| Thu 3 Nov 2011, 9:05 | | CZA - Coal of Africa Limited - Proposed cash placing to raise approximately |
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CZA
CZA
CZA - Coal of Africa Limited - Proposed cash placing to raise approximately
US$100 million
Coal of Africa Limited
(previously, "GVM Metals Limited")
(Incorporated and registered in Australia)
(Registration number ABN 98 008 905 388)
JSE/ASX/AIM Share code: CZA
ISIN AU000000CZA6
(`CoAL` or `the Company`)
PROPOSED CASH PLACING TO RAISE APPROXIMATELY US$100 MILLION
THE INFORMATION CONTAINED HEREIN IS RESTRICTED AND IS NOT FOR PUBLICATION,
RELEASE OR DISTRIBUTION, DIRECTLY OR INDIRECTLY, IN OR INTO THE UNITED
STATES, AUSTRALIA, CANADA, JAPAN OR ANY OTHER JURISDICTION IN WHICH SUCH
PUBLICATION, RELEASE OR DISTRIBUTION WOULD BE UNLAWFUL
Neither this Announcement nor any part of it constitutes an offer to sell
or issue or the solicitation of an offer to buy, subscribe or acquire any
new Ordinary Shares in any jurisdiction in which any such offer or
solicitation would be unlawful and the information contained herein is not
for publication or distribution, directly or indirectly, in or into the
United States, Australia, Canada, Japan or any jurisdiction in which such
publication or distribution would be unlawful.
CoAL today announces its intention to conduct a placing to raise
approximately US$100 million (before expenses) through the issue of new
ordinary shares ("Ordinary Shares") in the Company (the "Placing Shares")
(the "Placing").
Up to 79,676,037 Placing Shares are to be placed firm and issued by the
Company further to the directors` authority to allot Ordinary Shares for
cash, on a non-pre-emptive basis (the "Firm Placing Shares"). An additional
number of Placing Shares ("Conditional Placing Shares") will be placed with
investors conditional on shareholder approval at a general meeting of the
Company to be convened on or around 14 December 2011 (the "GM"). The
precise total number of shares issued in the Placing will be finally
determined such that the proceeds arising from the Placing amount to
approximately US$100 million (before expenses).
The price per Ordinary Share at which the Placing Shares are to be placed
(the "Placing Price") will be determined at the close of the Bookbuild (as
defined below). The Placing will be to institutional investors to raise
approximately US$100 million (approximately GBP63 million/South African
Rand 798 million) (before expenses). The Placing is being conducted through
an accelerated book-building process to be undertaken by J.P. Morgan
Securities Ltd. (which conducts its UK investment banking activities as
J.P. Morgan Cazenove ("J.P. Morgan Cazenove")), which is also acting as
Sole Global Co-ordinator and Bookrunner. Mirabaud Securities LLP
("Mirabaud") is acting as Joint Lead Manager and Evolution Securities
Limited ("Evolution") is acting as Co-Lead Manager to the Placing (together
with J.P. Morgan Cazenove, the "Managers"). Macquarie First South Capital
(Proprietary) Limited ("Macquarie") is acting as the JSE Transaction
Sponsor to CoAL.
New Bank Facility
CoAL also announces today that it has entered into a new 364 day US$40
million revolving credit facility with J.P. Morgan Europe Ltd., (the "New
Bank Facility"). Drawdown on the New Bank Facility is conditional on the
Company raising minimum gross proceeds of US$75 million in the Placing, an
amount such that drawdown is expected to require the approval by
shareholders for the issue of the Conditional Placing Shares at the GM on
or around 14 December 2011. The New Bank Facility is unsecured and has a
negative pledge mechanism in place. Under the terms of the New Bank
Facility, the Company must draw down its existing facilities to a balance
of US$45 million before it may begin to draw down the New Bank Facility.
The New Bank Facility includes ongoing requirements as to the Group`s
environmental compliance status, planning and procedures.
The Placing
The Placing is subject to the terms and conditions set out in Appendix A.
J.P. Morgan Cazenove will today commence an accelerated bookbuilding
process in respect of the Placing ("Bookbuild"). The book will open with
immediate effect. The timing of the closing of the book, pricing and
allocations is at the discretion of J.P. Morgan Cazenove and CoAL. Details
of the Placing Price will be announced as soon as practicable after the
close of the Bookbuild.
The Placing Shares will be credited as fully paid and will rank pari passu
in all respects with the existing Ordinary Shares including the right to
receive all dividends and other distributions declared, made or paid after
their date of issue.
The Firm Placing Shares will be issued on a non-pre-emptive basis.
The Company will apply for admission of the Firm Placing Shares to trading
on the AIM market of London Stock Exchange plc ("AIM") ("First Admission")
and the Main Board of the JSE Limited ("JSE"). It is expected that
admission to trading or quotation and listing of the Firm Placing Shares
will take place on or around 8 November 2011 on AIM and on or around 9
November 2011 on the JSE.
The Company will also apply for admission of the Conditional Placing
Shares, the issue of which is subject to shareholder approval, on AIM
("Second Admission") and on the JSE. It is expected that admission to
trading or quotation and listing of the Conditional Placing Shares will
take place on AIM on or around 14 December 2011 and on the JSE and on or
around 15 December 2011.
Application will also be made for the Placing Shares to be admitted to the
ASX.
The Firm Placing is conditional, among other things, upon First Admission
becoming effective. The Conditional Placing is conditional, among other
things, upon shareholder approval and First Admission and Second Admission
becoming effective. The Firm Placing is not conditional on the Conditional
Placing. At the GM, Placees who have been allocated to receive Conditional
Placing Shares will not be entitled to vote on the resolution to approve
the issue of the Conditional Placing Shares.
The Placing is also conditional upon the placing agreement between the
Company and the Managers not being terminated. Appendix A to this
Announcement (which forms a part of this Announcement) sets out further
information relating to the Bookbuild and the terms and conditions of the
Placing.
Investors who participate in the Placing will receive an allocation of Firm
Placing Shares and/or Conditional Placing Shares at the discretion of J.P.
Morgan Cazenove. Placees should refer to their trade confirmation and
Placing Allocation Letter in respect of each. The Firm Placing Shares will
settle on AIM on a T+3 basis and on the JSE on a T+5 basis. The expected
date of the GM is on or around 14 December 2011 and the anticipated
settlement date of the Conditional Placing Shares on AIM is 14 December
2011 and on the JSE is 19 December 2011, however these dates are subject to
change.
In the event shareholder approval for the issue of the Conditional Placing
Shares is not received at the GM, the Conditional Placing Shares will not
be issued, and the proceeds of the Firm Placing alone will constitute the
Placing proceeds. Drawdown of the New Bank Facility is conditional on the
Company raising minimum gross proceeds of US$75 million in the Placing. It
is unlikely that the proceeds of the Firm Placing alone will satisfy this
requirement and therefore the Company will be unable to drawdown on the New
Bank Facility unless approval for the Conditional Placing Shares is
received.
For the avoidance of doubt, no commissions or other consideration will be
payable by the Managers or the Company in respect of any agreement to
subscribe for Placing Shares.
Reasons for the Placing and the use of proceeds
CoAL requires finance for the continuing development of the Company`s
projects including the Vele colliery and for the completion of the
acquisition of Chapudi Coal (Proprietary) Limited and Kwezi Mining
Exploration Proprietary Limited, the holders of certain prospecting rights
over coal assets at Chapudi in the Soutpansberg Coalfield, South Africa
from Rio Tinto Minerals Development Limited and Kwezi Mining Proprietary
Limited (together the "Sellers") (the "Chapudi Acquisition"), announced on
29 November 2010.
The Company intends to use the net proceeds of the Placing to finance the
following:
the remaining capital expenditure to bring the Vele project into production
and related working capital - c. US$25 million;
the first tranche cash consideration for the Chapudi Acquisition upon
receipt of regulatory approvals (by no later than 30 April 2012 under the
terms of the Sale and Purchase Agreement (as amended) with the Sellers) -
US$43 million payable on completion of the acquisition in addition to the
deposit of US$2 million that has already been paid to the Sellers;
c. US$15 million on targeted exploration activities and a technical
programme at Chapudi and in respect of other Soutpansberg Coalfield
projects in order to advance preparation for New Order Mining Right
applications; and
c. US$17 million for general working capital/corporate purposes including
c. US$10 million to establish a financial guarantee for the Transnet
Freight Rail account and c. US$5 million in adviser fees for the
preparation of the registration document and Mineral Expert`s Report
published on 31 October 2011.
