TIDMCZA
RNS Number : 4195R
Coal of Africa Limited
03 November 2011
Coal of Africa Limited - Proposed cash placing to raise
approximately US$100 million
3 November 2011
THE INFORMATION CONTAINED HEREIN IS RESTRICTED AND IS NOT FOR
PUBLICATION, RELEASE OR DISTRIBUTION, DIRECTLY OR INDIRECTLY, IN OR
INTO THE UNITED STATES, AUSTRALIA, CANADA, JAPAN OR ANY OTHER
JURISDICTION IN WHICH SUCH PUBLICATION, RELEASE OR DISTRIBUTION
WOULD BE UNLAWFUL
Neither this Announcement nor any part of it constitutes an
offer to sell or issue or the solicitation of an offer to buy,
subscribe or acquire any new Ordinary Shares in any jurisdiction in
which any such offer or solicitation would be unlawful and the
information contained herein is not for publication or
distribution, directly or indirectly, in or into the United States,
Australia, Canada, Japan or any jurisdiction in which such
publication or distribution would be unlawful.
COAL OF AFRICA LIMITED
(incorporated and registered in Western Australia with ACN 008
905 388)
("CoAL" or the "Company")
Proposed cash placing to raise approximately US$100 million
(before expenses)
CoAL today announces its intention to conduct a placing to raise
approximately US$100 million (before expenses) through the issue of
new ordinary shares ("Ordinary Shares") in the Company (the
"Placing Shares") (the "Placing").
Up to 79,676,037 Placing Shares are to be placed firm and issued
by the Company further to the directors' authority to allot
Ordinary Shares for cash, on a non-pre-emptive basis (the "Firm
Placing Shares"). An additional number of Placing Shares
("Conditional Placing Shares") will be placed with investors
conditional on shareholder approval at a general meeting of the
Company to be convened on or around 14 December 2011 (the "GM").
The precise total number of shares issued in the Placing will be
finally determined such that the proceeds arising from the Placing
amount to approximately US$100 million (before expenses).
The price per Ordinary Share at which the Placing Shares are to
be placed (the "Placing Price") will be determined at the close of
the Bookbuild (as defined below). The Placing will be to
institutional investors to raise approximately US$100 million
(approximately GBP63 million/South African Rand 798 million)
(before expenses). The Placing is being conducted through an
accelerated book-building process to be undertaken by J.P. Morgan
Securities Ltd. (which conducts its UK investment banking
activities as J.P. Morgan Cazenove ("J.P. Morgan Cazenove")), which
is also acting as Sole Global Co-ordinator and Bookrunner. Mirabaud
Securities LLP ("Mirabaud") is acting as Joint Lead Manager and
Evolution Securities Limited ("Evolution") is acting as Co-Lead
Manager to the Placing (together with J.P. Morgan Cazenove, the
"Managers"). Macquarie First South Capital (Proprietary) Limited
("Macquarie") is acting as the JSE Transaction Sponsor to CoAL.
New Bank Facility
CoAL also announces today that it has entered into a new 364 day
US$40 million revolving credit facility with J.P. Morgan Europe
Ltd., (the "New Bank Facility"). Drawdown on the New Bank Facility
is conditional on the Company raising minimum gross proceeds of
US$75 million in the Placing, an amount such that drawdown is
expected to require the approval by shareholders for the issue of
the Conditional Placing Shares at the GM on or around 14 December
2011. The New Bank Facility is unsecured and has a negative pledge
mechanism in place. Under the terms of the New Bank Facility, the
Company must draw down its existing facilities to a balance of
US$45 million before it may begin to draw down the New Bank
Facility. The New Bank Facility includes ongoing requirements as to
the Group's environmental compliance status, planning and
procedures.
The Placing
The Placing is subject to the terms and conditions set out in
Appendix A. J.P. Morgan Cazenove will today commence an accelerated
bookbuilding process in respect of the Placing ("Bookbuild"). The
book will open with immediate effect. The timing of the closing of
the book, pricing and allocations is at the discretion of J.P.
Morgan Cazenove and CoAL. Details of the Placing Price will be
announced as soon as practicable after the close of the
Bookbuild.
The Placing Shares will be credited as fully paid and will rank
pari passu in all respects with the existing Ordinary Shares
including the right to receive all dividends and other
distributions declared, made or paid after their date of issue.
The Firm Placing Shares will be issued on a non-pre-emptive
basis.
The Company will apply for admission of the Firm Placing Shares
to trading on the AIM market of London Stock Exchange plc ("AIM")
("First Admission") and the Main Board of the JSE Limited ("JSE").
It is expected that admission to trading or quotation and listing
of the Firm Placing Shares will take place on or around 8 November
2011 on AIM and on or around 9 November 2011 on the JSE.
The Company will also apply for admission of the Conditional
Placing Shares, the issue of which is subject to shareholder
approval, on AIM ("Second Admission") and on the JSE. It is
expected that admission to trading or quotation and listing of the
Conditional Placing Shares will take place on AIM on or around 14
December 2011 and on the JSE and on or around 15 December 2011.
Application will also be made for the Placing Shares to be
admitted to the ASX.
The Firm Placing is conditional, among other things, upon First
Admission becoming effective. The Conditional Placing is
conditional, among other things, upon shareholder approval and
First Admission and Second Admission becoming effective. The Firm
Placing is not conditional on the Conditional Placing. At the GM,
Placees who have been allocated to receive Conditional Placing
Shares will not be entitled to vote on the resolution to approve
the issue of the Conditional Placing Shares.
The Placing is also conditional upon the placing agreement
between the Company and the Managers not being terminated. Appendix
A to this Announcement (which forms a part of this Announcement)
sets out further information relating to the Bookbuild and the
terms and conditions of the Placing.
