15th Apr 2008 17:10
Aquarius Platinum Ld15 April 2008 Aquarius Platinum Limited(Incorporated in Bermuda)Share code ASX: AQPShare code LSE: AQPShare code JSE: AQPISIN number: BMG0440M1029("Aquarius" or "the Company") NOT FOR RELEASE, PUBLICATION OR DISTRIBUTION INTO OR IN THE UNITED STATES,CANADA, OR JAPAN. THIS ANNOUNCEMENT DOES NOT CONSTITUTE OR FORM PART OF AN OFFER OF SECURITIES INTHE UNITED STATES OR ANY OTHER JURISDICTION. AQUARIUS LAUNCHES CAPITAL RAISING FOR IMPALA BUYBACK Aquarius is launching an accelerated bookbuild placing of up to 23,144,000 newordinary shares of US$0.05 each (the "Placing Shares") of Aquarius PlatinumLimited, listed on the ASX Limited, the LSE and the JSE Limited, to globalinstitutional investors (the "Placing"). RMB Morgan Stanley will act as globalbookrunner for the Placing with Euroz Securities Limited and Investec Bank (UK)Limited acting as co-lead managers. As set out in the announcement dated 15 April 2008 regarding the transactionwith Impala Platinum Holdings Limited ("Implats") to buy back the shares Implatscurrently holds in both Aquarius and its subsidiary Aquarius Platinum (SouthAfrica) (Pty) Ltd ("AQPSA") (the "Buy Back'), the Buy Back will be partly fundedby the issue of new equity. The Placing Shares will, when issued, be credited as fully paid and will rankpari passu in all respects with the existing issued ordinary shares of theCompany, including the right to receive future dividends and other distributionsdeclared, made or paid after the date of their issue. Application will be madeto the FSA for the Placing Shares to be admitted to the official list maintainedby the FSA (the "Official List") and to the LSE, the ASX Limited and the JSELimited for the Placing Shares to be admitted to trading. The book for the Placing will open with immediate effect and is expected toclose before close of business in London on Wednesday 16 April 2008. Pricing andallocations are expected to be announced as soon as practicable following theclosing of the book. The proceeds and the placing price will be decided at theclose of the accelerated bookbuilding period following agreement betweenAquarius and RMB Morgan Stanley. A further announcement will be made at thattime. The timing of the closing of the book, pricing and allocations may beamended at the absolute discretion of Aquarius and RMB Morgan Stanley. For further information please contact: Aquarius: Willi Boehm +61 (0)8 9367 5211 RMB Morgan Stanley: Chris Meyer +27 (0)11 282 8286 Morgan Stanley: Alastair Cochran +44 (0)20 7677 5039 Rand Merchant Bank: Justin Bothner +27 (0)11 282 4150 This announcement has been issued by the Company and is the sole responsibilityof the Company. RMB Morgan Stanley, Morgan Stanley and Rand Merchant Bank are acting exclusivelyfor the Company and no one else in connection with the Placing. RMB MorganStanley, Morgan Stanley and Rand Merchant Bank will not be responsible to anyoneother than the Company for providing the protections afforded to theirrespective clients nor for providing advice in relation to the Placing or anyother matter referred to in this announcement. This announcement is for information purposes only and does not constitute anoffer or an invitation to acquire or dispose of any securities or investmentadvice in any jurisdiction. This announcement is not for publication or distribution or release in theUnited States of America (including its territories and possessions, any stateof the United States and the District of Columbia). This announcement does notconstitute or form part of an offer to sell or issue or solicitation of an offerto purchase or subscribe for securities in the United States, Australia, Canada,Japan or any other jurisdiction and should not be relied upon in connection withany decision to acquire the Placing Shares or any other Aquarius securities. Thesecurities referred to herein have not been and will not be registered under theUnited States Securities Act of 1933, as amended (the "Securities Act"), and maynot be offered, sold or transferred within the United States, except pursuant toan exemption from, or in a transaction not subject to, the registrationrequirements of the Securities Act. No public offering of the Placing Shares isbeing made or will be made in the United States. This announcement does not and is not intended to constitute an offer to thepublic in South Africa in terms of Chapter VI of the South African CompaniesAct, 1973 (as amended). This announcement includes "forward-looking statements". All statements otherthan statements of historical fact included in this announcement, including,without limitation, those regarding Aquarius's financial position, businessstrategy, plans and objectives of management for future operations, areforward-looking statements. Such forward-looking statements involve known andunknown risks, uncertainties and other factors which may cause the actualresults, performance or achievements of Aquarius, or industry results, to bematerially different from any future results, performance or achievementsexpressed or implied by such forward-looking statements. Such forward-lookingstatements are based on numerous assumptions regarding Aquarius's present andfuture business strategies and the environments in which Aquarius will operatein the future and such assumptions may or may not prove to be correct. There area number of factors which could cause actual results, performance of Aquarius,or industry results to differ materially from those expressed or implied inforward looking statements. These forward-looking statements speak only as ofthe date of this announcement. Aquarius expressly disclaims any obligation(except as required by the rules of the UK Listing Authority and the LondonStock Exchange or the rules of the ASX or the JSE) or undertaking to disseminateany updates or revisions to any forward-looking statement contained herein toreflect any change in Aquarius's expectations with regard thereto or any changein events, conditions or circumstances on which any such statement is based. Neither this announcement nor any copy of it may be taken, transmitted ordistributed, directly or indirectly in or into the United States, Canada orJapan. Melbourne / London / Johannesburg15 April 2008 APPENDIX Important information on the Placing NOT FOR RELEASE, PUBLICATION OR DISTRIBUTION, DIRECTLY OR INDIRECTLY, IN OR INTOTHE UNITED STATES, CANADA OR JAPAN IMPORTANT INFORMATION FOR PLACEES ONLY REGARDING THE PLACING MEMBERS OF THE PUBLIC ARE NOT ELIGIBLE TO TAKE PART IN THE