| Fri 29 Oct 2010, 8:01 | | AQP - Aquarius Platinum Limited - Notice of annual general meeting and |
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AQP
AQP
AQP - Aquarius Platinum Limited - Notice of annual general meeting and
explanatory memorandum
Aquarius Platinum Limited
(Incorporated in Bermuda)
Registration Number: EC26290
JSE Code: AQP
ISIN: BMG0440M1284
NOTICE OF ANNUAL GENERAL MEETING AND EXPLANATORY MEMORANDUM
Date of Meeting: Tuesday, 23 November 2010
Time of Meeting: 9:00 am
Place of Meeting: Clarendon House
2 Church Street
Hamilton
BERMUDA
This Notice of General Meeting and Explanatory Memorandum should be read in
their entirety. If Shareholders are in doubt as to how they should vote, they
should seek advice from their accountant, solicitor or other professional
adviser prior to voting.
Your 2010 Annual Report is now available at www.aquariusplatinum.com
NOTICE OF ANNUAL GENERAL MEETING
Notice is hereby given that an annual general meeting of shareholders of
Aquarius Platinum Limited ("Company") will be held at 9:00 am on Tuesday, 23
November 2010 at Clarendon House, 2 Church Street, Hamilton, Bermuda.
The Explanatory Memorandum which accompanies and forms part of this Notice of
Annual General Meeting describes the various matters to be considered and
contains a glossary of defined terms for terms that are not defined in full in
this Notice of Annual General Meeting.
Agenda
1. Appointment of Chairman of the Meeting
2. Confirmation of the Notice and Quorum
3. Accounts for the Period Ended 30 June 2010
To receive the financial statements, directors` report and auditor`s report
for the Company and its controlled entities for the period ended 30 June
2010.
4. Resolution 1 - Re-election of Mr Nicholas Sibley
To consider and, if thought fit, to pass, with or without amendment, the
following resolution as an ordinary resolution:
"That Mr Nicholas Sibley, who retires by rotation in accordance with the
Company`s Bye-laws and being eligible, offers himself for re-election, be
re-elected as a Director."
5. Resolution 2 - Re-election of Mr Kofi Morna
To consider and, if thought fit, to pass, with or without amendment, the
following resolution as an ordinary resolution:
"That Mr Kofi Morna, who retires by rotation in accordance with the
Company`s Bye-laws and being eligible, offers himself for re-election, be
re-elected as a Director."
6. Resolution 3 - Amendments to Bye-laws
To consider and, if thought fit, to pass, with or without amendment, the
following resolution as an ordinary resolution:
"That, in accordance with Bye-law 94 of the Company`s Bye-laws and for all
other purposes, the amendments to the Bye-laws set out in Schedule A to the
Explanatory Memorandum be approved."
7. Resolution 4 - Buy back authorisation
To consider and, if thought fit, to pass, with or without amendment, the
following resolution as an ordinary resolution:
"That the Company be generally and unconditionally authorised to make
market purchases of Shares on such terms and in such manner as the
Directors may determine, provided that:
(a) the maximum number of Shares that may be purchased pursuant to this
authority is 23,161,550 Shares, representing 5% of the issued capital
of the Company as at 8 October 2010;
(b) the minimum price which may be paid for any Share purchased pursuant
to this authority is US$0.05;
(c) the maximum price which may be paid for any Share purchased pursuant
to this authority shall not be more than an amount equal to 105% of
the average of the middle market prices shown in the quotations for
the Shares in the London Stock Exchange Daily Official List for the
five business days immediately preceding the day on which that Share
is contracted to be purchased; and
(d) the authority shall expire at the conclusion of the Company`s next
annual general meeting after the passing of this Resolution unless
renewed, varied or revoked before that time, but the Company may make
a contract or contracts to purchase Shares under this authority before
its expiry which will or may be executed wholly or partly after the
expiry of this authority, and may make a purchase of Shares in
pursuance of any such contract."
8. Resolution 5 - Directors` Fees
To consider and, if thought fit, to pass, with or without amendment, the
following resolution as an ordinary resolution:
"That, for the purposes of Bye-law 22.1, ASX Listing Rule 10.17 and for all
other purposes, the maximum fees payable to the non-executive Directors of
the Company be increased by US$400,000 to US$1,250,000 per annum, to be
divided amongst the non-executive Directors in such proportions and in such
manner as they may agree and, in default of agreement, in equal shares."
