further agrees that the provisions of this Appendix shall
survive after completion of the Placing.
Placees should note that whilst they are not liable for any transfer taxes,
stamp duty or stamp duty reserve tax on the sale, transfer and delivery of the
Placing Shares from the Banks, the Banks shall not pay such transfer taxes,
stamp duty, or stamp duty reserve tax or any other tax or duty arising on any
subsequent sale, transfer or delivery of the Placing Shares.
The representations, warranties, acknowledgements and undertakings contained in
this Appendix are given to the Banks for itself and on behalf of the Company and
are irrevocable.
The Bookrunner is and the Banks are acting exclusively for the Company and no
one else in connection with the Bookbuilding and the Placing and the Bookrunner
and the Banks will not be responsible to anyone (including Placees) other than
the Company for providing the protections afforded to their respective clients
or for providing advice in relation to the Bookbuilding or the Placing or any
other matters referred to in this press announcement (including this Appendix).
Each Placee and any person acting on behalf of the Placee acknowledges that none
of the Bookrunner or the Banks owes fiduciary or other duties to any Placee in
respect of any representations, warranties, undertakings or indemnities in the
Placing Agreement.
Each Placee and any person acting on behalf of the Placee acknowledges and
agrees that each of the Banks may (at its absolute discretion) satisfy its
obligations to procure Placees by itself agreeing to become a Placee in respect
of some or all of the Placing Shares or by nominating any connected or
associated person to do so.
When a Placee or any person acting on behalf of the Placee is dealing with any
of the Banks, any money held in an account with any Bank on behalf of the Placee
and/or any person acting on behalf of the Placee will not be treated as client
money within the meaning of the relevant rules and regulations of the Financial
Services Authority which therefore will not require the Banks to segregate such
money, as that money will be held by it under a banking relationship and not as
trustee.
Past performance is no guide to future performance and persons needing advice
should consult an independent financial adviser.
All times and dates in this announcement (including this Appendix) may be
subject to amendment. The relevant Bank will notify Placees and any persons
acting on behalf of the Placees of any changes.
DEFINITIONS
In this announcement:
"Admission" means (i) the admission of the Placing Shares to the Official List
becoming effective in accordance with the Listing Rules, and the admission of
such shares to trading on the London Stock Exchange`s market for listed
securities becoming effective; (ii) the admission of the Placing Shares becoming
effective on the ASX; and (iii) the admission of the Placing Shares becoming
effective on the JSE;
"Affiliate" means in respect of a person, any holding company or subsidiary
undertaking of such person or any subsidiary undertaking of any such holding
company, or any of their respective associated undertakings;
"Banks" means Morgan Stanley & Co. International plc and Firstrand Bank Limited,
acting through Rand Merchant Bank;
"Bookbuilding" means the process to be carried out by the Banks to establish
demand at different prices from potential Placees for the Placing Shares;
"Listing Rules" means the listing rules produced by the FSA under Part VI of the
FSMA and forming part of the FSA`s Handbook of rules and guidance, as amended
from time to time;
"London Stock Exchange" means London Stock Exchange plc;
"Ordinary Shares" means ordinary shares of US$0.05 each in the capital of the
Company;
"Placees" means persons (including individuals, funds or others) on whose behalf
a commitment to acquire Placing Shares has been given and Placee means any one
of them;
"Placing Price" means the price per Ordinary Share at which the Placing Shares
are to be placed with Placees;
"QIB" means qualified institutional buyer within the meaning of Rule 144A of the
Securities Act;
"Regulation S" means Regulation S under the Securities Act;
"Regulatory Information Service" means any of the regulatory information
services included within the list maintained on the London Stock Exchange`s
website;
"Rule 144" means Rule 144 under the Securities Act;
"Rule 144A" means Rule 144A under the Securities Act;
"Securities Act" means the United States Securities Act of 1933, as amended;
"United Kingdom" or "UK" means the United Kingdom of Great Britain and Northern
Ireland; and
"United States" means the United States of America, its territories and
possessions, any State of the United States and the District of Columbia.
Date: 16/04/2008 07:44:01 Produced by the JSE SENS Department.
The SENS service is an information dissemination service administered by the
JSE Limited (`JSE`). The JSE does not, whether expressly, tacitly or
implicitly, represent, warrant or in any way guarantee the truth, accuracy or
completeness of the information published on SENS. The JSE, their officers,
employees and agents accept no liability for (or in respect of) any direct,
indirect, incidental or consequential loss or damage of any kind or nature,
howsoever arising, from the use of SENS or the use of, or reliance on,
information disseminated through SENS.
