6th Feb 2008 07:59
BHP Billiton PLC06 February 2008 PART 2 APPENDIX VI DEFINITIONS "ACCC" Australian Competition and Consumer Commission;"Acquisition" the proposed acquisition by BHP Billiton Limited of all of the shares in Rio Tinto plc and all of the shares in Rio Tinto Limited pursuant to the terms (as varied) set out in this Announcement by means of the Rio Tinto plc Offer and the Rio Tinto Limited Offer respectively;"Announcement" this announcement;"Announcement Date" the time of announcement of the Offers, being: 9.30pm London time on 5 February 2008; and 8.30am Melbourne time on 6 February 2008;"Approval" a licence, authority, consent, permission, approval, order, clearance, exemption, agreement, recognition, grant, confirmation, waiver, ruling, determination or decision;"ASIC" the Australian Securities and Investments Commission;"ASX" ASX Limited or the stock exchange conducted by ASX Limited, as the context requires;"Australia" the Commonwealth of Australia, its states, territories and possessions;"Australian Corporations Act" the Corporations Act 2001 (Cth);"Australian Trade Practices Act" the Australian Trade Practices Act 1974 (Cth);"BHP Billiton" the DLC comprising two listed parent entities - BHP Billiton Plc and BHP Billiton Limited;"BHP Billiton Bidder's Statement" the document to be sent to Rio Tinto Limited Shareholders pursuant to Chapter 6 of the Australian Corporations Act which will contain, among other things, the form of offer for the Rio Tinto Limited Offer;"BHP Billiton EGMs" the extraordinary general meetings of BHP Billiton Plc shareholders and BHP Billiton Limited shareholders as may be convened for the purposes of considering, and if thought fit, approving the BHP Billiton Shareholder Resolutions;"BHP Billiton Group" BHP Billiton Limited, BHP Billiton Plc and their respective controlled entities;"BHP Billiton Limited ADRs" the American depository receipts evidencing BHP Billiton Limited American Depository Shares each representing two BHP Billiton Limited Shares;"BHP Billiton Limited Shares" the ordinary shares in the share capital of BHP Billiton Limited;"BHP Billiton Plc ADRs" the American depository receipts evidencing BHP Billiton Plc American Depository Shares each representing two BHP Billiton Plc Shares;"BHP Billiton Plc Shares" ordinary shares of US$0.50 each in the share capital of BHP Billiton Plc;"BHP Billiton Prospectus" the document to be sent with the Rio Tinto plc Offer Document to Rio Tinto plc Shareholders constituting a prospectus for the purpose of the Financial Services and Markets Act 2000 in relation to the New BHP Billiton Limited Shares and the New BHP Billiton Plc Shares;"BHP Billiton Shareholder Resolutions" such resolutions as are necessary by the shareholders of BHP Billiton Plc and BHP Billiton Limited to approve, implement and effect the Rio Tinto plc Offer and the Rio Tinto Limited Offer and the acquisition of the Rio Tinto plc Shares and the Rio Tinto Limited Shares including resolutions to increase the share capital of BHP Billiton Plc and to authorise the creation and allotment of the New BHP Billiton Plc Shares and permit the acquisition of the Interim Shares by BHP Billiton Plc;"Canadian Commissioner" the Commissioner of Competition appointed pursuant to Section 7 of the Competition Act;"Canadian Competition Act" the Competition Act (Canada), R.S.C. 1985, c. C-34 (as amended);"Constitution" in relation to a company, means the constitution, or memorandum and articles of association, or other constituent document of, the company;"DLC" A dual-listed company;"EBITDA" earnings before interest, taxes, depreciation and amortisation;"Enlarged Group" the BHP Billiton Group following completion of the Acquisition;"Exchange Act" US Securities Exchange Act of 1934 (as amended);"FATA" the Foreign Acquisitions and Takeovers Act 1975 (Cth);"Interim Shares" the securities to be issued by BHP Billiton Limited to holders of Rio Tinto plc Shares pursuant to the Rio Tinto plc Offer, which securities will immediately be exchanged for New BHP Billiton Plc Shares;"Iron Ore Assets" the iron ore mining rights, mining tenements, leases, licences or other interests in any form including, but not limited to: (a) any right, title or interest held pursuant to any State Agreement or the Mining Act or under any pending State Agreement or the Mining Act or any approved or pending proposals under any such State Agreement or the Mining Act; (b) Any right title or interest held pursuant to any Joint Venture Agreement or under any other pending Joint Venture Agreement and approved or pending proposals under any such Joint Venture Agreement; (c) trademarks, brands, copyright or marketing tools or intellectual property and technology; (d) any rights under contracts for the sale of iron ore products from Western Australia, owned, operated, controlled or held by any member of the Rio Tinto Group and any other assets owned, operated or controlled by any member of the Rio Tinto Group in connection with its Iron Ore