Wrap Text
Aquarius board unanimously recommends cash offer made by Sibanye
Aquarius Platinum Limited
(Incorporated in Bermuda)
Registration Number: EC26290
ISIN Code: BMG0440M1284
JSE Share Code: AQP
AQUARIUS BOARD UNANIMOUSLY RECOMMENDS CASH OFFER MADE BY SIBANYE
The boards of directors of Aquarius Platinum Limited (Aquarius and Aquarius Board) and Sibanye
Gold Limited (Sibanye and Sibanye Board) have announced today that they have entered into an
implementation agreement (the Implementation Agreement), under which a wholly owned
subsidiary of Sibanye will, subject to the satisfaction of certain conditions (including Aquarius
shareholder approval), acquire all of the shares in Aquarius for a cash consideration of USD0.195 for
each Aquarius share (the Transaction).
Summary
- Subject to the Transaction completing, Aquarius shareholders will receive USD0.195 (being the
equivalent of c. GBP0.129, AUD0.275 and ZAR2.66 per share at the closing prices and spot
exchange rates on 5 October) for each Aquarius share held, representing a premium (See Note 1) of:
- 60.3% to Aquarius’ closing share price of GBP0.08 on 5 October 2015, the trading day
prior to this announcement; and
- 71.4% to Aquarius’ volume-weighted average share price of GBP0.07 over the last 30
days up to and including 5 October 2015.
- The Transaction is intended to be implemented by way of a plan of amalgamation under the
Companies Act 1981 of Bermuda and Aquarius’ bye-laws.
Board recommendations
In the absence of a superior proposal and subject to an independent expert concluding that the
Transaction is fair and reasonable and in the best interests of Aquarius shareholders, the Aquarius
Board has resolved unanimously to recommend that Aquarius shareholders vote in favour of the
Transaction. Subject to these same qualifications, each director of Aquarius intends to vote all
Aquarius shares held or controlled by them in favour of the Transaction at the Aquarius shareholder
meeting.
The Transaction has been unanimously approved by the Sibanye Board and is not subject to Sibanye
shareholder approval.
Implementation of the Transaction
Aquarius will appoint an independent expert to determine whether the Transaction is fair and
reasonable and in the best interests of Aquarius shareholders. The independent expert will not be an
existing financial adviser of Aquarius. The independent expert’s report will be included in the notice
of shareholder meeting, which is expected to be distributed to Aquarius shareholders in or around
November 2015.
In addition to Sibanye’s existing credit facilities the Company has entered into an acquisition facility
agreement with HSBC Bank plc (“HSBC”) as sole arranger for the purpose of providing funding, if
required for the Transaction.
Conditions precedent
The Transaction is subject to a number of conditions precedent, including inter alia:
- Receipt of an independent expert report;
- Aquarius shareholders approving the Transaction at the shareholder meeting (requiring approval
from a simple majority of votes cast at the meeting);
- All necessary regulatory approvals being obtained, including approval from the South African
and Zimbabwean Competition Authorities and the South African Reserve Bank; and
- No material adverse change or regulatory restraint before implementation of the Transaction.
The Implementation Agreement includes customary exclusivity provisions and details the
circumstances in which Aquarius and Sibanye may be required to pay a reimbursement fee to the
other party. The reimbursement fee is capped at 1% of the equity value of Aquarius as implied by
the consideration payable under the Transaction.
Full details of the terms and conditions of the Transaction are set out in the Implementation
Agreement, a copy of which is attached to this announcement.
Commentary and rationale
Commenting on the Transaction, Sir Nigel Rudd, Chairman of Aquarius, said:
“The Board of Aquarius has carefully considered the proposal received from Sibanye, taking into
account all relevant company and macro considerations. The Board of Aquarius also took advice
from its advisors and engaged with a select number of significant shareholders in the company
regarding the proposal and, having taken their feedback into account, have unanimously
recommended the proposal subject to an independent expert determining that the proposal is fair
and reasonable and in the best interests of Aquarius’ shareholders and subject to no superior
proposal emerging.
The Board is confident that Sibanye will continue its focus on all stakeholders, including employees,
host governments and the communities.”
Commenting on the Transaction, Neal Froneman, CEO of Sibanye, said:
“The Transaction is an important strategic step for Sibanye which we are confident will result in the
realisation of substantial value for stakeholders. Simultaneously Aquarius shareholders realise an
attractive cash premium for their current equity holdings”.
For Sibanye the Transaction has a strong strategic and financial rationale, both as a stand-alone
transaction, but also when considered in conjunction with the recently announced acquisition of the
Rustenburg PGM operations. Aquarius’ well managed, low cost, mechanised operations will enhance
Sibanye’s asset portfolio and value. Importantly though, significant additional value can be realised
by optimising inherent regional and operational synergies between Aquarius’ Kroondal mine and the
adjacent Rustenburg Operations, which Sibanye is in the process of acquiring from Anglo American
Platinum.
Indicative timetable
Aquarius shareholders do not need to take any action at the present time. Documents relating to the
Transaction are expected to be distributed to Aquarius shareholders in or around November 2015.
This will include a notice of shareholder meeting and the independent expert’s report. Aquarius
shareholders will be given the opportunity to vote on the Transaction.
Subject to Aquarius shareholder approval and the other conditions to implementation of the
Transaction being satisfied (as set out above), the Transaction is expected to be implemented during
the first quarter of 2016. Upon implementation the shares in Aquarius will be delisted from the
London Stock Exchange, the Australian Stock Exchange and the JSE Limited in South Africa.
A detailed timetable will be released to shareholders as soon as it is available.
Principal advisors
Barclays Bank plc acting through its Investment Bank and Absa Bank Limited acting through its
Corporate and Investment Bank are acting as financial advisers, Allen & Overy, Linklaters and
Conyers Dill & Pearman are acting as legal advisors to Aquarius.
HSBC is acting as financial advisor, Qinisele Resources Proprietary Limited is acting as corporate
advisor and Ashurst, BeesMont Law Limited and Edward Nathan Sonnenbergs Inc are acting as legal
advisors to Sibanye.
About Aquarius
The Aquarius Platinum Group is a focused, independent, primary producer of the platinum group
metals, which comprise platinum (Pt), palladium (Pd) and rhodium (Rh). The Aquarius Platinum
Group has assets in South Africa’s PGM-bearing mineralised zone, the Bushveld Complex, and the
Great Dyke Complex in Zimbabwe.
Aquarius is listed on the London Stock Exchange, the Australian Stock Exchange and the JSE Limited
in South Africa.
About Sibanye
Sibanye is an independent, South African-domiciled mining group, which currently owns and
operates four underground and surface gold operations – the Cooke, Driefontein and Kloof
operations in the West Witwatersrand region, and the Beatrix Operation in the southern Free State
province. In addition to its mining activities, the Group owns and manages significant extraction and
processing facilities at the operations where the gold-bearing ore is treated and processed before it
is refined.
Sibanye is listed on the JSE Limited in South Africa (primary listing) and the New York Stock Exchange
in the USA.
CONTACT:
Aquarius:
In Australia:
Willi Boehm
Aquarius Platinum Corporate Services Pty Ltd
+61 8 9367 5211
In South Africa:
Jean Nel
Aquarius Platinum (South Africa) (Pty) Ltd
+27 (0)1 000 12848
or visit: www.aquariusplatinum.com
Sibanye:
James Wellsted
Head of Investor Relations
Sibanye Gold Limited
+27 83 453 4014
james.wellsted@sibanyegold.co.za
or visit: www.sibanyegold.co.za
IMPORTANT NOTICES
The Transaction is not subject to the jurisdiction of the Australian Takeovers Panel or the UK
Takeover Panel and dealing disclosures are not required to be made under Rule 8 of the UK Takeover
Code.
Barclays Bank plc which is authorised by the Prudential Regulation Authority and regulated in the
United Kingdom by the Financial Conduct Authority and the Prudential Regulation Authority, is
acting exclusively for Aquarius and no one else in connection with the Transaction and will not be
responsible to anyone other than Aquarius for providing the protections afforded to clients of
Barclays nor for providing advice in relation to the Transaction or any other matter referred to in this
announcement.
Absa Bank Limited which is authorised by South African Reserve Bank and Financial Services Board),
is acting exclusively for Aquarius and no one else in connection with the Transaction and will not be
responsible to anyone other than Aquarius for providing the protections afforded to clients of
Barclays nor for providing advice in relation to the Transaction or any other matter referred to in this
announcement.
HSBC which is authorised by the Prudential Regulation Authority and regulated in the United
Kingdom by the Financial Conduct Authority and the Prudential Regulation Authority, is acting
exclusively for Sibanye and no one else in connection with the Transaction and will not be
responsible to anyone other than Sibanye for providing the protections afforded to clients of HSBC
nor for providing advice in relation to the Transaction or any other matter referred to in this
announcement.
This Announcement is for information purposes only and does not constitute an offer to sell or an
invitation to purchase any securities or the solicitation of an offer to buy any securities, pursuant to
the Transaction or otherwise.
This Announcement does not constitute a prospectus or prospectus equivalent document.
FORWARD LOOKING STATEMENTS
Certain statements included in this announcement, as well as oral statements that may be made by
Sibanye or Aquarius, or by officers, directors or employees acting on their behalf respectively
related to the subject matter hereof, constitute or are based on forward-looking statements.
Forward-looking statements are preceded by, followed by or include the words “may”, “will”,
“should”, “expect”, “envisage”, “intend”, “plan”, “project”, “estimate”, “anticipate”, “believe”,
“hope”, “can”, “is designed to” or similar phrases or words. These forward-looking statements
involve a number of known and unknown risks, uncertainties and other factors, many of which are
difficult to predict and generally beyond the control of Sibanye or Aquarius respectively (as
applicable), that could cause Sibanye’s or Aquarius’ actual results and outcomes to be materially
different from historical results or from any future results expressed or implied by such forward-
looking statements. Such risks, uncertainties and other factors include, among others, the ability to
complete the transaction, Sibanye’s ability to successfully integrate the acquired assets with its
existing operations, the ability of the combined entity to achieve anticipated efficiencies and other
cost savings in connection with the transaction, Sibanye’s ability to increase production, the success
of exploration and development activities and other risks. Neither Sibanye nor Aquarius, nor any of
their respective associates or directors, officers or advisers, provides any representation, assurance
or guarantee that the occurrence of the events expressed or implied in any forward-looking
statements in this announcement will actually occur. You are cautioned not to place undue reliance
on these forward-looking statements, which speak only as of the date hereof. Other than in
accordance with its legal or regulatory obligations, neither Sibanye nor Aquarius undertakes any
obligation to update publicly or release any revisions to these forward-looking statements to reflect
events or circumstances after the date of this announcement or to reflect any change in Sibanye’s
expectations with regard thereto.
Attachments
[Implementation Agreement]
Dated
October 2015
Implementation Agreement
between
Sibanye Gold Limited
and
Sibanye Platinum Bermuda Proprietary Limited
and
Aquarius Platinum Limited
TABLE OF CONTENTS
CLAUSE PAGE
1. DEFINITIONS AND INTERPRETATION II
2. AMALGAMATION XVI
3. AMALGAMATION CONSIDERATION XVII
4. CONDITIONS TO COMPLETION XVIII
5. COMPLETION XXIII
6. REPRESENTATIONS AND WARRANTIES XXIV
7. GENERAL OBLIGATIONS OF THE PARTIES XXIX
8. AQUARIUS' SPECIFIC OBLIGATIONS XXIX
9. SIBANYE AND BIDCO'S OBLIGATIONS XXXI
10. PREPARATION OF THE NOTICE OF AMALGAMATION MEETING XXXI
11. INTERIM PERIOD XXXIII
12. RELEASES XXXIV
13. STANDSTILL XXXV
14. EXCLUSIVITY XXXVI
15. PAYMENT OF LIQUIDATED AMOUNT BY AQUARIUS XXXIX
16. SETTLEMENT PROCEDURES XLI
17. DEALINGS IN AQUARIUS SHARES XLV
18. TERMINATION XLVI
19. CONFIDENTIALITY XLVII
20. NO REPRESENTATION OR RELIANCE XLVIII
21. NOTICES XLVIII
22. COSTS XLIX
23. ASSIGNMENT XLIX
24. SEVERABILITY XLIX
25. PERFORMANCE, WAIVER, RELEASE AND VARIATION XLIX
26. COUNTERPARTS XLIX
27. ENTIRE AGREEMENT L
28. NO MERGER L
29. GOVERNING LAW L
SCHEDULE
NOTICES lii
INDICATIVE TIMETABLE OF PRINCIPAL EVENTS liii
ANNEXURE
A AMALGAMATION AGREEMENT
B AQUARIUS STATUTORY DECLARATION
C BIDCO STATUTORY DECLARATION
THIS IMPLEMENTATION AGREEMENT (Agreement) is dated October 2015
BETWEEN:
(1) Sibanye Gold Limited, a company incorporated and registered in South Africa with company
number 2002/031431/06 whose registered office is at Libanon Business Park, 1 Hospital Street,
Libanon, Westonaria, 1780, South Africa (Sibanye);
(2) Sibanye Platinum Bermuda Proprietary Limited, an exempted company, incorporated and registered
in Bermuda with company number 50664 whose registered office is at c/o BeesMont Corporate
Services Limited, 5th Floor, Andrew’s Place, 51 Church Street, Hamilton HM 12, Bermuda (BidCo);
and
(3) Aquarius Platinum Limited, an exempted company, incorporated and registered in Bermuda with
company number 26290 whose registered office is at Clarendon House, 2 Church Street, Hamilton
HM 11, Bermuda (Aquarius).
(collectively Sibanye, BidCo and Aquarius are referred to herein as the “Parties” and each
individually as a “Party”).
RECITALS:
(A) Sibanye is a South African company with an authorised share capital of 2,000,000,000 (two billion)
no par value shares of which 914,841,898 shares have been issued.
(B) BidCo is an exempted Bermuda company with an authorised share capital of ZAR 50,000
consisting of 5,000,000,000 (5 billion) ordinary shares having a par value of ZAR 0.00001 each, of
which 1,000,000 shares have been issued, are fully paid and wholly owned by Sibanye.
(C) Aquarius is an exempted Bermuda company with an authorised share capital of US$137,012,000
consisting of (i) 2,590,000,000 common shares having a par value of US$0.05 each, of which
1,507,106,778 common shares have been issued; (ii) 5 Class A Shares having a par value of
US$2,400 each, none of which are currently in issue; and (iii) 50,000,000 preference shares having
a par value of US$0.15 each, none of which have been issued.
(D) Sibanye, BidCo and Aquarius have agreed, subject to and in accordance with this Agreement, to
amalgamate BidCo and Aquarius which will continue as one company being an exempted company
to be known as “Sibanye Platinum Bermuda Proprietary Limited” (Amalgamated Company)
pursuant to, inter alia, the applicable amalgamation provisions of the Companies Act (as defined
below) and subject to the Aquarius Shareholder Approval being obtained.
(E) The boards of directors of each of the Parties have approved the proposed Amalgamation subject
to certain conditions.
(F) The Parties wish to enter into this Agreement for the purpose of recording the terms of the
proposed Amalgamation and regulating the manner in which it will proceed.
AGREEMENT:
1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement (including, without limitation, the Recitals, Schedules and Annexures), the
following terms shall have the meanings set out below and derivatives of any words or
expressions and cognate expressions shall bear corresponding meanings, unless the context
requires otherwise:
Accepted Plan has the meaning set out in Clause 11.
Accepted Securities Schedule means the document titled "Accepted Securities
Schedule" and dated 5 October 2015, disclosed by
Aquarius to Sibanye prior to or on the date of this
Agreement, which sets out the Aquarius securities to be
issued after the date of this Agreement in accordance
with Aquarius' salary and directors' fees sacrifice
arrangements.
Amalgamation means the amalgamation of BidCo and Aquarius
pursuant to the Companies Act upon the terms and
conditions of this Agreement and the Amalgamation
Agreement and continuance of the Amalgamated
Company as an exempted company to be known as
“Sibanye Platinum Bermuda Proprietary Limited”.
Amalgamation Agreement means the agreement between BidCo and Aquarius
setting out the terms of the Amalgamation substantially
in the form attached as Annexure A.
Amalgamated Company has the meaning set out in the Recitals to this
Agreement.
Amalgamation Consideration means $0.195 for each Aquarius Share held by an
Amalgamation Participant payable in cash.
Amalgamation Meeting means the special general meeting of Aquarius
Shareholders to be convened by the Aquarius Board to
consider the Amalgamation.
Amalgamation Participant means each Aquarius Shareholder who is registered in
the Aquarius Share Register as the holder of Aquarius
Shares as at the Record Date (taking into account
registration of all registrable transfers and transmission
applications received at the Aquarius Share Registry by
the Record Date), other than a Dissenting Shareholder
or a holder of an Excluded Share.
Amalgamation Share means an Aquarius Share held by an Amalgamation
Participant as at the Record Date.