PLACING. THISAPPENDIX AND THE TERMS AND CONDITIONS SET OUT HEREIN ARE DIRECTED IN THE UK ONLYAT PERSONS WHOSE ORDINARY ACTIVITIES INVOLVE THEM IN ACQUIRING, HOLDING,MANAGING AND DISPOSING OF INVESTMENTS (AS PRINCIPAL OR AGENT) FOR THE PURPOSESOF THEIR BUSINESS AND WHO HAVE PROFESSIONAL EXPERIENCE IN MATTERS RELATING TOINVESTMENTS AND ARE (1) QUALIFIED INVESTORS AS DEFINED IN SECTION 86(7) OF THEFINANCIAL SERVICES AND MARKETS ACT 2000 ("FSMA"), BEING PERSONS FALLING WITHINTHE MEANING OF ARTICLE 2.1(e)(i), (ii) OR (iii) OF DIRECTIVE 2003/71/EC (THE "PROSPECTUS DIRECTIVE") AND (2) FALL WITHIN ARTICLE 19(5) OF THE FINANCIALSERVICES AND MARKETS ACT 2000 (FINANCIAL PROMOTION) ORDER 2005, AS AMENDED (THE"ORDER") OR ARE PERSONS WHO FALL WITHIN ARTICLE 49(2)(a) TO (d) ("HIGH NET WORTHCOMPANIES, UNINCORPORATED ASSOCIATIONS, ETC") OF THE ORDER (ALL SUCH PERSONSTOGETHER BEING REFERRED TO AS "RELEVANT PERSONS"). THIS APPENDIX AND THE TERMSAND CONDITIONS SET OUT HEREIN MUST NOT BE ACTED ON OR RELIED ON BY PERSONS WHOARE NOT RELEVANT PERSONS. PERSONS DISTRIBUTING THIS ANNOUNCEMENT (INCLUDING THISAPPENDIX) MUST SATISFY THEMSELVES THAT IT IS LAWFUL TO DO SO. ANY INVESTMENT ORINVESTMENT ACTIVITY TO WHICH THIS APPENDIX AND THE TERMS AND CONDITIONS SET OUTHEREIN RELATES IS AVAILABLE ONLY TO RELEVANT PERSONS AND WILL BE ENGAGED IN ONLYWITH RELEVANT PERSONS. THIS APPENDIX DOES NOT ITSELF CONSTITUTE AN OFFER FORSALE OR SUBSCRIPTION OF ANY SECURITIES IN AQUARIUS PLATINUM LIMITED (THE "COMPANY"). This announcement and any offer if made subsequently is only addressed to anddirected at persons in member states of the European Economic Area ("EEA") whoare "qualified investors" within the meaning of Article 2(1)(e) of theProspectus Directive (Directive 2003/71/EC) ("Qualified Investors"). By participating in the Bookbuilding and the Placing, Placees will be deemed tohave read and understood this Appendix in its entirety, to be participating,making an offer and acquiring Placing Shares on the terms and conditionscontained herein and to be providing the representations, warranties,acknowledgements and undertakings contained herein. In particular each such Placee represents, warrants and acknowledges that: 1. if it is in the UK, it is a Relevant Person and undertakes that it willacquire, hold, manage or dispose of any Placing Shares that are allocated to itfor the purposes of its business; 2. in the case of a Placee in a member state of the EEA which has implementedthe Prospectus Directive (each a "Relevant Member State") who acquires anyPlacing Shares pursuant to the Placing: (i) it is a Qualified Investor; and (ii) in the case of any Placing Shares acquired by it as a financialintermediary, as that term is used in Article 3(2) of the Prospectus Directive,(i) the Placing Shares acquired by it in the Placing have not been acquired onbehalf of, nor have they been acquired with a view to their offer or resale to,persons in any Relevant Member State other than Qualified Investors or incircumstances in which the prior consent of Morgan Stanley & Co. Internationalplc, Firstrand Bank Limited acting through Rand Merchant Bank (together, the "Banks") has been given to the offer or resale; or (ii) where Placing Shares havebeen acquired by it on behalf of persons in any member state of the EEA otherthan Qualified Investors, the offer of those Placing Shares to it is not treatedunder the Prospectus Directive as having been made to such persons; and 3. is acquiring the Placing Shares for its own account or is acquiring thePlacing Shares for an account with respect to which it exercises sole investmentdiscretion, and that it (and any such account) is outside the United States orif it is not outside the United States, it is a qualified institutional buyer ("QIB") as defined in Rule 144A under the US Securities Act of 1933 (the "Securities Act"). This announcement (including this Appendix) does not constitute an offer to sellor issue or the solicitation of an offer to buy or subscribe for Placing Sharesin any jurisdiction including, without limitation, the United Kingdom, theUnited States, Canada, Australia or Japan. This announcement and the informationcontained herein is not for publication or distribution, directly or indirectly,or to persons in the United States, Canada, Japan or in any jurisdiction inwhich such publication or distribution is unlawful. The Placing Shares referred to in this announcement have not been and will notbe registered under the Securities Act or with any securities regulatoryauthority of any State or other jurisdiction of the United States, and may notbe offered, sold or transferred within the United States except pursuant to Rule144A under the Securities Act ("Rule 144A") or another exemption from theregistration requirements of the Securities Act. Any offering to be made in theUnited States will be made to QIBs pursuant to Rule 144A or another exemptionfrom registration under the Securities Act or in a transaction not involving anypublic offering. The Placing Shares are being offered and sold outside theUnited States in accordance with Regulation S under the Securities Act. ThePlacing Shares have not been approved or disapproved by the US Securities andExchange Commission, any state securities commission in the United States orother regulatory authority in the United States, nor have any of the foregoingauthorities passed upon or endorsed the merits of the Placing or the accuracy oradequacy of this announcement. Any representation to the contrary is a criminaloffence in the United States. The distribution of this announcement and the Placing and/or issue of thePlacing Shares in certain jurisdictions may be restricted by law. No action hasbeen taken by the Company, the Banks, or any of their respective Affiliates,that would permit an offer of the Placing Shares or possession or distributionof this announcement or any other offering or publicity material relating tosuch Placing Shares in any jurisdiction where action for that purpose isrequired. Persons into whose possession this announcement comes are required bythe Company and the Banks to inform themselves about and to observe any suchrestrictions. In this Appendix, unless the context otherwise requires, the "Company" meansAquarius Platinum Limited and "Placee" includes a person (including individuals,funds or others) on whose behalf a commitment to acquire Placing Shares has beengiven. No prospectus No prospectus or other offering document has been or will be submitted to beapproved by the Financial Services