The Company will disregard any votes cast on this resolution by a Director
and any associate of such Director. However, the Company need not
disregard a vote if it is cast by a person as proxy for a person who is
entitled to vote, in accordance with the directions on the proxy form, or
it is cast by the person chairing the meeting as proxy for a person who is
entitled to vote, in accordance with a direction on the proxy form to vote
as the proxy decides.
9. Resolution 6 - Re-appointment of Auditor
To consider and, if thought fit, to pass, with or without amendment, the
following resolution as an ordinary resolution:
"That, Messrs Ernst & Young of Perth, Western Australia, be and are hereby
appointed as Auditors of the Company until the conclusion of the next
annual general meeting at a fee to be agreed by the Directors."
By Order of the Board
Willi Boehm
Company Secretary
DATED: 29 October 2010
Proxy and Voting Entitlement Instructions are available on the Company`s Website
- www.aquariusplatinum.com
Explanatory Memorandum
This Explanatory Memorandum has been prepared for the information of
Shareholders in connection with the business to be conducted at the Annual
General Meeting of the Company to be held at Clarendon House, 2 Church Street,
Hamilton, Bermuda at 9:00 am on Tuesday, 23 November 2010.
This Explanatory Memorandum should be read in conjunction with, and forms part
of, the accompanying Notice of Annual General Meeting. A glossary of terms is
included at the end of this Explanatory Memorandum.
Full details of the Resolutions to be considered at the Meeting are set out
below.
1. Resolution 1 - Re-Election of Mr Nicholas Sibley as a Director
It is a requirement under the Company`s Bye-laws that Mr Nicholas Sibley
retire by rotation. Mr Sibley has offered himself for re-election as a
Director.
The remaining Directors recommend to Shareholders that Mr Sibley be re-
elected.
2. Resolution 2 - Re-Election of Mr Kofi Morna as a Director
It is a requirement under the Company`s Bye-laws that Mr Kofi Morna retire
by rotation. Mr Morna has offered himself for re-election as a Director.
The remaining Directors recommend to Shareholders that Mr Morna be re-
elected.
3. Resolution 3 - Amendments to Bye-laws
Resolution 3 proposes amendments to the Company`s Bye-laws to incorporate
the provisions set out in Schedule A to this Explanatory Memorandum
("Proposed Amendments").
A copy of the Bye-laws incorporating the Proposed Amendments will be sent
to any Shareholder upon request. A copy of the Bye-laws incorporating the
Proposed Amendments will also be available for inspection during normal
business hours at the Company`s registered office in Bermuda and at the
offices of the Company`s share registry in England and Australia.
A description of the Proposed Amendments, which essentially have two
elements, are set out below:
(a) Proportional Takeover Bid approval provisions
In October 2002 the Company amended its Bye-laws to incorporate significant
shareholder protection mechanisms which regulate a proposed takeover of the
Company. These mechanisms were modelled on the takeover and substantial
shareholder provisions of the Australian Corporations Act, the fundamental
principles of which are also reflected in the UK City Code on Takeovers and
Mergers.
One aspect of the shareholder protection mechanisms introduced in October
2002 related to a proportional takeover bid. Bye-law 70B provided that any
takeover bid for a specified proportion of all Shares ("Proportional
Takeover Bid") may only proceed if it is approved (by a 50% majority) by a
meeting of all Shareholders who are not either the bidder or associated
with the bidder. However, this Bye-law 70B ceased to apply in 2005.
The Company is now seeking Shareholder approval to amend its Bye-laws so as
to include this Bye-law 70B in the Bye-laws again.
If Bye-law 70B is included in the Bye-laws, in the event that a
Proportional Takeover Bid is made, the Directors are required to convene a
meeting of those Shareholders entitled to vote on a resolution to approve
the Proportional Takeover Bid. The meeting is to be called upon not less
than 14 days prior to the end of the offer period for the Proportional
Takeover Bid ("Deadline").
If the Proportional Takeover Bid is not approved by Shareholders, Aquarius
must refuse to register any transfer of Shares which purports to give
effect to a takeover contract pursuant to that Proportional Takeover Bid.
If no resolution in relation to the Proportional Takeover Bid is voted on
as at the end of the day before the Deadline, the resolution will be deemed
to have been passed. Where the approving resolution is passed or deemed to
have been passed, the Proportional Takeover Bid may proceed and the Company
is not prevented from registering transfers pursuant to the Proportional
Takeover Bid.
Without Bye-law 70B, a Proportional Takeover Bid for the Company may enable
effective control of the Company to be acquired without Shareholders having
the opportunity to dispose of all of their Shares to the bidder.