Investors who participate in the Placing will receive an
allocation of Firm Placing Shares and/or Conditional Placing Shares
at the discretion of J.P. Morgan Cazenove. Placees should refer to
their trade confirmation and Placing Allocation Letter in respect
of each. The Firm Placing Shares will settle on AIM on a T+3 basis
and on the JSE on a T+5 basis. The expected date of the GM is on or
around 14 December 2011 and the anticipated settlement date of the
Conditional Placing Shares on AIM is 14 December 2011 and on the
JSE is 19 December 2011, however these dates are subject to
change.
In the event shareholder approval for the issue of the
Conditional Placing Shares is not received at the GM, the
Conditional Placing Shares will not be issued, and the proceeds of
the Firm Placing alone will constitute the Placing proceeds.
Drawdown of the New Bank Facility is conditional on the Company
raising minimum gross proceeds of US$75 million in the Placing. It
is unlikely that the proceeds of the Firm Placing alone will
satisfy this requirement and therefore the Company will be unable
to drawdown on the New Bank Facility unless approval for the
Conditional Placing Shares is received.
For the avoidance of doubt, no commissions or other
consideration will be payable by the Managers or the Company in
respect of any agreement to subscribe for Placing Shares.
Reasons for the Placing and the use of proceeds
CoAL requires finance for the continuing development of the
Company's projects including the Vele colliery and for the
completion of the acquisition of Chapudi Coal (Proprietary) Limited
and Kwezi Mining Exploration Proprietary Limited, the holders of
certain prospecting rights over coal assets at Chapudi in the
Soutpansberg Coalfield, South Africa from Rio Tinto Minerals
Development Limited and Kwezi Mining Proprietary Limited (together
the "Sellers") (the "Chapudi Acquisition"), announced on 29
November 2010.
The Company intends to use the net proceeds of the Placing to
finance the following:
-- the remaining capital expenditure to bring the Vele project
into production and related working capital - c. US$25 million;
-- the first tranche cash consideration for the Chapudi
Acquisition upon receipt of regulatory approvals (by no later than
30 April 2012 under the terms of the Sale and Purchase Agreement
(as amended) with the Sellers) - US$43 million payable on
completion of the acquisition in addition to the deposit of US$2
million that has already been paid to the Sellers;
-- c. US$15 million on targeted exploration activities and a
technical programme at Chapudi and in respect of other Soutpansberg
Coalfield projects in order to advance preparation for New Order
Mining Right applications; and
-- c. US$17 million for general working capital/corporate
purposes including c. US$10 million to establish a financial
guarantee for the Transnet Freight Rail account and c. US$5 million
in adviser fees for the preparation of the registration document
and Mineral Expert's Report published on 31 October 2011.
In the event that the Conditional Placing is not approved at the
GM, the Company will need to find alternative ways to fund these
projects and there is no guarantee that such funding will be
available or of the terms of any such alternative funding.
The Company expects to complete the definitive feasibility study
in respect of its Makhado project in this quarter and continues to
evaluate its multiple funding options for the project.
Commenting on the Placing, John Wallington, Chief Executive
Officer of CoAL said:
"The last twelve months have been challenging for CoAL, but even
set against this backdrop, we have achieved both core business
stabilisation and growth. The Company's two operating assets
produced in excess of 4 Mt of thermal coal along with positive cash
flows. The year ahead holds the prospect of both the start of
material production at Vele, and the completion of the Chapudi
acquisition which will enable CoAL to consolidate its position as a
leading holder of coking coal New Order Prospecting Rights in the
Soutpansberg Coalfield in the Limpopo Province. Today's
announcement regarding our proposed equity capital raise and a new
credit facility would ensure that growth can be sustained on the
foundations of a robust balance sheet and strong capital base."
Analyst conference call
A conference call for analysts and investors will be held today
at 10.30am (GMT). The dial-in details are as follows:
UK Access Number: 0800 368 1950 (Toll Free)
International Access Number: +44 (0)20 3140 0668
The Conference ID in all cases will be: 412277#
A copy of the presentation is available on the company's
website: www.coalofafrica.com
Contacts
CoAL
Tel: +27 (0) 11 575 4363
John Wallington
Wayne Koonin
J.P. Morgan Cazenove
Tel: +44 (0) 20 7325 1000
Verne Grinstead
Chris Nicholls
Neil Passmore
Mirabaud
Tel +44 207 878 3362
Peter Krens
Rory Scott
Evolution
Tel: +44 (0) 20 7071 4300
Chris Sim
Mark Wellesley-Wood
Jeremy Ellis
Macquarie
Tel: +27 (0) 11 583 2000
Melanie de Nysschen
Annerie Britz
Yvette Labuschagne
Tavistock (United Kingdom)
Tel: +44 (0) 20 7920 3150
Jos Simson
Emily Fenton
Russell & Associates (South Africa)
Tel: +27 (0) 11 880 3924
Tel: +27 (0) 82 372 5816
Charmane Russell
James Duncan
THE INFORMATION CONTAINED HEREIN IS RESTRICTED AND IS NOT FOR
PUBLICATION, RELEASE OR DISTRIBUTION, DIRECTLY OR INDIRECTLY, IN OR
INTO THE UNITED STATES, AUSTRALIA, CANADA, JAPAN OR ANY OTHER
JURISDICTION IN WHICH SUCH PUBLICATION, RELEASE OR DISTRIBUTION
WOULD BE UNLAWFUL.
This Announcement has been issued by and is the sole
responsibility of the Company. No representation or warranty,
express or implied, is or will be made as to, or in relation to,
and no responsibility or liability is or will be accepted by J.P.
Morgan Cazenove, Mirabaud, Evolution or Macquarie or by any of
their respective affiliates or agents as to or in relation to, the
accuracy or completeness of this Announcement or any other written
or oral information made available to or publicly available to any
interested party or its advisers, and any liability therefore is
expressly disclaimed.
J.P. Morgan Cazenove is acting as Global Co-ordinator and
Bookrunner, Mirabaud is acting as Joint Lead Manager, and Evolution
is acting as Co-Lead Manager in connection with the Placing.
Macquarie is acting as the JSE Transaction Sponsor to the Company.