Authority (the "FSA") in the United Kingdom,the JSE Limited in South Africa or the ASX Limited in Australia in relation tothe Placing and the Placees' commitments will be made solely on the basis of theinformation contained in this announcement, the Pricing Announcement and anyinformation publicly announced to a Regulatory Information Service by or onbehalf of the Company on or prior to the date of this announcement (the "Publicly Available Information"). Each Placee, by participating in the Placing,agrees that it has neither received nor relied on any information,representation, warranty or statement made by or on behalf of any of the Banksor the Company other than the Publicly Available Information and the content ofthis announcement (including this Appendix) and none of the Banks, the Companynor any person acting on such person's behalf nor any of their Affiliates has orshall have any liability for any Placee's decision to accept this invitation toparticipate in the Placing based on any other information, representation,warranty or statement. Each Placee acknowledges and agrees that it has relied onits own investigation of the business, financial or other position of theCompany in accepting a participation in the Placing. Nothing in this paragraphshall exclude the liability of any person for fraudulent misrepresentation. Details of the Placing Agreement and the Placing Shares The Banks have entered into a placing agreement dated 15 April 2008 (the "Placing Agreement") with the Company under which the Company proposes, on theterms and subject to the conditions set out in the Placing Agreement to issueand allot new shares of US$0.05 each in the capital of the Company (the "PlacingShares") to the Banks, and the Banks propose to sell and deliver such PlacingShares to placees procured by the Banks (the "Placees"). The Placing Shares will, when issued, be credited as fully paid and will rankpari passu in all respects with the existing issued ordinary shares of US$0.05per share in the capital of the Company, including the right to receive alldividends and other distributions declared, made or paid on or in respect ofsuch ordinary shares after the date of issue of the Placing Shares. Application for admission to listing and trading Application will be made: (i) to the FSA for admission of the Placing Shares to the official listmaintained by the FSA (the "Official List") and to the London Stock Exchange foradmission to trading of the Placing Shares on the London Stock Exchange's marketfor listed securities; (ii) to the JSE Limited for listing of the Placing Shares; and (iii) to the ASX Limited for listing of the Placing Shares, (together "Admission"). It is expected that Admission will take place on orbefore 23 April 2008 and that dealings in the Placing Shares will commence atthe same time. Bookbuilding RMB Morgan Stanley (the "Bookrunner") will today commence the Bookbuilding todetermine demand for participation in the Placing by Placees. This Appendixgives details of the terms and conditions of, and the mechanics of participationin, the Placing. No commissions will be paid to Placees or by Placees in respectof any Placing Shares. The Bookrunner, the Banks and the Company shall be entitled to effect thePlacing by such alternative method to the Bookbuilding as they may, in theirsole discretion, determine. Principal terms of the Bookbuilding and Placing 1. The Company appoints the Bookrunner and confers on the Bookrunner allpowers, authorities and discretions which are necessary for, or incidental to,such appointment, including the power to appoint Euroz Securities Limited andInvestec Bank UK Limited (the "Placing Agents"), and any other parties as may beagreed between the Company and the Banks sub-agents or to delegate the exerciseof any of its powers, authorities or discretions to such persons at if may thinkfit. 2. Participation in the Placing will only be available to persons who maylawfully be, and are, invited to participate by the Banks. 3. The Bookbuilding will establish prices per Placing Share being equivalentprices in Sterling, South African Rand and Australian Dollars based on theexchange rate prevailing at pricing (the "Placing Price") payable to the Banksby Placees whose bids are successful depending on the currency in which theyhave bid. The Placing Price and the number of Placing Shares to be issuedpursuant to the Placing in order to raise the net proceeds equal toUS$400,000,000 (the "Agreed Amount") will be agreed between the Banks and theCompany following completion of the Bookbuilding. The Placing Price will beannounced (the "Pricing Announcement") on a Regulatory Information Servicefollowing the completion of the Bookbuilding. 4. To bid in the Bookbuilding, Placees should communicate their bid bytelephone to their usual sales contact at the Bookrunner or the Banks. Each bidshould state the number of shares in the Company which a prospective Placeewishes to acquire at either the Placing Price which is ultimately established bythe Company and the Banks or at prices up to a price limit specified in its bid.Bids may be scaled down by the Banks on the basis referred to in paragraph 8below. Each of Morgan Stanley & Co. International plc and Firstrand BankLimited, acting through Rand Merchant Bank is arranging the Placing severally,and not jointly, or jointly and severally. 5. The Bookbuilding is expected to close no later than 4.30 p.m. (GMT) on 16April 2008 but may be closed earlier or later at the discretion of theBookrunner. The Banks may, in agreement with the Company, accept bids that arereceived after the Bookbuilding has closed. 6. Allocations will be confirmed orally by the relevant Bank as soon aspracticable following the close of the Bookbuilding. Oral confirmation of anallocation will give rise to a legally binding commitment by the Placeeconcerned, in favour of the relevant Bank, under which it agrees to acquire thenumber of Placing Shares allocated to it on the terms and subject to theconditions set out in this Appendix and the Company's Memorandum and Articles ofAssociation. 7. The Company will make a further announcement following the close of theBookbuilding detailing the number of such shares to be issued and the price atwhich such shares have been placed. 