| Tue 29 Mar 2005, 10:08 | | BHP Billiton Plc - Bidder"s Statement |
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BHP Billiton Plc - Bidder`s Statement
BHP Billiton Plc
(Registration number 3196209)
(Registered in England and Wales)
SHARE CODE: BIL
ISIN: GB0000566504
THIS IS AN IMPORTANT DOCUMENT AND REQUIRES YOUR IMMEDIATE ATTENTION. IF YOU ARE
IN DOUBT AS TO HOW TO DEAL WITH IT PLEASE CONSULT YOUR FINANCIAL OR OTHER
PROFESSIONAL ADVISER
RECOMMENDED OFFER
BY
BHP Billiton Lonsdale Investments Pty Ltd
ABN 75 004 346 972
A MEMBER OF THE
BHP Billiton Group
TO ACQUIRE ALL OF YOUR SHARES IN
WMC Resources Ltd
ABN 76 004 184 598
FOR
A$7.85 CASH
PER SHARE
This Bidder`s Statement does not take into account the investment objectives,
financial situation and particular needs of any person. Before making any
investment decision on the basis of this Bidder`s Statement you should consider
whether that decision is appropriate in the light of those factors.
Financial Advisers Legal Adviser
Deutsche Bank Blake Dawson Waldron
Carnegie, Wylie & Company
The BHP Billiton Group is headquartered in Australia.
BIDDER`S STATEMENT
This Bidder`s Statement is dated 21 March 2005 and is given by BHP Billiton
Lonsdale Investments Pty Ltd ABN 75 004 346 972 to WMC Resources Ltd ABN 76 004
184 598 under Part 6.5 of the Corporations Act. This Bidder`s Statement
includes an Offer dated 29 March 2005 to acquire your WMC Resources Shares and
also sets out certain disclosures required by the Corporations Act.
A copy of this Bidder`s Statement was lodged with the Australian Securities and
Investments Commission (ASIC) on 21 March 2005. ASIC takes no responsibility
for the contents of this Bidder`s Statement. Terms used in this Bidder`s
Statement are defined in Part G of this Bidder`s Statement.
IMPORTANT DATES
Bidder`s Statement lodged with ASIC 21 March 2005
Date of Offer 29 March 2005
Closing date of Offer*, 7:30 pm (Melbourne time) 6 May 2005
*This date is indicative only and may change as permitted by the Corporations
Act.
The distribution of this document may, in some countries, be restricted by law
or regulation. Accordingly, persons who come into possession of this document
should inform themselves of and observe these restrictions.
Further Information for US holders
Investors and holders of WMC Resources securities are strongly advised to read
any other relevant documents filed with the US Securities and Exchange
Commission (SEC), as well as any amendments and supplements to those documents,
because they will contain important information. Investors and holders of WMC
Resources securities may obtain free copies of the informational document (when
available), as well as other relevant documents filed with the SEC, at the SEC`s
website at www.sec.gov. WMC Resources will issue a target`s statement in
connection with the Offer which investors and holders of WMC Resources
securities are strongly advised to read.
Forward-Looking Statements
Statements contained in this communication may contain forward-looking
statements with respect to BHP Billiton`s financial condition, results of
operations, business strategies, operating efficiencies, competitive position,
growth opportunities for existing services, plans and objectives of management,
markets for stock and other matters. Statements in these materials that are not
historical facts are `forward-looking statements`.
These forward-looking statements, including, among others, those relating to the
future business prospects, revenues and income of BHP Billiton, wherever they
may occur in this communication are necessarily estimates reflecting the best
judgment of the senior management of BHP Billiton and involve a number of risks
and uncertainties that could cause actual results to differ materially from
those indicated, suggested, proposed or implied by the forward-looking
statements. As a consequence, these forward-looking statements should be
considered in light of various important factors, including those set forth in
this communication and BHP Billiton`s Annual Report on Form 20-F for the
financial year ended 30 June 2004.
Important factors that could cause actual results to differ materially from
estimates or projections contained in the forward-looking statements include,
without limitation: the success of the proposed tender offer; estimated
reserves; plans, strategies and objectives of management; closure or divestment
of certain operations or facilities (including associated costs); anticipated
production or construction commencement dates; expected costs or production
output; the anticipated productive lives of projects, mines and facilities; and
provisions and contingent liabilities.
Except as may be required by applicable law, BHP Billiton undertakes no
obligation to update publicly or release any revisions to these forward-looking
statements to reflect events or circumstances after the date of the materials in
which such statements are contained or to reflect the occurrence of
unanticipated events.
No internet site is part of this Bidder`s Statement
Each of BHP Billiton and WMC Resources maintains an internet site. The BHP
Billiton internet site is at the URL http://www.bhpbilliton.com. The WMC
Resources site is at the URL http://www.wmc.com. Information contained in or
otherwise accessible through these internet sites is not a part of this Bidder`s
Statement. All references in this Bidder`s Statement to these internet sites
are inactive textual references to these URLs and are for your information only.
29 March 2005
Dear WMC Resources shareholder,
I am pleased to enclose BHP Billiton`s Offer to acquire all of your shares in
WMC Resources Ltd.
