21st Mar 2005 15:21
BHP Billiton PLC21 March 2005 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 anyinvestment decision on the basis of this Bidder's Statement you should considerwhether 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 BillitonLonsdale Investments Pty Ltd ABN 75 004 346 972 to WMC Resources Ltd ABN 76 004184 598 under Part 6.5 of the Corporations Act. This Bidder's Statement includesan Offer dated (**) to acquire your WMC Resources Shares and also sets outcertain disclosures required by the Corporations Act. A copy of this Bidder's Statement was lodged with the Australian Securities andInvestments Commission (ASIC) on 21 March 2005. ASIC takes no responsibility forthe contents of this Bidder's Statement. Terms used in this Bidder's Statementare defined in Part G of this Bidder's Statement. IMPORTANT DATES Bidder's Statement lodged with ASIC 21 March 2005 Date of Offer (**) Closing date of Offer* (**) * 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 lawor regulation. Accordingly, persons who come into possession of this documentshould inform themselves of and observe these restrictions. Further Information for US holders Investors and holders of WMC Resources securities are strongly advised to readany other relevant documents filed with the US Securities and ExchangeCommission (SEC), as well as any amendments and supplements to those documents,because they will contain important information. Investors and holders of WMCResources securities may obtain free copies of the informational document (whenavailable), as well as other relevant documents filed with the SEC, at the SEC'swebsite at www.sec.gov. WMC Resources will issue a target's statement inconnection with the Offer which investors and holders of WMC Resourcessecurities are strongly advised to read. Forward-Looking Statements Statements contained in this communication may contain forward-lookingstatements with respect to BHP Billiton's financial condition, results ofoperations, 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 nothistorical facts are "forward-looking statements". These forward-looking statements, including, among others, those relating to thefuture business prospects, revenues and income of BHP Billiton, wherever theymay occur in this communication are necessarily estimates reflecting the bestjudgment of the senior management of BHP Billiton and involve a number of risksand uncertainties that could cause actual results to differ materially fromthose indicated, suggested, proposed or implied by the forward-lookingstatements. As a consequence, these forward-looking statements should beconsidered in light of various important factors, including those set forth inthis communication and BHP Billiton's Annual Report on Form 20-F for thefinancial year ended 30 June 2004. Important factors that could cause actual results to differ materially fromestimates or projections contained in the forward-looking statements include,without limitation: the success of the proposed tender offer; estimatedreserves; plans, strategies and objectives of management; closure or divestmentof certain operations or facilities (including associated costs); anticipatedproduction or construction commencement dates; expected costs or productionoutput; the anticipated productive lives of projects, mines and facilities; andprovisions and contingent liabilities. Except as may be required by applicable law, BHP Billiton undertakes noobligation to update publicly or release any revisions to these forward-lookingstatements to reflect events or circumstances after the date of the materials inwhich such statements are contained or to reflect the occurrence ofunanticipated events. No internet site is part of this Bidder's Statement Each of BHP Billiton and WMC Resources maintains an internet site. The BHPBilliton internet site is at the URL http://www.bhpbilliton.com. The WMCResources site is at the URL http://www.wmc.com. Information contained in orotherwise accessible through these internet sites is not a part of this Bidder'sStatement. All references in this Bidder's Statement to these internet sites areinactive textual references to these URLs and are for your information only. (**) March 2005 Dear WMC Resources shareholder, I am pleased to enclose BHP Billiton's Offer to acquire all of your shares inWMC Resources Ltd. BHP Billiton, through its group company, BHP Billiton Lonsdale Investments PtyLtd, is offering A$7.85 cash for each WMC Resources Share that you hold. Your board has unanimously recommended that WMC Resources shareholders acceptthe Offer in the absence of a superior proposal and has indicated that thedirectors will be accepting this Offer for their own holdings of WMC ResourcesShares on that basis. BHP Billiton believes that this Offer represents a fair price for WMC Resourcesand provides certainty of value today to WMC Resources shareholders. The Offerprice of A$7.85 per WMC Resources Share values your company at A$9.2 billion andrepresents a significant premium of: • A$2.70 above the volume weighted average price of WMC Resources Shares of A$5.15 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 atwhich the independent expert appointed by WMC Resources, Grant Samuel, hasvalued WMC Resources Shares. This Offer price, when added to WMC Resources' 2004final dividend of 20 cents per share paid on 11 March 2005, is in the topquartile of that valuation range. The Offer will close at 7:30 pm (Melbourne time) on (**), unless extended. Toaccept the Offer, please follow the instructions on page 2. If you have anyquestions about the Offer, please contact the BHP Billiton Offer informationline on 1300 365 849 (from within Australia) or + 61 3 9415 4254 (if callingfrom outside Australia) or, if calling from the United States, contact MacKenziePartners at (212) 929 5500 (call collect) or (800) 322 2885 (toll free) or byemail at [email protected], or consult your financial or otherprofessional adviser. I encourage you to consider this document carefully and accept our Offer. Yours sincerely, Don ArgusChairman CONTENTSPART 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 holdings 13 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 documents 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 (**). Conditions The Offer is subject to the conditions set out in clause5.1 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; • 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 