8. Subject to paragraphs 5 and 7 above, the Banks may choose to accept bids,either in whole or in part, on the basis of allocations determined at itsdiscretion (in agreement with the Company) and may scale down any bids for thispurpose on such basis as they may determine. They may also, notwithstandingparagraphs 5 to 7 above, subject to the prior consent of the Company (a)allocate Placing Shares after the time of any initial allocation to any personsubmitting a bid after that time and (b) allocate Placing Shares after theBookbuilding has closed to any person submitting a bid after that time. 9. A bid in the Bookbuilding will be made on the terms and subject to theconditions in this Appendix and will be legally binding on the Placee on behalfof which it is made and except with the Bookrunner's consent will not be capableof variation or revocation after the time at which it is submitted. Each Placeewill have an immediate, separate, irrevocable and binding obligation, owed tothe relevant Bank, to pay to it (or as it may direct) in cleared funds an amountequal to the product of the Placing Price and the number of Placing Shares suchPlacee has agreed to acquire. 10. Except as required by law or regulation, no press release or otherannouncement will be made by the Banks or the Company using the name of anyPlacee (or its agent), in its capacity as Placee (or agent), other than withsuch Placee's prior written consent. 11. Irrespective of the time at which a Placee's allocation(s) pursuant to thePlacing is/are confirmed, settlement for all Placing Shares to be acquiredpursuant to the Placing will be required to be made at the same time, on thebasis explained below under "Registration and Settlement". 12. All obligations under the Bookbuilding and Placing will be subject tofulfilment of the conditions referred to below under "Conditions of the Placing"and to the Placing not being terminated on the basis referred to below under "Termination of the Placing". 13. By participating in the Bookbuilding each Placee will agree that its rightsand obligations in respect of the Placing will terminate only in thecircumstances described below and will not be capable of rescission ortermination by the Placee. 14. To the fullest extent permissible by law, none of the Banks, the Bookrunnernor any of their Affiliates shall have any liability to Placees (or to any otherperson whether acting on behalf of a Placee or otherwise). In particular, noneof the Banks, the Bookrunner nor any of their Affiliates shall have anyliability (including, to the extent permissible by law, any fiduciary duties) inrespect of the Banks' or the Bookrunner's conduct of the Bookbuilding or of suchalternative method of effecting the Placing as the Banks and the Company mayagree. Registration and Settlement If Placees are allocated any Placing Shares in the Placing they will be sent acontract note or electronic confirmation which will confirm the number ofPlacing Shares allocated to them, the Placing Price and the aggregate amountowed by them to the relevant Bank. Each Placee will be deemed to agree that itwill do all things necessary to ensure that delivery and payment is completed inaccordance with either the standing CREST, STRATE or CHESS which they have inplace with the relevant Bank. Settlement of transactions between the Banks and Placees in the Placing Sharesfollowing Admission will take place within the CREST, STRATE AND CHESS system.Such settlement will be on a T +5 basis unless otherwise notified by the Banksand is expected to occur on or before 24 April 2008. Settlement will be on adelivery versus payment basis. However, if in the reasonable opinion of theCompany and the Banks it is impractical for the Placing Shares to be admitted toCREST, STRATE or CHESS the Company may issue and the Banks may deliver some orall of the Placing Shares in certificated form. Interest is chargeable on payments not received from the due date until the dateof actual payment in accordance with the arrangements set out above at a rateper annum of 1 per cent. above the base rate from time to time of Barclays BankPLC and shall accrue from day to day and be calculated on the basis of a 365 dayyear. If Placees do not comply with their obligations the relevant Bank may sell theirPlacing Shares on their behalf and retain from the proceeds, for its own accountand benefit, an amount equal to the Placing Price of each share sold plus anyinterest due. Placees will, however, remain liable for any shortfall below thePlacing Price and for any stamp duty or stamp duty reserve tax (together withany interest or penalties) which may arise upon the sale of their Placing Shareson their behalf. If Placing Shares are to be delivered to a custodian or settlement agent,Placees must ensure that, upon receipt, the conditional contract note is copiedand delivered immediately to the relevant person within that organisation. Conditions of the Placing The Placing is conditional upon the Placing Agreement becoming unconditional andnot having been terminated in accordance with its terms. The obligations of the Banks under the Placing Agreement are conditional on,inter alia: (a) successful completion of the Bookbuilding and entry into a term sheetbetween the Bookrunner, the Banks and the Company setting out the Placing priceand the number of Placing Shares to be issued to the Banks; (b) the delivery by the Company to the Banks immediately prior to Admission ofa certificate, signed for and on behalf of the Company by a duly authorisedofficer of the Company, in the form set out in schedule to the PlacingAgreement; (c) (save to the extent not, in the opinion of the Banks acting in good faith,materially adverse in the context of the Placing) the warranties on the part ofthe Company contained in the Placing Agreement being true and accurate and notmisleading in any respect on and as of the date of the Placing Agreement and atany time before Admission; (d) the fulfilment by the Company of its obligations under the PlacingAgreement which are required to be performed or satisfied on or prior toAdmission, save to the extent, in the opinion of the Banks, that anynon-compliance is not material in the context of the Placing; (e) the Buy Back agreement having been executed and there being no outstandingconditions precedent to its closing, save for the issue to, and subscription by,the Banks of the Placing Shares and any other condition which are expected to besatisfied prior to the expected closing date for the Buy Back; and (f) the facility agreement between the Company and AQPSA having been executedand there being no outstanding conditions thereto which are not expected to besatisfied prior to the expected closing date for the Buy Back. If the conditions in the Placing Agreement are not fulfilled