BHP Billiton, through its group company, BHP Billiton Lonsdale Investments Pty
Ltd, is offering A$7.85 cash for each WMC Resources Share that you hold.
Your board has unanimously recommended that WMC Resources shareholders accept
the Offer in the absence of a superior proposal and has indicated that the
directors will be accepting this Offer for their own holdings of WMC Resources
Shares on that basis.
BHP Billiton believes that this Offer represents a fair price for WMC Resources
and provides certainty of value today to WMC Resources shareholders. The Offer
price of A$7.85 per WMC Resources Share values your company at A$9.2 billion and
represents a significant premium of:
- A$2.69 above the volume weighted average price of WMC Resources Shares of
A$5.16 in the one month to 27 October 2004 (the last day of trading prior
to WMC Resources` announcement of Xstrata`s approach regarding a possible
offer);
- 85 cents above the Xstrata Offer price of A$7.00 per WMC Resources Share
(adjusted for WMC Resources` 2004 final dividend of 20 cents per share);
and
- 39 cents above the closing price of WMC Resources Shares of A$7.46 on the
day before announcement of the Offer.
The Offer price of A$7.85 is in the top half of the A$7.17 to A$8.24 range at
which the independent expert appointed by WMC Resources, Grant Samuel, has
valued WMC Resources Shares. This Offer price, when added to WMC Resources`
2004 final dividend of 20 cents per share paid on 11 March 2005, is in the top
quartile of that valuation range.
The Offer will close at 7:30 pm (Melbourne time) on 6 May 2005, unless extended.
To accept the Offer, please follow the instructions on page 2. If you have any
questions about the Offer, please contact the BHP Billiton Offer information
line on 1300 365 849 (from within Australia) or + 61 3 9415 4254 (if calling
from outside Australia) or, if calling from the United States, contact MacKenzie
Partners at (212) 929 5500 (call collect) or (800) 322 2885 (toll free) or by
email at proxy@mackenziepartners.com, or consult your financial or other
professional adviser.
I encourage you to consider this document carefully and accept our Offer.
Yours sincerely,
Don Argus
Chairman
CONTENTS
PART A - SUMMARY OF THE OFFER 1
PART B - ISSUES YOU SHOULD CONSIDER 5
PART C - THE OFFER TERMS 12
1. THE OFFER 12
1.1 Offer for your WMC Resources Shares 12
1.2 Consideration 12
2. OFFER PERIOD 12
3. HOW TO ACCEPT THIS OFFER 13
3.1 Accept for all your WMC Resources Shares 13
3.2 CHESS Holdings 13
3.3 Issuer Sponsored Holdings or unregistered holdings13
3.4 Foreign laws 14
4. YOUR AGREEMENT RESULTING FROM ACCEPTANCE 14
4.1 Effect of Acceptance Form 14
4.2 Your agreement 15
4.3 Powers of attorney 16
4.4 Validation of otherwise ineffective acceptances 16
5. DEFEATING CONDITIONS 17
5.1 Defeating Conditions of this Offer 17
5.2 Separate Defeating Conditions for the benefit of BHP Billiton Lonsdale
25
5.3 Nature of Defeating Conditions 25
5.4 Notice declaring Offers free of Defeating Conditions
26
5.5 Notice publication date 26
5.6 Contract void if Defeating Conditions not fulfilled
26
6. PAYMENT OF CONSIDERATION 26
6.1 When you will receive payment 26
6.2 Acceptance Form requires additional document 27
6.3 BHP Billiton Lonsdale may set off share scheme debts
28
6.4 Delivery of consideration 28
6.5 Return of documents 28
6.6 Rights 28
6.7 Non Australian residents 29
6.8 Costs and stamp duty 29
7. OFFEREES 30
7.1 Registered holders 30
7.2 Transferees 30
7.3 Trustees and nominees 30
7.4 Notices by Trustees and Nominees 31
8. VARIATION AND WITHDRAWAL OF OFFER 31
8.1 Variation 31
8.2 Withdrawal 31
9. Governing law 31
PART D - INFORMATION ABOUT BHP BILLITON LONSDALE AND THE BHP BILLITON GROUP
32
10. BIDDER 32
10.1 Offers 32
10.2 BHP Billiton Lonsdale 32
11. the BHP BILLITON GROUP 34
11.1 Overview of the BHP Billiton Group 34
11.2 Where to find further information on the BHP Billiton Group
34
12. REASONS FOR THE ACQUISITION 34
PART E - AUSTRALIAN TAX CONSEQUENCES 36
13. AUSTRALIAN TAX IMPLICATIONS FOR WMC Resources SHAREHOLDERS
36
14. SHAREHOLDERS WHO ARE AUSTRALIAN RESIDENTS 37
15. SHAREHOLDERS WHO ARE NOT AUSTRALIAN RESIDENTS 42
16. GST 42
PART F - ADDITIONAL INFORMATION 44
17. BIDDER`S INTENTIONS 44
17.1 Introduction 44
17.2 Acquisition of outstanding WMC Resources Shares and WMC Resources Options
44
17.3 Intentions for WMC Resources as a wholly owned subsidiary
45
17.4 Intentions for WMC Resources as a partly owned subsidiary
48
17.5 Other Intentions 49
18. SOURCES OF CASH CONSIDERATION 49
18.1 Cash consideration 49
18.2 BHP Billiton commitment to fund BHP Billiton Lonsdale