Business, including, but not limited to: (a) the Rio Tinto Group's interest in the Robe River joint venture, including in the mines, rail and port facilities controlled or operated by or pursuant to the Robe River joint venture; (b) the mines, rail and port facilities owned or operated by Hamersley Iron; (c) the Rio Tinto Group's interest in the Hope Downs joint venture, including in the mines, rail and port facilities controlled or operated by or pursuant to the Hope Downs joint venture; (d) the mines, rail and port facilities owned or operated by Pilbara Iron; (e) the Rio Tinto Group's interest in the Rhodes Ridge joint venture, including in the mines, rail and port facilities controlled or operated by or pursuant to the Rhodes Ridge joint venture; (f) the mines, rail and port facilities at Corumba, Paraguay; (g) the Rio Tinto Group's interest in the Rio Tinto Orissa Mining joint venture, including the studies, the iron ore leases and other property held by the Rio Tinto Orissa Mining joint venture; (h) the assets including studies and property relating to the Simandou project in West Guinea; (i) the Rio Tinto Group's interest in the Channar joint venture, including in the mines, rail and port facilities controlled or operated by or pursuant to the Channar joint venture; and (j) the Rio Tinto Group's interest in the Eastern Range joint venture, including in the mines, rail and port facilities controlled or operated by or pursuant to the Eastern Range joint venture;"Iron Ore Business" the production or sale of iron ore products using the Iron Ore Assets;"Joint Venture Agreement" any agreement pursuant to which any member of the Rio Tinto Group holds an interest in any joint venture entity, whether a company, unincorporated firm, undertaking, joint venture, association, partnership or any other entity;"London Stock Exchange" the London Stock Exchange Plc;"Material Rio Tinto Agreement" any agreement, arrangement, licence, permit or other instrument that is material in the context of the business of the Rio Tinto Group and to which any member of the Rio Tinto Group is a party or by which any such member or any of its assets may be bound, entitled or subject. An agreement, arrangement, licence, permit or other instrument is taken to be material in the context of the business of the Rio Tinto Group if the termination of it would or would be likely to materially adversely affect the value of the long-term revenues or costs or the assets or liabilities of the Rio Tinto Group;"Material Rio Tinto Asset" (a) any business, asset (including shares or other securities) or property of any member of the Rio Tinto Group which is material in the context of the business of the Rio Tinto Group; or (b) any Iron Ore Asset that is material in the context of the Iron Ore Business. For the avoidance of doubt, a reference in paragraph (a) above to assets includes (without limitation) Iron Ore Assets;"Mining Act" the Mining Act 1978 (Western Australia);"Mix and Match Facility" the mix and match facility as described in paragraph 2 of this Announcement;"New BHP Billiton Limited Shares" the BHP Billiton Limited Shares to be issued pursuant to the Rio Tinto plc Offer or the Rio Tinto Limited Offer;"New BHP Billiton Plc Shares" the BHP Billiton Plc Shares to be issued pursuant to the Rio Tinto plc Offer;"Offers" the Rio Tinto Limited Offer and the Rio Tinto plc Offer;"Pre-conditions" the pre-conditions to the posting of the Rio Tinto plc Offer Document and related Rio Tinto plc Offer Form of Acceptance and the BHP Billiton Bidder's Statement and related Rio Tinto Limited Offer Form of Acceptance which are set out in Appendix I to this Announcement and "Pre-condition" means any of them;"Public Authority" any government or any governmental, semi-governmental, administrative, trade, regulatory, statutory or judicial entity, tribunal, authority, agency or association, whether in Australia or elsewhere, including the ACCC. It also includes any governor, governor-in-council, minister of state or other government official and any self-regulatory organisation established under statute or any stock exchange. However, when used in Condition (I), it does not include the Australian Takeovers Panel, ASIC or any court that hears or determines proceedings under section 657G of the Australian Corporations Act or proceedings commenced by a person specified in section 659B(1) of the Australian Corporations Act in relation to the Acquisition;"Publicly-held Rio Tinto Limited Shares" the Rio Tinto Limited Shares the beneficial owners of which are not Rio Tinto plc or a subsidiary of Rio Tinto plc, where subsidiary has the meaning ascribed to that term in section 736 of the Companies Act 1985 (United Kingdom) as at the date of adoption of the constitution of Rio Tinto Limited, being 24 May 2000;"Regulatory Information Service" the Company Announcements Office and/or the RNS provided by the London Stock Exchange and/or any other channel recognised from time to time as a channel for the dissemination of regulatory