Each of J.P. Morgan Cazenove, Evolution and Mirabaud, each of which
is authorised and regulated by the Financial Services Authority,
and of Macquarie which is authorised by the Financial Services
Board are acting for the Company in connection with the Placing and
no-one else and none of J.P. Morgan Cazenove, Mirabaud, Evolution
nor Macquarie will be responsible to anyone other than the Company
for providing the protections afforded to the respective clients of
J.P. Morgan Cazenove, Mirabaud, Evolution and Macquarie nor for
providing advice in relation to the Placing or any other matter
referred to herein.
The distribution of this Announcement and the Placing of the
Placing Shares in certain jurisdictions may be restricted by law.
No action has been taken by the Company, J.P. Morgan Cazenove,
Mirabaud, Evolution or Macquarie that would permit an offering of
such shares or possession or distribution of this Announcement or
any other offering or publicity material relating to such shares in
any jurisdiction where action for that purpose is required. Persons
into whose possession this announcement comes are required by the
Company, J.P. Morgan Cazenove, Mirabaud, Evolution and Macquarie to
inform themselves about, and to observe, such restrictions.
Macquarie is not an authorised deposit-taking institution for
the purposes of the Banking Act 1959 (Commonwealth of Australia),
and its obligations do not represent deposits or other liabilities
of Macquarie Bank Limited ABN 46 008 583 542 ("MBL"). MBL does not
guarantee or otherwise provide assurance in respect of the
obligations of Macquarie.
The information in this Announcement shall not constitute an
offer to sell or the solicitation of an offer to buy, nor shall
there be any sale of, the securities referred to herein in any
jurisdiction in which such offer, solicitation or sale would
require preparation of further prospectuses or other offer
documentation, or be unlawful prior to registration, exemption from
registration or qualification under the securities laws of any such
jurisdiction.
No public offer of securities of the Company is being made in
Australia, the United Kingdom, the United States, the Republic of
South Africa or elsewhere. The information in this Announcement
does not constitute or form a part of any offer or solicitation to
purchase or subscribe for securities in the United States. The
securities mentioned herein have not been, and will not be,
registered under the United States Securities Act of 1933 (the
"Securities Act") nor the security laws of any state or other
jurisdiction of the United States. The securities mentioned herein
may not be offered or sold in the United States except pursuant to
Regulation S under the Securities Act or another exemption from, or
transaction not subject to, the registration requirements of the
Securities Act. There will be no public offer of securities in the
United States.
The information in this Announcement may not be forwarded or
distributed to any other person and may not be reproduced in any
manner whatsoever. Any forwarding, distribution, reproduction, or
disclosure of this information in whole or in part is unauthorised.
Failure to comply with this directive may result in a violation of
the Securities Act or the applicable laws of other
jurisdictions.
APPENDIX A
TERMS AND CONDITIONS OF THE PLACING
IMPORTANT INFORMATION REGARDING THE PLACING FOR INVITED PLACEES
ONLY, CAPITALISED TERMS USED IN THIS APPENDIX ARE DEFINED IN THE
GLOSSARY TO THIS APPENDIX
THIS ANNOUNCEMENT IS NOT FOR RELEASE, PUBLICATION OR
DISTRIBUTION, DIRECTLY OR INDIRECTLY IN OR INTO THE UNITED STATES,
AUSTRALIA, CANADA OR JAPAN OR ANY OTHER JURISDICTION IN OR INTO
WHICH SUCH RELEASE, PUBLICATION OR DISTRIBUTION IS UNAUTHORISED OR
UNLAWFUL.
MEMBERS OF THE PUBLIC ARE NOT ELIGIBLE TO TAKE PART IN THE
PLACING. THIS APPENDIX AND THE TERMS AND CONDITIONS SET OUT HEREIN
ARE FOR INFORMATION PURPOSES ONLY AND ARE DIRECTED ONLY AT PERSONS
SELECTED BY THE MANAGERS WHO ARE: (A) PERSONS IN MEMBER STATES OF
THE EUROPEAN ECONOMIC AREA WHO ARE QUALIFIED INVESTORS WITHIN THE
MEANING OF ARTICLE 2(1)(E) OF THE PROSPECTUS DIRECTIVE (DIRECTIVE
2003/71/EC) ("QUALIFIED INVESTORS"); (B) IN THE UNITED KINGDOM,
QUALIFIED INVESTORS WHO ARE PERSONS WHO: (I) HAVE PROFESSIONAL
EXPERIENCE IN MATTERS RELATING TO INVESTMENTS AND ARE "INVESTMENT
PROFESSIONALS" FALLING WITHIN ARTICLE 19(5) OF THE UNITED KINGDOM
FINANCIAL SERVICES AND MARKETS ACT, 2000 (FINANCIAL PROMOTION)
ORDER 2005 (AS AMENDED) (THE "ORDER"); OR (II) ARE PERSONS FALLING
WITHIN ARTICLE 49(2)(A) TO (D) ("HIGH NET WORTH COMPANIES,
UNINCORPORATED ASSOCIATIONS, ETC") OF THE ORDER; (C) IN THE
REPUBLIC OF SOUTH AFRICA, INVESTORS QUALIFYING IN TERMS OF SECTION
96(1)(A) & (B) OF THE SOUTH AFRICAN COMPANIES ACT, 2008 (NO 71
OF 2008); OR (D) PERSONS TO WHOM IT MAY OTHERWISE BE LAWFULLY
COMMUNICATED (ALL SUCH PERSONS TOGETHER BEING REFERRED TO AS
"RELEVANT PERSONS"). THIS APPENDIX AND THE TERMS AND CONDITIONS SET
OUT HEREIN MUST NOT BE ACTED ON OR RELIED ON BY PERSONS WHO ARE NOT
RELEVANT PERSONS. ANY INVESTMENT OR INVESTMENT ACTIVITY TO WHICH
THIS APPENDIX AND THE TERMS AND CONDITIONS SET OUT HEREIN RELATES
IS AVAILABLE ONLY TO RELEVANT PERSONS AND WILL BE ENGAGED IN ONLY
WITH RELEVANT PERSONS. THIS ANNOUNCEMENT AND THE TERMS AND
CONDITIONS SET OUT IN THIS APPENDIX DOES NOT ITSELF CONSTITUTE AN
OFFER FOR SALE OR SUBSCRIPTION OF ANY SECURITIES IN THE
COMPANY.