50
18.3 Sources of BHP Billiton Group funds 50
18.4 Committed bank facility 50
18.5 Capital markets programs 52
18.6 Proposed new bank facilities 52
19. INFORMATION ON SECURITIES IN WMC Resources 53
19.1 Capital Structure of WMC Resources 53
19.2 BHP Billiton Lonsdale relevant interest in WMC Resources securities
54
19.3 BHP Billiton Lonsdale`s voting power in WMC Resources
54
19.4 Acquisition by BHP Billiton Lonsdale of WMC Resources Shares during
previous four months 54
19.5 Inducing benefits given by BHP Billiton Lonsdale during previous four
months 54
19.6 Economic exposure to WMC Resources Shares 55
19.7 Deutsche Bank appointment 56
20. OTHER MATERIAL INFORMATION 56
20.1 Conditions 56
20.2 Xstrata Offer 59
20.3 Xstrata Offer withdrawal rights 59
20.4 Deed of Undertaking 60
20.5 Due diligence 63
20.6 Recent changes to WMC Resources` financial position
64
20.7 Material information 64
20.8 Information for US holders 65
20.9 Information for ADR holders 67
20.10 Employee Share Schemes 68
20.11 Approvals for payment of consideration 70
20.12 Consents 71
21. MODIFICATIONS TO CORPORATIONS aCT 72
PART G - DEFINITIONS AND INTERPRETATION 73
22. DEFINITIONS 73
23. INTERPRETATION 77
PART A - SUMMARY OF THE OFFER
The Bidder BHP Billiton Lonsdale is the company making the
Offer. BHP Billiton Lonsdale is a member of the BHP
Billiton Group. The BHP Billiton Group constitutes
the largest diversified resources group in the world.
Further details about the BHP Billiton Group are set
out on page 34 of this Bidder`s Statement.
The Offer BHP Billiton Lonsdale offers to acquire all of your
WMC Resources Shares.
Consideration You are offered A$7.85 cash for each of your WMC
Resources Shares.
Closing date Unless withdrawn or extended the Offer is open until
7:30 pm Melbourne time on 6 May 2005.
Conditions The Offer is subject to the conditions set out in
clause 0 of this Bidder`s Statement. The conditions
of the Offer are summarised below:
- BHP Billiton Lonsdale acquiring a relevant
interest in more than 90 per cent of all WMC
Resources Shares;
- Foreign Investment Review Board approval and
other regulatory approvals;
- no action by any Public Authority adversely
affecting the Offer;
- no prescribed occurrences;
- no material acquisitions, disposals or changes
in the conduct of WMC Resources` business;
- the nonexistence of certain rights;
no material adverse change in relation to WMC
Resources; and
- the S&P/ASX 200 Index not falling below 3,500 on
any trading day.
WMC Resources The Offer only extends to WMC Resources Shares. If
Options you have WMC Resources Options at the Register Date
(7:00 pm Melbourne time on 21 March 2005), you must
exercise those WMC Resources Options and be issued
with WMC Resources Shares before you can accept the
Offer.
No brokerage or You will not pay any stamp duty on accepting the
stamp duty Offer.
If your WMC Resources Shares are registered in an
Issuer Sponsored Holding in your name and you deliver
them directly to BHP Billiton Lonsdale, you will not
incur any brokerage in connection with your
acceptance of the Offer.
If your WMC Resources Shares are in a CHESS Holding
or you hold your WMC Resources Shares through a bank,
custodian or other nominee, you should ask your
Controlling Participant (usually your broker) or the
bank, custodian or other nominee whether it will
charge any transaction fees or service charges in
connection with your acceptance of the Offer.
How to accept You may only accept this Offer in respect of all your
WMC Resources Shares.
If your WMC Resources Shares are in a CHESS Holding,
to accept you must either:
complete and return the enclosed Acceptance Form in
accordance with the instructions on it; or
instruct your Controlling Participant to initiate
acceptance of the Offer on your behalf.
If you are a Participant (typically, a stockbroker
who is a participating organisation of ASTC), the
above does not apply. To accept the Offer you must
initiate acceptance in accordance with the ASTC
Settlement Rules.
If your WMC Resources Shares are in an Issuer
Sponsored Holding or if at the time of your
acceptance you are entitled to be (but are not yet)
registered as the holder of your WMC Resources
Shares, to accept you must complete and return the
Acceptance Form in accordance with the instructions
on it.
If your Securityholder Reference Number or Holder
Identification Number begins with an `I`, this
indicates that your WMC Resources Shares are in an
Issuer Sponsored Holding.
To be effective, your acceptance must be received by
BHP Billiton Lonsdale before the closing date.