or, wherepermitted, waived by the Banks in accordance with the Placing Agreement withinthe stated time periods (or such later time and/or date as the Company and theBanks may agree), the Placing Agreement shall cease and determine, the Placingwill lapse and the Placee's rights and obligations shall cease and terminate atsuch time and each Placee agrees that no claim can be made by or on behalf ofthe Placee (or any person on whose behalf the Placee is acting) in respectthereof. By participating in the Bookbuilding process, each Placee agrees that its rightsand obligations cease and terminate only in the circumstances described aboveand under "Termination of the Placing" below and will not be capable ofrescission or termination by it. The Banks may, at their discretion and upon such terms as they think fit, waivefulfilment of all or any of the conditions, other than those in relation to theannouncements and delivery of certain legal opinions, or extend the timeprovided for fulfilment of any such condition in respect of all or any part ofthe performance by the Company. Any such extension or waiver will not affectPlacees' commitments as set out in this Appendix. None of the Banks nor any of their Affiliates nor the Company shall have anyliability to any Placee (or to any other person whether acting on behalf of aPlacee or otherwise) in respect of any decision any of them may make as towhether or not to waive or to extend the time provided for fulfilment of anycondition to the Placing nor for any decision any of them may make as to thefulfilment of any condition or in respect of the Placing generally. Termination of the Placing The Banks (after such consultation with the Company as shall in the circumstancebe reasonably practicable) shall be entitled at their absolute discretion, byjoint notice in writing to the Company, served prior to Admission terminate thePlacing Agreement at any time up to and including Admission if, inter alia: (a) they become aware that the Company is in breach of any of its undertakingsor obligations under the Placing Agreement save to the extent that any breach isnot, in the opinion of the Banks (acting in good faith), material in the contextof the Placing; or (b) they become aware that any of the warranties given by the Company in thePlacing Agreement is, or if repeated at any time up to and including Admission(by reference to the facts and circumstances then existing) would be, untrue,inaccurate, incorrect or misleading, save to the extent, in the opinion of theBanks acting in good faith, not materially adverse in the context of thePlacing; or (c) any of the conditions have not been satisfied or waived by the Banks by thedate specified therein (or such later time or date as the Company and the Banksmay agree); or (d) in the opinion of the Banks acting in good faith there has been a materialadverse change since the date of the Placing Agreement; or (e) there shall have occurred or, in the opinion of the Banks (acting in goodfaith), it is reasonably likely that there will occur: (i) any outbreak or escalation of hostilities, war, act of terrorism ordeclaration of emergency or martial law or other calamity or crisis; or (ii) trading generally shall have been suspended or materially limited on, orby, as the case may be, the London Stock Exchange, the JSE or the ASX; or (iii)trading in any securities of the Company has been suspended or limited onany exchange or over-the-counter market; or (iv) a material disruption has occurred in commercial banking or securitiessettlement or clearance services in the United States, Europe, the Republic ofSouth Africa or Australia; or (v) the application of the Company for Admission is withdrawn or refused by theFSA, the London Stock Exchange the JSE or ASIC; or (vi) a banking moratorium has been declared by the United States Federal, theUnited Kingdom, the Republic of South Africa, Australia or New York Authoritiesor by the European Central Bank; or (vii)there shall have occurred any change in financial markets, political oreconomic conditions, currency exchange rates or controls, in each case the effect of which (either singly or together with any of theevents in (i) to (vii) above) is such as to make it in the opinion of the Banks(acting in good faith) impracticable or inadvisable to market the Placing Sharesor to enforce contracts for sale of the Placing Shares, or which may prejudicethe success of the Placing or dealings in the Placing Shares in the secondarymarket. If the Placing Agreement is terminated in accordance with its terms, the rightsand obligations of each Placee in respect of the Placing as described in thisannouncement (including this Appendix) shall cease and terminate at such timeand no claim can be made by any Placee in respect thereof. By participating in the Placing, each Placee agrees with the Company and theBanks that the exercise by the Company or the Banks of any right of terminationor any other right or other discretion under the Placing Agreement shall bewithin the absolute discretion of the Company or the Banks (as the case may be)and that neither the Company nor the Banks need make any reference to suchPlacee and that neither the Company, the Banks nor any of their respectiveAffiliates shall have any liability to such Placee (or to any other personwhether acting on behalf of a Placee or otherwise) whatsoever in connection withany such exercise. By participating in the Placing, each Placee agrees that its rights andobligations terminate only in the circumstances described above and will not becapable of rescission or termination by it after oral confirmation by the Banksfollowing the close of the Bookbuilding. Representations and further terms By submitting a bid in the Bookbuilding, each prospective Placee (and any personacting on such Placee's behalf) represents, warrants, acknowledges and agreesthat: 1. it has read this announcement (including this Appendix) in its entirety andthat its purchase of the Placing Shares is subject to and based upon all theterms, conditions, representations, warranties, acknowledgements, agreements andundertakings and other information contained herein; 2. it has not received a prospectus or other offering document in connectionwith the Placing and acknowledges that no prospectus or other offering documenthas been or will be prepared in connection with the Placing; 3. if the Placing Shares were offered to it in the United States, itrepresents and warrants that in making its investment decision, (i) it hasconsulted its own independent