Persons who are invited to and who choose to participate in the
Placing, by making an oral or written offer to subscribe for
Placing Shares (the "Placees"), will be deemed to have read and
understood this Announcement, including this Appendix, in its
entirety and to be making such offer on the terms and conditions,
and to be providing the representations, warranties,
acknowledgements, undertakings and agreements contained in this
Appendix. In particular, each such Placee represents, warrants and
acknowledges that it is a Relevant Person (as defined above) and
undertakes that it will acquire, hold, manage or dispose of any
Placing Shares that are allocated to it for the purposes of its
business. In addition, Placees located in certain jurisdictions
including the United Kingdom and South Africa will be required to
execute placing allocation letters in a form provided ("Placing
Allocation Letter").
This Announcement does not constitute an offer, and may not be
used in connection with an offer to sell or issue or the
solicitation of an offer to buy or subscribe for Placing Shares in
any jurisdiction in which such offer or solicitation is or may be
unauthorised or unlawful and any failure to comply with these
restrictions may constitute a violation of applicable securities
laws in such jurisdictions. This Announcement and the information
contained herein is not for release, publication or distribution,
directly or indirectly, to persons in the United States, Australia,
Canada or Japan or in any other jurisdiction in which such release,
publication or distribution is unauthorised or unlawful. Persons
into whose possession this Announcement may come are required by
the Company to inform themselves about and to observe any
restrictions on transfer of this Announcement. No public offer of
securities of the Company is being made in any jurisdiction.
In particular, the Placing Shares referred to in this
Announcement have not been and will not be registered under the
Securities Act or the laws of any state or other jurisdiction in
the United States and may not be, directly or indirectly, offered,
sold, pledged, resold, taken up, delivered or otherwise transferred
in or into the United States except pursuant to an exemption from,
or in a transaction not subject to, the registration requirements
of the Securities Act and applicable state laws.
The relevant clearances have not been, and nor will they be,
obtained from the securities commission of any province or
territory of Canada; no prospectus has been lodged and/or
registered with the ASIC, or the CIPC or the Japanese Ministry of
Finance; and the Placing Shares have not been, and nor will they
be, registered under or offered in compliance with the securities
laws of any state, province or territory of Australia, Canada or
Japan. Accordingly, the Placing Shares may not (unless an exemption
under the relevant securities laws is applicable) be offered, sold,
resold, pledged, taken up, delivered or otherwise transferred
directly or indirectly, in or into Australia, Canada or Japan or
any other jurisdiction where to do so would be unauthorised or
unlawful.
Persons (including, without limitation, nominees and trustees)
who have a contractual or other legal obligation to forward a copy
of this Appendix or the Announcement of which it forms part should
seek appropriate advice before taking any action.
Notice to South African Residents
This document is not a prospectus and is not to be construed as
an offer to the public in terms of the South African Companies Act,
2008, (No 71 of 2008). Accordingly, any securities referenced in
this Announcement will not be offered in such a way as to require
the issuing and registration of a prospectus in South Africa in
accordance with applicable South African law. This Announcement is
being distributed only to certain identified investors in South
Africa to whom it may be lawfully distributed. Nothing in this
Announcement should be viewed, or construed, as "advice" as that
term is used in the South African Securities Services Act, 2004
and/or Financial Advisory and Intermediary Services Act, 2002.
Notice to UK Residents
This Announcement is not a prospectus for the purposes of the
Prospectus Rules published by the UK Financial Services Authority
("FSA") and has not been, and will not be, approved by, or filed
with, the FSA. This Announcement contains no offer to the public
within the meaning of Section 102B of the United Kingdom Financial
Services and Markets Act 2000 (as amended), the United Kingdom
Companies Act 2006 or otherwise.
Notice to US Residents
This Announcement may not be distributed, taken or transmitted
in or into the United States, its territories or possessions and
any forwarding, distribution or reproduction of this announcement
in whole or in part is unauthorised. Failure to comply with this
notice may result in a violation of the Securities Act or the
applicable laws of other jurisdictions.
The Placing Shares have not been, and will not be, registered
under the Securities Act or with any securities regulatory
authority of any state or other jurisdiction of the United States
and may not be, directly or indirectly, offered, sold, resold,
pledged, taken up, delivered or otherwise transferred in or into
the United States unless such Placing Shares are registered under
the Securities Act or are offered and sold pursuant to an exemption
from, or in a transaction not subject to, the registration
requirements of the Securities Act and in compliance with any state
securities laws. The Placing Shares are not being offered or sold
to persons in the United States and are only being offered and sold
outside the United States pursuant to a transaction exempt from the
registration requirements of the Securities Act in compliance with
and in reliance on Regulation S.
The Placing Shares have not been approved or disapproved by the
US Securities and Exchange Commission, any state securities
commission or other regulatory authority in the United States, nor
have any of the foregoing authorities passed upon or endorsed the
merits of the Placing or the accuracy or adequacy of this
Announcement. Any representation to the contrary is a criminal
offence in the United States.
Details of the Placing Agreement and the Placing Shares
The Managers have entered into the Placing Agreement with the
Company under which the Managers have severally (and not jointly or
jointly and severally), on the terms and subject to the conditions
set out therein, undertaken to use their reasonable endeavours to
procure subscribers for the Placing Shares at the Placing Price.
Under the Placing up to 79,676,037 of the Placing Shares are to be
placed firm (the "Firm Placing Shares") and an additional number of
new Ordinary Shares are available to be placed subject to
shareholder approval at the General Meeting (the "Conditional
Placing Shares").