Announcement means any press release, any circular or any other
public statement.
AQPSA means Aquarius Platinum (South Africa) Proprietary
Limited (Registration No. 2000/000341/07).
Aquarius’ Attorneys means Conyers Dill & Pearman Limited of Clarendon
House, 2 Church Street, Hamilton HM 11, Bermuda.
ii
Aquarius Board means the board of directors of Aquarius as constituted
from time to time.
Aquarius Completion means the items in Clause 5.3.
Deliverables
Aquarius Director means a director of the Aquarius Board.
Aquarius Group means, collectively, Aquarius and its Subsidiaries.
Aquarius Indemnified Party Each of:
(a) the directors, officers and employees of
Aquarius; and
(b) Aquarius’ Subsidiaries and their respective
directors, officers and employees.
Aquarius Prescribed Event means each of the following:
(a) Aquarius, AQPSA or Mimosa:
(i) converts all or any of its shares into a
larger or smaller number of shares;
(ii) resolves to reduce or alter its share
capital in any way or reclassify, combine,
split, or redeem or repurchase directly or
indirectly any Aquarius Shares;
(iii) enters into a buy-back agreement or
resolves to approve the terms of a buy-
back agreement;
(iv) declares, pays or distributes any
dividend, distribution, bonus or other
share of its profits or assets or returns or
agrees to return any capital to its
shareholders, other than between
members of the Aquarius Group;
(v) issues shares or securities convertible
into shares, or grants an option over its
shares, or agrees to make such an issue
or grant such an option, other than in
accordance with the Accepted Securities
Schedule or an issue of Aquarius Shares
pursuant to the exercise of convertible
securities already on issue at the date of
this Agreement and previously disclosed
to each relevant securities exchange
prior to the date of this Agreement;
(b) Aquarius adopts a new constitution or modifies
or repeals its constitution or a provision of it; or
(c) Aquarius ceases to be admitted to the official list
of ASX, FCA or the JSE.
Aquarius Provided Information means all of the information contained in the Notice of
Amalgamation Meeting and any updates to that
information related to, or prepared by or on behalf of
iii
Aquarius in accordance with Clause 10, other than the
Sibanye Provided Information and the Independent
Expert's Report.
Aquarius Regulatory Approvals means the consents, approvals, clearances, decisions,
determinations or other acts by a Governmental
Authority, which are determined between the Parties
(acting reasonably) to be necessary for the Conditions
Fulfilment and are the responsibility of Aquarius.
Aquarius Share means an issued and fully paid common share of
Aquarius.
Aquarius Share Register means the registers of members of Aquarius maintained
by or on behalf of Aquarius.
Aquarius Share Registry means Computershare Investor Services PLC in respect
of Aquarius’ branch share register in the United
Kingdom, Computershare Investor Services Pty Limited
in respect of Aquarius’ branch share register in South
Africa; Computershare Investor Services Pty Limited in
respect of Aquarius’ branch share register in Australia;
and Codan Services Limited in respect of Aquarius'
branch share register in Bermuda.
Aquarius Shareholder means each person entered in the Aquarius Share
Register as a holder of Aquarius Shares.
Aquarius Shareholder Approval means a resolution in favour of the Amalgamation
passed by a simple majority of votes cast at the
Amalgamation Meeting in accordance with Aquarius'
bye-laws.
Aquarius Statutory Declaration means the statutory declaration required to be filed with
the Registrar of Companies with respect to Aquarius in
accordance with Section 108 (3) of the Companies Act in
connection with the Amalgamation substantially in the
form of Annexure B.
ASIC means the Australian Securities and Investments
Commission.
ASX means the Australian Securities Exchange or ASX
Limited (ABN 98 008 624 691), as the context requires.
ASX Listing Rules means the official listing rules of ASX.
Authorisation means:
(a) an approval, authorisation, consent, declaration,
exemption, licence, notarisation, permit or
waiver, however it is described, including any
renewal or amendment and any condition
attaching to it from or by a Governmental
Authority; and
(b) in relation to anything that could be prohibited or
restricted by Law if a Governmental Authority
were to act in any way within a specified period,
the expiry of that period without that action
being taken.
iv
BidCo’s Attorneys means BeesMont Law Limited of 5th Floor, Andrew’s
Place, 51 Church Street, Hamilton HM 12, Bermuda who
are also the attorneys for Sibanye.
BidCo Completion means the items listed in Clause 5.4.
Deliverables
BidCo Shareholder means a resolution in favour of the Amalgamation
Approval passed by a wholly owned subsidiary of Sibanye which
in turn is the sole shareholder of BidCo.
BidCo Statutory Declaration means the statutory declaration required to be filed with
the Registrar of Companies with respect to BidCo in
accordance with Section 108 (3) of the Companies Act in
connection with the Amalgamation substantially in the
form of Annexure C.
BMA means the Bermuda Monetary Authority.
BMA Approval means the approval of the BMA pursuant to the
Exchange Control Act 1972 and Exchange Control
Regulations 1973.
Book-Entry Shares has the meaning as set out in Clause 16.3.
Break Fee means $2,938,858, being the amount that is 1% of the
amount calculated by multiplying the implied value of the
Amalgamation Consideration by the total number of
Aquarius Shares on issue as at the date of this
Agreement.
Business Day means a day on which banks generally are open in each
of Bermuda; London, United Kingdom; Perth, Western
Australia; and South Africa for the transaction of normal
banking business (other than a Saturday or Sunday or a
public holiday).
Bye-laws means the bye-laws of the Amalgamated Company, the
form of which will be agreed as soon as practicable after
the date of this Agreement between the Parties (such
agreement not to be unreasonably withheld or delayed)
and included as Annexure B to the Amalgamation
Agreement.
Certificate of means the certificate of amalgamation issued by the
Amalgamation Registrar of Companies in respect of the Amalgamated
Company consequent upon the Amalgamation of BidCo
and Aquarius.
Certificates has the meaning as set out in Clause 16.3.
Claim in relation to a Person, means any claim, allegation,
cause of action, proceeding, liability, suit or demand
made against the Person concerned however it arises
and whether it is present or future, fixed or
unascertained, actual or contingent.
Companies Act means the Companies Act 1981 of Bermuda.
Competing Proposal means any proposed takeover bid, scheme of
arrangement, amalgamation, reverse takeover, capital
reduction, sale of assets, sale of securities, strategic
v
alliance, joint venture, partnership, dual listed companies
structure, economic or synthetic merger or combination
or other transaction or arrangement which, if completed,
would result in a Third Party:
(a) directly or indirectly acquiring or being entitled to
acquire a Relevant Interest or any other direct
or indirect interest in 20% or more of the
Aquarius Shares; or
(b) directly or indirectly acquiring or being entitled to
acquire the whole or material part of the
business or assets of the Aquarius Group; or
(c) acquiring control of Aquarius or merging or
amalgamating with Aquarius.
Condition means a condition as set out in Clause 4.2.
Conditions Fulfilment means the satisfaction or waiver (in accordance with
Clause 4.3) of all Conditions.
Conditions Fulfilment Date means the date that the parties agree that Conditions
Fulfilment is to occur in accordance with Clause 5.1.
Constitutional has the meaning set out in Clause 12.3.
Indemnification Rules
Counter Proposal has the meaning as set out in Clause 14.5(e).
Dissenting Shareholder means an Aquarius Shareholder who did not vote in
favour of the Amalgamation and who complies with all of
the provisions of the Companies Act concerning the right
of holders of shares to require appraisal of their Aquarius
Shares under Bermuda Law.
Dissenting Shares mean Aquarius Shares held by a Dissenting
Shareholder.
Due Diligence Information means information relating to the business, assets,
liabilities, operations, profits and losses, financial
position, performance and prospects of the Aquarius
Group provided or made available by or on behalf of any
members of the Aquarius Group to Sibanye on or before
2 September 2015 via the "Project Cobra" online data
room maintained by Aquarius (a CD record of which
information has been initialled by the Parties for the
purposes of identification).
Effective means the coming into effect, pursuant to the
Companies Act, of the Amalgamation by the registration
of the Amalgamated Company with the Registrar of
Companies and the consequent issuance of a Certificate
of Amalgamation.
Effective Time means the time at which the Amalgamation becomes
Effective, intended to be 9.00 a.m. on the next Business
Day after the Record Date.
Encumbrance means any option or right of pre-emption or mortgage,
charge, pledge, lien, assignment, hypothecation, security
vi
interest, title retention or any other security agreement or
arrangement.
End Date means the date that is six (6) months after the date of
this Agreement, subject to any extension to that date
made under Clauses 4.6 and 4.7.
Exchange Fund has the meaning as set out in Clause 16.2.
Excluded Shares has the meaning as set out in Clause 3.1(c).
Exclusivity Period means the period starting on the date of this Agreement
and ending on the earlier of:
(a) the date the Amalgamation becomes Effective;
(b) the termination of this Agreement in accordance
with its terms; and
(c) the End Date.
FCA means the UK Financial Conduct Authority (or its
successor bodies).
FSMA means the Financial Services and Markets Act 2000 of
the UK.
Governmental Authority means any nation or government, any state or other
political subdivision thereof, any entity, authority or body
exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government
and any self-regulatory organisation.
Group in relation to a company, means that company, any
Subsidiary or any holding company from time to time of
that company, and any Subsidiary from time to time of a
holding company of that company. Each company in a
Group is a member of the Group.
Implats means Impala Platinum Holdings Limited (Registration
No. 1957/001979/06).
Impugned Amount means all or part of the payment required to be made
under Clause 15.6 that is found by a court to:
(a) be unlawful; or
(b) involve a breach of directors' duties.
Independent Expert means the independent expert engaged by Aquarius in
accordance with ASIC Regulatory Guides 111 and 112.
Independent Expert's Report means a report prepared by the Independent Expert in
accordance with the ASIC Regulatory Guide 111, to be
provided to the Aquarius Board and Aquarius
Shareholders on whether, in the opinion of the
Independent Expert, the Amalgamation is fair and
reasonable and in the best interest of Aquarius
Shareholders
vii
Insolvency Event means any of the following:
(a) a person is or states that the person is unable to
pay from the person's own money all the
person's debts as and when they become due
and payable;
(b) a person is taken or must be presumed to be
insolvent or unable to pay the person's debts
under any applicable legislation;
(c) an application or order is made for the winding
up or dissolution or a resolution is passed or
any steps are taken to pass a resolution for the
winding up or dissolution of a company and
such application is not stayed, withdrawn,
dismissed, discharged or restrained within
seven days;
(d) an administrator, provisional liquidator,
liquidator or business rescue practitioner or
person having a similar or analogous function
under the laws of any relevant jurisdiction is
appointed in respect of a company or any action
is taken to appoint any such person and the
action is not stayed, withdrawn, dismissed,
discharged or restrained within seven days;
(e) a controller is appointed in respect of any
property of a company;
(f) a person enters into or takes any action to enter
into an arrangement (including a scheme of
arrangement or deed of company arrangement),
composition or compromise with, or assignment
for the benefit of, all or any class of the person's
creditors or members or a moratorium involving
any of them; or
(g) anything analogous to or of a similar effect to
anything described above under the law of any
relevant jurisdiction occurs in respect of a
person.
Interim Period means the period from (and including) the date of this
Agreement up to (but excluding) the Effective Time or, if
earlier, the termination or rescission of this Agreement in
accordance with its terms.
JSE means JSE Limited, registration number
2005/022939/06, a company incorporated in South Africa
or, as the context requires, the securities exchange
conducted by it and licenced under the Financial Markets
Act, 2012 of South Africa.
JSE Listings Requirements means the listings requirements of the JSE, as amended
from time to time.
viii
Law means any federal, state, local or foreign law, statute,
ordinance or common law, or any rule, regulation,
standard, order or agency requirement of any
Governmental Authority in any jurisdiction.
Loan Agreement means any inter-company loan agreement between any
member or members of the Sibanye Group and BidCo
with respect to the financing of the Amalgamation
Consideration.
LSE means the London Stock Exchange plc.
Matching Right Notice has the meaning as set out in Clause 14.5.
Material Adverse Change means any change, effect, event or occurrence in
relation to Aquarius, AQPSA or Mimosa, which:
(a) has had or is reasonably likely to have a
material adverse effect on the business,
condition (financial or otherwise), assets,
liabilities or results of operations of Aquarius; or
(b) would result in an inability of Aquarius to
implement the Amalgamation;
and includes:
(c) an Insolvency Event occurring to Aquarius,
AQPSA or Mimosa; or
(d) any other change, effect, event, occurrence or
fact that has (or is reasonably expected to have)
a material adverse effect on Aquarius,
provided however that any change, effect, event or
occurrence to the extent resulting from the following shall
not be taken into account:
(e) any change generally affecting the gold and
uranium or platinum group metals mining
industries respectively, including but not limited
to any change relating to the price of gold,
uranium or platinum group metals;
(f) the foreign exchange rate of currency;
(g) any change in any applicable laws (including
environmental laws) or industry standards;
(h) any transaction announced by Aquarius after
obtaining the consent of Sibanye in respect
thereof (to the extent required hereunder);
(i) any matter fairly disclosed in the Due Diligence
Information;
(j) any matter, fact or circumstance the subject of
public disclosure by Aquarius or otherwise fairly
disclosed in any publicly available information
ix
before the date of this Agreement;
(k) any actions specifically required to be taken by
a Party pursuant to this Agreement; or
(l) the Transaction or the Announcement thereof.
For the purposes of this definition, the Parties agree that,
without limiting any of the descriptions above, a material
adverse change as described above shall be:
(m) an event or occurrence having a prejudicial
impact or materially disproportionate effect on
Aquarius or its business or assets to the value
of $75 million or more; or
(n) an event that impacts Aquarius’ total annual
production (as measured by each of (i)
underground tonnes milled and (ii) 4E ounces
delivered in concentrate) by more than 25%,
other than an event which is beyond the
reasonable control and without the fault or
negligence of Aquarius (including but not limited
to acts of God, war, strikes or labour disputes,
Eskom outages, government orders or any
other force majeure event) that the Parties
acting reasonably and in good faith agree can
be remedied within a 12 month period.
Material Contract means any material contract (including for the avoidance
of doubt any amendments thereto) entered into by any
member of the Aquarius Group, including (without
limitation):
(a) the Kroondal notarial pool and sharing
agreement (including the agreements attached
thereto as annexures) dated 6 June 2003
entered into between RPM and AQPSA;
(b) the Marikana notarial pool and sharing
agreement (including the agreements attached
thereto as annexures) dated 11 July 2005
entered into between RPM and AQPSA;
(c) the shareholders agreement entered into
between Implats and Aquarius in respect of
Mimosa Investments Limited (Registration No.
26645/6593);
(d) the concentrate sale agreement dated 6 June
2003 entered into between RPM and AQPSA;
(e) the financing and/or security agreements
entered into between Watervale Platinum Mines
Proprietary Limited (Registration No.
2003/013931/07 and RMB and/or between
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Aquarius Platinum Investments and RMB;
(f) the off-take agreement entered into between
Centametall AG of Switzerland and Mimosa
Mining Company (Private) Limited.
Meeting Date means the date of the Amalgamation Meeting at which
the Aquarius Shareholders vote on a resolution to
approve the Amalgamation.
Memorandum of means the memorandum of association of the
Association Amalgamated Company, the form of which will be
agreed as soon as practicable after the date of this
Agreement between the Parties (such agreement not to
be unreasonably withheld or delayed) and included as
Annexure A to the Amalgamation Agreement.
Mimosa means Mimosa Investments Limited.
Mining Titles means collectively, and in each case as amended from
time to time, all right, title and interest in and to any and
all mining, prospecting, common law mineral rights,
authorisations, government concession, and/or mining
lease titles and any other instruments of authority issued
by any lawful agency in connection with the aforesaid,
held by the Aquarius Group in any jurisdiction on the
date of this Agreement and as of the Effective Time,
which are material to the business of the Aquarius
Group.
Non-Disclosure Agreement means the confidentiality, standstill and exclusivity
agreement between Sibanye and Aquarius dated 5
August 2015.
Notice of Amalgamation Meeting means a notice convening the Amalgamation Meeting
and includes any accompanying explanatory information,
circular and other materials.
Paying Agent has the meaning as set out in Clause 16.1.
Paying Party has the meaning as set out in Clause 15.7.
Permitted Encumbrance means, with respect to the Mining Titles:
(a) rights reserved or vested in any Governmental
Authority by the terms of any instrument or grant
affecting the Mining Titles;
(b) taxes or royalties imposed by any Governmental
Authority;
(c) the terms and conditions of the Mining Titles;
(d) all applicable laws, rules and orders of any
Governmental Authority;
(e) reservations, limitations, provisos and
conditions contained in any original grant of any
of the land the subject of the Mining Titles or
interests therein and statutory exceptions to
xi
title;
(f) the terms of the agreements which affect or
relate to the Mining Titles and the rights of third
parties under those agreements; and
(g) caveats and registrations associated with the
agreements which affect or relate to the Mining
Titles.