advisers or otherwise has satisfied itselfconcerning, without limitation, the effects of United States federal, state andlocal income tax laws and foreign tax laws generally and the US EmployeeRetirement Income Security Act of 1974, the US Investment Company Act of 1940and the Securities Act, (ii) it has had access to such financial and otherinformation (including the business, financial condition, prospects,creditworthiness, status and affairs of the Company, the Placing and the PlacingShares, as well as the opportunity to ask questions) concerning the Company, thePlacing and the Placing Shares that it believes is necessary or appropriate inorder to make an investment decision in respect of the Company and the PlacingShares and (iii) it is aware and understands that an investment in the PlacingShares involves a considerable degree of risk and no US federal or state ornon-US agency has made any finding or determination as to the fairness forinvestment or any recommendation or endorsement of the Placing Shares; 4. (i) it has made its own assessment of the Company, the Placing Shares andthe terms of the Placing based on Publicly Available Information and thisannouncement (including this Appendix) and the only information on which it isentitled to rely, and on which such Placee has relied, in committing itself toacquire the Placing Shares is contained in the Publicly Available Informationand this announcement (including this Appendix), such information being all thatit deems necessary to make an investment decision in respect of the PlacingShares, (ii) none of the Banks, the Bookrunner, their respective Affiliates orthe Company has made any representation to it, express or implied, with respectto the Company, the Placing or the Placing Shares or the accuracy, completenessor adequacy of the Publicly Available Information of this announcement(including this Appendix); (iii) it has conducted its own investigation of theCompany, the Placing and the Placing Shares, satisfied itself that theinformation is still current and relied on that investigation for the purposesof its decision to participate in the Placing and (iv) it has received allinformation that it believes is necessary or appropriate in order to make aninvestment decision in respect of the Company and the Placing Shares; 5. it has neither received nor relied on any other information,representation, warranty or statement made by either of the Bank or the Companyand none of the Bank nor the Company will be liable for any Placee's decision toaccept this invitation to participate in the Placing based on any otherinformation, representation, warranty or statement; 6. the content of this announcement (including this Appendix)is exclusivelythe responsibility of the Company and that none of the Banks nor any personacting on their behalf is responsible for or has or shall have any liability forany information or representation relating to the Company contained in thisannouncement (including this Appendix) or the Publicly Available Information norwill be liable for any Placee's decision to participate in the Placing based onany information, representation, warranty or statement contained in thisannouncement (including this Appendix), the Publicly Available Information orotherwise. Nothing in this Appendix shall exclude any liability of any personfor fraudulent misrepresentation; 7. it is not, and at the time the Placing Shares are acquired will not be aresident of Canada or Japan, and each of it and the beneficial owner of thePlacing Shares is, and at the time the Placing Shares are acquired will be, (i)not in the United States and acquiring the Placing Shares in an 'offshoretransaction' in accordance with Rule 903 or Rule 904 of Regulation S under theSecurities Act or (ii) a QIB acquiring the Placing Shares in accordance withRule 144A under, or another exemption from the registration requirements of theSecurities Act who has duly executed an "investor letter" substantially in theform provided, and has such knowledge and experience in financial and businessmatters as to be capable of evaluating the merits and risks of an investment inthe Placing Shares, will not look to the banks for all or part of any such lossit may suffer, is able to bear the economic risk of an investment in the PlacingShares, is able to sustain a complete loss of the investment in the PlacingShares and has no need for liquidity with respect to its investment in thePlacing Shares and represents and, in the case of (ii) above, warrants that itis acquiring the Placing Shares for its own account or for one or more accountsas to each of which it exercises sole investment discretion and each of which isa QIB, for investment purposes and not with a view to any distribution or forresale in connection with, the distribution thereof in whole or in part, in theUnited States; 8. the Placing Shares have not been registered or otherwise qualified foroffer and sale nor will a prospectus be cleared in respect of any of the PlacingShares under the securities laws of the United States, Australia, Canada orJapan and, subject to certain exceptions, may not be offered, sold, taken up,renounced or delivered or transferred, directly or indirectly, within the UnitedStates, Australia, Canada or Japan; 9. it and/or each person on whose behalf it is participating: (i) is entitled to acquire Placing Shares pursuant to the Placing under thelaws of all relevant jurisdictions; (ii) has fully observed such laws; (iii)has capacity and authority and is entitled to enter into and perform itsobligations as an acquirer of Placing Shares and will honour such obligations;and (iv) has obtained all necessary consents and authorities (including, withoutlimitation, in the case of a person acting on behalf of a Placee, all necessaryconsents and authorities to agree to the terms set out or referred to in thisAppendix) to enable it to enter into the transactions contemplated hereby and toperform its obligations in relation thereto; 10. the Placing Shares have not and will not be registered under the SecuritiesAct, or under the securities laws of any state or other jurisdiction of theUnited States, nor approved or disapproved by the US Securities and ExchangeCommission, any state securities commission in the United States or any otherUnited States regulatory authority and are being offered and sold on behalf ofthe Company to persons in offshore transactions (as defined in Regulation Sunder the Securities Act) and to QIBs in accordance with Rule 144A under oranother exemption