In the event that the Conditional Placing is not approved at the GM, the
Company will need to find alternative ways to fund these projects and there
is no guarantee that such funding will be available or of the terms of any
such alternative funding.
The Company expects to complete the definitive feasibility study in respect
of its Makhado project in this quarter and continues to evaluate its
multiple funding options for the project.
Commenting on the Placing, John Wallington, Chief Executive Officer of CoAL
said:
"The last twelve months have been challenging for CoAL, but even set
against this backdrop, we have achieved both core business stabilisation
and growth. The Company`s two operating assets produced in excess of 4 Mt
of thermal coal along with positive cash flows. The year ahead holds the
prospect of both the start of material production at Vele, and the
completion of the Chapudi acquisition which will enable CoAL to consolidate
its position as a leading holder of coking coal New Order Prospecting
Rights in the Soutpansberg Coalfield in the Limpopo Province. Today`s
announcement regarding our proposed equity capital raise and a new credit
facility would ensure that growth can be sustained on the foundations of a
robust balance sheet and strong capital base."
Analyst conference call
A conference call for analysts and investors will be held today at 10.30am
(GMT). The dial-in details are as follows:
UK Access Number: 0800 368 1950 (Toll Free)
International Access Number: +44 (0)20 3140 0668
The Conference ID in all cases will be: 412277#
A copy of the presentation is available on the company`s website:
www.coalofafrica.com
Contacts
CoAL
Tel: +27 (0) 11 575 4363
John Wallington
Wayne Koonin
J.P. Morgan Cazenove
Tel: +44 (0) 20 7325 1000
Verne Grinstead
Chris Nicholls
Neil Passmore
Mirabaud
Tel +44 207 878 3362
Peter Krens
Rory Scott
Evolution
Tel: +44 (0) 20 7071 4300
Chris Sim
Mark Wellesley-Wood
Jeremy Ellis
Macquarie
Tel: +27 (0) 11 583 2000
Melanie de Nysschen
Annerie Britz
Yvette Labuschagne
Tavistock (United Kingdom)
Tel: +44 (0) 20 7920 3150
Jos Simson
Emily Fenton
Russell & Associates (South Africa)
Tel: +27 (0) 11 880 3924
Tel: +27 (0) 82 372 5816
Charmane Russell
James Duncan
THE INFORMATION CONTAINED HEREIN IS RESTRICTED AND IS NOT FOR PUBLICATION,
RELEASE OR DISTRIBUTION, DIRECTLY OR INDIRECTLY, IN OR INTO THE UNITED
STATES, AUSTRALIA, CANADA, JAPAN OR ANY OTHER JURISDICTION IN WHICH SUCH
PUBLICATION, RELEASE OR DISTRIBUTION WOULD BE UNLAWFUL.
This Announcement has been issued by and is the sole responsibility of the
Company. No representation or warranty, express or implied, is or will be
made as to, or in relation to, and no responsibility or liability is or
will be accepted by J.P. Morgan Cazenove, Mirabaud, Evolution or Macquarie
or by any of their respective affiliates or agents as to or in relation to,
the accuracy or completeness of this Announcement or any other written or
oral information made available to or publicly available to any interested
party or its advisers, and any liability therefore is expressly disclaimed.
J.P. Morgan Cazenove is acting as Global Co-ordinator and Bookrunner,
Mirabaud is acting as Joint Lead Manager, and Evolution is acting as Co-
Lead Manager in connection with the Placing. Macquarie is acting as the JSE
Transaction Sponsor to the Company. Each of J.P. Morgan Cazenove, Evolution
and Mirabaud, each of which is authorised and regulated by the Financial
Services Authority, and of Macquarie which is authorised by the Financial
Services Board are acting for the Company in connection with the Placing
and no-one else and none of J.P. Morgan Cazenove, Mirabaud, Evolution nor
Macquarie will be responsible to anyone other than the Company for
providing the protections afforded to the respective clients of J.P. Morgan
Cazenove, Mirabaud, Evolution and Macquarie nor for providing advice in
relation to the Placing or any other matter referred to herein.
The distribution of this Announcement and the Placing of the Placing Shares
in certain jurisdictions may be restricted by law. No action has been taken
by the Company, J.P. Morgan Cazenove, Mirabaud, Evolution or Macquarie that
would permit an offering of such shares or possession or distribution of
this Announcement or any other offering or publicity material relating to
such shares in any jurisdiction where action for that purpose is required.
Persons into whose possession this announcement comes are required by the
Company, J.P. Morgan Cazenove, Mirabaud, Evolution and Macquarie to inform
themselves about, and to observe, such restrictions.
Macquarie is not an authorised deposit-taking institution for the purposes
of the Banking Act 1959 (Commonwealth of Australia), and its obligations do
not represent deposits or other liabilities of Macquarie Bank Limited ABN
46 008 583 542 ("MBL"). MBL does not guarantee or otherwise provide
assurance in respect of the obligations of Macquarie.
The information in this Announcement shall not constitute an offer to sell
or the solicitation of an offer to buy, nor shall there be any sale of, the
securities referred to herein in any jurisdiction in which such offer,
solicitation or sale would require preparation of further prospectuses or
other offer documentation, or be unlawful prior to registration, exemption
from registration or qualification under the securities laws of any such
jurisdiction.
No public offer of securities of the Company is being made in Australia,
the United Kingdom, the United States, the Republic of South Africa or
elsewhere. The information in this Announcement does not constitute or form
a part of any offer or solicitation to purchase or subscribe for securities
in the United States. The securities mentioned herein have not been, and
will not be, registered under the United States Securities Act of 1933 (the
"Securities Act") nor the security laws of any state or other jurisdiction
of the United States. The securities mentioned herein may not be offered or
sold in the United States except pursuant to Regulation S under the
Securities Act or another exemption from, or transaction not subject to,
the registration requirements of the Securities Act. There will be no
public offer of securities in the United States.
The information in this Announcement may not be forwarded or distributed to
any other person and may not be reproduced in any manner whatsoever. Any
forwarding, distribution, reproduction, or disclosure of this information
in whole or in part is unauthorised. Failure to comply with this directive
may result in a violation of the Securities Act or the applicable laws of
other jurisdictions.
APPENDIX A
TERMS AND CONDITIONS OF THE PLACING
IMPORTANT INFORMATION REGARDING THE PLACING FOR INVITED PLACEES ONLY,
CAPITALISED TERMS USED IN THIS APPENDIX ARE DEFINED IN THE GLOSSARY TO THIS
APPENDIX
THIS ANNOUNCEMENT IS NOT FOR RELEASE, PUBLICATION OR DISTRIBUTION, DIRECTLY
OR INDIRECTLY IN OR INTO THE UNITED STATES, AUSTRALIA, CANADA OR JAPAN OR
ANY OTHER JURISDICTION IN OR INTO WHICH SUCH RELEASE, PUBLICATION OR
DISTRIBUTION IS UNAUTHORISED OR UNLAWFUL.
MEMBERS OF THE PUBLIC ARE NOT ELIGIBLE TO TAKE PART IN THE PLACING. THIS
APPENDIX AND THE TERMS AND CONDITIONS SET OUT HEREIN ARE FOR INFORMATION
PURPOSES ONLY AND ARE DIRECTED ONLY AT PERSONS SELECTED BY THE MANAGERS WHO
ARE: (A) PERSONS IN MEMBER STATES OF THE EUROPEAN ECONOMIC AREA WHO ARE
QUALIFIED INVESTORS WITHIN THE MEANING OF ARTICLE 2(1)(E) OF THE PROSPECTUS
DIRECTIVE (DIRECTIVE 2003/71/EC) ("QUALIFIED INVESTORS"); (B) IN THE UNITED
KINGDOM, QUALIFIED INVESTORS WHO ARE PERSONS WHO: (I) HAVE PROFESSIONAL
EXPERIENCE IN MATTERS RELATING TO INVESTMENTS AND ARE "INVESTMENT
PROFESSIONALS" FALLING WITHIN ARTICLE 19(5) OF THE UNITED KINGDOM FINANCIAL
SERVICES AND MARKETS ACT, 2000 (FINANCIAL PROMOTION) ORDER 2005 (AS
AMENDED) (THE "ORDER"); OR (II) ARE PERSONS FALLING WITHIN ARTICLE 49(2)(A)
TO (D) ("HIGH NET WORTH COMPANIES, UNINCORPORATED ASSOCIATIONS, ETC") OF
THE ORDER; (C) IN THE REPUBLIC OF SOUTH AFRICA, INVESTORS QUALIFYING IN
TERMS OF SECTION 96(1)(A) & (B) OF THE SOUTH AFRICAN COMPANIES ACT, 2008
(NO 71 OF 2008); OR (D) PERSONS TO WHOM IT MAY OTHERWISE BE LAWFULLY
COMMUNICATED (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. 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 ANNOUNCEMENT AND THE
TERMS AND CONDITIONS SET OUT IN THIS APPENDIX DOES NOT ITSELF CONSTITUTE AN
OFFER FOR SALE OR SUBSCRIPTION OF ANY SECURITIES IN THE COMPANY.