Person or Persons includes an individual, firm, corporation, partnership,
limited liability company, trust, association,
unincorporated association, Governmental Authority or
other entity or body of persons.
Protected Party has the meaning as set out in Clause 13.1(a)(i).
Provision has the meaning as set out in Clause24.
Receiving Party has the meaning as set out in Clause 15.7.
Record Date means the record date to determine entitlements to
receive the Amalgamation Consideration which shall be
5.00pm (Sydney time) on the fifth Business Day after
suspension of trading as indicated in the Timetable.
Registered Address means, in relation to an Aquarius Shareholder, the
address of the shareholder shown in the Aquarius Share
Register.
Registrar of Companies means the Registrar of Companies of Bermuda.
Relevant Date means, in relation to a Condition , the date or time
specified in this Agreement for its fulfilment subject to
any extension made under Clauses 4.6 or 4.7 (as
applicable).
Relevant Interest means any interest in shares or other securities that
causes or permits a person to:
(a) exercise or influence (or restrain) the exercise of
voting rights on shares or other securities
(whether through the giving of voting
instructions or as proxy or otherwise); or
(b) dispose or to influence (or restrain) the disposal
of shares or other securities,
including inter alia the legal ownership of a share or
other security and an interest under an option agreement
to acquire a share or other security.
Relevant Local Currency means, in respect of an Amalgamation Participant, the
currency of the country of the relevant securities
exchange on which that Amalgamation Participant's
Aquarius Shares are listed.
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Restricted Party has the meaning as set out in Clause 13.1.
RMB means Rand Merchant Bank, a division of FirstRand
Bank Limited (Registration No. 1929/001225/06).
RPM means Rustenburg Platinum Mines Limited (Registration
No. 1931/003380/06).
SARB Approvals means approval of the South African Reserve Bank
pursuant to the Exchange Control Regulations, 1961
(issued in terms of the Currency Exchanges Act, 1933)
of South Africa for Sibanye or one of its Subsidiaries to
enter into the Transaction Documents and implement the
Transaction including (amongst other things) performing
its obligations under the Amalgamation and paying the
Amalgamation Consideration.
Sibanye Group means, collectively, Sibanye, BidCo and their respective
Subsidiaries.
Sibanye Indemnified Party Each of:
(a) the directors, officers and employees of
Sibanye; and
(b) Sibanye’s Subsidiaries and their respective
directors, officers and employees.
Sibanye Provided Information means all of the information regarding the Sibanye
Group provided by or on behalf of BidCo or Sibanye to
Aquarius for inclusion in the Notice of Amalgamation
Meeting and any updates to that information provided by
or on behalf of BidCo or Sibanye to Aquarius in
accordance with Clause 10.
Sibanye Regulatory Approvals means the consents, approvals, clearances, decisions,
determinations or other acts by a Governmental
Authority, which Sibanye and Aquarius agree are
necessary for the Conditions Fulfilment and are the
responsibility of Sibanye and/or BidCo, limited to the
following:
(a) BMA Approval;
(b) SARB Approvals;
(c) South African Competition Authorities’ Approval;
and
(d) Zimbabwean Competition and Tariff
Commission Approval.
South Africa means the republic of South Africa.
South African Competition means the South African Competition Commission and
Authorities the Competition Tribunal, as further described in the
South African Competition Legislation.
South African Competition means the South African Competition Act, 1998 and the
xiii
Legislation Regulations published thereunder.
Subsidiary means any entity in which a Person owns or controls,
directly or indirectly, share capital or other equity
interests representing more than 50% of the outstanding
voting power in such entity, and “Subsidiaries” means
any number of such Persons, provided that in the case of
Aquarius, Mimosa is considered to be a "Subsidiary".
Superior Proposal means a written bona fide Competing Proposal received
after the date of this Agreement that:
(a) does not result from a breach by Aquarius of
any of its obligations under Clause 14 or from
any act by a member of the Aquarius Group
which, if done by Aquarius, would constitute a
breach of Clause 14 by Aquarius; and
(b) the Aquarius Board, acting in good faith and
after taking advice from Aquarius' financial and
legal advisers, determines:
(i) is reasonably capable of being valued
and implemented, taking into account all
aspects of the Competing Proposal,
including its conditions precedent; and
(ii) it would, if completed substantially in
accordance with its terms, be more
favourable to Aquarius Shareholders
than the Amalgamation, taking into
account all the terms and conditions of
the Competing Proposal and the
Amalgamation.
Tax Laws means any and all federal, state, local and foreign laws
applying income, gross receipts, license, payroll,
employment, excise, severance, stamp, occupation,
premium, windfall profits, environmental, customs duties,
stock, franchise, profits, withholding, social security,
unemployment, disability, real property, personal
property, sales, use, transfer, registration, value added,
alternative or add-on minimum, estimated, or other
similar taxes (together with any and all interest, penalties
and additions to tax imposed with respect thereto)
imposed by any Governmental Authority or Taxation
Authority.
Taxation Authority means any government, state or municipality or any
local, state, federal or other authority, body or official
anywhere in the world or elsewhere exercising a fiscal,
revenue, customs or excise function.
Third Party means any person other than Sibanye or a member of
the Sibanye Group.
Timetable means the timetable setting out the intended sequencing
of events required for the Amalgamation to become
Effective, as set out in Schedule 2.
xiv
Transaction means the acquisition of Aquarius by Sibanye under the
Amalgamation or by such other means as may be agreed
by the parties pursuant to this Agreement.
Transaction Documents means this Agreement, the Amalgamation Agreement,
Loan Agreement, any supplementary agreements
entered into between the Parties on or around the date of
this Agreement, and the other documents referred to in
any of them.
UK means the United Kingdom of Great Britain and Northern
Ireland.
UK Disclosure and means the disclosure rules and the transparency rules
Transparency Rules made by the FCA pursuant to part VI of FSMA, as
amended from time to time.
UK Listing Rules means the listing rules made by the FCA pursuant to Part
VI of FSMA, as amended from time to time.
UK Listing Authority means the FCA in its capacity as the United Kingdom
Listing Authority.
Warranty Claim means a claim for breach of a representation or warranty
in Clause 6.
Zimbabwe means the republic of Zimbabwe.
Zimbabwean Competition means the Zimbabwean Competition and Tariff
Authorities Commission, as further described in the Zimbabwean
Competition Legislation.
Zimbabwean Competition means the Zimbabwean Competition Act (Chapter
Legislation 14:28), and any regulations published thereunder.
1.2 In this Agreement, unless the context otherwise requires, references to:
(a) statutory provisions shall be construed as references to those provisions as amended or
re-enacted or as their application is modified by other provisions from time to time and
shall include references to any provisions of which they are re-enactments (whether with
or without modification);
(b) Clauses, Schedules and Annexures are references to clauses hereof, schedules hereto
and annexures hereto; references to Sub-clauses or Paragraphs are, unless otherwise
stated, references to sub-clauses of the Clause or paragraphs of the Schedule in which
the reference appears;
(c) the headings in this Agreement are inserted for convenience only and shall not affect the
construction of this Agreement;
(d) the singular shall include the plural and vice versa and references to the masculine shall
include the feminine and/or neuter and vice versa;
(e) persons shall include companies, partnerships, associations and bodies of persons,
whether incorporated or unincorporated;
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(f) a document in “agreed form” are to that document in the form agreed between the Parties
and initialled by them or attached as an appendix;
(g) “this Agreement" are to this Implementation Agreement and includes all Schedules and
Annexures hereto;
(h) $ is to the lawful currency of the United States of America; and
(i) time in this Agreement is a reference to time in Bermuda, unless otherwise stated.
2. AMALGAMATION
2.1 Agreement to propose and implement the Amalgamation
(a) Aquarius agrees to propose and implement the Amalgamation in accordance with the
Companies Act and subject to the terms of this Agreement, and must use all reasonable
endeavours to do so in accordance with the Timetable.
(b) Sibanye and BidCo agree to assist Aquarius to propose and implement the Amalgamation
in accordance with the Companies Act and subject to the terms of this Agreement, and
must use all reasonable endeavours to do so in accordance with the Timetable.
2.2 Effect of the Amalgamation
(a) Upon the terms and conditions of this Agreement and Amalgamation Agreement, each of
Aquarius and BidCo shall cause an application for registration of the Amalgamated
Company to be submitted to the Registrar of Companies as provided by Section 108 of
the Companies Act such that the Amalgamation shall become Effective at the Effective
Time.
(b) As of the Effective Time, subject to the terms and conditions of this Agreement and the
Amalgamation Agreement, each of BidCo and Aquarius shall be amalgamated and the
Amalgamated Company shall continue after the Amalgamation. The Parties acknowledge
and agree that:-
(i) the Amalgamation shall be effected so as to constitute an “amalgamation” in
accordance with Section 104 of the Companies Act;
(ii) Aquarius and BidCo shall continue as one company and the Amalgamated
Company shall be deemed an “amalgamated company” as such term is understood
under the Companies Act;
(iii) the name of the Amalgamated Company shall be “Sibanye Platinum Bermuda
Proprietary Limited” and its registered office shall be c/o BeesMont Corporate
th
Services Limited, 5 Floor Andrew’s Place, 51 Church Street, Hamilton HM 12,
Bermuda;
(iv) the property of Aquarius and BidCo shall become the property of the Amalgamated
Company;
(v) the Amalgamated Company shall continue to be liable for the obligations of each of
Aquarius and BidCo;
xvi
(vi) an existing cause of action, Claim or liability to prosecution against Aquarius and/or
BidCo shall be unaffected and may be enforced or pursued against the
Amalgamated Company;
(vii) a civil, criminal or administrative action or proceeding pending by or against either
Aquarius or BidCo may be continued to be prosecuted by or against the
Amalgamated Company;
(viii) a conviction against or ruling, order, or judgment in favour of or against Aquarius or
BidCo may be enforced by or against the Amalgamated Company; and
(ix) the Certificate of Amalgamation issued by the Registrar of Companies in Bermuda
shall be deemed to be the certificate of incorporation of the Amalgamated
Company; however the date of incorporation of a company is its original dates of
incorporation and its amalgamation with another company does not alter its original
date of incorporation.
(c) As of the Effective Time, the Memorandum of Association and Bye-laws of the
Amalgamated Company shall be in the form agreed by the Parties as soon as practicable
after the date of this Agreement (such agreement not to be unreasonably withheld or
delayed) and included as Annexures A and B to the Amalgamation Agreement.
(d) The directors and officers of the Amalgamated Company listed in the Amalgamation
Agreement shall be the initial directors and officers of the Amalgamated Company.
(e) From and after the Effective Time Aquarius Shareholders shall cease to have any rights
as shareholders of Aquarius, except for the right to receive the Amalgamation
Consideration.
3. AMALGAMATION CONSIDERATION
3.1 Conversion
Subject to the terms and conditions of this Agreement and the Amalgamation Agreement, at the
Effective Time, by virtue of the Amalgamation and without any action on the part of Sibanye,
BidCo or Aquarius, the Aquarius Shareholders or the holders of any share issued and
outstanding in BidCo, the following shall occur:
(a) Conversion of Amalgamation Shares: Each Amalgamation Share issued and outstanding
immediately prior to the Effective Time shall be cancelled and converted automatically into
the right to receive the Amalgamation Consideration. The settlement of the
Amalgamation Consideration shall be processed in accordance with Clause 16.
(b) Dissenting Shares: each Dissenting Share shall be cancelled and converted into the right
to receive the fair value thereof (as determined in accordance with and subject to the
provisions of Clause 3.3).
(c) Excluded Shares: Notwithstanding anything in this Agreement to the contrary, each
Aquarius Share that is owned by Aquarius or any of its subsidiaries immediately prior to
the Effective Time and which is not subject to an Encumbrance (Excluded Shares) shall,
by virtue of the Amalgamation and without any further action on the part of the holder of
xvii
the Excluded Shares, be cancelled and shall cease to exist and no Amalgamation
Consideration shall be delivered in respect of the Excluded Shares.
(d) BidCo Shares: Each BidCo Share issued and outstanding immediately prior to the
Effective Time shall be converted into and become a share of the Amalgamated Company
which shall be wholly owned (directly or indirectly) by Sibanye.
3.2 Certain Aquarius Shares Adjustments
There shall be an appropriate adjustment to reflect fully and equitably the effect of any share
split, reverse share split, share consolidation, share subdivision, share bonus issue, share
dividend, reorganisation, recapitalisation, reclassification or other similar event that occurs
between the date of this Agreement and the Effective Time with respect to the Aquarius Shares
in order to provide the Aquarius Shareholders with the same economic effect as contemplated by
this Agreement and the Amalgamation Agreement prior to any such event; provided that nothing
in this Clause 3.2 shall be construed to permit Aquarius to take any action with respect to its
securities that is prohibited by the terms of this Agreement or the Amalgamation Agreement.
3.3 Dissenting Shares
At the Effective Time, notwithstanding anything in this Agreement to the contrary, any Dissenting
Shares shall be cancelled and converted into the right to receive the fair value thereof under the
Companies Act. Aquarius shall give BidCo:
(a) prompt notice of:
(i) any demands for appraisal of Dissenting Shares or attempted withdrawal or
withdrawals of such demands received by Aquarius and any other instruments
served under the Companies Act and received by Aquarius relating to any
Dissenting Shareholder’s right to be paid the fair value of such Dissenting
Shareholder’s Dissenting Shares; and
(ii) to Aquarius’ knowledge, any applications to the Supreme Court of Bermuda for
appraisal of the fair value of the Dissenting Shares; and
(b) to the extent permitted by applicable Law, the opportunity to participate with Aquarius in
any and all negotiations and proceedings with respect to any written demands for
appraisal under the Companies Act. Neither Aquarius nor BidCo shall, without the prior
written consent of the other Party, voluntarily make any payment with respect to, or settle,
or offer to settle, any such demands or applications, or waive any failure to timely deliver a
written demand for appraisal or timely take any other action to perfect appraisal rights in
accordance with the Companies Act.
4. CONDITIONS TO COMPLETION
4.1 Amalgamation will not become Effective until Conditions satisfied
Subject to this Clause 4, the Amalgamation will not become Effective unless and until each
Condition is satisfied or waived under Clause 4.2 and the Certificate of Amalgamation is issued.
4.2 Conditions
xviii
The Conditions are as follows:
Condition Party entitled Party
to benefit responsible
(a) No restraint adversely affecting Conditions Sibanye, Sibanye,
Fulfilment BidCo and BidCo and
Aquarius Aquarius
No order, injunction or other decision or ruling issued
or made by any court, tribunal, regulatory authority or
other legal restraint or prohibition preventing the
Amalgamation or otherwise preventing Conditions
Fulfilment is in effect, pending or threatened at 5:00
pm on the day before the Conditions Fulfilment Date.
(b) Sibanye Regulatory Approvals are obtained Sibanye and Sibanye and
BidCo, but BidCo
The Sibanye Regulatory Approvals are obtained or cannot be
deemed to be obtained in accordance with Clause waived
4.4 by no later than 5.00 pm on the day that is 15
Business Days prior to the End Date and are not
thereafter withdrawn prior to the Effective Time.
(c) Aquarius Regulatory Approvals are obtained Aquarius, but Aquarius
cannot be
The Aquarius Regulatory Approvals are obtained or waived
deemed to be obtained in accordance with Clause
4.4 by no later than 5.00 pm on the day that is 15
Business Days prior to the End Date and are not
thereafter withdrawn prior to the Effective Time.
(d) Independent Expert's Report Aquarius Aquarius
The Independent Expert issues the Independent
Expert's Report before the Notice of Amalgamation
Meeting is dispatched to Aquarius Shareholders.
(e) Aquarius Shareholder Approval Sibanye, Aquarius
BidCo and
Aquarius Shareholder Approval is obtained at the Aquarius, but
Amalgamation Meeting. cannot be
waived
(f) BidCo Shareholder Approval Aquarius, but Sibanye and
cannot be BidCo
BidCo Shareholder Approval is obtained prior to 5.00 waived
pm on the day before the Conditions Fulfilment Date.
(g) Receipt of Aquarius Completion Deliverables Sibanye and Aquarius
BidCo, but
BidCo's Attorneys have received a copy of the cannot be
Amalgamation Agreement executed in escrow on waived
behalf of Aquarius and the other Aquarius
Completion Deliverables prior to 5.00 pm on the day
before the Conditions Fulfilment Date.
(h) Receipt of BidCo Completion Deliverables Aquarius, but Sibanye and
cannot be BidCo
Aquarius’ Attorneys have received a copy of the waived
Amalgamation Agreement executed in escrow by
BidCo and the other BidCo Completion Deliverables
prior to 5.00 pm on the day before the Conditions
xix
Fulfilment Date.
(i) Aquarius representations and warranties Sibanye and Aquarius
BidCo
Each of the representations and warranties given or
made by Aquarius under Clauses 6.2 and 6.3 is true
and correct in all material respects as at each time it
is given or made.