The Placing Shares will, when issued, be credited as fully paid
and will rank pari passu in all respects with the existing issued
Ordinary Shares including the right to receive all dividends and
other distributions declared made or paid after the date of
issue.
In this Appendix, unless the context otherwise requires, Placee
means a Relevant Person (including individuals, funds or others) on
whose behalf a commitment to subscribe for Placing Shares has been
given.
Application for listing and admission to trading
Application will be made to the London Stock Exchange for
admission to trading of the Firm Placing Shares to AIM. It is
expected that AIM Admission of the Firm Placing Shares will become
effective and that dealings on AIM in the Firm Placing Shares will
commence at 8.00 a.m. (London time) on or around 8 November 2011 in
accordance with the terms of the Placing Allocation Letters.
Application will be made to the JSE for the Firm Placing Shares
to be listed and admitted to trading on the Main Board of the JSE.
It is expected that listing will become effective at 9.00 a.m.
(Johannesburg time) on or around 9 November 2011. Settlement of the
Firm Placing Shares to be held on the South African Share Register
is expected to take place on or around 10 November 2011 in
accordance with the terms of the Placing Allocation Letters.
Application will be made to the London Stock Exchange for
admission to trading of the Conditional Placing Shares to AIM.
Settlement for any Conditional Placing Shares issued and allotted
pursuant to the Placing will, subject to the passing of the
Shareholder Resolution, take place on the date of the Second
Admission which is expected to be on or around 14 December 2011 in
accordance with the terms of the Placing Allocation Letters.
Application will be made to the JSE for the Conditional Placing
Shares to be listed and admitted to trading on the Main Board of
the JSE. It is expected that listing will become effective at
9.00am (Johannesburg time) on or around 15 December 2011.
Settlement of the Firm Placing Shares to be held on the South
African Share Register is expected, subject to the passing of the
Shareholder Resolution to take place on or around 19 December 2011
in accordance with the terms of the Placing Allocation Letters.
Bookbuild
The Managers will today commence an accelerated bookbuilding
process in respect of the Placing (the "Bookbuild") to determine
demand for participation in the Placing by Placees. This Appendix
gives details of the terms and conditions of, and the mechanics of
participation in, the Placing. No commissions will be paid to
Placees or by Placees in respect of any Placing Shares.
The Managers and the Company shall be entitled to effect the
Placing by such alternative method to the Bookbuild as they may, in
their sole discretion, determine.
Participation in, and principal terms of, the Placing:
1 J.P. Morgan Cazenove is acting as global co-ordinator,
bookrunner and manager, Mirabaud is acting as lead manager and
Evolution is acting as co-manager and as agents of the Company.
2 By participating in the Bookbuild and Placing, you (and any
person acting on your behalf including, for the avoidance of doubt,
any nominee) acknowledge that J.P. Morgan Cazenove, Mirabaud and
Evolution are not making any recommendation to you nor advising
you, nor are you relying on them to advise, regarding the
suitability or merits of your acquiring any Placing Shares or
entering into any transaction connected with them. You acknowledge
and agree that J.P. Morgan Cazenove is acting as the global
co-ordinator, bookrunner and manager in respect of the Placing,
Mirabaud is acting as lead manager and Evolution is acting as
co-manager and are assisting the Company in identifying prospective
purchasers for the Placing Shares and providing other assistance to
the Company in respect of the Placing. Accordingly, you acknowledge
and agree that they are not acting for, and that you do not expect
them to have, and acknowledge and agree that they do not have, any
duties or responsibilities towards
you for providing protections afforded to their customers or
clients or advising you with regard to your participation in the
Placing and that you are not, and will not be, a customer or client
of either J.P. Morgan Cazenove, Mirabaud and Evolution in relation
to your participation in the Placing. Therefore none of them will
be responsible to you or to any other person for providing the
protections afforded to their respective clients or for providing
advice in relation to the transactions and arrangements described
in this Announcement, nor do the contents or receipt of this
Announcement constitute the provision of investment advice by
either J.P. Morgan Cazenove, Mirabaud or Evolution.
3 Participation in the Placing will only be available to persons
who may lawfully be and are invited to participate by the Managers.
The Managers and their respective affiliates or their respective
agents are entitled to enter bids as principal in the
Bookbuild.
4 The Bookbuild will establish a single price in Pounds
Sterling. A South African Rand price will be determined from that
Pounds Sterling price at an exchange rate to be determined at the
sole discretion of the Bookrunner. When submitting bids, Placees
will be entitled to choose whether they wish to settle in Pounds
Sterling or South African Rand, in each case payable to the
Managers by all Placees whose bids are successful (the "Placing
Price"). The Placing Price, the number of Placing Shares to be
issued, the split of the Placing Shares between Firm Placing Shares
and Conditional Placing Shares and the aggregate proceeds to be
raised through the Placing will be determined by the Bookrunner in
consultation with the Company following completion of the
Bookbuild. The Placing Price will be announced on a Regulatory
Information Service following the completion of the Bookbuild (the
"Placing Results Announcement").
5 To bid in the Bookbuild, Placees should communicate their bid
by telephone to their usual sales contact at the Managers (the
"Relevant Manager"). Each bid should state the number of Placing
Shares for which the prospective Placee wishes to subscribe at
either the Pounds Sterling or South African Rand Placing Price,
which is ultimately established by the Bookrunner in consultation
with the Company, or at prices in Pounds Sterling or South African
Rand up to a price limit in Pounds Sterling or South African Rand
specified in its bid. Bids may be scaled down or allocated between
Firm Placing Shares and Conditional Placing Shares by the
Bookrunner on the basis referred to in paragraph 9 below.
6 The Bookbuild is expected to close no later than 4:30 p.m.
(London time) on 3 November 2011 but may be closed earlier or later
at the discretion of the Bookrunner. The Bookrunner may accept bids
that are received after the Bookbuild has closed. The Company
reserves the right (with the agreement of the Bookrunner) to reduce
or seek to increase the amount to be raised pursuant to the
Placing, in its absolute discretion.