from the registration requirements of the Securities Act; 11. the Placing Shares offered and sold in the United States are "restrictedsecurities" within the meaning of Rule 144(a)(3) under the Securities Act; 12. so long as the Placing Shares are "restricted securities" within themeaning of Rule 144(a)(3) under the Securities Act, it will not deposit thePlacing Shares into any unrestricted depositary receipt facility maintained byany depositary bank in respect of the Company's Ordinary Shares and itunderstands that the Placing Shares will not settle or trade through thefacilities of DTC, the NYSE, NASDAQ or any other US exchange or clearing system; 13. it will not offer, sell, pledge or otherwise transfer the Placing Sharesexcept (i) in an offshore transaction in accordance with Rule 903 or 904 ofRegulation S under the Securities Act; (ii) in a transaction not involving anygeneral solicitation or general advertising pursuant to Rule 144A under theSecurities Act, (iii) pursuant to Rule 144 under the Securities Act (ifavailable), or (iv) pursuant to an effective registration statement under theSecurities Act and that, in each such case, such offer, sale, pledge, ortransfer will be made in accordance with any applicable securities laws of anystate of the United States; 14. if it is acquiring Placing Shares for the account of one or more QIBs, ithas full power to make the acknowledgements, representations, warranties andagreements herein on behalf of each such account; 15. if it is a pension fund or investment company, its acquisition of PlacingShares is in full compliance with applicable laws and regulations; 16. no representation has been made as to the availability of any exemptionunder the Securities Act for the reoffer, resale, pledge or transfer of thePlacing Shares; 17. the Placing Shares are being delivered to it either through CREST, STRATEor CHESS or in certificated, definitive form and acknowledges and agrees thatthe Placing Shares will, to the extent they are delivered in certificated form,bear a legend to the following effect unless agreed otherwise with the Company: "THIS SECURITY HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITEDSTATES SECURITIES ACT OF 1933 (THE "SECURITIES ACT"), OR WITH ANY SECURITIESREGULATORY AUTHORITY OF ANY STATE OR OTHER JURISDICTION OF THE UNITED STATES.THIS SECURITY IS A "RESTRICTED SECURITY" WITHIN THE MEANING OF RULE 144(a)(3)UNDER THE SECURITIES ACT AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISETRANSFERRED EXCEPT IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR 904OF REGULATION S UNDER THE SECURITIES ACT, IN A TRANSACTION NOT INVOLVING ANYGENERAL SOLICITATION OR GENERAL ADVERTISING PURSUANT TO RULE 144A, PURSUANT TORULE 144 (IF AVAILABLE), OR PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENTUNDER THE SECURITIES ACT, AND IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLESECURITIES LAWS OF ANY STATE OF THE UNITED STATES. NO REPRESENTATION HAS BEENMADE AS TO THE AVAILABILITY OF ANY EXEMPTION UNDER THE SECURITIES ACT FOR THEREOFFER, RESALE, PLEDGE OR TRANSFER OF THE PLACING SHARES. THIS SECURITY MAY NOTBE DEPOSITED INTO ANY UNRESTRICTED DEPOSITARY FACILITY MAINTAINED BY ANYDEPOSITARY BANK UNLESS AND UNTIL SUCH TIME AS THIS SECURITY IS NO LONGER A "RESTRICTED SECURITY" WITHIN THE MEANING OF RULE 144(a)(3) UNDER THE SECURITIESACT." 18. participation in the Placing is on the basis that it is not and will not bea client of any of the Banks and that the Banks have no duties orresponsibilities to a Placee for providing protections afforded to theirrespective clients or for providing advice in relation to the Placing nor inrespect of any representations, warranties, undertakings or indemnitiescontained in the Placing Agreement; 19. it will make payment to the Banks in accordance with the terms andconditions of this announcement (including this Appendix) on the due times anddates set out in this announcement (including this Appendix), failing which therelevant Placing Shares may be placed with others on such terms as the Banksdetermine; 20. the person who it specifies for registration as holder of the PlacingShares will be (i) the Placee or (ii) a nominee of the Placee, as the case maybe. The Banks and the Company will not be responsible for any liability to stampduty or stamp duty reserve tax resulting from a failure to observe thisrequirement; 21. if in the UK, it and any person acting on its behalf falls within Article19(5) and/or 49(2) of the Financial Services and Markets Act 2000 (FinancialPromotion) Order 2005, as amended, and undertakes that it will acquire, hold,manage and (if applicable) dispose of any Placing Shares that are allocated toit for the purposes of its business only; 22. it has not offered or sold and will not offer or sell any Placing Shares topersons in the United Kingdom prior to Admission except to persons whoseordinary activities involve them in acquiring, holding, managing or disposing ofinvestments (as principal or agent) for the purposes of their business orotherwise in circumstances which have not resulted and which will not result inan offer to the public in the United Kingdom within the meaning of section 85(1)of the Financial Services and Markets Act 2000 (the "FSMA"); 23. if in the UK, it is a qualified investor as defined in section 86(7) ofFSMA, being a person falling within Article 2.1(e)(i), (ii) or (iii) of theProspectus Directive; 24. it has only communicated or caused to be communicated and it will onlycommunicate or cause to be communicated any invitation or inducement to engagein investment activity (within the meaning of section 21 of the FSMA) relatingto Placing Shares in circumstances in which section 21(1) of the FSMA does notrequire approval of the communication by an authorised person; 25. it has complied and it will comply with all applicable provisions of theFSMA with respect to anything done by it or on its behalf in relation to thePlacing Shares in, from or otherwise involving the United Kingdom; 26. it has not offered or sold and will not offer or sell any Placing Shares topersons in the European Economic Area prior to Admission except to persons whoseordinary activities involve them acquiring, holding, managing or disposing ofinvestments (as principal or agent) for the purpose of their business orotherwise in circumstances which have not resulted and which will not result inan offer to the public in any member state of the European Economic Area withinthe meaning of the Prospectus Directive (which means Directive 