(j) Sibanye and BidCo representations and Aquarius Sibanye and
warranties BidCo
Each of the representations and warranties given or
made by Sibanye and BidCo under Clauses 6.2 and
6.4 is true and correct in all material respects as at
the time it is given or made.
(k) No Material Adverse Change Sibanye and Aquarius
BidCo
No Material Adverse Change occurs between the
date of this Agreement and 5.00 pm on the day
before the Conditions Fulfilment Date.
(l) Third Party Consents Sibanye and Aquarius
BidCo
Prior to 5.00 pm on the day before the Meeting Date,
Aquarius shall procure the written consent of all such
Persons as may be required in order to enter into and
implement this Agreement, including (without
limitation):
(i) Implats, to the extent that this may be required
under the shareholders agreement entered into
between Implats and Aquarius in respect of
Mimosa Investments Limited (Registration No.
26645/6593); and
(ii) RMB to the extent that this may be required in
respect of the encumbrances over certain of the
Aquarius Shares in favour of RMB.
In relation to (i) and (ii), to the extent that such
consent is not required, failure to obtain that consent
shall not constitute a failure to satisfy this Condition
4.2(l).
4.3 Waiver of Conditions
(a) If, according to the table in Clause 4.2, a Condition has been included for the benefit of
one Party only, only that Party may, in its sole and absolute discretion, waive the breach
or non-fulfilment of the Condition, except where expressly stated that the Condition may
not be waived.
(b) If, according to the table in Clause 4.2, a Condition has been included for the benefit of
both Parties, the breach or non-fulfilment of the Condition may be waived only by the
consent of both Parties.
xx
(c) Notwithstanding Clauses 4.3(a) and 4.3(b), a Party for whose benefit a Condition has
been included must not waive the Condition if it would result in a breach of Law or,
according to the table in Clause 4.2, the Condition cannot be waived.
(d) The breach or non-fulfilment of a Condition may only be waived in writing.
(e) If a Party waives the breach or non-fulfilment of a Condition, that waiver precludes the
Party from suing another Party for any breach of this Agreement that resulted in the
breach or non-fulfilment of the Condition.
4.4 Regulatory Approvals
(a) Notwithstanding the Relevant Dates for obtaining the Sibanye Regulatory Approvals and
the Aquarius Regulatory Approvals, as specified in Clauses 4.2(b) and 4.2(c) respectively,
the Parties:
(i) acknowledge that receipt of the Sibanye Regulatory Approvals and the Aquarius
Regulatory Approvals are required in order to set the Conditions Fulfilment Date (in
accordance with Clause 5.1), to enable Conditions Fulfilment to occur and
subsequently for the Amalgamation to become Effective; and
(ii) agree, without limiting the generality of Clause 4.5(a), to each use their reasonable
endeavours to procure that the Sibanye Regulatory Approvals and the Aquarius
Regulatory Approvals are obtained as soon as practicable after the date of this
Agreement.
(b) For the purposes of Clauses 4.2(b) and 4.2(c), where the relevant Governmental Authority
has granted a conditional approval, the relevant Sibanye Regulatory Approval or Aquarius
Regulatory Approval (as the case may be), shall be deemed to have been obtained if any
such condition(s) cannot reasonably be considered to have a material adverse effect on
the value of Aquarius Shares. It is, however, recorded and agreed that the
aforementioned proviso does not apply in respect of any approval required by South
African Competition Legislation or Zimbabwean Competition Legislation, which must be
obtained on an unconditional basis or on such conditions as are acceptable to Sibanye.
4.5 Fulfilment of Conditions
Each of Sibanye, BidCo and Aquarius must:
(a) use its reasonable endeavours (other than by waiver) to ensure and procure that each
Condition for which, according to the table in Clause 4.2, it is responsible for is satisfied
as soon as practicable after the date of this Agreement and continues to be satisfied at all
times until the last time it is to be satisfied (as the case may require), with a view to the
Effective Time occurring before the End Date;
(b) in respect of any Condition for which, according to the table in Clause 4.2, both Parties
are responsible, then each Party shall co-operate with the other in good faith and provide
such assistance as may be reasonably requested by the other to ensure and procure that
the Condition is satisfied as soon as practicable after the date of this Agreement and
continues to be satisfied at all times until the last time it is to be satisfied (as the case may
require), with a view to the Effective Time occurring before the End Date;
xxi
(c) save as where permitted by this Agreement or contemplated by the Transaction, not take
any action or refrain from taking any action (except as required by Law) designed or
intended, or reasonably likely, to prevent any of the Conditions being satisfied or which
would otherwise reasonably be expected to result in any Condition not being satisfied,
without the prior consent of the other;
(d) keep the other promptly and reasonably informed of the steps it has taken and of its
progress towards satisfaction of the Conditions;
(e) promptly inform the other of any circumstances that it becomes aware of which may result
in any of the Conditions not being satisfied in accordance with its terms; and
(f) promptly advise the other after becoming aware of the satisfaction of a Condition.
4.6 Condition is not fulfilled or waived
If:
(a) a Condition has not been fulfilled by the Relevant Date or has been breached, and (if
capable of being waived) such non-fulfilment or breach is not waived in accordance with
Clause 4.3;
(b) the Effective Time does not occur on or prior to the End Date; or
(c) there is an act, failure to act, event or occurrence which will:
(i) prevent a Condition being fulfilled by the Relevant Date; or
(ii) prevent the Amalgamation becoming Effective by the End Date, or
(iii) otherwise result in a Condition being incapable of satisfaction (and the breach or
non-fulfilment of the Condition which would otherwise occur or has occurred has
not been waived in accordance with Clause 4.3),
then, BidCo and Aquarius must consult in good faith for a period of at least ten (10) Business
Days to determine whether:
(d) the Transaction may proceed by way of alternative means or methods so as to achieve a
commercial outcome which is substantially the same as that achieved by the
Amalgamation; and/or
(e) to extend the Relevant Date or the End Date, or both.
4.7 Automatic extension to the End Date for Regulatory Approvals
(a) Without limiting the Parties' obligations pursuant to Clause 4.6, if the Amalgamation does
not become Effective by the End Date by reason of the fact that a determination in respect
of an Aquarius Regulatory Approval or a Sibanye Regulatory Approval required to satisfy
the Condition set out in Clause 4.2(b) or 4.2(c), respectively, has not yet been made (and,
as a result, Conditions Fulfilment cannot occur), then BidCo and Aquarius hereby agree
that the End Date will automatically be extended (once only) such that the End Date
becomes the date that is nine (9) months after the date of this Agreement.
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(b) If an extension of the End Date is made pursuant to Clause 4.6 to a date that is less than
nine (9) months after the date of this Agreement then this Clause 4.7 will apply to
automatically extend the End Date for such a period as results in the End Date becoming
the date that is nine (9) months after the date of this Agreement.
(c) Nothing in this Clause 4.7 shall prevent the Parties from agreeing under Clause 4.6 to an
extension of the End Date to a date that is later than nine (9) months after the date of this
Agreement, in which case this Clause 4.7 will not apply.
5. COMPLETION
5.1 Conditions Fulfilment
(a) BidCo and Aquarius will agree the Conditions Fulfilment Date by written notice as soon as
practicable after Aquarius Shareholder Approval has been obtained at the Amalgamation
Meeting and the Sibanye Regulatory Approvals and Aquarius Regulatory Approvals have
been obtained.
(b) The Conditions Fulfilment Date must take place on or prior to the End Date but after the
satisfaction or waiver (if applicable) of each Condition, other than the Conditions in
Clauses 4.2(b), 4.2(c), 4.2(e). 4.2(f), 4.2(g) and 4.2(h) which cannot be waived.
(c) On the Conditions Fulfilment Date, or as soon as possible thereafter, Aquarius shall make
a public Announcement in a form approved by BidCo which may be a joint Announcement
with Sibanye to include the following statements:
(i) Conditions Fulfilment has occurred and all Conditions have been met to the Parties’
satisfaction or otherwise waived in accordance with Clause 4.3;
(ii) the date on which trading in Aquarius Shares will be suspended from trading on
each relevant exchange; and
(iii) the Record Date for determining entitlements to the Amalgamation Consideration.
5.2 Location
Conditions Fulfilment will take place at the offices of Aquarius’ Attorneys (or at such other place
as the Parties may agree in writing).
5.3 Aquarius Completion Deliverables
At or prior to Conditions Fulfilment, Aquarius must deliver or procure the delivery to BidCo or
BidCo's Attorney of the following Aquarius Completion Deliverables:
(a) Certified resolutions of the board of directors of Aquarius at a meeting of the board duly
called and held approving (1) the entry into, and implementation of, this Agreement, the
Amalgamation Agreement and the other Transaction Documents to which it is a party; (2)
subject to the opinion of the Independent Expert, the Amalgamation Consideration as
constituting fair value for the Aquarius Shares; and (3) such other matters as may have
been agreed between the Parties.
(b) A certified copy of the Aquarius Shareholder Approval approving the Amalgamation and
the entry into, and implementation of, the Amalgamation Agreement.
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(c) An original of the Amalgamation Agreement duly executed as a deed on behalf of
Aquarius.
(d) A certificate of compliance issued by the Registrar of Companies in respect of Aquarius.
(e) Letters of resignation from all of the current directors and officers of Aquarius to be
effective at the Effective Time.
(f) The Aquarius Statutory Declaration.
5.4 BidCo Completion Deliverables
At Conditions Fulfilment, BidCo must deliver or procure the delivery to Aquarius or Aquarius'
Attorney of the following BidCo Completion Deliverables:
(a) The BMA Approval.
(b) Certified resolutions of the board of directors of BidCo and of the board of directors and
sole shareholder of BidCo, i.e. Sibanye, approving this Agreement, the Amalgamation
Agreement and the other Transaction Documents.
(c) An original of the Amalgamation Agreement duly executed as a deed on behalf of BidCo.
(d) A certificate of compliance issued by the Registrar of Companies in respect of BidCo.
(e) The BidCo Statutory Declaration.
5.5 Effective Time
(a) Upon satisfaction of the obligations under Clause 5.3 and 5.4, BidCo and Aquarius must
procure that the necessary documents are filed with the Registrar of Companies such that
the Amalgamation becomes Effective at the Effective Time.
(b) The Amalgamation shall become Effective without any further action upon the issuance of
the Certificate of Amalgamation showing the Effective Time.
(c) The Effective Time must take place prior to the End Date (as may be extended pursuant
to Clauses 4.6 or 4.7).
6. REPRESENTATIONS AND WARRANTIES
6.1 Preliminary
(a) Each Party acknowledges that Aquarius, or BidCo and Sibanye (as applicable) have
executed this Agreement and agreed to take part in the Transaction on the basis of, and
in reliance on, the representations and warranties that are in Clauses 6.2, 6.3 and 6.4 (as
applicable).
(b) Each of the representations and warranties by Aquarius in Clause 6.3 are qualified by any
fact, matter or circumstance:
(i) fairly disclosed in the Due Diligence Information;
(ii) fairly disclosed in any reasonably available and easily accessible public
information;
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(iii) the subject of public disclosure on a relevant securities exchange by Aquarius prior
to the date of this Agreement; or
(iv) expressly contemplated by this Agreement.
(c) Each representation and warranty given or made under Clauses 6.2, 6.3 and 6.4 is given:
(i) as at the date of this Agreement;
(ii) as at 5:00 p.m. on the day before the Meeting Date;
(iii) as at 5:00 pm on the day before the Conditions Fulfilment Date;
(iv) immediately before the Effective Time.
(d) Aquarius shall ensure that neither Aquarius nor any other member of the Aquarius Group
does anything during the Interim Period which would be materially inconsistent with any of
the representations and warranties in Clauses 6.2 and 6.3, breach any such
representations and warranties or cause any such representations or warranties to be
untrue or misleading.
(e) Sibanye and BidCo shall ensure that neither Sibanye, BidCo nor any other member of the
Sibanye Group does anything during the Interim Period which would cause any of the
representations or warranties in Clauses 6.2 and 6.4 to be untrue or misleading on the
relevant date under Clause 6.1(c).
(f) If, at any time during the Interim Period, a Party becomes aware that a representation and
warranty given by it has been materially breached, is untrue or is misleading in a material
respect, or has a reasonable expectation that any of those things will occur, it shall
immediately:
(i) notify the other Parties of the relevant occurrence in sufficient detail to enable them
to make an accurate assessment of the situation; and
(ii) if requested by any of the other Parties, use its commercially reasonable efforts to
prevent or remedy the notified occurrence.
(g) Each of the representations and warranties in this Agreement is separate and, unless
otherwise specifically provided, is not limited by reference to any other representation and
warranty or any other Provision in this Agreement.
6.2 Mutual representations and warranties
BidCo and Sibanye each severally represent and warrant to Aquarius in respect of itself, and
Aquarius represents and warrants to each of BidCo and Sibanye, that (subject to fulfilment or
waiver of any relevant Conditions):
(a) (power) it has full legal capacity and power to:
(i) own its property and to carry on its business; and
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(ii) enter into this Agreement, the Amalgamation Agreement and the other Transaction
Documents to which it is a party and carry out the transactions that each of the
Transaction Documents (as applicable) contemplates in accordance with its terms;
(b) (corporate authority) it has taken all corporate action that is necessary or desirable to
authorise it entering into this Agreement, the Amalgamation Agreement and the other
Transaction Documents to which it is a party and carrying out the transactions that each
of the Transaction Documents (as applicable) contemplates in accordance with its terms;
(c) (Authorisations) it holds each Authorisation that is necessary or desirable to:
(i) enable it to properly execute this Agreement, the Amalgamation Agreement and the
other Transaction Documents to which it is a party and to carry out the transactions
that each of the Transaction Documents (as applicable) contemplates in
accordance with its terms;
(ii) ensure that this Agreement, the Amalgamation Agreement and the other
Transaction Documents to which it is a party are legal, valid, binding and
admissible in evidence;
(iii) enable it to properly carry on its business in accordance with all applicable Laws;
and
(iv) comply with any conditions to which any such Authorisation is subject;
(d) (Agreement effective) this Agreement, the Amalgamation Agreement and the other
Transaction Documents to which it is a party constitutes its legal, valid and binding
obligations, enforceable against it in accordance with their terms;
(e) (no contravention) neither its execution of this Agreement, the Amalgamation Agreement
or the other Transaction Documents to which it is a party nor the carrying out by it of the
transactions that it contemplates in accordance with their terms, does or will contravene:
(i) any Law to which it or any of its property is subject or any order of any
Governmental Authority that is binding on it or any of its property;
(ii) any Authorisation held by it;
(iii) any undertaking or instrument binding on it or any of its property; or
(iv) its constitution or memorandum of association and bye-laws (however described);
(f) (no Insolvency Event) neither it nor any of its Subsidiaries is affected by an Insolvency
Event, in each case which would be reasonably likely to be material to the relevant Group;
(g) (not representative capacity) it is not entering into this Agreement or the Amalgamation
Agreement as trustee of any trust or settlement or otherwise in a representative capacity;
(h) (information provided to the Independent Expert) all information provided by it to the
Independent Expert will be provided in good faith and on the understanding that the
Independent Expert will rely on that information for the purpose of preparing the
Independent Expert's Report; and
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(i) (no other approvals necessary) to its knowledge, no consents, approvals or other acts
by a Governmental Authority are necessary to in order for the Amalgamation to become
Effective other than the Aquarius Regulatory Approvals and the Sibanye Regulatory
Approvals.
6.3 Aquarius representations and warranties
Aquarius represents and warrants to each of Sibanye and BidCo that:
(a) (status) it is a Bermuda exempted company and is duly organised, validly existing and in
good standing under the laws of Bermuda;
(b) (Due Diligence Information not false or misleading) Aquarius has not knowingly:
(i) omitted to disclose information to Sibanye or BidCo, the disclosure of which might
reasonably be expected to have resulted in Sibanye or BidCo deciding not to
proceed with the Amalgamation, or entering into this Agreement on materially
different terms; or;
(ii) included anything materially false or misleading in the Due Diligence Information;
(c) (Aquarius Provided Information) as at the date of dispatch of the Notice of
Amalgamation Meeting, the Aquarius Provided Information in the Notice of Amalgamation
Meeting will not contain any material statement which is false or misleading (including
because of any material omission) and will comply in all material respects with the
requirements of any applicable Law or rule or requirement of any relevant securities
exchange, including the Companies Act, ASX Listing Rules, UK Listing Authority and the
JSE Listings Requirements;
(d) (continuous disclosure) Aquarius is in compliance in all material respects with its
continuous disclosure obligation under ASX Listing Rule 3.1, the UK Disclosure and
Transparency Rule 2.2, the JSE Listings Requirement 3.4(a) and, except for information
contained in the Announcement to be made in accordance with Clause 8(a), there is no
information that is being withheld from disclosure in reliance on ASX Listing Rule 3.1A,
the UK Disclosure and Transparency Rule 2.5 and the JSE Listings Requirement 3.1;
(e) (complied with applicable laws) to the best of its knowledge, each member of the
Aquarius Group has complied in all material respects with all applicable Laws, the ASX
Listing Rules, the requirements of the UK Listing Authority and the JSE Listings
Requirements;
(f) (Material Contracts):
(i) To the best of its knowledge, no member of the Aquarius Group has received any
notice of termination in respect of any Material Contract and none of them are
aware of any intention on the part of any Person to terminate any Material Contract
(at any time) or any circumstances which have given rise to, or are reasonably
likely to give rise to, a right on the part of a counterparty to a Material Contract to
terminate that contract or to accelerate the exercise or performance of any right or
obligation under that contract (whether with the giving of notice, lapse of time or
otherwise);
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(ii) For the avoidance of doubt, the representation in (i) above shall not be taken to
have been breached or to be untrue by virtue of the Material Contract identified in
paragraph (e) of the definition of Material Contract expiring or terminating in
accordance with its terms.