Send your Acceptance Form (and other documents, if
any, required by the instructions on it) to:
By Mail OR By Hand
Computershare Investor Computershare Investor
Services Pty Limited Services Pty Limited
GPO Box 52 Yarra Falls
MELBOURNE VIC 8060 452 Johnston Street
ABBOTSFORD VIC 3067
A selfaddressed envelope is enclosed for you to
return your Acceptance Form (and other documents, if
any, required by the instructions on the form).
Further For questions regarding your WMC Resources Shares,
information the Offer or how to accept the Offer, please contact
the BHP Billiton Offer information line on:
For Australian callers: 1300 365 849
For international callers: + 61 3 9415 4254
For US callers:MacKenzie Partners, Inc.
(212) 929 5500 (call collect)
(800) 322 2885 (toll free)
Email: proxy@mackenziepartners.com
Please note that all calls to these numbers will be
recorded to satisfy legal requirements.
PART B - ISSUES YOU SHOULD CONSIDER
REASONS WHY YOU SHOULD ACCEPT THE OFFER
You will benefit from a significant premium for your WMC Resources Shares
The Offer price of A$7.85 per WMC Resources Share represents a significant
premium of:
- A$2.69 above the volume weighted average price (VWAP) of WMC Resources
Shares of A$5.16 in the one month to 27 October 2004, the last day of
trading prior to WMC Resources` announcement of Xstrata`s approach
regarding a possible offer;
- 85 cents above the Xstrata Offer price of A$7.00 per WMC Resources Share
(adjusted for WMC Resources` 2004 final dividend of 20 cents per share);
and
- 39 cents above the closing price of WMC Resources Shares of A$7.46 on the
day before announcement of the Offer.
The Offer is in the top half of the independent expert`s valuation range
The Offer price of A$7.85 per WMC Resources Share is in the top half of the
A$7.17 to A$8.24 range at which the independent expert appointed by WMC
Resources, Grant Samuel, has valued WMC Resources Shares. This Offer price, when
added to WMC Resources` 2004 final dividend of 20 cents per share paid on 11
March 2005, is in the top quartile of that valuation range.
The BHP Billiton Offer for WMC Resources - premium to WMC Resources share price
and Xstrata Offer
Refer to the company for the detailed graph.
Notes:
(1) Not adjusted for WMC Resources` 2004 final dividend of 20 cents per WMC
Resources Share.
(2) Adjusted for WMC Resources` 2004 final dividend of 20 cents per WMC
Resources Share.
The Offer price is higher than any price at which WMC Resources Shares have
traded up until the date of the announcement of the BHP Billiton Offer
The Offer price of A$7.85 per WMC Resources Share is higher than both:
- the highest price at which WMC Resources Shares have traded in the period
from the Demerger until the day prior to WMC Resources` announcement of the
approach by Xstrata on 28 October 2004 (A$5.98); and
- the volume-weighted average price (calculated on an `ex dividend` basis) at
which WMC Resources Shares have traded for the period from the announcement
of the Xstrata Offer for WMC Resources until the date of announcement of
the BHP Billiton Offer (A$7.06).
You will receive cash for your shares and incur no brokerage charges
By accepting the Offer:
- you will receive (subject to the conditions of the Offer being satisfied or
waived) A$7.85 cash per WMC Resources Share;
- you will not incur any brokerage charges by accepting the BHP Billiton
Offer if your WMC Resources Shares are registered in an Issuer Sponsored
Holding (you may incur brokerage costs and GST on those costs if you choose
to sell your WMC Resources Shares on the market or you instruct your broker
to accept the Offer on your behalf); and
- you will be paid the consideration within one month after you have accepted
the Offer or within one month after the Offer becomes unconditional,
whichever is later. In any event, you will be paid the consideration no
later than 21 days after the Offer closes (assuming all conditions of the
Offer are satisfied or waived).
Unanimous Support of WMC Resources Board
The directors of WMC Resources have unanimously recommended that, in the absence
of a superior proposal, WMC Resources shareholders accept the BHP Billiton
Offer.
All of WMC Resources` directors who hold shares in WMC Resources have indicated
that they will be accepting the BHP Billiton Offer in respect of their personal
shareholdings, in the absence of a superior proposal.
CONSEQUENCES OF NOT ACCEPTING
BHP Billiton believes that its Offer for WMC Resources is a fair offer.
However, if you choose not to accept the Offer, there are certain risks of which
you should be aware:
- If BHP Billiton Lonsdale becomes the majority shareholder in WMC Resources,
and WMC Resources remains a listed company, the market for your WMC
Resources Shares may be less liquid or active. Therefore, it could be more
difficult for you to sell your WMC Resources Shares later, should you
choose to do so.
- If BHP Billiton Lonsdale becomes entitled to acquire your WMC Resources
Shares compulsorily, it intends to exercise those rights.
You should consult your broker or financial adviser to ascertain the impact of
the risks outlined above on the value of your shares.
FREQUENTLY ASKED QUESTIONS
Questions Answers
What is the BHP Billiton Lonsdale is offering you A$7.85 cash
Offer? per share for all your WMC Resources Shares.