Persons who are invited to and who choose to participate in the Placing, by
making an oral or written offer to subscribe for Placing Shares (the
"Placees"), will be deemed to have read and understood this Announcement,
including this Appendix, in its entirety and to be making such offer on the
terms and conditions, and to be providing the representations, warranties,
acknowledgements, undertakings and agreements contained in this Appendix.
In particular, each such Placee represents, warrants and acknowledges that
it is a Relevant Person (as defined above) 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. In addition, Placees located in
certain jurisdictions including the United Kingdom and South Africa will be
required to execute placing allocation letters in a form provided ("Placing
Allocation Letter").
This Announcement does not constitute an offer, and may not be used in
connection with an offer to sell or issue or the solicitation of an offer
to buy or subscribe for Placing Shares in any jurisdiction in which such
offer or solicitation is or may be unauthorised or unlawful and any failure
to comply with these restrictions may constitute a violation of applicable
securities laws in such jurisdictions. This Announcement and the
information contained herein is not for release, publication or
distribution, directly or indirectly, to persons in the United States,
Australia, Canada or Japan or in any other jurisdiction in which such
release, publication or distribution is unauthorised or unlawful. Persons
into whose possession this Announcement may come are required by the
Company to inform themselves about and to observe any restrictions on
transfer of this Announcement. No public offer of securities of the Company
is being made in any jurisdiction.
In particular, the Placing Shares referred to in this Announcement have not
been and will not be registered under the Securities Act or the laws of any
state or other jurisdiction in the United States and may not be, directly
or indirectly, offered, sold, pledged, resold, taken up, delivered or
otherwise transferred in or into the United States except pursuant to an
exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act and applicable state laws.
The relevant clearances have not been, and nor will they be, obtained from
the securities commission of any province or territory of Canada; no
prospectus has been lodged and/or registered with the ASIC, or the CIPC or
the Japanese Ministry of Finance; and the Placing Shares have not been, and
nor will they be, registered under or offered in compliance with the
securities laws of any state, province or territory of Australia, Canada or
Japan. Accordingly, the Placing Shares may not (unless an exemption under
the relevant securities laws is applicable) be offered, sold, resold,
pledged, taken up, delivered or otherwise transferred directly or
indirectly, in or into Australia, Canada or Japan or any other jurisdiction
where to do so would be unauthorised or unlawful.
Persons (including, without limitation, nominees and trustees) who have a
contractual or other legal obligation to forward a copy of this Appendix or
the Announcement of which it forms part should seek appropriate advice
before taking any action.
Notice to South African Residents
This document is not a prospectus and is not to be construed as an offer to
the public in terms of the South African Companies Act, 2008, (No 71 of
2008). Accordingly, any securities referenced in this Announcement will not
be offered in such a way as to require the issuing and registration of a
prospectus in South Africa in accordance with applicable South African law.
This Announcement is being distributed only to certain identified investors
in South Africa to whom it may be lawfully distributed. Nothing in this
Announcement should be viewed, or construed, as "advice" as that term is
used in the South African Securities Services Act, 2004 and/or Financial
Advisory and Intermediary Services Act, 2002.
Notice to UK Residents
This Announcement is not a prospectus for the purposes of the Prospectus
Rules published by the UK Financial Services Authority ("FSA") and has not
been, and will not be, approved by, or filed with, the FSA. This
Announcement contains no offer to the public within the meaning of Section
102B of the United Kingdom Financial Services and Markets Act 2000 (as
amended), the United Kingdom Companies Act 2006 or otherwise.
Notice to US Residents
This Announcement may not be distributed, taken or transmitted in or into
the United States, its territories or possessions and any forwarding,
distribution or reproduction of this announcement in whole or in part is
unauthorised. Failure to comply with this notice may result in a violation
of the Securities Act or the applicable laws of other jurisdictions.
The Placing Shares 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, directly or
indirectly, offered, sold, resold, pledged, taken up, delivered or
otherwise transferred in or into the United States unless such Placing
Shares are registered under the Securities Act or are offered and sold
pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act and in compliance with any
state securities laws. The Placing Shares are not being offered or sold to
persons in the United States and are only being offered and sold outside
the United States pursuant to a transaction exempt from the registration
requirements of the Securities Act in compliance with and in reliance on
Regulation S.
The Placing Shares have not been approved or disapproved by the US
Securities and Exchange Commission, any state securities commission 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.
Details of the Placing Agreement and the Placing Shares
The Managers have entered into the Placing Agreement with the Company under
which the Managers have severally (and not jointly or jointly and
severally), on the terms and subject to the conditions set out therein,
undertaken to use their reasonable endeavours to procure subscribers for
the Placing Shares at the Placing Price. Under the Placing up to 79,676,037
of the Placing Shares are to be placed firm (the "Firm Placing Shares") and
an additional number of new Ordinary Shares are available to be placed
subject to shareholder approval at the General Meeting (the "Conditional
Placing Shares").
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
including the right to receive all dividends and other distributions
declared made or paid after the date of issue.
In this Appendix, unless the context otherwise requires, Placee means a
Relevant Person (including individuals, funds or others) on whose behalf a
commitment to subscribe for Placing Shares has been given.
Application for listing and admission to trading
Application will be made to the London Stock Exchange for admission to
trading of the Firm Placing Shares to AIM. It is expected that AIM
Admission of the Firm Placing Shares will become effective and that
dealings on AIM in the Firm Placing Shares will commence at 8.00 a.m.
(London time) on or around 8 November 2011 in accordance with the terms of
the Placing Allocation Letters.
Application will be made to the JSE for the Firm Placing Shares to be
listed and admitted to trading on the Main Board of the JSE. It is expected
that listing will become effective at 9.00 a.m. (Johannesburg time) on or
around 9 November 2011. Settlement of the Firm Placing Shares to be held on
the South African Share Register is expected to take place on or around 10
November 2011 in accordance with the terms of the Placing Allocation
Letters.
Application will be made to the London Stock Exchange for admission to
trading of the Conditional Placing Shares to AIM. Settlement for any
Conditional Placing Shares issued and allotted pursuant to the Placing
will, subject to the passing of the Shareholder Resolution, take place on
the date of the Second Admission which is expected to be on or around 14
December 2011 in accordance with the terms of the Placing Allocation
Letters.
Application will be made to the JSE for the Conditional Placing Shares to
be listed and admitted to trading on the Main Board of the JSE. It is
expected that listing will become effective at 9.00am (Johannesburg time)
on or around 15 December 2011. Settlement of the Firm Placing Shares to be
held on the South African Share Register is expected, subject to the
passing of the Shareholder Resolution to take place on or around 19
December 2011 in accordance with the terms of the Placing Allocation
Letters.
Bookbuild
The Managers will today commence an accelerated bookbuilding process in
respect of the Placing (the "Bookbuild") 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 Managers and the Company shall be entitled to effect the Placing by
such alternative method to the Bookbuild as they may, in their sole
discretion, determine.
Participation in, and principal terms of, the Placing:
J.P. Morgan Cazenove is acting as global co-ordinator, bookrunner and
manager, Mirabaud is acting as lead manager and Evolution is acting as co-
manager and as agents of the Company.