(g) (Mining Titles):
(i) The Mining Titles are legally and beneficially held by a member of the Aquarius
Group free from all Encumbrances (except for Permitted Encumbrances) and to the
best of its knowledge, are in good standing and are not liable to forfeiture and to the
best of its knowledge, there is no matter which is likely to prejudice the renewal of
the Mining Titles or which might adversely affect the rights or benefits conferred by
the Mining Titles;
(ii) to the best of its knowledge, no Aquarius Group member has received in writing,
nor is aware of any facts, circumstances or unremedied breaches which would give
rise to the cancellation, forfeiture, suspension or early termination of any of the
Mining Titles or the imposition of any new conditions under any of the Mining Titles;
and
(iii) to the best of its knowledge, there are no actions, Claims or other proceedings
pending or threatened against an Aquarius Group member in any court or other
tribunal which in any way might call into question the title of any of the Mining
Titles.
(h) (no litigation) to the best of its knowledge, there is no material litigation, arbitration,
mediation, conciliation or administrative proceedings taking place, pending or threatened
which, if adversely decided, could reasonably be expected to result in a liability on the part
of the Aquarius Group of more than $25 million in aggregate or otherwise result in a
Material Adverse Change;
(i) (details of Aquarius issued capital) Aquarius has 1,507,106,778 Aquarius Shares on
issue as at the date of this Agreement and, save for (A) the 4% convertible bonds due
December 2015; (B) any securities set out in the Accepted Securities Schedule; and (C)
any other securities on issue at the date of this Agreement which have previously been
disclosed to each relevant securities exchange prior to the date of this Agreement,
Aquarius:
(i) does not have any other shares, options, performance rights or other securities on
issue (including any securities, rights or other instruments which may convert into,
or may entitle a person to receive, shares or other securities); and
(ii) is not under any actual or contingent obligation to issue, convert or cancel any
securities; and
6.4 Sibanye and BidCo representations and warranties
Sibanye and BidCo each severally represent and warrant to Aquarius that:
(a) (status of Sibanye) Sibanye is a South African limited liability company and is duly
organised, validly existing and in good standing under the laws of South Africa;
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(b) (status of BidCo) BidCo is a Bermuda exempted limited liability company and is duly
organised, validly existing and in good standing under the laws of Bermuda;
(c) (Sibanye Provided Information) as at the date of dispatch of the Notice of
Amalgamation Meeting, the Sibanye Provided Information in the Notice of Amalgamation
Meeting will not contain any material statement which is false or misleading (including
because of any material omission) and will comply in all material respects with the
requirements of any applicable Law or rule or requirement of any relevant securities
exchange, including the Companies Act, the UK Listing Authority and the JSE Listings
requirements; and
(d) (capacity to fund Amalgamation Consideration) as at 5.00 pm on the Business Day
before the date on which the Effective Time occurs, either BidCo or Sibanye will have
available to it sufficient cash amounts (whether from internal cash resources or external
funding arrangements or a combination of both) on an unconditional basis to satisfy its
obligation to pay the aggregate Amalgamation Consideration in accordance with this
Agreement.
7. GENERAL OBLIGATIONS OF THE PARTIES
7.1 Each of BidCo and Aquarius agree to do, execute and perform such further acts, deeds,
documents and things as may reasonably be required in order to effect the Amalgamation.
7.2 Without limiting the generality of Clause 7.1, BidCo and Aquarius agree not to act in a manner
inconsistent with the Amalgamation becoming Effective.
7.3 Failure by a Party to meet any timeframe or deadline set out in the Timetable will not constitute a
breach of this Agreement to the extent that such failure is due to circumstances and matters
outside the Party’s control.
8. AQUARIUS' SPECIFIC OBLIGATIONS
Without limiting the generality of Clause 7.1, Aquarius must take all necessary steps to propose
and implement the Amalgamation as expeditiously as practicable and use all reasonable
endeavours to do so in accordance with the Timetable, including taking each of the following
steps:
(a) (Announcement) immediately following execution of this Agreement (or as otherwise
agreed by BidCo and Aquarius), Aquarius must issue a public Announcement in respect
of the execution of this Agreement in a form approved by BidCo which may be a joint
Announcement with Sibanye and includes a statement that each Aquarius Director:
(i) recommends that Aquarius Shareholders vote in favour of the Amalgamation; and
(ii) who holds or otherwise has the power to exercise or control the exercise of the
votes attached to Aquarius Shares intends to vote (or direct the voting of) those
Aquarius Shares in favour of the Amalgamation
subject to:
(iii) there being no Superior Proposal; and
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(iv) the Independent Expert concluding and continuing to conclude that the
Amalgamation is fair and reasonable to, and is in the best interests of, Aquarius
Shareholders.
(b) (maintenance of recommendation and voting intention) use its best endeavours to
ensure that no Aquarius Director changes or withdraws in any Announcement or other
public statement the recommendation in Clause 8(a)(i) or the voting intention in Clause
8(a)(ii), unless:
(i) a Superior Proposal is made and Aquarius has complied with all of its obligations
under Clause 14 in respect of that Superior Proposal such that it is permitted by
Clause 14.5 to enter into an agreement or arrangement in relation to the
implementation of that Superior Proposal; or
(ii) the Independent Expert concludes in the Independent Expert’s Report, or in any
written update to that report, that the Amalgamation is not fair, not reasonable, or
not in the best interests of Aquarius Shareholders;
(c) (Aquarius Regulatory Approvals) consult with BidCo on all aspects of communications
with Governmental Authorities in relation to the Transaction and, as expeditiously as
practicable:
(i) apply for the Aquarius Regulatory Approvals and provide BidCo with a copy of all
applications lodged;
(ii) take all steps for which it is responsible in the approval process;
(iii) respond to requests for information from the relevant Governmental Authorities in
relation to the Aquarius Regulatory Approvals at the earliest practicable time;
(iv) provide BidCo with all information reasonably requested in connection with the
applications for Sibanye Regulatory Approvals; and
(v) so far as it is able to do so, at BidCo's request, allow representatives of BidCo the
opportunity to be present at any meetings with any Governmental Authority about
the Aquarius Regulatory Approvals;
(d) (Independent Expert’s Report):
(i) commission the preparation of the Independent Expert's Report and provide all
assistance and information reasonably requested by the Independent Expert to
enable it to prepare the Independent Expert’s Report; and
(ii) provide BidCo with a final copy of the Independent Expert's Report received by
Aquarius from the Independent Expert;
(e) (prepare Notice of Amalgamation Meeting) as expeditiously as practicable following the
date of this Agreement, prepare and finalise the Notice of Amalgamation Meeting in
accordance with Clause 10;
(f) (dispatch Notice of Amalgamation Meeting) as expeditiously as practicable following
the finalisation of the Notice of Amalgamation Meeting (and with the prior written consent
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of BidCo to the inclusion of the Sibanye Provided Information), dispatch a copy of the
Notice of Amalgamation Meeting to each Aquarius Shareholder;
(g) (information) subject to all applicable Laws, provide BidCo with such information and
assistance as BidCo may reasonably request from time to time for the purpose of
soliciting votes in favour of the Amalgamation; and
(h) (amalgamation result) following the Amalgamation Meeting and not later than 5.00pm:
(i) deliver to BidCo’s Attorneys a certificate setting out the voting results from the
Amalgamation Meeting; and
(ii) announce on each relevant securities exchange the voting results of the
Amalgamation Meeting.
9. SIBANYE AND BIDCO'S OBLIGATIONS
Without limiting the generality of Clause 7.1, Sibanye and BidCo must take all necessary steps
within their control to propose and implement the Amalgamation as expeditiously as practicable
and use all reasonable endeavours to do so in accordance with the Timetable, including taking
each of the following steps:
(a) (Announcement) immediately following execution of this Agreement (or as otherwise
agreed by BidCo and Aquarius), ensure that Sibanye issues a public Announcement in
respect of the execution of this Agreement in a form approved by Aquarius (and which
may be a joint Announcement with Aquarius) that each Sibanye Director considers the
Amalgamation to be in the best interests of Sibanye Shareholders;
(b) (Sibanye Regulatory Approvals) as expeditiously as practicable apply for the Sibanye
Regulatory Approvals and provide Aquarius with a copy of all lodged applications and
keep Aquarius reasonably informed of the progress towards obtaining such approvals;
(c) (Independent Expert’s Report) provide all assistance and information reasonably
requested by the Independent Expert in connection with the preparation of the
Independent Expert’s Report;
(d) (Sibanye Provided Information) provide all assistance necessary in relation to the
Notice of Amalgamation Meeting, including providing Aquarius with the Sibanye Provided
Information in accordance with Clause 10;
(e) (BidCo Shareholder Approval) obtain the BidCo Shareholder Approval;
(f) (Amalgamation Consideration) if the Amalgamation becomes Effective pay (or procure
the payment of) the aggregate Amalgamation Consideration payable to the Amalgamation
Participants in accordance with Clause 16.
10. PREPARATION OF THE NOTICE OF AMALGAMATION MEETING
10.1 Preparation
Without limiting the generality of Clause 7.1:
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(a) (Aquarius Provided Information) Aquarius must take all reasonable steps to ensure that
the Aquarius Provided Information included in the Notice of Amalgamation Meeting:
(i) complies with the requirements of any applicable Law or rule or requirement of any
relevant securities exchange or Governmental Authority, including the Companies
Act, the ASX Listing Rules, the UK Listing Authority and the JSE Listings
Requirements;
(ii) is not, having regard to the applicable disclosure requirements, misleading or
deceptive in any material respect (including because of any material omission); and
(iii) unless any of Clauses 8(a)(iii) or 8(a)(iv) apply, Aquarius must include statements
(which are displayed prominently) that the Aquarius Directors give the
recommendation on the terms set out in Clause 8(a)(i) and have the voting
intention on the terms set out in Clause 8(a)(ii); and
(b) (Sibanye Provided Information) Sibanye and BidCo must take all reasonable steps to
ensure that the Sibanye Provided Information included in the Notice of Amalgamation
Meeting:
(i) complies with the requirements of any applicable Law or rule or requirement of any
relevant securities exchange or Governmental Authority, including the Companies
Act, the ASX Listing Rules, the UK Listing Authority and the JSE Listings
Requirements; and
(ii) is not, having regard to the applicable disclosure requirements, misleading or
deceptive in any material respect (including because of any material omission).
10.2 Consultation on the Notice of Amalgamation Meeting
Without limiting the generality of Clause 7.1, Aquarius must consult with BidCo regarding the
Notice of Amalgamation Meeting and:
(a) provide drafts of the Notice of Amalgamation Meeting for the purposes of enabling BidCo
to comment on those documents; and
(b) take into account reasonable comments made by or on behalf of BidCo when producing
revised drafts of the Notice of Amalgamation Meeting.
10.3 Further Aquarius Provided Information
Subject to applicable Law, after consulting in good faith with BidCo as to the need for, and form
of, any supplementary disclosure, provide to Aquarius Shareholders as soon as practicable all
such further or new information which may arise or become known after the Notice of
Amalgamation Meeting has been dispatched which is necessary to ensure that the Aquarius
Provided Information:
(a) is not, having regard to the applicable disclosure requirements, false, misleading or
deceptive in any material respect (including because of any material omission); and
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(b) complies with the requirements of any applicable Law or rule or requirement of any
relevant securities exchange or Governmental Authority, including the Companies Act, the
UK Listing Authority and the JSE Listings Requirements.
10.4 Further Sibanye Provided Information
BidCo must promptly:
(a) inform Aquarius in writing if it becomes aware that the Sibanye Provided Information is or
has become misleading or deceptive in any material respect (including because of any
material omission) or otherwise does not comply with the requirements of any applicable
Law or rule or requirement of any relevant securities exchange or Governmental
Authority, including the Companies Act, the UK Listing Authority and the JSE Listings
Requirements; and
(b) provide to Aquarius such further or new information which may arise after the Notice of
Amalgamation Meeting has been finalised or dispatched as may be necessary to ensure
that the Sibanye Provided Information is not, having regard to applicable disclosure
requirements, false, misleading or deceptive in any material respect (including because of
any material omission) or otherwise does not comply with the requirements of any
applicable Law or rule or requirement of any relevant securities exchange, including the
Companies Act, the ASX Listing Rules, the UK Listing Authority and the JSE Listings
Requirements, provided that Aquarius may not disclose any such information without the
prior written consent of BidCo (not to be unreasonably withheld or delayed).
10.5 Responsibility statement
Aquarius and BidCo agree that the Notice of Amalgamation Meeting will contain a statement
clearly identifying the Aquarius Provided Information and the Sibanye Provided Information and
providing that each Party is responsible for the information relating to them and does not accept
responsibility for the information relating to the other Party.
11. INTERIM PERIOD
11.1 During the Interim Period, Aquarius must conduct, and must procure that each of its Subsidiaries
conducts, its business in the ordinary and proper course and in a manner consistent with the
business plan disclosed to Sibanye prior to the date of this Agreement, a copy of which has been
signed for identification by each of the Parties and provided to Sibanye and BidCo (Accepted
Plan).
11.2 Without limiting Clause 11.1, other than with the prior approval of BidCo or Sibanye (which must
not be unreasonably withheld or delayed) or as required by this Agreement, Aquarius must not,
during the Interim Period take any action which could reasonably be expected to:
(a) give rise to an Aquarius Prescribed Event; or
(b) result in Aquarius:
(i) producing less than 85% of the total 4E Oz Production (platinum, palladium,
rhodium and gold, in any mix);
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(ii) milling less than 85% of the planned underground tonnes milled;
(iii) overspending more than 15% of the planned on-mine cash costs; or
(iv) spending less than 75% of the planned capital expenditure,
provided that the prior approval of BidCo or Sibanye is not required to the extent that any
deviation from the agreed thresholds is not as a result of the fault of Aquarius.
Each of the above percentages is referrable to the Accepted Plan (on an annualised basis).
11.3 Without limiting Clauses 11.1 or 11.2, during the Interim Period, Aquarius must give to BidCo or
Sibanye, as soon as possible, full details of any material change in the business of the Aquarius
Group, financial position or assets of Aquarius and any other member of the Aquarius Group.
12. RELEASES
12.1 Aquarius directors and officers
(a) Each of Sibanye and BidCo releases its rights and agrees with Aquarius that it will not
make a claim against any Aquarius Indemnified Party as at the date of this Agreement in
connection with:
(i) any breach of any representations, covenants or warranties of Aquarius;
(ii) any disclosures containing any statement which is false or misleading whether in
content or by omission.
(b) Clause 12.1(a) does not exclude an Aquarius Indemnified Party from any liability which
may arise from fraud or dishonesty in relation to the Company on the part of the person.
(c) Clause 12.1(a) is subject to any restriction under any applicable Law and will be read
down accordingly.
(d) Aquarius receives and holds the benefit of Clause 12.1(a) for each Aquarius Indemnified
Party as trustee for that Aquarius Indemnified Party.
12.2 BidCo and Sibanye directors and officers
(a) Aquarius releases its rights and agrees with BidCo and Sibanye that it will not make a
claim against any Sibanye Indemnified Party (other than BidCo, Sibanye or another
member of the Sibanye Group) as at the date of this Agreement in connection with:
(i) any breach of any representations, covenants or warranties of BidCo or Sibanye;
(ii) any disclosures containing any statement which is false or misleading whether in
content or by omission.
(b) Clause 12.1(a) does not exclude a Sibanye Indemnified Party from any liability which may
arise from fraud or dishonesty on the part of the person.
(c) Clause 12.2(a) is subject to any restriction under any applicable Law and will be read
down accordingly.
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(d) Sibanye and BidCo each receives and holds the benefit of Clause 12.2(a) for each
Sibanye Indemnified Party as trustee for that Sibanye Indemnified Party.