When will I be If you accept the Offer, you will be paid the
paid? consideration within one month after you have
accepted the Offer or within one month after the
Offer becomes unconditional, whichever is later.
In any event, you will be paid the consideration no
later than 21 days after the Offer closes (assuming
all conditions of the Offer are satisfied or
waived).
How do I accept Instructions on how to accept the Offer are set out
the Offer? in Part A (on page 2) and on the Acceptance Form
accompanying this Bidder`s Statement.
Do I have to pay Not if your WMC Resources Shares are registered in
brokerage if I an Issuer Sponsored Holding in your name and you
accept? deliver them directly to BHP Billiton Lonsdale.
If your WMC Resources Shares are in a CHESS Holding
or you hold your WMC Resources Shares through a
bank, custodian or other nominee, you should ask
your Controlling Participant (usually your broker)
or the bank, custodian or other nominee whether it
will charge any transaction fees or service charges
in connection with your acceptance of the Offer.
ADR holders who surrender ADRs and withdraw WMC
Resources Shares for the purpose of accepting the
Offer may incur certain fees and expenses as
stipulated in the ADR Depositary Agreement.
Do I have to pay No. If you accept the Offer no stamp duty is
stamp duty if I payable.
accept?
What are the tax Please consult your financial, tax or other
implications of professional adviser on the tax implications of
acceptance? acceptance. However, a general summary of the
likely Australian tax consequences is set out in
Part E.
Can I accept the No. You cannot accept for part of your holding.
Offer for part of You may only accept the Offer for ALL of your WMC
my holding? Resources Shares.
How long do I Unless the Offer is extended, you will have until
have to accept 7:30 pm Melbourne time on 6 May 2005 to accept the
the Offer? Offer.
Will I be The Offer price will not be reduced by WMC
entitled to keep Resources` 2004 final dividend of 20 cents per
any dividends or share paid on 11 March 2005. However, the Offer
other price will be reduced by the amount of any other
distributions dividend or distribution that becomes payable to
paid by WMC WMC Resources shareholders after 8 March 2005,
Resources? including the proposed 30 cents per WMC Resources
Share capital return proposed to be considered for
approval at WMC Resources` annual general meeting
in May 2005.
I have already No. The withdrawal rights in the Xstrata Offer
accepted the were terminated on 17 March 2005.
Xstrata Offer.
Can I change my
mind and accept
the BHP Billiton
Offer?
How does the BHP The BHP Billiton Offer is significantly higher than
Billiton Offer the effective offer price of A$7.00 per WMC
compare to the Resources Share made by Xstrata. By accepting the
Xstrata Offer? BHP Billiton Offer you will receive A$0.85 more for
each WMC Resources Share you hold than you would
under the Xstrata Offer.
What happens if I If you do not accept the Offer and the Offer is
do not accept? successful, your WMC Resources Shares may be
compulsorily acquired. You will be provided the
Offer consideration at the conclusion of this
process. You will receive the Offer consideration
sooner if you accept the Offer.
Can BHP Billiton Yes, the Offer can be extended at BHP Billiton
Lonsdale extend Lonsdale`s election. WMC Resources will receive
the Offer period? written notice of any extension.
Can I sell my Yes.
shares on market?
Are there any The Offer is subject to conditions, which are
conditions to the summarised in Part A and set out in full in clause
Offer? 0 of this Bidder`s Statement (page 17).
BHP Billiton Lonsdale may choose to waive
conditions in accordance with the Offer.
What if the If the conditions of the Offer are not satisfied or
conditions of the waived, then the Offer will not proceed and you
Offer are not will continue to hold your WMC Resources Shares.
satisfied? BHP Billiton Lonsdale will inform you if the
conditions are satisfied or waived during the Offer
Period.
Further If you have any questions in relation to the Offer
information or how to accept it, or if you have lost your
Acceptance Form and require a replacement, please
call the BHP Billiton Offer information line on
1300 365 849 (within Australia) or + 61 3 9415 4254
(from outside Australia). For US callers, contact
MacKenzie Partners, Inc. at (212) 929 5500 (call
collect) or (800) 322 2885 (toll free) or by email
at proxy@mackenziepartners.com.
Please note that, as required by the Corporations
Act, calls to these numbers will be recorded.
PART C - THE OFFER TERMS
THE OFFER
Offer for your WMC Resources Shares
BHP Billiton Lonsdale offers to acquire all of your WMC Resources Shares on the
terms set out in this Offer.
This Offer extends to all WMC Resources Shares that are issued during the period
from the Register Date to the end of the Offer Period due to the conversion of,
or exercise of rights attached to, WMC Resources Options which are on issue at
the Register Date.
If BHP Billiton Lonsdale acquires your WMC Resources Shares under this Offer,
BHP Billiton Lonsdale is also entitled to any Rights attached to those WMC
Resources Shares.
Consideration
BHP Billiton Lonsdale offers A$7.85 cash for each of your WMC Resources Shares.
OFFER PERIOD
Unless withdrawn or extended under clause 0, this Offer is open during the
period that begins on the date of this Offer and ends at 7:30 pm Melbourne time
on 6 May 2005.