information by listed companies under the UK Listing Rules;"Relevant Acquisition" an acquisition of: (a) Rio Tinto plc Shares by BHP Billiton Limited; (b) Rio Tinto Limited Shares by BHP Billiton Limited; (c) Interim Shares by BHP Billiton Plc; or (d) BHP Billiton Limited Shares issued as consideration for the acquisition of the Rio Tinto Limited Shares that were held by Tinto Holdings Australia Pty Ltd or a member of the Rio Tinto Group;"Relevant Period" the period commencing on the Announcement Date and ending at the end of: (a) with respect to the Rio Tinto plc Offer, the Rio Tinto plc Offer Period; and (b) with respect to Rio Tinto Limited, the Rio Tinto Limited Offer Period;"Rio Tinto" the DLC comprising two listed entities - Rio Tinto plc and Rio Tinto Limited;"Rio Tinto DLC Agreements" the agreements and documents constituting the Rio Tinto DLC including the DLC Merger Sharing Agreement between Rio Tinto plc and Rio Tinto Limited, the RTZ Shareholder Voting Agreement and the CRA Shareholder Voting Agreement between, among others, Rio Tinto plc, Rio Tinto Limited and Law Debenture Trust Corporation plc, and certain Trust Deeds and Deed Polls, each dated on or about 21 December 1995 (as amended at the Announcement Date);"Rio Tinto Group" Rio Tinto Limited, Rio Tinto plc and their respective controlled entities;"Rio Tinto Limited Cross-holding" the holding of approximately 37% of Rio Tinto Limited Shares held by Tinto Holdings Australia Pty Ltd, a wholly owned subsidiary of Rio Tinto plc;"Rio Tinto Limited Offer" the takeover bid to be made by BHP Billiton Limited for Rio Tinto Limited Shares once the Pre-conditions have been satisfied or waived (as varied or extended);"Rio Tinto Limited Offer Conditions" the conditions of the Rio Tinto Limited Offer described in Appendix III to this Announcement;"Rio Tinto Limited Offer Defeating the Rio Tinto plc Offer Condition which relates to theCondition" fulfilment or waiver of the Rio Tinto Limited Offer Conditions, being paragraph (O) of the Rio Tinto plc Offer Conditions;"Rio Tinto Limited Offer Form of the form of acceptance and authority relating to the Rio TintoAcceptance" Limited Offer accompanying the BHP Billiton Bidder's Statement;"Rio Tinto Limited Offer Period" the period during which the Rio Tinto Limited Offer is open for acceptance;"Rio Tinto Limited Register Date" the date set by BHP Billiton Limited under section 633(2) of the Australian Corporations Act (as it applies to Rio Tinto Limited);"Rio Tinto Limited Shares" fully paid ordinary shares in the capital of Rio Tinto Limited being shares which exist at the Rio Tinto Limited Register Date or come into existence during the Rio Tinto Limited Offer Period as a result of the conversion of, or exercise of rights attached to, options or other securities issued under the Rio Tinto Limited Share Schemes being options or securities in existence at the Rio Tinto Limited Register Date;"Rio Tinto Limited Share Schemes" the Rio Tinto Limited Share Option Plan, Rio Tinto Limited Share Savings Plan and Rio Tinto Limited Mining Companies Comparative Plan;"Rio Tinto Limited Shareholders" the holders of Rio Tinto Limited Shares;"Rio Tinto plc ADRs" the American depository receipts evidencing Rio Tinto plc American Depository Shares each representing four Rio Tinto plc Shares;"Rio Tinto plc Offer" the offer for Rio Tinto plc Shares, including the US Offer, to be made by BHP Billiton Limited once the Pre-conditions have been satisfied or waived, in the terms and conditions set out in Appendix II of this Announcement and to be set out in the Rio Tinto plc Offer Document and the Registration Statement on Form F-4 including, where the context so requires, any subsequent revision, variation, extension or renewal of the Rio Tinto plc Offer;"Rio Tinto plc Offer Conditions" the conditions of the Rio Tinto plc Offer set out in Appendix II to this Announcement;"Rio Tinto plc Offer Defeating Condition" the Rio Tinto Limited Offer Condition which relates to the fulfilment or waiver of the Rio Tinto plc Offer Conditions, being paragraph (O) of the Rio Tinto Limited Offer Conditions;"Rio Tinto plc Offer Document" the document to be sent to Rio Tinto plc Shareholders once the Pre-conditions have been satisfied or waived, containing and setting out the full terms and conditions of the Rio Tinto plc Offer;"Rio Tinto plc Offer Form of Acceptance" the form of acceptance and authority relating to the Rio Tinto plc Offer accompanying the Rio Tinto plc Offer Document;"Rio Tinto plc Offer Period" the period during which offers made under the Rio Tinto plc Offer are open for acceptance;"Rio Tinto plc Shareholders" the holders of Rio Tinto plc Shares;"Rio Tinto plc Shares" the existing unconditionally allotted or issued and fully paid (or credited as fully paid) ordinary shares of 10p each in the capital of Rio Tinto plc and any further such shares which are unconditionally allotted or issued on or prior to the date on which the Rio Tinto plc Offer closes or, subject to the