7 Each prospective Placee's allocation (and the split between
Firm Placing Shares and Conditional Placing Shares) will be
confirmed to the Placee orally by the Relevant Manager following
the close of the Placing, and (a) conditional contract note(s) and
in certain jurisdictions including the United Kingdom and South
Africa, a Placing Allocation Letter, will be despatched as soon as
possible thereafter. The Relevant Manager's oral confirmation to
such Placee will constitute an irrevocable legally binding
commitment upon such person (who will at that point become a
Placee) in favour of the Relevant Manager and the Company, under
which the Placee agrees to acquire the number of Firm Placing
Shares and/or Conditional Placing Shares allocated to it at the
Placing Price on the terms and conditions set out in this Appendix
and any Placing Allocation Letter and in accordance with the
Company's constitution.
8 Each prospective Placee's allocation and commitment will be
evidenced by (a) conditional contract note(s) issued to such Placee
by the Relevant Manager and in certain jurisdictions including the
United Kingdom and South Africa, a Placing Allocation Letter. The
terms of this Appendix will be deemed to be incorporated in the
contract note(s) and/or, where appropriate, the Placing Allocation
Letter. The Placing Allocation Letter must be signed and returned,
but if you fail to return an executed Placing Allocation Letter its
terms and the terms of this Appendix will be deemed to have been
accepted by you.
9 The Placing Results Announcement shall detail the number of
Placing Shares to be issued (both Firm Placing Shares and
Conditional Placing Shares) and the Placing Price in Pounds
Sterling as well as the South African Rand price derived from that
Pounds Sterling price at an exchange rate to be determined at the
sole discretion of the Bookrunner.
10 Subject to paragraphs 5 and 6 above, the Bookrunner may
choose to accept bids, either in whole or in part, on the basis of
allocations determined at its discretion (in consultation with the
Company) and may scale down any bids for this purpose on such basis
as it may determine. The Bookrunner may allocate accepted bids
between Firm Placing Shares and Conditional Placing Shares as it
may in its absolute discretion determine. The acceptance of bids
shall be at the Bookrunner's absolute discretion. The Bookrunner
may also, notwithstanding paragraphs 5 and 6 above, subject to the
prior consent of the Company: (i) allocate Placing Shares after the
time of any initial allocation to any person submitting a bid after
that time; and (ii) allocate Placing Shares after the Bookbuild has
closed to any person submitting a bid after that time. The
Bookrunner reserves the right not to accept bids or to accept bids
in part rather than in whole.
11 A bid in the Bookbuild will be made on the terms and subject
to the conditions in this Announcement and, in certain
jurisdictions including the United Kingdom and South Africa, the
terms and conditions in the Placing Allocation Letter (a copy of
which has been provided to each prospective Placee) and will be
legally binding on the Placee on behalf of which it is made and,
except with the Bookrunner's consent, will not be capable of
variation or revocation after the time at which it is submitted.
Each Placee will also have an immediate, separate, irrevocable and
binding obligation, owed to the Relevant Manager, to pay it (or as
it may direct) in cleared funds an amount equal to the product of
the Placing Price and the number of Placing Shares such Placee has
agreed to acquire. Each Placee's obligations under this paragraph
will be owed to the Relevant Manager.
12 Except as required by law or regulation, no press release or
other announcement will be made by the Managers or the Company
using the name of any Placee (or its agent), in its capacity as
Placee (or agent), other than with such Placee's prior written
consent.
13 Irrespective of the time at which a Placee's allocation
pursuant to the Placing is confirmed, settlement for all Placing
Shares to be acquired pursuant to the Placing will be required to
be made at the relevant time, on the basis explained below under
"Registration and Settlement".
14 All obligations under the Bookbuild and Placing will be
subject to fulfilment of the conditions referred to below under
"Conditions of the Placing" and to the Placing not being terminated
on the basis referred to below under "Right to terminate under the
Placing Agreement".
15 By participating in the Bookbuild, each Placee will agree
that its rights and obligations in respect of the Placing will
terminate only in the circumstances described below and will not be
capable of rescission or termination by the Placee.
16 To the fullest extent permissible by law and applicable rules
of the FSA, none of the Managers nor any of their respective
affiliates or agents shall have any liability to Placees (or to any
other person whether acting on behalf of a Placee or otherwise
whether or not a recipient of these terms and conditions) in
respect of the Placing. Each Placee acknowledges and agrees that
the Company is responsible for the allotment of the Placing Shares
to the Placees and the Managers shall have no liability to the
Placees for the failure of the Company to fulfil those obligations.
In particular, none of the Managers nor any of their respective
affiliates or agents shall have any liability (including to the
extent permissible by law, any fiduciary duties) in respect of the
conduct of the Bookbuild process or of any alternative method of
effecting the Placing as the Managers and the Company may
agree.
17 Each prospective Placee resident in the United Kingdom or
South Africa who is subscribing for Placing Shares will be required
to sign a Placing Allocation Letter to be provided by J.P. Morgan
Cazenove in the UK or by J.P. Morgan Cazenove or its affiliate or
agent in South Africa. The terms and conditions contained in this
Appendix will be deemed to be incorporated in that Placing
Allocation Letter.
Conditions of the Placing
The obligations of the Managers under the Placing Agreement in
respect of the Placing Shares are conditional on, inter alia:
(a) in relation to the obligations relating to both the Firm
Placing Shares and the Conditional Placing Shares:
(i) AIM Admission of the Firm Placing Shares occurring not later
than 8.00 a.m. (London time) on 8 November 2011 or such other date
as may be agreed between the Company and J.P. Morgan Cazenove, not
being later than 11 November 2011;
(ii) the Company having lodged with the ASX an Appendix 3B
announcement conditional only on the issue of the Firm Placing
Shares by the business day after the date of this Announcement (or
such other date as may be agreed between the Company and J.P.