By participating in the Bookbuild and Placing, you (and any person acting
on your behalf including, for the avoidance of doubt, any nominee)
acknowledge that J.P. Morgan Cazenove, Mirabaud and Evolution are not
making any recommendation to you nor advising you, nor are you relying on
them to advise, regarding the suitability or merits of your acquiring any
Placing Shares or entering into any transaction connected with them. You
acknowledge and agree that J.P. Morgan Cazenove is acting as the global co-
ordinator, bookrunner and manager in respect of the Placing, Mirabaud is
acting as lead manager and Evolution is acting as co-manager and are
assisting the Company in identifying prospective purchasers for the Placing
Shares and providing other assistance to the Company in respect of the
Placing. Accordingly, you acknowledge and agree that they are not acting
for, and that you do not expect them to have, and acknowledge and agree
that they do not have, any duties or responsibilities towards you for
providing protections afforded to their customers or clients or advising
you with regard to your participation in the Placing and that you are not,
and will not be, a customer or client of either J.P. Morgan Cazenove,
Mirabaud and Evolution in relation to your participation in the Placing.
Therefore none of them will be responsible to you or to any other person
for providing the protections afforded to their respective clients or for
providing advice in relation to the transactions and arrangements described
in this Announcement, nor do the contents or receipt of this Announcement
constitute the provision of investment advice by either J.P. Morgan
Cazenove, Mirabaud or Evolution.
Participation in the Placing will only be available to persons who may
lawfully be and are invited to participate by the Managers. The Managers
and their respective affiliates or their respective agents are entitled to
enter bids as principal in the Bookbuild.
The Bookbuild will establish a single price in Pounds Sterling. A South
African Rand price will be determined from that Pounds Sterling price at an
exchange rate to be determined at the sole discretion of the Bookrunner.
When submitting bids, Placees will be entitled to choose whether they wish
to settle in Pounds Sterling or South African Rand, in each case payable to
the Managers by all Placees whose bids are successful (the "Placing
Price"). The Placing Price, the number of Placing Shares to be issued, the
split of the Placing Shares between Firm Placing Shares and Conditional
Placing Shares and the aggregate proceeds to be raised through the Placing
will be determined by the Bookrunner in consultation with the Company
following completion of the Bookbuild. The Placing Price will be announced
on a Regulatory Information Service following the completion of the
Bookbuild (the "Placing Results Announcement").
To bid in the Bookbuild, Placees should communicate their bid by telephone
to their usual sales contact at the Managers (the "Relevant Manager"). Each
bid should state the number of Placing Shares for which the prospective
Placee wishes to subscribe at either the Pounds Sterling or South African
Rand Placing Price, which is ultimately established by the Bookrunner in
consultation with the Company, or at prices in Pounds Sterling or South
African Rand up to a price limit in Pounds Sterling or South African Rand
specified in its bid. Bids may be scaled down or allocated between Firm
Placing Shares and Conditional Placing Shares by the Bookrunner on the
basis referred to in paragraph 9 below.
The Bookbuild is expected to close no later than 4:30 p.m. (London time) on
3 November 2011 but may be closed earlier or later at the discretion of the
Bookrunner. The Bookrunner may accept bids that are received after the
Bookbuild has closed. The Company reserves the right (with the agreement of
the Bookrunner) to reduce or seek to increase the amount to be raised
pursuant to the Placing, in its absolute discretion.
Each prospective Placee`s allocation (and the split between Firm Placing
Shares and Conditional Placing Shares) will be confirmed to the Placee
orally by the Relevant Manager following the close of the Placing, and (a)
conditional contract note(s) and in certain jurisdictions including the
United Kingdom and South Africa, a Placing Allocation Letter, will be
despatched as soon as possible thereafter. The Relevant Manager`s oral
confirmation to such Placee will constitute an irrevocable legally binding
commitment upon such person (who will at that point become a Placee) in
favour of the Relevant Manager and the Company, under which the Placee
agrees to acquire the number of Firm Placing Shares and/or Conditional
Placing Shares allocated to it at the Placing Price on the terms and
conditions set out in this Appendix and any Placing Allocation Letter and
in accordance with the Company`s constitution.
Each prospective Placee`s allocation and commitment will be evidenced by
(a) conditional contract note(s) issued to such Placee by the Relevant
Manager and in certain jurisdictions including the United Kingdom and South
Africa, a Placing Allocation Letter. The terms of this Appendix will be
deemed to be incorporated in the contract note(s) and/or, where
appropriate, the Placing Allocation Letter. The Placing Allocation Letter
must be signed and returned, but if you fail to return an executed Placing
Allocation Letter its terms and the terms of this Appendix will be deemed
to have been accepted by you.
The Placing Results Announcement shall detail the number of Placing Shares
to be issued (both Firm Placing Shares and Conditional Placing Shares) and
the Placing Price in Pounds Sterling as well as the South African Rand
price derived from that Pounds Sterling price at an exchange rate to be
determined at the sole discretion of the Bookrunner.
Subject to paragraphs 5 and 6 above, the Bookrunner may choose to accept
bids, either in whole or in part, on the basis of allocations determined at
its discretion (in consultation with the Company) and may scale down any
bids for this purpose on such basis as it may determine. The Bookrunner may
allocate accepted bids between Firm Placing Shares and Conditional Placing
Shares as it may in its absolute discretion determine. The acceptance of
bids shall be at the Bookrunner`s absolute discretion. The Bookrunner may
also, notwithstanding paragraphs 5 and 6 above, subject to the prior
consent of the Company: (i) allocate Placing Shares after the time of any
initial allocation to any person submitting a bid after that time; and (ii)
allocate Placing Shares after the Bookbuild has closed to any person
submitting a bid after that time. The Bookrunner reserves the right not to
accept bids or to accept bids in part rather than in whole.
A bid in the Bookbuild will be made on the terms and subject to the
conditions in this Announcement and, in certain jurisdictions including the
United Kingdom and South Africa, the terms and conditions in the Placing
Allocation Letter (a copy of which has been provided to each prospective
Placee) 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 also have an immediate, separate, irrevocable and binding
obligation, owed to the Relevant Manager, to pay 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. Each
Placee`s obligations under this paragraph will be owed to the Relevant
Manager.
Except as required by law or regulation, no press release or other
announcement will be made by the Managers 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.
Irrespective of the time at which a Placee`s allocation pursuant to the
Placing is confirmed, settlement for all Placing Shares to be acquired
pursuant to the Placing will be required to be made at the relevant time,
on the basis explained below under "Registration and Settlement".
All obligations under the Bookbuild 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 "Right to terminate under the Placing Agreement".
By participating in the Bookbuild, 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.
To the fullest extent permissible by law and applicable rules of the FSA,
none of the Managers nor any of their respective affiliates or agents shall
have any liability to Placees (or to any other person whether acting on
behalf of a Placee or otherwise whether or not a recipient of these terms
and conditions) in respect of the Placing. Each Placee acknowledges and
agrees that the Company is responsible for the allotment of the Placing
Shares to the Placees and the Managers shall have no liability to the
Placees for the failure of the Company to fulfil those obligations. In
particular, none of the Managers nor any of their respective affiliates or
agents shall have any liability (including to the extent permissible by
law, any fiduciary duties) in respect of the conduct of the Bookbuild
process or of any alternative method of effecting the Placing as the
Managers and the Company may agree.
Each prospective Placee resident in the United Kingdom or South Africa who
is subscribing for Placing Shares will be required to sign a Placing
Allocation Letter to be provided by J.P. Morgan Cazenove in the UK or by
J.P. Morgan Cazenove or its affiliate or agent in South Africa. The terms
and conditions contained in this Appendix will be deemed to be incorporated
in that Placing Allocation Letter.
Conditions of the Placing
The obligations of the Managers under the Placing Agreement in respect of
the Placing Shares are conditional on, inter alia:
in relation to the obligations relating to both the Firm Placing Shares and
the Conditional Placing Shares:
- AIM Admission of the Firm Placing Shares occurring not later than
8.00 a.m. (London time) on 8 November 2011 or such other date as
may be agreed between the Company and J.P. Morgan Cazenove, not
being later than 11 November 2011;
- the Company having lodged with the ASX an Appendix 3B
announcement conditional only on the issue of the Firm Placing
Shares by the business day after the date of this Announcement
(or such other date as may be agreed between the Company and J.P.