non-existence 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 you have WMCOptions 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 You will not pay any stamp duty on accepting the Offer.or stamp duty 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: (a) complete and return the enclosed Acceptance Form in accordance with the instructions on it; or (b) 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 Services Computershare Investor Services Pty Limited Pty Limited GPO Box 52 Yarra Falls MELBOURNE VIC 8060 452 Johnston Street ABBOTSFORD VIC 3067 A self-addressed 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, the Offer orinformation 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: [email protected] Please note that all calls to these numbers will be recorded to satisfy legal requirements. PART B - ISSUES YOU SHOULD CONSIDERREASONS 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 significantpremium of: • A$2.70 above the volume-weighted average price (VWAP) of WMC Resources Shares of A$5.15 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 theA$7.17 to A$8.24 range at which the independent expert appointed by WMCResources, Grant Samuel, has valued WMC Resources Shares.(1) This Offer price,when added to WMC Resources' 2004 final dividend of 20 cents per share paid on11 March 2005, is in the top quartile of that valuation range. The BHP Billiton Offer for WMC Resources - premium to WMC Resources share priceand Xstrata Offer 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 havetraded 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 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 absenceof a superior proposal, WMC Resources shareholders accept the BHP BillitonOffer. All of WMC Resources' directors who hold shares in WMC Resources have indicatedthat they will be accepting the BHP Billiton Offer in respect of their personalshareholdings, 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 youshould 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 ofthe risks outlined above on the value of your shares. FREQUENTLY ASKED QUESTIONS Questions Answers What is the Offer? BHP Billiton Lonsdale is offering you A$7.85 cash per share for all your WMC Resources Shares. When will I be paid? If you accept the Offer, 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). How do I accept the Instructions on how to accept the Offer are set out inOffer? 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 anbrokerage if I accept? Issuer Sponsored Holding in your name and you 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 stamp No. If you accept the Offer no stamp duty is payable.duty if I accept? What are the tax Please consult your financial, tax or otherimplications of professional adviser on the tax implications ofacceptance? acceptance. However, a general summary of the likely Australian tax consequences is set out in Part E. Can I accept the Offer No. You cannot accept for part of your holding. You mayfor part of my holding? only accept the Offer for ALL of your WMC Resources Shares. How long do I have to Unless the Offer is extended, you will have until 7:30accept the Offer? pm Melbourne time on (**) to accept the Offer. Will I be entitled to The Offer price will not be reduced by WMC Resources'keep any dividends or 2004 final dividend of 20 cents per share paid on 11other distributions paid March 2005. However, the Offer price will be reduced byby WMC Resources? the amount of any other dividend or distribution that becomes payable to WMC Resources shareholders after 8March 2005, 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 accepted No. The withdrawal rights in the Xstrata Offer werethe Xstrata Offer. Can I terminated on 17 March 2005.change my mind andaccept the BHP BillitonOffer? How does the BHP The BHP Billiton Offer is significantly higher than theBilliton Offer compare effective offer price of A$7.00 per WMC Resources Shareto the Xstrata Offer? made by Xstrata. By accepting the 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 do not If you do not accept the Offer and the Offer isaccept? 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 BillitonLonsdale extend the Lonsdale's election. WMC Resources will receive writtenOffer period? notice of any extension. Can I sell my shares on Yes.market? Are there any conditions The Offer is subject to conditions, which areto the Offer? summarised in Part A and set out in full in clause5.1 of this Bidder's Statement (page 17). BHP Billiton Lonsdale may choose to waive conditions in accordance with the Offer. What if the conditions If the conditions of the Offer are not satisfied orof the Offer are not waived, then the Offer will not proceed and you willsatisfied? continue to hold your WMC Resources Shares. BHP Billiton Lonsdale will inform you if the conditions are satisfied or waived during the Offer Period. Further information If you have any questions in relation to the Offer 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 [email protected]. Please note that, as required by the Corporations Act, calls to these numbers will be recorded. PART C - THE OFFER TERMS 1. THE OFFER 1.1 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. 1.2 Consideration BHP Billiton Lonsdale offers A$7.85 cash for each of your WMC Resources Shares. 2. OFFER PERIOD Unless withdrawn or extended under clause 8, this Offer is open during the period that begins on the date of this Offer and ends at 7:30 pm Melbourne time on (**). If, within the last seven days of the Offer Period: (a) BHP Billiton Lonsdale varies the Offers to improve the consideration offered; (b) 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 (c) 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. 3. HOW TO ACCEPT THIS OFFER 3.1 Accept for all your WMC Resources Shares You may only accept this Offer in respect of all your WMC Resources Shares. 3.2 CHESS Holdings If your WMC Resources Shares are in a CHESS Holding, you must either: (a) 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 (b) 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. 3.3 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. 3.4 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. 