Morgan Cazenove not being later than 12 November 2011);
(iii) the JSE having confirmed to the Company in writing before
the date of AIM Admission of the Firm Placing Shares (or such other
date as may be agreed between the Company and J.P. Morgan Cazenove)
the agreement of the JSE that the Firm Placing Shares will be
eligible for listing on the JSE on that date (or such other date as
may be agreed between the Company and J.P. Morgan Cazenove, not
being later than 11 November 2011); and
(iv) the warranties contained in the Placing Agreement being
true and accurate and not misleading on and as of the date of the
Placing Agreement and at the date of the AIM Admission of the Firm
Placing Shares as though they had been given and made on such dates
by reference to the facts and circumstances then subsisting;
(b) in relation to the obligations relating to the Conditional Placing Shares:
(i) the passing without amendment of the Shareholder Resolution at the General Meeting;
(ii) AIM Admission of the Conditional Placing Shares occurring
not later than 8.00 a.m. (London time) on 14 December 2011 or such
other date as may be agreed between the Company and J.P. Morgan
Cazenove, not being later than 21 December 2011;
(iii) the Company having lodged with the ASX an Appendix 3B
announcement conditional only on the issue of the Conditional
Placing Shares by 15 December 2011 (or such other date as may be
agreed between the Company and J.P. Morgan Cazenove not being later
than 22 December 2011);
(iv) the JSE having confirmed to the Company in writing before
the date of AIM Admission of the Conditional Placing Shares (or
such other date as may be agreed between the Company and J.P.
Morgan Cazenove) the agreement of the JSE that the Conditional
Placing Shares will be eligible for listing on the JSE on that date
(or such other date as may be agreed between the Company and J.P.
Morgan Cazenove, not being later than 21 December 2011); and
(v) the warranties contained in the Placing Agreement being true
and accurate and not misleading on and as of the date of the
Placing Agreement and at the date of the AIM Admission of the
Conditional Placing Shares as though they had been given and made
on such dates by reference to the facts and circumstances then
subsisting;
(c) the agreement between the Bookrunner and the Company of the
Placing Price and the number of Placing Shares (including the
number of Firm Placing Shares and the number of Conditional Placing
Shares) to be issued as established in the Bookbuild process;
(d) in the opinion of the Bookrunner, acting in good faith,
there having been since the date of the Placing Agreement no
material adverse effect (as defined in the Placing Agreement),
whether or not foreseeable at the date of the Placing
Agreement.
If: (i) any of the conditions contained in the Placing Agreement
in relation to the Firm Placing Shares are not fulfilled or waived
by the Bookrunner by the respective time or date where specified
(or such later time or date as the Company and the Bookrunner may
agree); (ii) any of such conditions becomes incapable of being
fulfilled; or (iii) the Placing Agreement is terminated in the
circumstances specified below, the Placing in relation to the
Placing Shares (both Firm Placing Shares and Conditional Placing
Shares) will lapse and the Placee's rights and obligations
hereunder in relation to the Placing Shares shall cease and
terminate at such time and each Placee agrees that no claim can be
made by the Placee against either the Company or any of the
Managers in respect thereof. The Firm Placing is not conditional in
any way on the Conditional Placing.
If: (i) any of the conditions contained in the Placing Agreement
in relation to the Conditional Placing Shares are not fulfilled or
waived by the Bookrunner (if capable of waiver) by the respective
time or date where specified (or such later time or date as the
Company and the Bookrunner may agree); (ii) any of such conditions
becomes incapable of being fulfilled; or (iii) the Placing
Agreement is terminated in the circumstances specified below, the
Placing in relation to the Conditional Placing Shares will lapse
and the Placee's rights and obligations hereunder in relation to
the Conditional Placing Shares shall cease and terminate at such
time and each Placee agrees that no claim can be made by the Placee
against either the Company or any of the Managers in respect
thereof.
The Bookrunner may, in its absolute discretion and upon such
terms as it thinks fit, waive compliance by the Company with the
whole or any part of any of the Company's obligations in relation
to the conditions in the Placing Agreement save that certain
conditions, including the condition relating to AIM Admission of
either the Firm Placing Shares or the Conditional Placing Shares
taking place, may not be waived. Any such extension or waiver will
not affect Placees' commitments as set out in this
Announcement.
Neither the Bookrunner nor the Company shall have any liability
to any Placee (or to any other person whether acting on behalf of a
Placee or otherwise) in respect of any decision it may make as to
whether or not to waive or to extend the time and/or date for the
satisfaction of any condition to the Placing nor for any decision
they may make as to the satisfaction of any condition or in respect
of the Placing generally and by participating in the Placing each
Placee agrees that any such decision is within the absolute
discretion of the Bookrunner and the Company.
Right to terminate under the Placing Agreement
The Bookrunner may, in each case in its absolute discretion, at
any time before AIM Admission of the Firm Placing Shares or the
Conditional Placing Shares (as the case may be), terminate the
Placing Agreement by giving notice to the Company in certain
circumstances, including, inter alia, a breach of the warranties
given to the Managers in the Placing Agreement; the failure of the
Company to comply with obligations which are material in the
opinion of the Bookrunner; or the occurrence of a force majeure
event which, in the opinion of the Bookrunner, is likely to
prejudice the success of the Placing. Following AIM Admission of
the Firm Placing Shares, the Placing Agreement is not capable of
rescission or termination to the extent that it relates to the
Placing of the Firm Placing Shares.
Notwithstanding AIM Admission of the Firm Placing Shares, the
Bookrunner retains its rights under the Placing Agreement to
terminate the placing of the Conditional Placing Shares in
accordance with the terms thereof. Any such termination after
completion of the placing of the Firm Placing Shares will not, for
the avoidance of doubt, affect the completed placing of the Firm
Placing Shares.
If any of the obligations of the Bookrunner with respect to the
Placing are terminated in the manner contemplated above, the rights
and obligations of each Placee shall cease and terminate at such
time and no claim can be made by any Placee in respect thereof. The
rights and obligations of the Placees shall terminate only in the
circumstances described in these terms and conditions and will not
be subject to termination by the Placee or any prospective Placee
at any time or in any circumstances.