Morgan Cazenove not being later than 12 November 2011);
- the JSE having confirmed to the Company in writing before the
date of AIM Admission of the Firm Placing Shares (or such other
date as may be agreed between the Company and J.P. Morgan
Cazenove) the agreement of the JSE that the Firm Placing Shares
will be eligible for listing on the JSE on that date (or such
other date as may be agreed between the Company and J.P. Morgan
Cazenove, not being later than 11 November 2011); and
- the warranties contained in the Placing Agreement being true and
accurate and not misleading on and as of the date of the Placing
Agreement and at the date of the AIM Admission of the Firm
Placing Shares as though they had been given and made on such
dates by reference to the facts and circumstances then
subsisting;
in relation to the obligations relating to the Conditional Placing Shares:
- the passing without amendment of the Shareholder Resolution at
the General Meeting;
- AIM Admission of the Conditional Placing Shares occurring not
later than 8.00 a.m. (London time) on 14 December 2011 or such
other date as may be agreed between the Company and J.P. Morgan
Cazenove, not being later than 21 December 2011;
- the Company having lodged with the ASX an Appendix 3B
announcement conditional only on the issue of the Conditional
Placing Shares by 15 December 2011 (or such other date as may be
agreed between the Company and J.P. Morgan Cazenove not being
later than 22 December 2011);
- the JSE having confirmed to the Company in writing before the
date of AIM Admission of the Conditional Placing Shares (or such
other date as may be agreed between the Company and J.P. Morgan
Cazenove) the agreement of the JSE that the Conditional Placing
Shares will be eligible for listing on the JSE on that date (or
such other date as may be agreed between the Company and J.P.
Morgan Cazenove, not being later than 21 December 2011); and
- the warranties contained in the Placing Agreement being true and
accurate and not misleading on and as of the date of the Placing
Agreement and at the date of the AIM Admission of the Conditional
Placing Shares as though they had been given and made on such
dates by reference to the facts and circumstances then
subsisting;
- the agreement between the Bookrunner and the Company of the
Placing Price and the number of Placing Shares (including the
number of Firm Placing Shares and the number of Conditional
Placing Shares) to be issued as established in the Bookbuild
process;
- in the opinion of the Bookrunner, acting in good faith, there
having been since the date of the Placing Agreement no material
adverse effect (as defined in the Placing Agreement), whether or
not foreseeable at the date of the Placing Agreement.
If: (i) any of the conditions contained in the Placing Agreement in
relation to the Firm Placing Shares are not fulfilled or waived by the
Bookrunner by the respective time or date where specified (or such later
time or date as the Company and the Bookrunner may agree); (ii) any of such
conditions becomes incapable of being fulfilled; or (iii) the Placing
Agreement is terminated in the circumstances specified below, the Placing
in relation to the Placing Shares (both Firm Placing Shares and Conditional
Placing Shares) will lapse and the Placee`s rights and obligations
hereunder in relation to the Placing Shares shall cease and terminate at
such time and each Placee agrees that no claim can be made by the Placee
against either the Company or any of the Managers in respect thereof. The
Firm Placing is not conditional in any way on the Conditional Placing.
If: (i) any of the conditions contained in the Placing Agreement in
relation to the Conditional Placing Shares are not fulfilled or waived by
the Bookrunner (if capable of waiver) by the respective time or date where
specified (or such later time or date as the Company and the Bookrunner may
agree); (ii) any of such conditions becomes incapable of being fulfilled;
or (iii) the Placing Agreement is terminated in the circumstances specified
below, the Placing in relation to the Conditional Placing Shares will lapse
and the Placee`s rights and obligations hereunder in relation to the
Conditional Placing Shares shall cease and terminate at such time and each
Placee agrees that no claim can be made by the Placee against either the
Company or any of the Managers in respect thereof.
The Bookrunner may, in its absolute discretion and upon such terms as it
thinks fit, waive compliance by the Company with the whole or any part of
any of the Company`s obligations in relation to the conditions in the
Placing Agreement save that certain conditions, including the condition
relating to AIM Admission of either the Firm Placing Shares or the
Conditional Placing Shares taking place, may not be waived. Any such
extension or waiver will not affect Placees` commitments as set out in this
Announcement.
Neither the Bookrunner 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 it may make as to whether or not to
waive or to extend the time and/or date for the satisfaction of any
condition to the Placing nor for any decision they may make as to the
satisfaction of any condition or in respect of the Placing generally and by
participating in the Placing each Placee agrees that any such decision is
within the absolute discretion of the Bookrunner and the Company.
Right to terminate under the Placing Agreement
The Bookrunner may, in each case in its absolute discretion, at any time
before AIM Admission of the Firm Placing Shares or the Conditional Placing
Shares (as the case may be), terminate the Placing Agreement by giving
notice to the Company in certain circumstances, including, inter alia, a
breach of the warranties given to the Managers in the Placing Agreement;
the failure of the Company to comply with obligations which are material in
the opinion of the Bookrunner; or the occurrence of a force majeure event
which, in the opinion of the Bookrunner, is likely to prejudice the success
of the Placing. Following AIM Admission of the Firm Placing Shares, the
Placing Agreement is not capable of rescission or termination to the extent
that it relates to the Placing of the Firm Placing Shares.
Notwithstanding AIM Admission of the Firm Placing Shares, the Bookrunner
retains its rights under the Placing Agreement to terminate the placing of
the Conditional Placing Shares in accordance with the terms thereof. Any
such termination after completion of the placing of the Firm Placing Shares
will not, for the avoidance of doubt, affect the completed placing of the
Firm Placing Shares.
If any of the obligations of the Bookrunner with respect to the Placing are
terminated in the manner contemplated above, the rights and obligations of
each Placee shall cease and terminate at such time and no claim can be made
by any Placee in respect thereof. The rights and obligations of the Placees
shall terminate only in the circumstances described in these terms and
conditions and will not be subject to termination by the Placee or any
prospective Placee at any time or in any circumstances.
By participating in the Placing, the Placees agree that the exercise by the
Bookrunner of any right of termination or other discretion under the
Placing Agreement shall be within the absolute discretion of the Bookrunner
and the Bookrunner needs not make any reference to Placees and neither the
Bookrunner nor the Company shall have any liability to Placees whatsoever
in connection with any such exercise.
No Prospectus
The Placing Shares are being offered to a limited number of specifically
invited persons only and will not be offered in such a way as to require a
prospectus in the United Kingdom, South Africa or in any other
jurisdiction. No offering or admission document or prospectus has been or
will be submitted to be approved by the FSA, the London Stock Exchange plc
or registered by CIPC in relation to the Placing and Placees` commitments
will be made solely on the basis of the information contained in this
Announcement (including this Appendix). Each Placee, by accepting a
participation in the Placing, agrees that the content of this Announcement
is exclusively the responsibility of the Company and confirms that it has
neither received nor relied on any other information, representation,
warranty, or statement made by or on behalf of the Company or the Managers
or any other person and none of the Managers nor the Company nor any other
person will be liable for any Placee`s decision to participate in the
Placing based on any other information, representation, warranty or
statement which the Placees may have obtained or received and, if given or
made, such information, representation, warranty or statement must not be
relied upon as having been authorised by the Company, its officers or board
of directors. 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, including the merits
and risks involved. The Company is not making any undertaking or warranty
to any Placee regarding the legality of an investment in the Placing Shares
by such Placee under any legal, investment or similar laws or regulations.
Each Placee should not consider any information in this Announcement to be
legal, tax or business advice. Each Placee should consult its own lawyer,
tax advisor and business advisor for legal, tax and business advice
regarding an investment in the Placing Shares. Nothing in this paragraph
shall exclude the liability of any person for fraud.
Registration and Settlement
UK Settlement
Settlement of transactions in the Placing Shares following AIM Admission
will take place in respect of the Placing Shares to be held on the UK
depositary interest register, on a delivery versus payment basis in
Depositary Interest form within CREST.
The Company will deliver the Placing Shares in Depositary Interest form to
CREST accounts operated by the Bookrunner as agent for the Company and the
Bookrunner will enter its delivery (DEL) instruction into the CREST system.
The input to CREST by a Placee of a matching or acceptance instruction will
then allow delivery of the relevant Placing Shares to that Placee against
payment.
It is expected that settlement of the Firm Placing Shares will be on 8
November 2011 in CREST on a T+3 basis in accordance with the instructions
set out in the conditional trade confirmation or Placing Allocation Letter.
Settlement for any Conditional Placing Shares issued and allotted pursuant
to the Placing will, subject to the passing of the Shareholder Resolution
take place on the date of AIM Admission of such shares which is expected to
be 14 December 2011.