If, within the last seven days of the Offer Period:
- BHP Billiton Lonsdale varies the Offers to improve the consideration
offered;
- the consideration is taken to be increased under section 651A(2) of the
Corporations Act because BHP Billiton Lonsdale purchases WMC Resources
Shares outside the Offer for a cash price higher than the consideration
offered; or
- BHP Billiton Lonsdale`s voting power in WMC Resources increases to more
than 50 per cent, section 624(2) of the Corporations Act will apply to
extend the Offer Period so that it ends 14 days after that event.
HOW TO ACCEPT THIS OFFER
Accept for all your WMC Resources Shares
You may only accept this Offer in respect of all your WMC Resources Shares.
CHESS Holdings
If your WMC Resources Shares are in a CHESS Holding, you must either:
- complete and sign the Acceptance Form in accordance with the instructions
on it. Once completed and signed, you need to return the Acceptance Form
together with all other documents required by the instructions on it to one
of the addresses specified on the form. This will authorise BHP Billiton
Lonsdale to instruct your Controlling Participant (usually, your broker) to
initiate acceptance on your behalf. For return of the Acceptance Form to
be an effective acceptance of the Offer, you must ensure it is received in
time to give instructions to your Controlling Participant, and for your
Controlling Participant to carry out those instructions, before the end of
the Offer Period; or
- instruct your Controlling Participant to initiate acceptance on your behalf
under rule 14.14 of the ASTC Settlement Rules, so as to be effective before
the end of the Offer Period.
If you are a Participant, you must yourself initiate acceptance under rule 14.14
of the ASTC Settlement Rules, so as to be effective before the end of the Offer
Period.
Issuer Sponsored Holdings or unregistered holdings
If your WMC Resources Shares are in an Issuer Sponsored Holding or if at the
time of your acceptance you are entitled to be (but are not yet) registered as
the holder of your WMC Resources Shares, to accept you must complete and sign
the Acceptance Form in accordance with the instructions on it. Once completed
and signed, you need to return the Acceptance Form together with all other
documents required by the instructions on it to one of the addresses specified
on the form so that they are received before the end of the Offer Period.
Foreign laws
This Offer is not registered in any jurisdiction outside Australia (unless an
applicable foreign law treats it as registered as a result of the Bidder`s
Statement being lodged with ASIC). It is your sole responsibility to satisfy
yourself that you are permitted by any foreign law applicable to you to accept
this Offer.
YOUR AGREEMENT RESULTING FROM ACCEPTANCE
Effect of Acceptance Form
By signing and returning the Acceptance Form in accordance with clause 0:
- you authorise BHP Billiton Lonsdale and each of its officers and agents to
correct any errors in, or omissions from, the Acceptance Form necessary to:
- make it an effective acceptance of this Offer in relation to your WMC
Resources Shares which are not in a CHESS Holding; and
- enable the transfer of your WMC Resources Shares to BHP Billiton Lonsdale;
and
- if any of your WMC Resources Shares are in a CHESS Holding, you authorise
BHP Billiton Lonsdale and each of its officers and agents to:
- instruct your Controlling Participant to effect your acceptance of
this Offer in respect of your WMC Resources Shares under rule 14.14 of
the ASTC Settlement Rules; and
- give to your Controlling Participant on your behalf any other
instructions in relation to your WMC Resources Shares which are
contemplated by the sponsorship agreement between you and your
Controlling Participant and are necessary or appropriate to facilitate
your acceptance of this Offer.
Your agreement
By signing and returning the Acceptance Form or initiating or causing acceptance
of this Offer under the ASTC Settlement Rules in accordance with clause 0:
- you accept this Offer in respect of all your WMC Resources Shares
registered as held by you at the date your acceptance is processed despite
any difference between that number and the number of WMC Resources Shares
specified in the Acceptance Form;
- you represent and warrant to BHP Billiton Lonsdale that all your WMC
Resources Shares will at the time of your acceptance of this Offer and of
transfer to BHP Billiton Lonsdale be fully paid up and that BHP Billiton
Lonsdale will acquire good title to and beneficial ownership of them free
from Encumbrances;
- you transfer, or consent to the transfer in accordance with the ASTC
Settlement Rules of, your WMC Resources Shares to BHP Billiton Lonsdale
subject to the conditions of the constitution of WMC Resources on which
they were held immediately before your acceptance of this Offer (and BHP
Billiton Lonsdale agrees to take those WMC Resources Shares subject to
those conditions);
- if and when the contract resulting from your acceptance of this Offer
becomes unconditional, you irrevocably appoint BHP Billiton Lonsdale and
each director of, and any nominee of, BHP Billiton Lonsdale as your
attorney to:
- attend and vote in respect of your WMC Resources Shares at all general
meetings of WMC Resources; and
- execute all forms, notices, documents (including a document appointing
a director of BHP Billiton Lonsdale as a proxy for any of your WMC
Resources Shares) and resolutions relating to your WMC Resources
Shares and generally to exercise all powers and rights which you have
as the registered holder of your WMC Resources Shares;
- you agree that in exercising the powers conferred by the power of
attorney in clause 0, BHP Billiton Lonsdale and each of its directors
and its nominee is entitled to act in the interest of BHP Billiton
Lonsdale;
- you agree not to attend or vote in person at any general meeting of
WMC Resources or to exercise, or to purport to exercise, (in person,
by proxy or otherwise) any of the powers conferred on the directors of
BHP Billiton Lonsdale by clause 0;
- if and when the contract resulting from your acceptance of this Offer
becomes unconditional (even though BHP Billiton Lonsdale has not yet
paid or provided the consideration due to you), you authorise BHP
Billiton Lonsdale to transmit a message to ASTC in accordance with
rule 14.17.1 of the ASTC Settlement Rules so as to enter those of your
WMC Resources Shares which are in a CHESS Holding into BHP Billiton
Lonsdale`s Takeover Transferee Holding; and
- you agree to indemnify BHP Billiton Lonsdale and each of its agents in
respect of any claim or action against it or any loss, damage or
liability whatsoever incurred by it as a result of you not producing
your Holder Identification Number or Securityholder Reference Number
or in consequence of the transfer of your WMC Resources Shares being
registered by WMC Resources without production of your Holder
Identification Number or Securityholder Reference Number.