provisions of the UK Code, such earlier date or dates as BHP Billiton Limited may decide;"Rio Tinto plc Share Schemes" the Rio Tinto plc Share Option Plan, Rio Tinto plc Share Savings Plan, Rio Tinto plc Mining Companies Comparative Plan, Rio Tinto Management Share Plan and Rio Tinto plc Share Ownership Plan;"SEC" United States Securities and Exchange Commission;"Securities Act" US Securities Act of 1933, as amended;"Share Sale Facility" the share sale facility described in paragraph 15 of this Announcement;"South African Competition Act" South African Competition Act, 89 of 1998, as amended;"State Agreement" any Government agreement pursuant to the Government Agreements Act 1979 (Western Australia);"UK Code" The City Code on Takeovers and Mergers;"UK Companies Act 2006" the Companies Act 2006 (UK);"UKLA" or "UK Listing Authority" the Financial Services Authority acting in its capacity as the competent authority for the purposes of Part VI of the Financial Services and Markets Act 2000;"UK Listing Rules" the listing rules of the UK Listing Authority;"UK Official List" the official list maintained by the UK Listing Authority;"UK Panel" The Panel on Takeovers and Mergers;"Underlying EBIT" earnings before net finance costs and taxation and any exceptional items;"United Kingdom" or "UK" the United Kingdom of Great Britain and Northern Ireland;"United States" or "US" the United States of America, its territories and possessions, any State of the United States of America and the District of Columbia, and all other areas subject to its jurisdiction; and"US Offer" part of the Rio Tinto plc Offer being the offer to US holders of Rio Tinto plc Shares and to holders of Rio Tinto plc ADRs wherever located to be made by BHP Billiton Limited once the Pre-conditions have been satisfied or waived, in the terms and conditions set out in Appendix II of this Announcement and to be set out in the Registration Statement on Form F-4 including where the context so requires, any subsequent revision, variation, extension or renewal of the US Offer. For the purpose of these definitions, an entity that is controlled by anotherentity is a "controlled entity" of the other entity. An entity controls asecond entity if the first entity has the capacity to determine the outcome ofdecisions about the second entity's financial and operating policies. Indetermining whether the first entity has this capacity: - the practical influence the first entity can exert (rather than therights it can enforce) is the issue to be considered; and - any practice or pattern of behaviour affecting the second entity'sfinancial or operating policies is to be taken into account (even if it involvesa breach of an agreement or a breach of trust). However: (i) the first entity does not control the second entity merely because thefirst entity and a third entity jointly have the capacity to determine theoutcome of decisions about the second entity's financial and operating policies; (ii) if the first entity: - has the capacity to influence decisions about the second entity'sfinancial and operating policies; and - is under a legal obligation to exercise that capacity for thebenefit of someone other than the first entity's members; the first entity is taken not to control the second entity. BHP Billiton Limited ABN 49 004 028 077 BHP Billiton Plc Registration number 3196209Registered in Australia Registered in England and WalesRegistered Office: Level 27, 180 Lonsdale Street Melbourne Registered Office: Neathouse Place London SW1V 1BH UnitedVictoria 3000 KingdomTelephone +61 1300 554 757 Facsimile +61 3 9609 3015 Telephone +44 20 7802 4000 Facsimile +44 20 7802 4111 The BHPBilliton Group is headquartered in Australia -------------------------- (1) Based on the volume weighted average market capitalisation of BHP Billitonand Rio Tinto over the month prior to the approach by BHP Billiton to RioTinto. (2) Assuming full acceptance of the Offers on a fully diluted basis. (3) On the basis that BHP Billiton acquires 100 per cent of the shares in RioTinto Limited and Rio Tinto plc on the offer terms of 3.4 BHP Billiton sharesfor each Rio Tinto share. (4) On the basis that BHP Billiton acquires 100 per cent of the shares in RioTinto Limited and Rio Tinto plc on the offer terms of 3.4 BHP Billiton sharesfor each Rio Tinto share. (5) On the basis that BHP Billiton acquires 100 per cent of the shares in RioTinto Limited and Rio Tinto plc on the offer terms of 3.4 BHP Billiton sharesfor each Rio Tinto share. (6) Unless otherwise stated production volumes exclude suspended and soldoperations (7) Held by the family company Alamiste Pty Ltd, DR & PA Trustee for theself-managed Alamiste superannuation fund and Mrs PA Argus. (8) Held by Melpeat Pty Limited. (9) Held by HSBC nominees on behalf of Dr Morgan and the following personsconnected with Dr Morgan: the Raymor Trust, Roslyn Joan Kelly and RJK SuperFund. This information is provided by RNS The company news service from the London Stock ExchangeRelated Shares:
BHP GroupRio Tinto