South African Settlement
Settlement of transactions in the Placing Shares following listing on the
JSE will take place in respect of the Placing Shares to be held on the
South African share register, on a delivery versus payment basis in
accordance with the rules of Strate with Computershare Investor Services
(Pty) Limited acting as broker under the rules of Strate to manage
settlements on behalf of the Company.
The Placing Allocation Letter sets out further details of the proposed
arrangements for payment for and settlement of Placing Shares to be held on
the South African share register.
It is expected that settlement of the Firm Placing Shares will be 10
November 2011 on a T+5 basis in accordance with the instructions set out in
the Placing Allocation Letter.
Admission to listing on the JSE for any Conditional Placing Shares issued
and allotted pursuant to the Placing will, subject to the passing of the
Shareholder Resolution, take place on 15 December 2011 and settlement of
such shares is expected to take place on 19 December 2011, in accordance
with the instructions set out in the Placing Allocation Letter.
General
The Company reserves the right to require settlement for and delivery of
the Placing Shares (or a portion thereof) to any Placee in any form it
requires if, in the Relevant Manager`s opinion, delivery or settlement is
not possible or practicable within CREST or Strate, as the case may be, or
would not be consistent with the regulatory requirements in the Placee`s
jurisdiction.
Following the close of the Bookbuild for the Placing, each Placee allocated
Placing Shares in the Placing will be sent a conditional contract note(s)
and those Placees resident in the United Kingdom or South Africa have been
sent a Placing Allocation Letter stating the number of Placing Shares (both
Firm Placing Shares and Conditional Placing Shares) to be allocated to it
at the Placing Price and settlement instructions.
Each Placee agrees that it will do all things necessary to ensure that
delivery and payment is completed in accordance with the standing CREST or
Strate rules and regulations and settlement instructions that it has in
place with the Managers.
Interest is chargeable daily on payments not received from Placees on the
due date in accordance with the arrangements set out above at the rate of
two percentage points above LIBOR as determined by the Bookrunner.
Each Placee is deemed to agree that, if it does not comply with these
obligations, the Bookrunner may sell any or all of the Placing Shares
allocated to that Placee on such Placee`s behalf and retain from the
proceeds, for the Bookrunner`s account and benefit, an amount equal to the
aggregate amount owed by the Placee plus any interest due thereof. The
relevant Placee will, however, remain liable for any shortfall below the
aggregate amount owed by it and may be required to bear any stamp duty or
stamp duty reserve tax or securities transfer tax (together with any
interest or penalties) which may arise upon the sale of such Placing Shares
on such Placee`s behalf.
If Placing Shares are to be delivered to a custodian or settlement agent,
Placees should ensure that the conditional contract note(s) and Placing
Allocation Letter (if applicable) is copied and delivered immediately to
the relevant person within that organisation. Insofar as Placing Shares are
registered in a Placee`s name or that of its nominee or in the name of any
person for whom a Placee is contracting as agent or that of a nominee for
such person, such Placing Shares should, subject as provided below, be so
registered free from any liability to UK stamp duty or stamp duty reserve
tax or securities transfer tax.
Representations and Warranties
By participating in the Bookbuild and Placing each Placee (and any person
acting on such Placee`s behalf including, for the avoidance of doubt, any
nominee) makes the following representations, warranties, acknowledgements,
undertakings and agreements (as the case may be) to the Company and to the
Managers:
- represents and warrants that it has read and understood this
Announcement, including the Appendix, in its entirety and that
its acquisition of Placing Shares is subject to and based upon
only the terms, conditions, representations, warranties,
acknowledgements, agreements and undertakings and other
information contained herein;
- acknowledges that no offering or admission document or prospectus
has been prepared in connection with the placing of the Placing
Shares and represents and warrants that it has not received a
prospectus or other offering or admission document in connection
therewith;
- acknowledges that neither the Managers nor the Company nor any of
their respective affiliates or agents nor any person acting on
behalf of any of them has provided, nor will they provide, it
with any information or material regarding the Placing Shares or
the Company other than this Announcement; nor has it requested
any of the Managers, the Company, any of their respective
affiliates or agents or any person acting on behalf of any of
them to provide it with any such information or material;
- acknowledges that the content of this Announcement is exclusively
the responsibility of the Company and that none of the Managers,
their respective affiliates or agents or any person acting on
behalf of any of them has or shall have any liability for any
information, representation or statement contained in this
Announcement or any information previously published by or on
behalf of the Company and will not be liable for any Placee`s
decision to participate in the Placing based on any information,
representation or statement contained in this Announcement or
otherwise. Each Placee further represents, warrants and agrees
that 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 this Announcement and any
information previously published by the Company by notification
to a Regulatory Information Service including, without
limitation, the registration document dated 31 October 2011, such
information being all that it deems necessary and appropriate to
make an investment decision in respect of the Placing Shares and
that it has neither received nor relied on (and will not receive
nor rely on) any other information given or representations,
warranties (whether express or implied) or statements made by any
of the Managers or the Company and neither the Managers nor the
Company will be liable for any Placee`s decision to accept an
invitation to participate in the Placing based on any other
information, representation, warranty or statement. Each Placee
further acknowledges and agrees that it has not relied (and is
not entitled to rely) on any investigations that the Managers or
any person acting on their behalf may have conducted with respect
to the Placing Shares or the Company and has made and relied on
its own investigation of the business, financial or other
position of the Company in deciding to participate in the
Placing;
- represents and warrants that it has neither received nor relied
on any confidential price sensitive information concerning the
Company or the Placing Shares in accepting an invitation to
participate in the Placing;
- acknowledges that the Ordinary Shares are listed, admitted to
trading or quoted (as the case may be) on AIM, the ASX and the
JSE and the Company is therefore required to publish certain
business and financial information in accordance with the rules
of such exchanges and has published a registration document dated
31 October 2011 (collectively, the "Exchange Information"), which
includes a description of the nature of the Company`s business
and the Company`s most recent resource statements, financial
statements, and similar statements for preceding financial years,
and that it is able to obtain or access the Exchange Information
without undue difficulty;
- acknowledges that neither the Managers nor any person acting on
their behalf nor any of their affiliates nor its or their
respective directors, officers, employees, agents, partners or
professional advisers has or shall have any liability for any
direct, indirect or consequential loss or damage suffered by any
person as a result of relying on any statement contained in the
Exchange Information, any other information made available by or
on behalf of the Company or made publicly available by the
Company on its website, by press release, by public filing or
otherwise or any other information, provided that nothing in this
paragraph excludes the liability of any person for fraud made by
that person;
- acknowledges that it is not, and at the time the Placing Shares
are acquired will not, be a resident of the United States,
Australia, Canada or Japan, and that the Placing Shares have not
been and will not be registered under the securities legislation
of the United States, Australia, Canada or Japan and, subject to
certain exceptions, may not be offered, sold, resold, pledged,
taken up, renounced or delivered or transferred, directly or
indirectly, in or into those jurisdictions;
- unless otherwise specifically agreed with the Managers,
represents and warrants that it is, or at the time the Placing
Shares are acquired that it will be, the beneficial owner of such
Placing Shares, or that the beneficial owner of such Placing
Shares is not a resident of the United States, Australia, Canada
or Japan;
- acknowledges that the Placing Shares have not been and will not
be registered under the securities legislation 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, in or into
those jurisdictions;
- represents and warrants that the issue to it, or the person
specified by it for registration as holder, of Placing Shares
will not give rise to a liability under any of sections 67, 70,
93 or 96 of the Finance Act, 1986 (depositary receipts and
clearance services) and that the Placing Shares are not being
acquired in connection with arrangements to issue depositary
receipts or to transfer Placing Shares into a clearance system;
- represents and warrants that it has complied with its obligations
in connection with money laundering and terrorist financing under
the United Kingdom Proceeds of Crime Act, 2002, the United
Kingdom Terrorism Act, 2003 and the United Kingdom Money
Laundering Regulations, 2007 and the equivalent Australian and
South African legislation (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 and has obtained
all governmental and other consents (if any) which may be
required for the purpose of, or as a consequence of, such
purchase, and it will provide promptly to the Managers such
evidence, if any, as to the identity or location or legal status
of any person which any Manager may request from it in connection
with the Placing (for the purpose of complying with such
regulations or ascertaining the nationality of any person or the
jurisdiction(s) to which any person is subject or otherwise) in
the form and manner requested by the Managers on the basis that
any failure by it to do so may result in the number of Placing
Shares that are to be purchased by it or at its direction
pursuant to the Placing being reduced to such number, or to nil,
as the Managers may decide at their sole discretion;
- if a financial intermediary, as that term is used in Article 3(2)
of the Prospectus Directive, represents and warrants that the
Placing Shares purchased by it in the Placing will not be
acquired on a non-discretionary basis on behalf of, nor will they
be acquired with a view to their offer or resale to, persons in a
member state of the European Economic Area which has implemented
the Prospectus Directive other than Qualified Investors, or in
circumstances in which the prior consent of the Bookrunner has
been given to the offer or resale;