Powers of attorney
If the Acceptance Form is signed under power of attorney, the attorney declares
that the attorney has no notice of revocation of the power and is empowered to
delegate powers under the power of attorney under clause 0 and paragraphs (d)
and (g) of clause 0.
Validation of otherwise ineffective acceptances
Except in relation to WMC Resources Shares in a CHESS Holding, BHP Billiton
Lonsdale may treat the receipt by it of a signed Acceptance Form as a valid
acceptance of this Offer even though it does not receive the other documents
required by the instructions on the Acceptance Form or there is not compliance
with any one or more of the other requirements for acceptance. If BHP Billiton
Lonsdale does treat such an Acceptance Form as valid, subject to clause 0, BHP
Billiton Lonsdale will not be obliged to give the consideration to you until BHP
Billiton Lonsdale receives all those documents and all of the requirements for
acceptance referred to in clause 0 and in the Acceptance Form have been met.
DEFEATING CONDITIONS
Defeating Conditions of this Offer
This Offer and the contract resulting from acceptance of this Offer are subject
to the fulfilment of the following Defeating Conditions:
- Minimum acceptance condition
- During, or at the end of, the Offer Period the number of WMC Resources
Shares in which BHP Billiton Lonsdale and its associates together have
relevant interests (disregarding any relevant interest that BHP Billiton
Lonsdale has merely because of the operation of section 608(3) of the
Corporations Act) is at least 90 per cent of all the WMC Resources Shares
(even if that number later becomes less than 90 per cent of all the WMC
Resources Shares as a result of the issue of further WMC Resources Shares).
- Foreign investment approval
One of the following occurs before the end of the Offer Period:
- BHP Billiton Lonsdale receives written notice issued by or on behalf of the
Treasurer stating that there are no objections under the Australian
government`s foreign investment policy to the acquisition by BHP Billiton
Lonsdale of all of the WMC Resources Shares under the Offer, such notice
being unconditional;
- the expiry of the period provided under the FATA during which the Treasurer
may make an order or an interim order under the FATA prohibiting the
acquisition of WMC Resources Shares under the Offer, without such an order
being made; or
- if an interim order is made to prohibit the acquisition of WMC Resources
Shares under the Offer, the subsequent period for making a final order has
elapsed, without any such final order being made.
Hart-Scott-Rodino
Before the end of the Offer Period, all filings required under the U.S. Hart-
Scott-Rodino Antitrust Improvements Act of 1976, as amended (HSR Act) have been
made and all applicable waiting periods under the HSR Act have expired or have
been terminated.
European Union merger control
Before the end of the Offer Period:
- the European Commission has issued a decision under Article 6(1)(a) of
Council Regulation (EC) 139/2004 (the Merger Regulation) that the
acquisition of all or any of the WMC Resources Shares as a result of the
Offer (Acquisition) does not give rise to a concentration falling within
the scope of the Merger Regulation;
- the European Commission has issued a decision under Article 6(1)(b) of the
Merger Regulation declaring the Acquisition compatible with the common
market, or is deemed to have done so under Article 10(6) of the Merger
Regulation;
- in the event of the European Commission initiating proceedings under
Article 6(1)(c) of the Merger Regulation and BHP Billiton Lonsdale waiving
condition 5.1(d)(ii) above, the European Commission has issued a decision
under Article 8(1) or 8(2) of the Merger Regulation declaring the
Acquisition compatible with the common market, or is deemed to have done so
under Article 10(6) of the Merger Regulation; or
- in the event that the European Commission refers the whole or part of the
Acquisition to the competent authorities of one or more Member States under
Article 9(3) of the Merger Regulation:
- each such authority has granted a clearance in respect of all those
parts of the Acquisition which were referred to it, or is deemed to
have granted such a clearance; and
- the requirements of sub-paragraphs (d)(ii) or (d)(iii) are satisfied
with respect to any part not referred to the competent authority of
any Member State.