12.3 Director’s and officer’s indemnities and insurance
Subject to the Amalgamation becoming Effective and the Transaction completing, each of
Sibanye and BidCo undertakes in favour of Aquarius and each Aquarius Indemnified Party that it
will:
(a) ensure that each Aquarius Indemnified Party will retain the benefit of any deed of
indemnity, access and insurance entered into in favour of them prior to the Effective Time
(provided that each such deed is on terms and conditions not materially more favourable
to the relevant Aquarius Indemnified Party than those terms and conditions disclosed by
Aquarius to Sibanye in writing prior to or on the date of this Agreement); and
(b) without limiting the foregoing, ensure that directors’ and officers’ run-off insurance cover
for their respective directors and officers is maintained for a period of 7 years from the
retirement date of each director and officer (and Aquarius may, at its election, pay any
amounts necessary to ensure such maintenance upfront prior to implementation of the
Amalgamation).
13. STANDSTILL
13.1 Restrictions
Subject to Clause 13.2, for a period of six months following the date of this Agreement, each
Party (Restricted Party) must not, and must procure that each of its Subsidiaries does not:
(a) acquire or offer or agree to acquire:
(i) any Relevant Interest in shares or other securities of the other Party (Protected
Party); or
(ii) any other direct or indirect interest in any shares or other securities or assets of the
Protected Party or any of its Subsidiaries;
(b) enter into any agreement or arrangement which confers on it rights the economic effect of
which is equivalent or substantially equivalent to the acquisition or holding of shares or
other securities in the Protected Party or any of its Subsidiaries including any swap or
other derivative;
(c) offer or agree to enter into any acquisition or other business arrangement with or relating
to the Protected Party of a nature similar to the Amalgamation or anything similar to it or
any material part of it;
(d) enter into any agreement or arrangement with any Person other than the Protected Party
or hold any negotiations or discussions with any Person other than the Protected Party in
connection with any of the matters referred to in Clauses 13.1(a) to 13.1(c) (inclusive); or
(e) assist, encourage, procure or induce any Person to do any of the things referred to in
Clauses 13.1(a) to 13.1(c) (inclusive).
13.2 Exceptions
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The restrictions in Clause 13.1 do not apply to:
(a) any acquisition of shares or other securities of the Protected Party made in the course of
implementing the Amalgamation in accordance with the terms and conditions of this
Agreement; or
(b) any acquisition of shares or other securities or Relevant Interest in shares or other
securities of the Protected Party in connection with any irrevocable undertakings obtained
from any Person to vote their Aquarius Shares in favour of the Amalgamation; or
(c) any acquisition of shares or other securities of the Protected Party made pursuant to a
takeover bid made by the Restricted Party or any of its Subsidiaries for all of the shares
and other securities of the Protected Party following the public announcement of the
Aquarius Board’s recommendation of a Competing Proposal; or
(d) anything done with the prior written consent of the Protected Party.
14. EXCLUSIVITY
14.1 Warranty:
Aquarius represents and warrants to Sibanye that, as at the date of this Agreement, it is not in
discussions or negotiations with any Third Party in relation to, or which could reasonably be
expected to lead to, a Competing Proposal.
14.2 Notification of Competing Proposals
During the Exclusivity Period, Aquarius must promptly inform Sibanye if, after the date of this
Agreement, it or any member of the Aquarius Group or any of Aquarius' representatives
becomes aware of a proposal or approach from a Third Party in relation to a potential Competing
Proposaland must, within 24 hours after receiving that proposal, notify Sibanye in writing of all
the material terms of the Competing Proposal (provided that such notification need not disclose
the identity of the proponent(s) of the Competing Proposal).
14.3 No solicitation
(a) Subject to Clause 14.7, during the Exclusivity Period, Aquarius must not, and must
procure that each member of the Aquarius Group and each of Aquarius' representatives
does not, directly or indirectly, except with the prior written consent of Sibanye:
(i) solicit, invite, encourage or initiate any Competing Proposal or any offer, proposal,
expression of interest, enquiry, negotiation or discussion with any Third Party in
relation to, or that may reasonably be expected to encourage or lead to, a
Competing Proposal;
(ii) announce or communicate any intention to do any of the things referred to in
Clause 14.3(a)(i);
(iii) subject to Clause 14.3(b):
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(A) enter into or continue negotiations or discussions with any Third Party in
relation to a Competing Proposal, or that may reasonably be expected to
encourage or lead to a Competing Proposal; or
(B) assist, encourage, procure or induce any Person to do any of the things
referred to in Clauses 14.3(a)(i) to 14.3(a)(iii) (inclusive) on its behalf.
(b) The restriction in Clause 14.3 does not apply to the extent that it restricts Aquarius or the
Aquarius Board from taking or refusing to take any action with respect to an actual,
proposed or potential Competing Proposal if:
(i) the Aquarius Board has determined that the Competing Proposal is, or is
reasonably likely to constitute, a Superior Proposal or would be reasonably likely to
constitute a Superior Proposal if it were to be proposed; and
(ii) acting in good faith, the Aquarius Board has determined, after taking advice from
Aquarius' legal and financial advisers, that failing to respond to such Competing
Proposal would be likely to constitute a breach of the fiduciary duties or statutory
obligations of any of the Aquarius Directors,
or it would otherwise be unlawful.
14.4 No due diligence
(a) Subject to Clause 14.4(b) (but without limiting Clause 14.3) and Clause 14.7, during the
Exclusivity Period, Aquarius must not, and must procure that each member of the
Aquarius Group and each of Aquarius' representatives does not, directly or indirectly:
(i) make available to any Third Party, or cause or permit any Third Party to receive,
any non-public information relating to Aquarius or any member of the Aquarius
Group that may reasonably be expected to assist such Third Party in formulating,
developing or finalising a Competing Proposal; or
(ii) assist, encourage, procure or induce any Person to do any of the things referred to
in Clause 14.4(a)(i) on its behalf.
(b) The restriction in Clause 14.4(a)(i) does not apply in respect of an actual, proposed or
potential Competing Proposal if the following requirements are satisfied:
(i) the Aquarius Board has determined that the Competing Proposal is, or is
reasonably likely to constitute, a Superior Proposal or would be reasonably likely to
constitute a Superior Proposal if it were to be proposed; and
(ii) acting in good faith, the Aquarius Board has determined, after taking advice from
Aquarius' legal and financial advisers, that failing to respond to such Competing
Proposal would be likely to constitute a breach of the fiduciary duties or statutory
obligations of any of the Aquarius Directors,
or it would otherwise be unlawful for the restriction to apply.
14.5 Matching right
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Aquarius must:
(a) not enter into any agreement or arrangement in relation to the implementation of any
Competing Proposal; and
(b) procure that no Aquarius Director approves, recommends or declares advisable, or
proposes to publicly approve, recommend or declare advisable, any Competing Proposal,
unless:
(c) the Competing Proposal is a Superior Proposal which was notified to Sibanye in
accordance with Clause 14.2 and which was made without any breach of Clause 14.3;
and
(d) Aquarius has given Sibanye written notice of all the material terms of the Superior
Proposal stating an intention to immediately enter into a definitive agreement in relation to
the Superior Proposal subject to the terms of this Clause 14.5 (Matching Right Notice);
and
either:
(e) Sibanye does not, within four (4) Business Days after receiving the Matching Right Notice,
make a written proposal to Aquarius in respect of an improvement or alteration to the
Amalgamation Consideration or an alternative transaction or arrangement (Counter
Proposal); or
(f) within four (4) Business Days after receiving the Matching Right Notice, Sibanye makes a
Counter Proposal and the Aquarius Directors, acting in good faith and after taking advice
from Aquarius' financial and legal advisers, determine that the Counter Proposal, if
implemented in accordance with its terms, would result in a less favourable outcome for
Aquarius Shareholders than would result from implementation of the Superior Proposal in
accordance with its terms.
14.6 If Sibanye makes a Counter Proposal within four (4) Business Days after receiving a Matching
Right Notice, Aquarius must procure that the Aquarius Directors promptly consider such Counter
Proposal in good faith and having regard to advice from Aquarius' financial and legal advisers,
and:
(a) if the Aquarius Directors make the determination referred to in Clause 14.5(f), Aquarius
must promptly notify Sibanye of that fact in writing; or
(b) if the Aquarius Directors determine that the Counter Proposal would, if implemented in
accordance with its terms, result in an outcome for Aquarius Shareholders that is as
favourable as, or more favourable than, the outcome that would result from
implementation of the Superior Proposal, then Sibanye and Aquarius must each use
reasonable endeavours to document the Counter Proposal (including any necessary
amendments to this Agreement) as soon as practicable.
14.7 Normal provision of information:
Nothing in this Clause 14 prevents a Party from:
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(a) providing information required to be provided by Law, any court of competent jurisdiction,
any Governmental Authority or the rules of any recognised securities exchange; or
(b) making presentations to, and responding to bona fide enquiries from, stockbrokers,
portfolio investors and equity market analysts in accordance with its usual practices.
15. PAYMENT OF LIQUIDATED AMOUNT BY AQUARIUS
15.1 Background
(a) Aquarius acknowledges that it believes the Aquarius Shareholders should be provided
with an opportunity to consider the Amalgamation.
(b) Each of Aquarius and Sibanye further acknowledges that it has and will incur significant
costs in connection with performing its obligations under this Agreement and the
Amalgamation (including internal and external advisory costs, legal, due diligence and
management costs and expenses, and opportunity and other costs and expenses).
(c) In the circumstances referred to in Clauses 15.1(a) to 15.1(b) (inclusive), Aquarius and
Sibanye have each requested that provisions be made in this Agreement for the
payments set out in Clauses 15.2 and 15.3, in the absence of which they would not have
entered into this Agreement and which each agree is a genuine and reasonable pre-
estimate of the loss actually suffered by Sibanye (although each agree that such costs are
of such a nature that they cannot be accurately ascertained).
(d) Aquarius confirms its belief that it is appropriate to agree to the payment which it agrees
to make under this Clause 15 in order to secure Sibanye's participation in the
Amalgamation. Aquarius acknowledges that it has received legal advice on the operation
of this Clause 15.
(e) Sibanye confirms its belief that it is appropriate to agree to the payment which it agrees to
make under this Clause 15 in order to secure Aquarius' participation in the Amalgamation.
Sibanye acknowledges that it has received legal advice on the operation of this Clause
15.
15.2 Payment by Aquarius to Sibanye
Aquarius undertakes to pay Sibanye the Break Fee if:
(a) prior to the end of the Exclusivity Period, Aquarius accepts or enters into or offers to
accept or enter into, any agreement, arrangement or understanding regarding a
Competing Proposal or any other transaction that may reduce the likelihood of success of
the Amalgamation;
(b) prior to the end of the Exclusivity Period, the Aquarius Board does not recommend the
Amalgamation or withdraws or adversely modifies an earlier recommendation or approves
or recommends or makes an Announcement in support of a Competing Proposal or
announces an intention to do any of these acts,
other than:
xxxix
(i) in circumstances where Aquarius is entitled to terminate this Agreement under
Clause 18 because Sibanye or BidCo is in breach of this Agreement or because of
the Amalgamation not becoming Effective by the End Date; or
(ii) because the Independent Expert's Report concludes that the Amalgamation is not
fair, not reasonable, or not in the best interest of Aquarius Shareholders;
(c) prior to the end of the Exclusivity Period, a Competing Proposal is announced and,
whether before or after termination of this Agreement or before or after the End Date (but
in any event within twelve (12) months after the announcement of the Competing
Proposal), under that Competing Proposal the relevant bidder or bidders:
(i) acquire(s) a Relevant Interest in more than 20% of all Aquarius Shares under a
transaction that is or has become wholly unconditional;
(ii) acquire(s) all or a substantial part of the assets of Aquarius or the Aquarius Group;
or
(iii) otherwise acquire(s) control of Aquarius or merges with Aquarius;
(d) Aquarius is in material breach of any Provision of this Agreement and this Agreement is
terminated in accordance with Clause 18.2.
15.3 Payment by Sibanye to Aquarius
Sibanye undertakes to pay Aquarius the Break Fee if Sibanye is in material breach of any
Provision of this Agreement and this Agreement is terminated in accordance with Clause 18.3.
15.4 Demand for payment
(a) If an event referred to in Clause 15.2 occurs, any demand by Sibanye for payment under
Clause 15.2 must be in writing and Aquarius must pay the Break Fee to Sibanye within
ten (10) Business Days of receipt of the demand.
(b) If the event referred to in Clause 15.3 occurs, any demand by Aquarius for payment under
Clause 15.2 must be in writing and Sibanye must pay the Break Fee to Aquarius within
ten (10) Business Days of receipt of the demand.
15.5 Sole Remedy
(a) Sibanye acknowledges and agrees that if the Break Fee is paid to it under Clause 15.2,
that payment constitutes its sole and exclusive remedy in respect of the matter giving rise
to the payment.
(b) Aquarius acknowledges and agrees that if the Break Fee is paid to it under Clause 15.3,
that payment constitutes its sole and exclusive remedy in respect of the matter giving rise
to the payment.
15.6 Compliance with Law
If a court of competent jurisdiction in respect of such matters determines that the Break Fee paid
or payable under Clause 15.2 is an Impugned Amount and:
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(a) the period for lodging an application for review or a notice of appeal of that decision has
expired without such application or notice having been lodged; or
(b) an application for review or a notice of appeal has been lodged with a court within the
prescribed period and, on appeal or review, that court also determines that the amount is
an Impugned Amount,
then:
(c) the undertaking under Clause 15.2 does not apply to the extent of the Impugned Amount;
and
(d) if a Party has been paid an Impugned Amount under this Agreement, it must refund that
Impugned Amount to the other Party.
15.7 Break Fee only payable once
Where the Break Fee becomes payable by the relevant Party under Clause 15.2 or 15.3, (the
Paying Party) and is actually paid to the other Party (the Receiving Party), the Receiving Party
cannot make any claim against the Paying Party for payment of any subsequent Break Fee.
15.8 No Break Fee if Amalgamation becomes Effective
Despite anything to the contrary under this Agreement, the Break Fee will not be payable by the
relevant Party under Clause 15.2 or 15.3 if the Amalgamation becomes Effective, despite the
occurrence of any event in Clause 15.2 or 15.3 (as applicable) and, if the Break Fee has already
been paid, it must be refunded to the Party who paid it.
16. SETTLEMENT PROCEDURES
16.1 Paying Agent
Prior to the Effective Time, BidCo shall:
(a) appoint a bank or trust company approved in advance by Aquarius (Paying Agent), such
approval not to be unreasonably withheld; and
(b) enter into a paying agent agreement, in form and substance reasonably acceptable to
Aquarius, with such Paying Agent for the payment of the Amalgamation Consideration in
accordance with this Clause 16.
16.2 Exchange Fund establishment
(a) Prior to the Effective Time, or promptly at the Effective Time, BidCo or the Amalgamated
Company (as applicable) shall deposit, with the Paying Agent, for the benefit of the
Amalgamation Participants, cash in immediately available funds and in an amount
sufficient to pay:
(i) the aggregate amount of the Amalgamation Consideration; and
(ii) any dividends or distributions to which the Aquarius Shareholders may be entitled
to under Clause 3.2.
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(such cash so deposited pursuant to this Clause 16.2(a) being hereinafter referred to as
the “Exchange Fund”).
(b) The Exchange Fund shall not be used for any other purpose, except as provided in this
Agreement.
(c) No interest shall be paid or accrued for the benefit of the Amalgamation Participants on
cash amounts payable pursuant to this Clause 16.2.
(d) The Paying Agent shall invest the Exchange Fund as directed by BidCo or the
Amalgamated Company (as applicable), provided that such investments shall be in
obligations of or guaranteed by the United States of America, in commercial paper
obligations rated A1 or P1 or better by Moody’s Investors Service, Inc. or Standard &
Poor’s, respectively, in certificates of deposit, bank repurchase agreements or banker’s
acceptances of commercial banks with capital exceeding $1 billion, or in money market
funds having a rating in the highest investment category granted by a recognised credit
rating agency at the time of investment. Any interest and other income resulting from
such investments shall be paid over promptly to the Amalgamated Company and any
amounts in excess of the Amalgamation Consideration shall be promptly returned to the
Amalgamated Company. To the extent that there are any losses with respect to any such
investments, or the Exchange Fund diminishes for any reason below the level required for
the Paying Agent to make prompt payment of the aggregate Amalgamation
Consideration, the Amalgamated Company shall promptly replace or restore the cash in
the Exchange Fund so as to ensure that the Exchange Fund is at all times maintained at a
level sufficient for the Paying Agent to pay the aggregate Amalgamation Consideration.
16.3 Dispatch of instructions to Amalgamation Participants
As promptly as practicable following the Effective Time, the Amalgamated Company shall cause
the Paying Agent to mail to each Amalgamation Participant:
(a) a letter of transmittal (which shall be in customary form and shall specify that delivery shall
be effected, and risk of loss and title to the Aquarius Shares shall pass, only upon proper
delivery of the Aquarius Shares to the Paying Agent); and
(b) instructions for use in effecting the surrender of the certificates evidencing such Aquarius
Shares (each a “Certificate” and together the “Certificates”) (if there are any such
Certificates in relation to Aquarius Shares) or the non-certificated Aquarius Shares
represented by book-entry (Book-Entry Shares) in exchange for the Amalgamation
Consideration.