- represents and warrants that it has not offered or sold and,
prior to the expiry of a period of six months from the relevant
AIM Admission, will not offer or sell any Placing Shares to
persons in the United Kingdom, 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 FSMA;
- represents and warrants that it has not offered or sold and will
not offer or sell any Placing Shares to persons in the European
Economic Area prior to the relevant AIM 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 in 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;
- represents and warrants that it has only communicated or caused
to be communicated and 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 the Placing Shares in circumstances in which section 21(1) of
the FSMA does not require approval of the communication by an
authorised person;
- represents and warrants that it has complied and will comply with
all applicable provisions of FSMA with respect to anything done
by it in relation to the Placing Shares in, from or otherwise
involving, the United Kingdom;
- represents and warrants that if it resides in a member state of
the European Economic Area it is a Qualified Investor within the
meaning of the Prospectus Directive;
- represents and warrants that it has complied and will comply with
all applicable provisions of the Australian Corporations Act
(including relevant insider trading provisions) and the ASX
Listing Rules in relation to the Placing Shares;
- agrees that it must comply with all applicable provisions of the
Australian Foreign Investments and Takeovers Act, 1975 (Cth) in
relation to the Placing Shares by no later than the settlement
date for the relevant Placing Shares;
- represents and warrants that its participation in the Placing
will not cause its (or its associates) aggregate shareholding in
the Company to be 20% or more of the issued share capital of the
Company;
- represents and warrants that it is not a `related party` of the
Company as that term is defined in section 228 of the Australian
Corporations Act and/or the ASX Listing Rules, (or if it is a
`related party` of the Company, that its acquisition of Placing
Shares would not require the Company to obtain the approval of
its shareholders under section 208(1)(a) of the Australian
Corporations Act);
- represents and warrants that if it resides in the United Kingdom
it is a Qualified Investor within the meaning of the Prospectus
Directive and a person (a) who has professional experience in
matters relating to investments and is an "Investment
Professional" falling within article 19(5) (investment
professionals) of the Order, or (b) who falls within article
49(2)(a) to (d) (high net worth companies, unincorporated
associations etc.) of the Order;
- agrees that it will not offer to sell the Placing Shares to any
person that is not a sophisticated or professional investor under
section 708(8) or section 708(11) of the Australian Corporations
Act until the day after a notice is lodged by the Company with
ASX that complies with subsections 708A(5)(e) and (6) of the
Australian Corporations Act;
- represents and warrants that if it resides in the Republic of
South Africa and qualifies as an addressee described in section
96(1)(a) or 96(1)(b) of the South African Companies Act, 2008 (No
71 of 2008), as amended;
- represents and warrants that is has complied with and will comply
with all applicable provisions of the South African Companies
Act, 2008 (No 71 of 2008), as amended, Securities Services Act,
2004 (No 36 of 2004), as amended and the JSE Listings
Requirements in relation to the Placing Shares;
- represents and warrants that it and any person acting on its
behalf is entitled to acquire the Placing Shares under the laws
of all relevant jurisdictions and that it has all necessary
capacity and has obtained all necessary consents and authorities
(including without limitation any and all approvals that may be
required for the purposes of the South African Exchange Control
Regulations, 1961) to enable it to commit to this participation
in the Placing and to perform its obligations in relation thereto
(including, without limitation, in the case of any person on
whose behalf it is acting, all necessary consents and authorities
to agree to the terms set out or referred to in this
Announcement) and will honour such obligations, and it has had
access to such financial and other information concerning the
Company and the Placing shares as it deems necessary in
connection with its decision to purchase the Placing Shares;
- where it is acquiring Placing Shares for one or more managed
accounts, represents and warrants that it is authorised in
writing by each managed account: (a) to acquire the Placing
Shares for each managed account; (b) to make on its behalf the
representations, warranties, acknowledgements, undertakings and
agreements in this Appendix and the Announcement of which it
forms part; and (c) to receive on its behalf any investment
letter and/or Placing Allocation Letter relating to the Placing
in the form provided to you by any of the Managers;
- undertakes that it (and any person acting on its behalf) will
make payment for the Placing Shares allocated to it in accordance
with this Announcement and any Placing Allocation Letter on the
due time and date set out herein and it has obtained all
necessary consents and authorities to enable it to give its
commitment so to subscribe, failing which the relevant Placing
Shares may be placed with other placees or sold as the Bookrunner
may in its sole discretion determine and without liability to
such Placee and it will remain liable for any shortfall below the
net proceeds of such sale and the placing proceeds of such
Placing Shares and may be required to bear any stamp duty or
stamp duty reserve tax (together with any interest or penalties
due pursuant to or referred to in these terms and conditions)
which may arise upon the placing or sale of such Placee`s Placing
Shares on its behalf;
- acknowledges that none of the Managers, nor any of their
respective affiliates, nor their respective agents nor any person
acting on behalf of any of them, is making any recommendations to
it, advising it regarding the suitability of any transactions it
may enter into in connection with the Placing and that
participation in the Placing is on the basis that it is not and
will not be a client of any of the Managers and that none of the
Managers have any duties or responsibilities to it for providing
the protections afforded to their respective clients or customers
or for providing advice in relation to the Placing nor in respect
of any representations, warranties, acknowledgements,
undertakings or indemnities contained in the Placing Agreement
nor for the exercise or performance of any of its rights and
obligations thereunder including any rights to waive or vary any
conditions or exercise any termination right;
- undertakes that the person whom it specifies for registration as
holder of the Placing Shares will be: (a) itself; or (b) its
nominee, as the case may be. Neither the Managers nor the Company
will be responsible for any liability for stamp duty or stamp
duty reserve tax or securities transfer tax resulting from a
failure to observe this requirement. Each Placee and any person
acting on behalf of such Placee agrees to participate in the
Placing and it agrees to indemnify the Company and the Managers
in respect of the same on the basis that the Placing Shares will
be allotted to the CREST or Strate stock account of the Relevant
Manager or its affiliate or agent who will hold them as nominee
on behalf of such Placee until settlement in accordance with its
standing settlement instructions;
- acknowledges that any agreements entered into by it pursuant to
these terms and conditions shall be governed by and construed in
accordance with the laws of England and Wales and it submits (on
behalf of itself and on behalf of any person on whose behalf it
is acting) to the exclusive jurisdiction of the English courts as
regards any claim, dispute or matter arising out of any such
contract, except that enforcement proceedings in respect of the
obligation to make payment for the Placing Shares (together with
any interest chargeable thereon) may be taken by the Company or
the Managers 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;
- acknowledge that time shall be of the essence as regards to
obligations pursuant to this Appendix to the Announcement;
- agrees that the Company and the Managers and their respective
affiliates and agents and others will rely upon the truth and
accuracy of the foregoing representations, warranties,
acknowledgements, undertakings and agreements which are given to
the Managers on their own behalf and on behalf of the Company and
are irrevocable, and with respect to any of the representations,
warranties, acknowledgements, undertakings and agreements deemed
to have been made by a purchaser of the Placing Shares as a
fiduciary or agent for one or more investor accounts, it has sole
investment discretion with respect to each such account and it
has full power and authority to make the foregoing
representations, warranties, acknowledgements, undertakings and
agreements on behalf of each such account;
- agrees to indemnify on an after tax basis and hold the Company
and the Managers and their respective affiliates and agents
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;
- represents and warrants that it is an institution or an addressee
which: (a) has such knowledge and experience in financial and
business matters and expertise in assessing credit, market and
all other relevant risks as to be capable of evaluating, and has
evaluated independently, the merits, risks and suitability of its
investment in the Placing Shares; and (b) it and any accounts for
which it is acting are each able to bear the economic risk of
such investment, and are each able to sustain all or a
substantial portion of any investment in the Placing Shares and
the Placee will not look to the Managers for all or any part of
any such loss or losses it may suffer;
- represents and warrants that it is entitled to subscribe for the
Placing Shares under the laws of all relevant jurisdictions which
apply to it;
- represents and warrants that it is outside the United States; has
not purchased the Placing Shares as a result of any directed
selling efforts within the meaning of Rule 902(c) of Regulation
S; and its purchase of the Placing Shares will be in compliance
with the requirements of Regulation S, including, without
limitation, that the offer and sale of the Placing Shares to it
constitute an "offshore transaction" as such term is defined in
Regulation S;
- understands and acknowledges that the Placing Shares have not
been and will not be registered under the Securities Act or the
securities laws of any state or other jurisdiction of the United
States. It agrees that the Placing Shares may not be reoffered,
sold, pledged or otherwise transferred, and that it will not
directly or indirectly reoffer, sell, pledge or otherwise
transfer the Placing Shares, except in an offshore transaction in
accordance with Rule 903 or 904 of Regulation S or another
exemption from, or transaction not subject to, the registration
requirements of the Securities Act and that such offer, sale,
pledge or transfer must, and will, be made in accordance with any
applicable securities laws of any state or other jurisdiction;
and
- understands that no representation has been, is being or will be
made by the Company as to the availability of an exemption from
the registration for the reoffer, resale, pledge or transfer of
the Placing Shares in accordance with the Securities Act.