Accordingly, Shareholders could be at risk of passing control to the bidder
without an effective premium for all their Shares whilst leaving themselves
as part of a minority interest in the Company.
Without Bye-law 70B, if there was a Proportional Takeover Bid and
Shareholders considered that control of the Company was likely to pass,
Shareholders would be placed under pressure to accept the offer even if
they did not want control of the Company to pass to the bidder. Including
Bye-law 70B will make this situation less likely by permitting Shareholders
to decide whether a Proportional Takeover Bid should be permitted to
proceed.
(b) Buy-back provisions
Existing Bye-law 52.4 currently gives the Company the right to acquire its
own Shares in accordance with specific provisions of the Companies Act.
However, in 2006 amendments were made to the Companies Act which allowed a
company, if authorised to do so by its bye-laws, to acquire its own shares
to be held as treasury shares, for cash or any other consideration.
Treasury shares are shares of a company which were, or are treated as
having been, acquired by the company and have not been cancelled but have
been held by the company continuously since they were acquired.
Accordingly, the Company proposes to amend its existing Bye-law 52.4 so
that it retains the power to buy back its own Shares in accordance with the
Companies Act generally, however also giving it the power to buy back its
own Shares and hold them as treasury shares.
The Directors recommend that Shareholders vote in favour of the Proposed
Amendments.
4. Resolution 4 - Buy back authorisation
The Company seeks Shareholder approval to buy back Shares representing up
to 5% of its issued capital. Based on the issued capital as at 8 October
2010, the maximum number of Shares which may be purchased under the
authority will be 23,161,550 Shares. The minimum and maximum prices at
which Shares may be purchased are set out in the Resolution.
The authority will only be exercised if the Directors are satisfied that
any purchase can be expected to increase the earnings per Share after the
purchase and accordingly, that the purchase is in the best interests of
Shareholders generally. The Directors will also give careful consideration
to gearing levels of the Company and its general financial position. The
purchase would be settled out of distributable profits.
If Resolutions 3 and 4 are approved by Shareholders and the Directors
exercise the authority conferred by Resolution 4, they may consider holding
those Shares as treasury shares (in accordance with amended Bye-law 52.4)
or alternatively, cancelling them.
The authority will expire at the conclusion of the Company`s next annual
general meeting. The Company intends to renew this authority annually at
each annual general meeting.
5. Resolution 5 - Directors` Fees
The Company seeks Shareholder approval to increase the maximum fees payable
to the Directors each year by US$400,000, from the present US$850,000 to
US$1,250,000 per annum. The last increase was made in 2005.
The proposed maximum fee level is considered comparable to directors` fees
paid by other companies of a similar size that have exposure to the ASX,
LSE and JSE. The increase in aggregate Directors` fees is to enable the
Board to be in a position to pay and retain Directors at commercial rates
commensurate with their experience and expertise and to ensure that the
Company is able to attract and retain appropriately qualified and
experienced candidates as Directors and also allow for any future increase
in Board numbers.
Given their interest in the subject matter of this Resolution, the
Directors make no recommendation to Shareholders on Resolution 5.
6. Resolution 6 - Re-Appointment of Auditor
Section 89(2) of the Companies Act provides that members of a company at
each annual general meeting shall appoint one or more auditors to hold
office until the close of the next annual general meeting. In addition,
Section 89(6) provides that the remuneration of an auditor appointed by the
members shall be fixed by the members or by the Directors, if they are
authorised to do so by the members.
Ernst & Young are the Company`s auditors. Pursuant to Resolution 6, Ernst
& Young will be re-appointed the Company`s auditors until the close of the
next annual general meeting at a fee to be agreed by the Directors.
7. Glossary of Terms
In the Notice of Annual General Meeting and this Explanatory Memorandum the
following words and expressions have the following meanings:
"ASX" means ASX Limited, or the stock exchange conducted by ASX, as the
context requires.
"ASX Listing Rules" means the official listing rules of ASX.
"Board" means the board of Directors.
"Bye-laws" means the bye-laws of the Company as amended from time to time.
"Companies Act" means the Companies Act 1981 of Bermuda as amended from
time to time.
"Company" and "Aquarius" means Aquarius Platinum Limited ARBN 087 557 893.
"Deadline" has the meaning given in section 3(a) of the Explanatory
Memorandum.
"Directors" means the directors of the Company from time to time.
"Explanatory Memorandum" means this explanatory memorandum.
"Meeting" and "Annual General Meeting" means the annual general meeting of
Shareholders or any adjournment thereof, convened by the Notice.