16.4 Cancellation of Aquarius Shares
(a) All Aquarius Shares will be cancelled at the Effective Time and thereafter:
(i) Amalgamation Participants shall cease to have any rights with respect to their
Amalgamation Shares, except for the right to receive the Amalgamation
Consideration;
(ii) Dissenting Shareholders shall cease to have any rights with respect to their
Dissenting Shares, except for the right to receive the fair value thereof (as
determined in accordance with and subject to the provisions of Clause 3.3); and
xlii
(iii) The holders of the Excluded Shares shall cease to have any rights with respect to
their Excluded Shares and shall not be entitled to any part of the Amalgamation
Consideration or to receive the fair value thereof.
16.5 Requirements for receiving Amalgamation Consideration
(a) Each Amalgamation Participant shall be entitled to receive the Amalgamation
Consideration upon surrender of title to the Amalgamation Shares previously held by the
Amalgamation Participant at the Record Date by:
(i) surrender of any Certificates to the Paying Agent for cancellation, together with
such letter of transmittal, duly completed and validly executed in accordance with
the instructions thereto (if an Amalgamation Participant holds any Certificates); or
(ii) receipt by the Paying Agent of written confirmation of surrender from the Aquarius
Share Registry in the case of Book-Entry Shares,
and, in each case, receipt by the Paying Agent of such other documents as may be
required pursuant to the instructions set out in the Amalgamation Notice of Meeting.
(b) Until surrendered as contemplated by this Clause 16.5, each Certificate or Book-Entry
Share shall be deemed at all times after the Effective Time to represent only the right to
receive upon such surrender the Amalgamation Consideration to which the holder of such
Certificate or Book-Entry Shares is entitled pursuant to Clause 3. No interest shall be
paid or will accrue on any cash payable to holders of Certificates or Book-Entry Shares
pursuant to the provisions of Clause 3 or this Clause 16.
(c) If any Certificate shall have been lost, stolen or destroyed, then upon:
(i) the making of an affidavit of that fact by the Person claiming such Certificate to be
lost, stolen or destroyed; and
(ii) if required by the Amalgamated Company, an indemnity bond in form and
substance and with surety reasonably satisfactory to the Amalgamated Company,
the Paying Agent shall pay in respect of such lost, stolen or destroyed Certificate the
Amalgamation Consideration to which the Amalgamation Participant is entitled pursuant
to Clause 3.
16.6 Provision of Amalgamation Consideration
(a) Subject to Clause 16.6(b), BidCo or the Amalgamated Company (as applicable) must
instruct the Paying Agent to, as soon as practicable after the Effective Time, and in any
event no later than ten (10) Business Days after the Effective Time, pay or procure the
payment of the Amalgamation Consideration from the Exchange Fund subject to the
following:
(i) where an Amalgamation Participant has, before the Record Date:
(1) made a valid election in accordance with the requirements of the Aquarius
Share Registry to receive dividend payments from Aquarius by electronic
xliii
funds, transfer to a bank account nominated by the Amalgamation
Participant; or
(2) made a valid election in accordance with the instructions set out in the Notice
of Amalgamation Meeting,
paying, or procuring the payment of, the relevant amount to the Amalgamation
Participant in the Relevant Local Currency (converted based on the prevailing
exchange rate at 5.00pm on the Record Date) by electronic means in accordance
with that election; or
(ii) otherwise, whether or not the Amalgamation Participant has made an election
referred to in Clause 16.6(a)(i), dispatching, or procuring the dispatch of, a cheque
for the relevant amount in the Relevant Local Currency (converted based on the
prevailing exchange rate at 5.00pm on the Record Date) to the Amalgamation
Participant by prepaid post to their Registered Address, such cheque being drawn
in the name of the Amalgamation Participant (or in the case of joint holders, in
accordance with the procedures set out in Clause 16.7).
(b) Notwithstanding the foregoing, Clause 16.6(a) does not apply to an Amalgamation
Participant where Aquarius and the Amalgamated Company believe that such
Amalgamation Participant is not known at their Registered Address or fails to comply with
the provisions of Clause 16.5.
16.7 Joint holders
In the case of Amalgamation Participants who formerly held Amalgamation Shares in their joint
names:
(a) the Amalgamation Consideration will be payable to the joint holders and any cheque
required to be sent under the Amalgamation will be made payable to the joint holders and
sent to either, at the sole discretion of the Paying Agent, the holder whose name appears
first in the Aquarius Share Register as at the Record Date or to the joint holders; and
(b) any other document required to be sent under the Amalgamation will be forwarded to
either, at the sole discretion of the Paying Agent, the holder whose name appears first in
the Aquarius Share Register as at the Record Date or to the joint holders.
16.8 Unclaimed funds
(a) Any portion of the Exchange Fund that remains undistributed to the Amalgamation
Participants six (6) months after the Effective Time shall be delivered to the Amalgamated
Company, upon demand, and any Amalgamation Participants who have not theretofore
complied with this Clause 16 shall thereafter look only to the Amalgamated Company for,
and the Amalgamated Company, subject to Clause 16.9, shall remain liable for, payment
of their claim for the Amalgamation Consideration.
(b) Any portion of the Exchange Fund remaining unclaimed by any Amalgamation
Participants as of a date which is six (6) years from the Effective Time shall, to the extent
permitted by applicable Law, become the property of the Amalgamated Company free and
clear of any claims or interest of any Person previously entitled thereto.
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16.9 Cash delivered to public officials
Neither the Paying Agent nor the Amalgamated Company shall be liable to any Aquarius
Shareholder for any cash (including any dividends or distributions with respect to such Aquarius
Shares) delivered to a public official pursuant to any abandoned property, escheat or similar Law.
16.10 Deductions
(a) Each of the Paying Agent and the Amalgamated Company shall be entitled to deduct and
withhold from the Amalgamation Consideration otherwise payable pursuant to this
Agreement to any Amalgamation Participants such amounts as it is required to deduct
and withhold with respect to such payment under all applicable Tax Laws and pay such
withholding amount over to the appropriate taxing authority, provided that: at least ten (10)
Business Days prior to deducting or withholding any amount pursuant to this Clause 16.10
(other than any employment taxes and where providing advance notice is not possible
due to a change in Law), the Paying Agent or the Amalgamated Company (as applicable)
shall notify the Amalgamation Participants in writing of its intention to withhold or deduct
such amounts and the Parties shall use reasonable efforts to avoid or minimise such
withholding or deduction to the extent permitted under Law.
(b) To the extent that amounts are so properly withheld by the Paying Agent or the
Amalgamated Company, as the case may be, such withheld amounts shall be treated for
all purposes of this Agreement as having been paid to the Amalgamation Participants in
respect of which such deduction and withholding was made by the Paying Agent or the
Amalgamated Company, as the case may be.
17. DEALINGS IN AQUARIUS SHARES
17.1 What Aquarius Share dealings are recognised?
To establish the persons who are Amalgamation Participants, dealings in Aquarius Shares will be
recognised only if:
(a) in the case of dealings of the type to be effected using the electronic share transaction
and settlement system of a relevant securities exchange, the transferee is registered in
the Aquarius Share Register as the holder of the Aquarius Shares as at the Record Date;
and
(b) in all other cases, registrable transfers or transmission applications in respect of those
dealings are received at the Aquarius Share Registry on or before the Record Date,
and Aquarius will not accept for registration, nor recognise for any purpose, any transfer or
transmission application in respect of Aquarius Shares received after the Record Date (except a
transfer to Sibanye pursuant to the Amalgamation and any subsequent transfer by Sibanye or its
successors in title), any transfer or transmission application or other request received after such
times, or received prior to such times but not in registrable or actionable form, as appropriate.
17.2 Aquarius to register transfer and transmission applications
Aquarius will register registrable transfers and transmission applications of the kind referred to in
Clause 17.1(b) by, or as soon as practicable after, the Record Date.
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17.3 Aquarius to maintain Aquarius Register to determine entitlements
In order to determine entitlements to the Amalgamation Consideration, Aquarius will maintain, or
procure the maintenance of, the Aquarius Share Register in accordance with this Clause 17 until
the Amalgamation Consideration has been paid to Amalgamation Participants and the Aquarius
Share Register in this form will solely determine entitlements to the Amalgamation Consideration.
17.4 Holding statements no effect from Record Date
From the Record Date, all holding statements for Aquarius Shares will cease to have effect as
documents of title (or evidence thereof), and each entry on the Aquarius Share Register at the
Record Date will cease to have any effect other than as evidence of the entitlements of
Amalgamation Participants to the Amalgamation Consideration or of Dissenting Shareholders to
receive the fair value thereof (as determined in accordance with and subject to the provisions of
Clause 3.3) (as applicable).
17.5 Aquarius to provide contact information for Amalgamation Participants
On the Record Date, Aquarius will give to BidCo or procure that BidCo be given details of the
name, Registered Address and the number of Amalgamation Shares held by each Amalgamation
Participant, as shown in the Aquarius Share Register at the Record Date, in whatever form
BidCo reasonably requires.
17.6 Suspension of trading
If the Amalgamation is approved, Aquarius will apply for a suspension of trading in Aquarius
Shares on each relevant securities exchange with effect from 4.00pm Sydney time on the
Business Day after the Conditions Fulfilment Date.
17.7 Aquarius to apply for delisting of Aquarius Shares
The Parties shall use their reasonable best efforts up until the Effective Time to cause the
Aquarius Shares to be de-listed from the relevant securities exchanges and deregistered
promptly on or after the Effective Time.
18. TERMINATION
18.1 Termination by either Party
Aquarius or BidCo may terminate this Agreement by giving notice in writing to the other Parties if
it has complied with its obligations under Clauses 4.5 and 4.6 and:
(a) if by the Relevant Date, a Condition is not satisfied and (if capable of being waived) is not
waived in accordance with Clause 4.3, provided that the relevant Condition is for the
benefit of that Party (whether solely or jointly with another Party); or
(b) if the Effective Time does not occur by the End Date.
18.2 Termination by BidCo
BidCo may terminate this Agreement by giving notice in writing to the other Parties if before 8.00
am on the Conditions Fulfilment Date:
xlvi
(a) Aquarius is in breach of this Agreement (including a breach of a representation or
warranty under Clause 6.3) and that breach is material and is not remedied by Aquarius
within five (5) Business Days (or such shorter period ending on the Conditions Fulfilment
Date) of it receiving notice from BidCo of the details of the breach and its intention to
terminate; or
(b) a majority of the Aquarius Board publicly recommends, approves or endorses any
Competing Proposal.
18.3 Termination by Aquarius
Aquarius may terminate this Agreement by giving notice in writing to the other Parties if before
8.00 am on the Conditions Fulfilment Date:
(a) BidCo or Sibanye is in breach of this Agreement (including a breach of a representation or
warranty under Clause 6.4) and that breach is material and is not remedied by BidCo or
Sibanye, as applicable, within five (5) Business Days (or such shorter period ending on
the Conditions Fulfilment Date) of it receiving notice from Aquarius of the details of the
breach and its intention to terminate; or
(b) a majority of the Aquarius Directors publicly recommend, approve or endorse a Superior
Proposal in circumstances where Aquarius has complied with all of its obligations under
Clause 14.5.
18.4 Obligations on termination
(a) If a Party terminates this Agreement, all obligations of the Parties under this Agreement,
other than under this Clause 18 and Clauses 19 (Confidentiality), 15 (Payment of
Liquidated Amount), 6 (Representations and warranties), 20 (Assignment), 21 (Notices)
24 (Severability), 25 (Performance, Waiver, Release and Variation), 27 (Entire
Agreement), 28 (No Merger), and 29 (Governing Law), immediately cease to be of further
effect.
(b) The termination of this Agreement does not affect any Claim that a Party may have
against another Party where that Claim arose before this Agreement is terminated.
19. CONFIDENTIALITY
19.1 No Announcement: No Party shall issue any Announcement or disclose to any person any
information, in each case relating to or connected with or arising out of this Agreement or the
matters contained herein, unless the Announcement or disclosure:
(a) is required by this Agreement;
(b) has the prior written approval of the other Parties (such approval not to be unreasonably
withheld or delayed); or
(c) is required by Law or any Governmental Authority or regulatory authority (including,
without limitation, any relevant securities exchange), or by any court or other authority of
competent jurisdiction.
xlvii
19.2 Notice of Announcement: If a Party is required to make an Announcement or disclosure under
Clause 19.2, it must, to the extent practicable without that Party breaching any applicable Laws
give to the other Parties:
(a) such notice as is reasonable in the circumstances of its intention to make the
Announcement or disclosure; and
(b) a draft of the Announcement or disclosure and an opportunity to comment on the contents
of the Announcement or disclosure.
19.3 The Parties acknowledge and agree that the terms of this Agreement will prevail over the terms
of the Non-Disclosure Agreement to the extent of any inconsistency.
19.4 Each Party shall supply the other Parties with such information about itself, its Group or this
Agreement as any Party may reasonably require for the purposes of satisfying the requirements
of any Law or any judicial, governmental, regulatory or similar body or any securities exchange of
competent jurisdiction to which such other Party is subject.
20. NO REPRESENTATION OR RELIANCE
20.1 Each Party acknowledges that no Party (nor any person acting on its behalf) has made any
representation or other inducement to it to enter into this Agreement, except for representations
or other inducements expressly set out in this Agreement and (to the maximum extent permitted
by Law) all other representations, warranties and conditions implied by statute or otherwise in
relation to any matter relating to this Agreement, the circumstances surrounding the Parties’
entry into it, and the transactions contemplated by it are expressly excluded.
20.2 Each Party acknowledges and confirms that it does not enter into this Agreement in reliance on
any representation or other inducement by or on behalf of any other Party, except for any
representation or inducement expressly set out in this Agreement.
21. NOTICES
21.1 The address, email and fax number of each of the Parties are set forth in Schedule 1.
21.2 Any notice to be given under this Agreement shall be either sent by facsimile or other electronic
transmission, or delivered personally or sent by first class recorded delivery post (airmail if
overseas). The address for service of each Party are as set out in Schedule 1 or any other
address for service subsequently notified to the other Parties in writing. A notice is deemed to
have been served as follows:
(a) if by facsimile or other electronic transmission, when received;
(b) if personally delivered, at the time of delivery;
(c) if posted, within Bermuda, three (3) days, or (in the case of airmail) seven (7) days, after
the envelope containing it is delivered to the custody of the postal authorities.
21.3 In proving service it is sufficient to prove that facsimile or other electronic transmission was
received or personal delivery was made, or that the envelope containing the notice was properly
addressed and delivered into the custody of the postal authority as a prepaid first class recorded
delivery airmail letters (as appropriate).
xlviii
22. COSTS
22.1 Each of Aquarius, BidCo and Sibanye shall be responsible for the payment of their own costs,
expenses and fees incurred respectively in respect of drafting, negotiating and consummating
Transaction Documents and the transactions related thereto.
23. ASSIGNMENT
23.1 Subject to this Clause 20 this Agreement shall be binding upon and enure for the benefit of the
successors and assigns of the Parties including, and, subject to any succession or assignment
permitted by this Agreement, any such successor or assignee of the Parties shall in its own right
be able to enforce any term of this Agreement.
23.2 None of the Parties shall be entitled to (i) assign, (ii) transfer, (iii) charge, (iv) declare or create a
trust or other interest over or (v) deal in any other manner with any of their respective rights or
obligations under this Agreement without the prior written consent of the other Parties.
24. SEVERABILITY
If any of the clauses, conditions, covenants or restrictions (each a “Provision”) of this Agreement
or any deed or document emanating from it shall be found to be void but would be valid if some
part thereof were deleted or modified, then the Provision shall apply with such deletion or
modification as may be necessary to make it valid and effective.
25. PERFORMANCE, WAIVER, RELEASE AND VARIATION
25.1 The failure or delay of any Party at any time or times to require performance of any Provision of
this Agreement shall not affect its right to enforce such Provision at a later time.
25.2 No waiver by any Party of the breach of any term, representation or warranty contained in this
Agreement, whether by conduct or otherwise, in any one or more instances shall be deemed to
be or construed as a further or continuing waiver of any such condition or breach or a waiver of
any other condition or of the breach of any other term, covenant, representation, warranty or
undertaking in this Agreement.
25.3 Any liability to any Party under this Agreement may in whole or in part be released, compounded
or compromised and time or indulgence may be given by any Party in its absolute discretion as
regards any other Party under such liability without in any way prejudicing or affecting its rights
against any Third Party under the same or a like liability, whether joint and several or otherwise.
25.4 This Agreement may only be varied or any of its Provisions waived by the agreement in writing of
(or on behalf of) each of the Parties from time to time or, in the case of a waiver, the Party
waiving compliance.