2003/71/EC andincludes any relevant implementing measure in any member state); 27. it has complied with its obligations in connection with money launderingand terrorist financing under the Proceeds of Crime Act 2002, the Terrorism Act2000, and the Money Laundering Regulations (2003) (the "Regulations") and, ifmaking payment on behalf of a third party, that satisfactory evidence has beenobtained and recorded by it to verify the identity of the third party asrequired by the Regulations; 28. the Company, the Banks and others will rely upon the truth and accuracy ofthe foregoing representations, warranties, acknowledgements and agreements; 29. the Placing Shares will be issued subject to the terms and conditions ofthis Appendix; and 30. this Appendix and all documents into which this Appendix is incorporated byreference or otherwise validly forms a part will be governed by and construed inaccordance with English law. All agreements to acquire shares pursuant to theBookbuilding and/or the Placing will be governed by English law and the Englishcourts shall have exclusive jurisdiction in relation thereto except thatproceedings may be taken by the Company or the Banks in any jurisdiction inwhich the relevant Placee is incorporated or in which any of its securities havea quotation on a recognised stock exchange. By participating in the Placing, each Placee (and any person acting on suchPlacee's behalf) agrees to indemnify and hold the Company and the Banks harmlessfrom any and all costs, claims, liabilities and expenses (including legal feesand expenses) arising out of or in connection with any breach of therepresentations, warranties, acknowledgements, agreements and undertakings inthis Appendix and further agrees that the provisions of this Appendix shallsurvive after completion of the Placing. Placees should note that whilst they are not liable for any transfer taxes,stamp duty or stamp duty reserve tax on the sale, transfer and delivery of thePlacing Shares from the Banks, the Banks shall not pay such transfer taxes,stamp duty, or stamp duty reserve tax or any other tax or duty arising on anysubsequent sale, transfer or delivery of the Placing Shares. The representations, warranties, acknowledgements and undertakings contained inthis Appendix are given to the Banks for itself and on behalf of the Company andare irrevocable. The Bookrunner is and the Banks are acting exclusively for the Company and noone else in connection with the Bookbuilding and the Placing and the Bookrunnerand the Banks will not be responsible to anyone (including Placees) other thanthe Company for providing the protections afforded to their respective clientsor for providing advice in relation to the Bookbuilding or the Placing or anyother matters referred to in this press announcement (including this Appendix). Each Placee and any person acting on behalf of the Placee acknowledges that noneof the Bookrunner or the Banks owes fiduciary or other duties to any Placee inrespect of any representations, warranties, undertakings or indemnities in thePlacing Agreement. Each Placee and any person acting on behalf of the Placee acknowledges andagrees that each of the Banks may (at its absolute discretion) satisfy itsobligations to procure Placees by itself agreeing to become a Placee in respectof some or all of the Placing Shares or by nominating any connected orassociated person to do so. When a Placee or any person acting on behalf of the Placee is dealing with anyof the Banks, any money held in an account with any Bank on behalf of the Placeeand/or any person acting on behalf of the Placee will not be treated as clientmoney within the meaning of the relevant rules and regulations of the FinancialServices Authority which therefore will not require the Banks to segregate suchmoney, as that money will be held by it under a banking relationship and not astrustee. Past performance is no guide to future performance and persons needing adviceshould consult an independent financial adviser. All times and dates in this announcement (including this Appendix) may besubject to amendment. The relevant Bank will notify Placees and any personsacting on behalf of the Placees of any changes. DEFINITIONS In this announcement: "Admission" means (i) the admission of the Placing Shares to the Official Listbecoming effective in accordance with the Listing Rules, and the admission ofsuch shares to trading on the London Stock Exchange's market for listedsecurities becoming effective; (ii) the admission of the Placing Shares becomingeffective on the ASX; and (iii) the admission of the Placing Shares becomingeffective on the JSE; "Affiliate" means in respect of a person, any holding company or subsidiaryundertaking of such person or any subsidiary undertaking of any such holdingcompany, or any of their respective associated undertakings; "Banks" means Morgan Stanley & Co. International plc and Firstrand Bank Limited,acting through Rand Merchant Bank; "Bookbuilding" means the process to be carried out by the Banks to establishdemand at different prices from potential Placees for the Placing Shares; "Listing Rules" means the listing rules produced by the FSA under Part VI of theFSMA and forming part of the FSA's Handbook of rules and guidance, as amendedfrom time to time; "London Stock Exchange" means London Stock Exchange plc; "Ordinary Shares" means ordinary shares of US$0.05 each in the capital of theCompany; "Placees" means persons (including individuals, funds or others) on whose behalfa commitment to acquire Placing Shares has been given and Placee means any oneof them; "Placing Price" means the price per Ordinary Share at which the Placing Sharesare to be placed with Placees; "QIB" means qualified institutional buyer within the meaning of Rule 144A of theSecurities Act; "Regulation S" means Regulation S under the Securities Act; "Regulatory Information Service" means any of the regulatory informationservices included within the list maintained on the London Stock Exchange'swebsite; "Rule 144" means Rule 144 under the Securities Act; "Rule 144A" means Rule 144A under the Securities Act; "Securities Act" means the United States Securities Act of 1933, as amended; "United Kingdom" or "UK" means the United Kingdom of Great Britain and NorthernIreland; and "United States" means the United States of America, its territories andpossessions, any State of the United States and the District of Columbia. This information is provided by RNS The company news service from the London Stock ExchangeRelated Shares:
AQP.L