ACCC
Before the end of the Offer Period, BHP Billiton receives written notice from
the ACCC that the ACCC does not propose to intervene in the acquisition of WMC
Resources Shares under the Offer or the completion of any transaction
contemplated by the Bidder`s Statement, such notice being unconditional.
Approvals by Public Authorities
Before the end of the Offer Period:
- BHP Billiton Lonsdale receives all Approvals (other than those referred to
in paragraphs (b) to (e)) which are required by law or by any Public
Authority to permit the Offers to be made to and accepted by WMC Resources
shareholders in all applicable jurisdictions; and
- BHP Billiton Lonsdale receives all Approvals (other than those referred to
in paragraphs (b) to (e)) which are required by law or by any Public
Authority as a result of the Offers or the successful acquisition of the
WMC Resources Shares and which are necessary for the continued operation of
the business of WMC Resources and its subsidiaries or of any member of the
BHP Billiton Group, and, in each case, those Approvals are on an
unconditional basis and remain in force in all respects and there is no
notice, intimation or indication of intention to revoke, suspend, restrict,
modify or not renew those Approvals.
No action by Public Authority adversely affecting the Offer
During the period from and including the Announcement Date to the end of the
Offer Period:
- there is not in effect any preliminary or final decision, order or decree
issued by a Public Authority;
- no action or investigation is instituted, or threatened by any Public
Authority; and
- no application is made to any Public Authority (other than an application
by BHP Billiton or any company within the BHP Billiton Group), in
consequence of, or in connection with, the Offer, which restrains,
prohibits or impedes, or threatens to restrain, prohibit or impede, or may
otherwise materially adversely impact upon, the making of the Offer or the
completion of any transaction contemplated by the Bidder`s Statement or the
rights of BHP Billiton Lonsdale in respect of WMC Resources and the WMC
Resources Shares to be acquired under the Offer or otherwise, or seeks to
require the divestiture by BHP Billiton Lonsdale of any WMC Resources
Shares, or the divestiture of any assets by WMC Resources or by any
subsidiary of WMC Resources or by any member of the BHP Billiton Group.
No prescribed occurrences
None of the following events happens during the period beginning on the date the
Bidder`s Statement is given to WMC Resources and ending at the end of the Offer
Period:
- WMC Resources converts all or any of its shares into a larger or smaller
number of shares;
- WMC Resources or a subsidiary of WMC Resources resolves to reduce its share
capital in any way;
- WMC Resources or a subsidiary of WMC Resources:
- enters into a buy-back agreement; or
- resolves to approve the terms of a buy-back agreement under section
257C(1) or 257D(1) of the Corporations Act;
- WMC Resources or a subsidiary of WMC Resources issues shares (other
than WMC Resources Shares issued as a result of exercise of WMC
Resources Options) or grants an option over its shares, or agrees to
make such an issue or grant such an option;
- WMC Resources or a subsidiary of WMC Resources issues, or agrees to
issue, convertible notes;
- WMC Resources or a subsidiary of WMC Resources disposes, or agrees to
dispose, of the whole, or a substantial part, of its business or
property;
- WMC Resources or a subsidiary of WMC Resources charges, or agrees to
charge, the whole, or a substantial part, of its business or property;
- WMC Resources or a subsidiary of WMC Resources resolves to be wound
up;
- a liquidator or provisional liquidator of WMC Resources or of a
subsidiary of WMC Resources is appointed;
- a court makes an order for the winding up of WMC Resources or of a
subsidiary of WMC Resources;
- an administrator of WMC Resources, or of a subsidiary of WMC
Resources, is appointed under section 436A, 436B or 436C of the
Corporations Act;
- WMC Resources, or a subsidiary of WMC Resources, executes a deed of
company arrangement; or
- a receiver, or a receiver and manager, is appointed in relation to the
whole, or a substantial part, of the property of WMC Resources or of a
subsidiary of WMC Resources.
No prescribed occurrences between the Announcement Date and service
None of the events listed in sub-paragraphs (i) to (xiii) of paragraph (h)
happens during the period beginning on the Announcement Date and ending at the
end of the day before the Bidder`s Statement is given to WMC Resources.
No material acquisitions, disposals or changes in the conduct of WMC Resources`
business
During the period from and including the Announcement Date to the end of the
Offer Period, none of WMC Resources, or any subsidiary of WMC Resources:
- acquires, offers to acquire or agrees to acquire one or more shares,
companies or assets (or an interest in one or more shares, companies or
assets) for an amount in aggregate greater than A$300 million;
- disposes, offers to dispose or agrees to dispose of its interest (in whole
or in part and whether directly or indirectly) in the Olympic Dam
operation, WMC Resources` nickel operation or the Corridor Sands mineral
sands project (each a Relevant Asset). To avoid any doubt, a disposal of,
an offer to dispose or an agreement to dispose of one or more shares or
interests in a company or entity which owns an interest in a Relevant Asset
is taken to be a disposal of, an offer to dispose or an agreement t