"Notice" and "Notice of Annual General Meeting" means the notice of annual
general meeting which accompanies this Explanatory Memorandum.
"ordinary resolution" means a resolution that is required to be passed by
more than 50% of the votes cast by members entitled to vote on the
resolution.
"Proportional Takeover Bid" has the meaning given in section 3(a) of this
Explanatory Memorandum.
"Proposed Amendments" has the meaning given in section 3 of this
Explanatory Memorandum.
"Resolution" means a resolution in the Notice of Annual General Meeting.
"Shareholder" means a registered holder of Shares.
"Share" means a fully paid common share of US$0.05 in the capital of the
Company.
Schedule A
Proposed Amendments to Bye-laws
(i) Proportional Takeover Bid approval provisions
Insert the following new Bye-law 70B immediately after existing Bye-law 70A:
PROPORTIONAL TAKEOVER BID APPROVAL
70B Proportional Takeover Bid approval
In addition to the meanings and rules of interpretation set out in Bye-law 1,
capitalised terms used in this Bye-law 70B have the following meanings:
Approving Resolution means a resolution to approve a Proportional Takeover Bid
in accordance with this Bye-law 70B.
Associate has the meaning given in Bye-law 70A.
Deadline means the 14th day before the last day of the offer period for a
Proportional Takeover Bid.
Person has the meaning given in Bye-law 70A.
Proportional Takeover Bid means a Takeover for a specified proportion of all
Shares.
Relevant Stock Exchange has the meaning given in Bye-law 70A.
Takeover Bid has the meaning given in Bye-law 70A.
Voter means a Person (other than the bidder under a Proportional Takeover Bid or
an Associate of that bidder) who, as at the end of the day on which the first
offer under that bid was made, held Shares.
70B.1 Where offers are made under a Proportional Takeover Bid, the Directors
must call and arrange to hold a meeting of Voters for the purpose of voting on
an Approving Resolution before the Deadline. Notwithstanding Bye-law 33, for
the purposes of this Bye-law 70B.1, the meeting of Voters may be called upon not
less than 10 days` notice.
70B.2 If an Approving Resolution in relation to a Proportional Takeover Bid
is voted on in accordance with this Bye-law 70B before the Deadline, the Company
must, on or before the Deadline, give the bidder and each Relevant Stock
Exchange a written notice stating that an Approving Resolution has been voted on
and whether the resolution was passed or rejected.
70B.3 Notwithstanding any other Bye-law, the Board must refuse to register a
transfer of Shares giving effect to a takeover contract for a Proportional
Takeover Bid unless and until an Approving Resolution is passed in accordance
with this Bye-law 70B.
70B.4 Voting on an Approving Resolution
(a) Subject to Bye-law 70B.1, the provisions of these Bye-laws concerning
meetings of Members (with the necessary changes) apply to a meeting held
pursuant to Bye-law 70B.1.
(b) Subject to these Bye-laws, every Voter present at the meeting held under
Bye-law 70B.1 is entitled to one vote for each Share that the Voter holds.
(c) To be effective, an Approving Resolution must be passed before the
Deadline.
(d) An Approving Resolution that has been voted on is taken to have been passed
if the proportion that the number of votes in favour of the resolution
bears to the total number of votes on the resolution is greater than 50%,
and otherwise is taken to have been rejected.
(e) If no Approving Resolution has been voted on as at the end of the day
before the Deadline, an Approving Resolution is taken, for the purposes of
this Bye-law 70B, to have been passed in accordance with this bye-law 70B.
70B.5 This Bye-law 70B ceases to apply on the third anniversary of its last
adoption, or last renewal.
(ii) Buy-back provisions
Insert the following immediately after existing definition of "these Bye-laws"
and immediately before existing definition of "Uncertificated Share" in Bye-law
1.1:
"Treasury Share" means a share of the Company that was, or is treated as having
been acquired and held by the Company and has been held continuously by the
Company since it was so acquired and has not been cancelled.
Delete the existing Bye-law 52.4 and replace with the following:
52.4 The Company may purchase its own shares for cancellation or acquire them as
Treasury Shares in accordance with the Act on such terms as the Board shall
think fit. The Board may exercise all the powers of the Company to purchase or
acquire all or any part of its own shares in accordance with the Act.
29 October 2010
Sponsor
RAND MERCHANT BANK (A division of FirstRand Bank Limited)
Date: 29/10/2010 08:01:01 Produced by the JSE SENS Department.
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