Placees should note that they will be liable for any stamp duty and all
other stamp, issue, securities, transfer, registration, documentary or
other duties or taxes (including any interest, fines or penalties relating
thereto) payable outside the UK by them or any other person on the
subscription by them of any Placing Shares or the agreement by them to
acquire any Placing Shares.
Each Placee, and any person acting on behalf of the Placee, acknowledges
that none of the Managers owe any fiduciary or other duties to any Placee
in respect of any representations, warranties, undertakings,
acknowledgements, agreements or indemnities in the Placing Agreement.
Each Placee and any person acting on behalf of the Placee acknowledges and
agrees that the Managers or any of their respective affiliates or agents
may, at their absolute discretion, agree to become a Placee in respect of
some or all of the Placing Shares.
When a Placee or person acting on behalf of the Placee is dealing with the
Managers, any money held in an account with any of the Managers, 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 rules and regulations of
the FSA made under the FSMA. The Placee acknowledges that the money will
not be subject to the protections conferred by the client money rules; as a
consequence, this money will not be segregated from the Relevant Manager`s
money, as the case may be, in accordance with the client money rules and
will be used by the Managers in the course of their own respective
businesses and the Placee will rank only as a general creditor of the
Managers.
If the Company or any of the Managers or their respective affiliates or
agents request any information about a Placee`s agreement to acquire
Placing Shares, including, without limitation, any information required by
the South African Reserve Bank in respect of the Placing Shares and any
evidence supporting the representations and warranties given above, such
Placee shall (and it undertakes to) promptly disclose it to them.
All times and dates in this Announcement may be subject to amendment. The
Managers shall notify the Placees and any person acting on behalf of the
Placees of any changes.
Definitions
AIM Admission the admission by the London Stock Exchange of
the Firm Placing Shares or the Conditional
Placing Shares, as the context requires, to
trading on AIM becoming effective in
accordance with the AIM Rules
AIM the AIM market operated by London Stock
Exchange plc
AIM Rules the AIM Rules for Companies as issued by the
London Stock Exchange from time to time
Announcement this announcement (including the Appendix)
Appendix the appendix to the Announcement
ASIC the Australian Securities & Investments
Commission
ASX ASX Limited (ACN 008 624 691), a company
registered under the Australian Corporations
Act and, where the context permits, the
Australian Securities Exchange operated by
ASX Limited
ASX Listing Rules the Listing Rules of the ASX and any other
rules of ASX which are applicable while the
Company is admitted the Official List of ASX
Australian Corporations Act the Corporations Act 2001 (Cth) of Australia
and any Class Orders issued by ASIC
Bookbuild the bookbuilding process to be conducted by
the Bookrunner to arrange participation by
Placees in the Placing which will establish
the number of Placing Shares at the Placing
Price
Bookrunner J.P. Morgan Cazenove
certificated or in where a share or other security is not in
certificated form uncertificated form
CIPC the South African Companies and Intellectual
Property Commission, previously the South
African Companies and Intellectual Property
Registration Office
Company Coal of Africa Limited
Conditional Placing Shares Placing Shares to be placed with investors
conditional on shareholder approval at the GM
CREST the relevant system (as defined in the CREST
Regulations) for the paperless Settlement of
Share transfers and the holding of shares in
uncertified form in respect of which
Euroclear UK & Ireland Limited is the
Operator (as defined in the CREST
Regulations)
Depositary Interests or DIs independent securities constituted under
English law and issued or to be issued by
Computershare Investor Services PLC in
respect, and representing on a 1 for 1 basis,
underlying Ordinary Shares which may be held
or transferred through the CREST system
European Economic Area the European Union, Iceland, Norway and
Liechtenstein
Evolution Evolution Securities Limited
Firm Placing Shares Placing Shares to be placed firm and issued
by the Company further to the directors`
authority to allot Ordinary Shares for cash,
on a non-pre-emptive basis
FSA the UK Financial Services Authority
FSMA the Financial Services and Markets Act 2000
General Meeting or GM a general meeting of the shareholders of the
Company to be convened to be held on or
around 14 December 2011 in order, among other
things, to consider, and if thought fit pass,
the Shareholder Resolution
GM Notice the notice convening the General Meeting
LIBOR London Interbank Offered Rate
London Stock Exchange or LSE London Stock Exchange plc
J.P. Morgan Cazenove J.P. Morgan Securities Ltd.
JSE JSE Limited, a public company incorporated
with limited liability under the laws of the
Republic of South Africa, with registration
number 2005/022939/06 and licensed as an
exchange under the South African Securities
Services Act, 2004 (No 36 of 2004), as
amended, often referred to as the
"Johannesburg Stock Exchange``
Managers J.P. Morgan Cazenove, Mirabaud and Evolution
Mirabaud Mirabaud Securities LLP
Ordinary Shares ordinary shares in the share capital of the
Company
Placee any person (including individuals, funds or
otherwise) by whom or on whose behalf a
commitment to acquire Placing Shares has been
given
Placing the placing of the Placing Shares with
Placees to be effected by the Managers on the
terms and subject to the conditions set out
in this Placing Announcement and the Placing
Agreement
Placing Agreement the placing agreement dated 3 November 2011
among the Company, the directors of the
Company and the Managers in respect of the
Placing
Placing Allocation Letters the confirmation to be sent by each of the
Placees in certain jurisdictions referring to
the terms and conditions of the Placing
Placing Price the price per Ordinary Share at which the
Placing Shares are placed, such price being
determined as part of the Bookbuild
Placing Shares the aggregate of the Firm Placing Shares and
the Conditional Placing Shares or any of them
as the context requires
Pounds Sterling, GBP or GBP the lawful currency of the United Kingdom
Prospectus Directive the Directive of the European Parliament and
of the Council of the European Union
2003/71/EC
Regulatory Information one of the regulatory information services
Service approved by the London Stock Exchange for the
distribution to the public of AIM
announcements, the Companies Announcement
Platform in relation to announcements
released by the Company to the ASX and the
Securities Exchange News Service in relation
to announcements released to the JSE
Regulation S Regulation S under the Securities Act
Securities Act the US Securities Act of 1933, as amended
Shareholder Resolution the resolution of the shareholders of the
Company set out in the GM Notice which is
required to be passed to enable the Company
to issue the Conditional Placing Shares to
Placees
South African Rand the lawful currency of the Republic of South
Africa
Strate Strate Limited, a company duly registered and
incorporated in the Republic of South Africa
under registration number 1998/02224/06,
licensed as a central securities depository
under the South African Securities Services
Act, 2004 (No 36 of 2004)
United Kingdom or UK the United Kingdom of Great Britain and
Northern Ireland
United States or US the United States of America, its territories
and possessions, any state of the United
States and the District of Columbia
Johannesburg
3 November 2011
JSE Sponsor
Macquarie First South Capital (Pty) Ltd
Date: 03/11/2011 09:05:23 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.