26. COUNTERPARTS
26.1 This Agreement may be executed in any number of counterparts, each of which will be deemed
to be an original and all of which taken together will be deemed to constitute one and the same
instrument. Counterparts may be executed either in original or faxed or scanned form and the
Parties adopt any signatures received by a receiving fax machine or as an email attachment as
original signatures of the Parties; provided, however, that any Party providing its signature in
xlix
such manner will promptly forward to the other Party an original of the signed copy of this
Agreement which was so faxed or emailed.
27. ENTIRE AGREEMENT
This Agreement together with the other Transaction Documents and the Non-Disclosure
Agreement constitutes the entire agreement between the Parties and supersedes and
extinguishes all previous drafts, agreements, arrangements and understandings between them,
whether written or oral, relating to its subject matter and no variations hereof shall be effective
unless prior to the Amalgamation, such variations are made in writing and signed by each of the
Parties hereto.
28. NO MERGER
The rights and obligations of the Parties:
(a) do not merge on completion of the Transaction; and
(b) survive the execution and delivery of any assignment or other document entered into for
the purpose of implementing the Transaction.
29. GOVERNING LAW
29.1 This Agreement shall be governed by, and construed in accordance with the laws of Bermuda.
29.2 The Parties hereby:
(a) agree (that any action or proceeding relating to this Agreement shall be brought in a court
of competent jurisdiction in Bermuda (which shall have exclusive jurisdiction) and hereby
irrevocably and unconditionally submits to the jurisdiction of the courts of Bermuda;
(b) irrevocably waive any right to, and will not, oppose any such action or proceeding on any
jurisdictional basis, including forum non conveniens; and
(c) agree not to oppose the enforcement against it in any jurisdiction of any judgment in or
order duly obtained from a court of Bermuda.
l
IN WITNESS WHEREOF this Agreement has been executed as a deed and delivered by the Parties the
day and year first before written.
EXECUTED as a DEED and DELIVERED
by SIBANYE GOLD LIMITED:
Signature of director Signature of director/secretary
Name Name
EXECUTED as a DEED and DELIVERED )
By (name) )
for and on behalf of )
SIBANYE PLATINUM BERMUDA )
PROPRIETARY LIMITED )
in the presence of )
Signature of Witness: __________________________
Name of Witness: __________________________
Address of Witness: __________________________
EXECUTED as a DEED and DELIVERED
by AQUARIUS PLATINUM LIMITED:
Signature of director Signature of director/secretary
Name Name
li
SCHEDULE 1
NOTICES
Name of Party Address and Contact Details
Sibanye Address: Libanon Business Park, 1 Hospital Street, Libanon,
Westonaria, 1780, South Africa
Attention: Company Secretary
Fax number: +27 11 278 9863
Email: cain.farrel@sibanyegold.co.za
th
BidCo Address: 5 Floor, Andrew’s Place, 51 Church Street, Hamilton HM 12,
Bermuda
Attention: Company Secretary
Fax number: +1 441 236 1999
Email:
Aquarius Address: PO Box 7840, Centurion 0046, South Africa
Attention: Jean Nel (Chief Executive Officer)
Fax number: +27 12 001 2070
Email: Jean.Nel@aquariusplatinum.com
lii
SCHEDULE 2
INDICATIVE TIMETABLE OF PRINCIPAL EVENTS
All references in this document to times are to Bermuda time unless otherwise stated.
Event Time / Date
Dispatch of Notice of Amalgamation Meeting 21 days prior to the Amalgamation Meeting
Last time for receipt of proxy forms
48 hours prior to the Amalgamation Meeting
for Amalgamation Meeting
5.00pm, Sydney time, on the Business Day prior to the date of
Amalgamation Meeting voting record date
the Amalgamation Meeting
9.00am on a date anticipated to be in December 2015, in
Amalgamation Meeting
Bermuda
Announcement of results of Amalgamation Meeting No later than 5.00pm on day of the Amalgamation Meeting
The date on which all of the Conditions have been fulfilled (but
prior to the registration of the Amalgamated Company and
Conditions Fulfilment Date
cancellation of the Aquarius Shares, which is the time at which
the Amalgamation becomes Effective)
Announcement of Conditions Fulfilment No later than 5.00pm on the Conditions Fulfilment Date
Suspension of trading of Aquarius Shares on all 4.00pm, Sydney time, on the Business Day after the Conditions
relevant securities exchanges Fulfilment Date
5.00 pm Sydney time on the fifth Business Day after the
Record Date for the Amalgamation suspension of trading (to allow for all trades occurring on the last
day of trading to settle and be recorded in the Aquarius Register)
The date and time at which the Amalgamation becomes
Effective by the issue of the Certificate of Amalgamation by the
Effective Time and cancellation of Aquarius Shares
Registrar of Companies, intended to be at 9.00am on the next
Business Day after the Record Date
Payment of the Amalgamation Consideration Within ten (10) Business Days of the Effective Date
End Date Six months after Implementation Agreement, unless extended
The Amalgamation Meeting will be held at the offices of Conyers, Dill and Pearman Limited of Clarendon
House, 2 Church Street, Hamilton, Bermuda.
liii
ANNEXURE A
AMALGAMATION AGREEMENT
liv
Dated
[ ] October 2015
Amalgamation Agreement
between
Sibanye Gold Limited
and
Sibanye Platinum Bermuda Proprietary Limited
and
Aquarius Platinum Limited
lv
TABLE OF CONTENTS
1. DEFINITIONS AND INTERPRETATION 1
2. AMALGAMATION 2
3. NAME AND REGISTERED OFFICE 2
4. MEMORANDUM AND BYE-LAWS 2
5. BOARD OF DIRECTORS AND OFFICERS 2
6. SHARES 2
7. ASSETS AND LIABILITIES 3
8. FURTHER ASSURANCE 3
9. COUNTERPARTS 3
10. GOVERNING LAW AND JURISDICTION 3
SCHEDULE 1 – SHAREHOLDERS OF THE PARTIES 6
PART 1 – AQUARIUS 6
PART 2 - [BIDCO] 6
PART 3 – SHAREHOLDINGS IN THE AMALGAMATED COMPANY 6
SCHEDULE 2 – DIRECTORS OF THE AMALGAMATED COMPANY 8
ANNEXURE A 9
MEMORANDUM OF ASSOCIATION OF THE AMALGAMATED COMPANY 9
ANNEXURE B 10
BYE-LAWS OF THE AMALGAMATED COMPANY 10
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THIS AMALGAMATION AGREEMENT (Agreement) is dated [ ] October 2015
BETWEEN:
(4) Sibanye Gold Limited, a company incorporated and registered in South Africa with company
number 2002/031431/06 whose registered office is at Libanon Business Park, 1 Hospital
Street, Libanon, Westonaria, 1780, South Africa (Sibanye);
(5) Sibanye Platinum Bermuda Proprietary Limited, an exempted company, incorporated and
registered in Bermuda with company number 50664 whose registered office is at c/o BeesMont
Corporate Services Limited, 5th Floor, Andrew’s Place, 51 Church Street, Hamilton HM 12,
Bermuda (BidCo); and
(6) Aquarius Platinum Limited, an exempted company, incorporated and registered in Bermuda
with company number 26290 whose registered office is at Clarendon House, 2 Church Street,
Hamilton HM 11, Bermuda (Aquarius)
(collectively Sibanye, BidCo and Aquarius are referred to herein as the “Parties” and each
individually as a “Party”).
RECITALS
(A) BidCo is a wholly owned indirect subsidiary of Sibanye.
(B) The Parties have agreed to enter into an amalgamation pursuant to which Aquarius and BidCo
shall amalgamate and continue as one company in accordance with the provisions of the
Companies Act 1981 of Bermuda, as amended and continue as one exempted company on the
terms hereinafter appearing.
(C) This Agreement is the Amalgamation Agreement referred to in the Implementation Agreement
dated [ ] October 2015 between the Parties (Implementation Agreement).
AGREEMENT
(a) DEFINITIONS AND INTERPRETATION
a.1. Unless otherwise defined herein, words and expressions defined in the Implementation
Agreement shall have the same meanings in this Agreement, save as the context may
otherwise require.
a.2. References herein to "this Agreement" are to this Amalgamation Agreement and include all
Schedules hereto.
a.3. The Schedules attached hereto form an integral part of this Agreement.
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(b) AMALGAMATION
b.1. The Parties agree that, on the terms and subject to the conditions of this Agreement and the
Implementation Agreement and in accordance with the Companies Act, at the Effective Time,
each of Aquarius and [BidCo] does hereby agree to amalgamate and to continue as one
company under the terms and conditions hereinafter set out.
(c) NAME AND REGISTERED OFFICE
c.1. The name of the Amalgamated Company shall be “Sibanye Platinum Bermuda Proprietary
Limited” and the registered office of the Amalgamated Company shall be c/o BeesMont
Corporate Services Limited, 5th Floor, Andrew’s Place, 51 Church Street, Hamilton HM 12,
Bermuda.
(d) MEMORANDUM AND BYE-LAWS
d.1. The Memorandum of Association of the Amalgamated Company shall be the memorandum of
association of the Amalgamated Company attached as Annexure A to this Agreement.
d.2. The bye-laws of the Amalgamated Company shall be the bye-laws attached as Annexure B to
this Agreement.
(e) BOARD OF DIRECTORS AND OFFICERS
e.1. At the Effective Time the board of directors of the Amalgamated Company shall consist of the
persons whose names and addresses are set out in SCHEDULE 2 , who shall hold office until
the first annual meeting of the Amalgamated Company or until their successors are elected or
appointed.
e.2. The Secretary of the Amalgamated Company shall be BeesMont Corporate Services Limited.
(f) SHARES
f.1. Prior to the Effective Time, the respective shareholdings of each of Aquarius and [BidCo] are
set out in Parts 1 and 2, respectively of SCHEDULE 1.
f.2. At the Effective Time, by virtue of the Amalgamation becoming effective and without any further
action on the part of the Parties or their respective shareholders:
(a) Conversion of Amalgamation Shares: Each Amalgamation Share issued and outstanding
immediately prior to the Effective Time shall be cancelled and converted automatically into the
right to receive the Amalgamation Consideration. The settlement of the Amalgamation
Consideration shall be processed in accordance with Clause 16 of the Implementation
Agreement.
(b) Dissenting Shares: each Dissenting Share shall be cancelled and converted into the right to
receive the fair value thereof (as determined in accordance with and subject to the provisions
of Clause 3.3 of the Implementation Agreement).
(c) Excluded Shares: Notwithstanding anything in this Agreement to the contrary, each Excluded
Share shall, by virtue of the Amalgamation and without any further action on the part of the
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Execution Version
holder of the Excluded Shares, be cancelled and shall cease to exist and no Amalgamation
Consideration shall be delivered in respect of the Excluded Shares.
(d) [BidCo] Shares: Each [BidCo] Share issued and outstanding immediately prior to the Effective
Time shall be converted into and become an ordinary share of the Amalgamated Company
which shall be wholly owned (directly or indirectly) by Sibanye.
Accordingly, following the Amalgamation at the Effective Time, there will be [ ] fully paid
ordinary shares of the Amalgamated Company issued to, and registered in the name of
Sibanye as set out in Part 3 of SCHEDULE 1.
6.4 Promptly after the Effective Time the settlement and exchange procedures set forth in Clause
16 of the Implementation Agreement shall be implemented.
(g) ASSETS AND LIABILITIES
g.1. The Amalgamated Company shall possess all the property, assets, rights and privileges and
shall be subject to all the contracts, liabilities, debts and obligations of each of Aquarius and
[BidCo].
g.2. All the rights of creditors against the property, assets, rights and privileges of either Aquarius or
[BidCo] and all liens upon their property, rights and assets shall be unimpaired by the
Amalgamation and all debts, contracts, liabilities and duties of either Aquarius or [BidCo] at the
Effective Time shall be those of the Amalgamated Company.
g.3. No action or proceeding by or against either Aquarius or [BidCo] shall abate or be affected by
the Amalgamation.
(h) FURTHER ASSURANCE
h.1. Each of the Parties agree to execute and do all such acts deeds and things as shall or may be
necessary to give effect to their respective undertakings pursuant to this Agreement.
(i) COUNTERPARTS
i.1. This Agreement may be executed in any number of counterparts, each of which will be deemed
to be an original and all of which taken together will be deemed to constitute one and the same
instrument.
(j) GOVERNING LAW AND JURISDICTION
j.1. This Agreement shall be governed by and construed in accordance with the laws of Bermuda.
j.2. The Parties hereby agree:
(a) that any action or proceeding relating to this Agreement shall be brought in a court of
competent jurisdiction in Bermuda (which shall have exclusive jurisdiction) and hereby
irrevocably and unconditionally attorns and submits to the jurisdiction of the courts of
Bermuda;
3
Execution Version
(b) that they irrevocably waive any right to, and will not, oppose any such action or proceeding on
any jurisdictional basis, including forum non conveniens; and
(c) not to oppose the enforcement against it in any jurisdiction of any judgment, in or order duly
obtained from, a court of Bermuda.
REST OF THE PAGE LEFT INTENTIONALLY BLANK
4
Execution Version
IN WITNESS WHEREOF this Agreement has been executed as a deed and delivered the day and
year first before written.
EXECUTED as a DEED )
by [Name] )
for and on behalf of SIBANYE GOLD LIMITED )
in the presence of: )
Signature of Witness:
Name of Witness:
Address of Witness:
EXECUTED as a DEED )
by [Name] )
for and on behalf of SIBANYE PLATINUM )
BERMUDA PROPRIETARY LIMITED )
In the presence of )
Signature of Witness:
Name of Witness:
Address of Witness:
5
Execution Version
EXECUTED as a DEED )
by [Name] )
for and on behalf of AQUARIUS PLATINUM )
LIMITED )
in the presence of: )
Signature of Witness:
Name of Witness:
Address of Witness:
SCHEDULE 3SCHEDULE 1 – SHAREHOLDERS OF
THE PARTIES
SCHEDULE 4
PART 1 – AQUARIUS
Shareholder Number of Shares (issued and fully paid)
[Name] [ ]
PART 2 - [BIDCO]
Shareholder Number of Shares (issued and fully paid)
[Name] [ ]
[Name] [ ]
PART 3 – SHAREHOLDINGS IN THE AMALGAMATED COMPANY
6
Execution Version
Shareholder Number of Shares (issued and fully paid)
[Name] [ ]
[Name] [ ]
7
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SCHEDULE 5SCHEDULE 2 – DIRECTORS OF THE
AMALGAMATED COMPANY
Name of Director Address of Director
[Name] [ ]
[Name] [ ]
[Name] [ ]
[Name] [ ]
[Name] [ ]
8
Execution Version
ANNEXURE A
MEMORANDUM OF ASSOCIATION OF THE AMALGAMATED COMPANY
9
Execution Version
ANNEXURE B
BYE-LAWS OF THE AMALGAMATED COMPANY
10
Execution Version
ANNEXURE B
AQUARIUS STATUTORY DECLARATION
DECLARATION UNDER SECTION 108(3)
OF THE COMPANIES ACT 1981
I, [Name of Officer/Director], of [Address], being an Officer of Aquarius Platinum Limited (Company)
do solemnly and sincerely declare that, to the best of my knowledge and belief:
1. the Company is, and the amalgamated company (Amalgamated Company) following the
amalgamation (Amalgamation) of the Company and Sibanye Platinum Bermuda Proprietary
Limited will be able to pay its liabilities as they become due;
2. the realisable value of the Amalgamated Company’s assets following the Amalgamation will not
be less than the aggregate of all its liabilities and issued capital of all classes; and
3. there are reasonable grounds for believing that no creditor will be prejudiced by the
Amalgamation.
AND I make this solemn Declaration conscientiously believing the same to be true.
DECLARED at [ ]
this day of [ ], 2015
before me:
..............................................................
Commissioner for Oaths/Notary Public
11
Execution Version
ANNEXURE C
BIDCO STATUTORY DECLARATION
DECLARATION UNDER SECTION 108(3)
OF THE COMPANIES ACT 1981
I, [Name of Officer/Director], of [Address], being an Officer of Sibanye Platinum Bermuda Proprietary
Limited (Company) do solemnly and sincerely declare that, to the best of my knowledge and belief:
1. the Company is, and the amalgamated company (Amalgamated Company) following the
amalgamation (Amalgamation) of the Company and Aquarius Platinum Limited will be able to
pay its liabilities as they become due;
2. the realisable value of the Amalgamated Company’s assets following the Amalgamation will not
be less than the aggregate of all its liabilities and issued capital of all classes; and
3. there are reasonable grounds for believing that no creditor will be prejudiced by the
Amalgamation.
AND I make this solemn Declaration conscientiously believing the same to be true.
DECLARED at [ ]
this day of [ ], 2015
before me:
..............................................................
Commissioner for Oaths/Notary Public
Note 1
Based on LSE listed shares. Premia calculated using a GBP/USD exchange rate of 1.515, AUD/USD of 0.708 and ZAR/USD
0.073 as at 5 October 2015
6 October 2015
Sponsor
RAND MERCHANT BANK (A division of FirstRand Bank Limited)
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