4. YOUR AGREEMENT RESULTING FROM ACCEPTANCE 4.1 Effect of Acceptance Form By signing and returning the Acceptance Form in accordance with clause 3: (a) 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: (i) make it an effective acceptance of this Offer in relation to your WMC Resources Shares which are not in a CHESS Holding; and (ii) enable the transfer of your WMC Resources Shares to BHP Billiton Lonsdale; and (b) 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: (i) 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 (ii) 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. 4.2 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 3: (a) 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; (b) 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; (c) 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); (d) 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: (i) attend and vote in respect of your WMC Resources Shares at all general meetings of WMC Resources; and (ii) 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; (e) you agree that in exercising the powers conferred by the power of attorney in clause 4.2(d), BHP Billiton Lonsdale and each of its directors and its nominee is entitled to act in the interest of BHP Billiton Lonsdale; (f) 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 4.2(d); (g) 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 (h) 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. 4.3 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 4.1 and paragraphs (d) and (g) of clause 4.2. 4.4 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 6, 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 3.3 and in the Acceptance Form have been met. 5. DEFEATING CONDITIONS 5.1 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: (a) 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). (b) Foreign investment approval One of the following occurs before the end of the Offer Period: (i) 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; (ii) 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 (iii)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. (c) 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. (d) European Union merger control Before the end of the Offer Period: (i) 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; (ii) 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; (iii)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 (iv) 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: (A) 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 (B) 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. (e) 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. (f) Approvals by Public Authorities Before the end of the Offer Period: (i) 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 (ii) 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. (g) 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: (i) there is not in effect any preliminary or final decision, order or decree issued by a Public Authority; (ii) no action or investigation is instituted, or threatened by any Public Authority; and (iii)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. (h) 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: (i) WMC Resources converts all or any of its shares into a larger or smaller number of shares; (ii) WMC Resources or a subsidiary of WMC Resources resolves to reduce its share capital in any way; (iii)WMC Resources or a subsidiary of WMC Resources: (A) enters into a buy-back agreement; or (B) resolves to approve the terms of a buy-back agreement under section 257C(1) or 257D(1) of the Corporations Act; (iv) 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; (v) WMC Resources or a subsidiary of WMC Resources issues, or agrees to issue, convertible notes; (vi) 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; (vii)WMC Resources or a subsidiary of WMC Resources charges, or agrees to charge, the whole, or a substantial part, of its business or property; (viii)WMC Resources or a subsidiary of WMC Resources resolves to be wound up; (ix) a liquidator or provisional liquidator of WMC Resources or of a subsidiary of WMC Resources is appointed; (x) a court makes an order for the winding up of WMC Resources or of a subsidiary of WMC Resources; (xi) an administrator of WMC Resources, or of a subsidiary of WMC Resources, is appointed under section 436A, 436B or 436C of the Corporations Act; (xii)WMC Resources, or a subsidiary of WMC Resources, executes a deed of company arrangement; or (xiii)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. (i) 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. (j) 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: (i) 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; (ii) 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 to dispose of (as the case may be) an interest in the Relevant Asset; (iii)enters into or offers to enter into any joint venture, asset or profit sharing, partnership, merger of businesses (including through a dual listed companies structure) or of corporate entities, in respect of any Relevant Asset; (iv) other than in the ordinary course of business, incurs, commits to or brings forward the time for incurring or committing, or grants to another person a right the exercise of which would involve WMC Resources or any subsidiary of WMC Resources incurring or committing to, any capital expenditure or liability, or foregoes any revenue, for one or more related items or amounts of greater than A$50 million; or (v) discloses (without having disclosed to ASX prior to the Announcement Date) the existence of any matter described in sub-paragraphs (i) to (iv) above, or announces an intention or proposal to do anything described in sub-paragraphs (i) to (iv) above. For the avoidance of doubt, a reference in this paragraph (j), to: (A) the Olympic Dam operation is a reference to the Olympic Dam minerals processing operation (which produces copper, uranium oxide, gold and silver), and the mine and assets used in connection with that operation including all land holdings and assets in and around the township of Roxby Downs, of WMC Resources (or any subsidiary of it); (B) WMC Resources' nickel operation is a reference to the nickel business carried on by the WMC Resources Group including the: (I) mines and concentrators at Leinster and Mount Keith; (II) concentrator at Kambalda; (III)smelter at Kalgoorlie; (IV) refinery at Kwinana; and (V) other nickel related projects, of WMC Resources (or any subsidiary of it). (k) Non-existence of certain rights No person (other than a member of the BHP Billiton Group) has orRelated Shares:
BHP Group