By participating in the Placing, the Placees agree that the
exercise by the Bookrunner of any right of termination or other
discretion under the Placing Agreement shall be within the absolute
discretion of the Bookrunner and the Bookrunner needs not make any
reference to Placees and neither the Bookrunner nor the Company
shall have any liability to Placees whatsoever in connection with
any such exercise.
No Prospectus
The Placing Shares are being offered to a limited number of
specifically invited persons only and will not be offered in such a
way as to require a prospectus in the United Kingdom, South Africa
or in any other jurisdiction. No offering or admission document or
prospectus has been or will be submitted to be approved by the FSA,
the London Stock Exchange plc or registered by CIPC in relation to
the Placing and Placees' commitments will be made solely on the
basis of the information contained in this Announcement (including
this Appendix). Each Placee, by accepting a participation in the
Placing, agrees that the content of this Announcement is
exclusively the responsibility of the Company and confirms that it
has neither received nor relied on any other information,
representation, warranty, or statement made by or on behalf of the
Company or the Managers or any other person and none of the
Managers nor the Company nor any other person will be liable for
any Placee's decision to participate in the Placing based on any
other information, representation, warranty or statement which the
Placees may have obtained or received and, if given or made, such
information, representation, warranty or statement must not be
relied upon as having been authorised by the Company, its officers
or board of directors. Each Placee acknowledges and agrees that it
has relied on its own investigation of the business, financial or
other position of the Company in accepting a participation in the
Placing, including the merits and risks involved. The Company is
not making any undertaking or warranty to any Placee regarding the
legality of an investment in the Placing Shares by such Placee
under any legal, investment or similar laws or regulations. Each
Placee should not consider any information in this Announcement to
be legal, tax or business advice. Each Placee should consult its
own lawyer, tax advisor and business advisor for legal, tax and
business advice regarding an investment in the Placing Shares.
Nothing in this paragraph shall exclude the liability of any person
for fraud.
Registration and Settlement
UK Settlement
Settlement of transactions in the Placing Shares following AIM
Admission will take place in respect of the Placing Shares to be
held on the UK depositary interest register, on a delivery versus
payment basis in Depositary Interest form within CREST.
The Company will deliver the Placing Shares in Depositary
Interest form to CREST accounts operated by the Bookrunner as agent
for the Company and the Bookrunner will enter its delivery (DEL)
instruction into the CREST system. The input to CREST by a Placee
of a matching or acceptance instruction will then allow delivery of
the relevant Placing Shares to that Placee against payment.
It is expected that settlement of the Firm Placing Shares will
be on 8 November 2011 in CREST on a T+3 basis in accordance with
the instructions set out in the conditional trade confirmation or
Placing Allocation Letter.
Settlement for any Conditional Placing Shares issued and
allotted pursuant to the Placing will, subject to the passing of
the Shareholder Resolution take place on the date of AIM Admission
of such shares which is expected to be 14 December 2011.
South African Settlement
Settlement of transactions in the Placing Shares following
listing on the JSE will take place in respect of the Placing Shares
to be held on the South African share register, on a delivery
versus payment basis in accordance with the rules of Strate with
Computershare Investor Services (Pty) Limited acting as broker
under the rules of Strate to manage settlements on behalf of the
Company.
The Placing Allocation Letter sets out further details of the
proposed arrangements for payment for and settlement of Placing
Shares to be held on the South African share register.
It is expected that settlement of the Firm Placing Shares will
be 10 November 2011 on a T+5 basis in accordance with the
instructions set out in the Placing Allocation Letter.
Admission to listing on the JSE for any Conditional Placing
Shares issued and allotted pursuant to the Placing will, subject to
the passing of the Shareholder Resolution, take place on 15
December 2011 and settlement of such shares is expected to take
place on 19 December 2011, in accordance with the instructions set
out in the Placing Allocation Letter.
General
The Company reserves the right to require settlement for and
delivery of the Placing Shares (or a portion thereof) to any Placee
in any form it requires if, in the Relevant Manager's opinion,
delivery or settlement is not possible or practicable within CREST
or Strate, as the case may be, or would not be consistent with the
regulatory requirements in the Placee's jurisdiction.
Following the close of the Bookbuild for the Placing, each
Placee allocated Placing Shares in the Placing will be sent a
conditional contract note(s) and those Placees resident in the
United Kingdom or South Africa have been sent a Placing Allocation
Letter stating the number of Placing Shares (both Firm Placing
Shares and Conditional Placing Shares) to be allocated to it at the
Placing Price and settlement instructions.
Each Placee agrees that it will do all things necessary to
ensure that delivery and payment is completed in accordance with
the standing CREST or Strate rules and regulations and settlement
instructions that it has in place with the Managers.
Interest is chargeable daily on payments not received from
Placees on the due date in accordance with the arrangements set out
above at the rate of two percentage points above LIBOR as
determined by the Bookrunner.
Each Placee is deemed to agree that, if it does not comply with
these obligations, the Bookrunner may sell any or all of the
Placing Shares allocated to that Placee on such Placee's behalf and
retain from the proceeds, for the Bookrunner's account and benefit,
an amount equal to the aggregate amount owed by the Placee plus any
interest due thereof. The relevant Placee will, however, remain
liable for any shortfall below the aggregate amount owed by it and
may be required to bear any stamp duty or stamp duty reserve tax or
securities transfer tax (together with any interest or penalties)
which may arise upon the sale of such Placing Shares on such
Placee's behalf.
If Placing Shares are to be delivered to a custodian or
settlement agent, Placees should ensure that the conditional
contract note(s) and Placing Allocation Letter (if applicable) is
copied and delivered immediately to the relevant person within that
organisation. Insofar as Placing Shares are registered in a
Placee's name or that of its nominee or in the name of any person
for whom a Placee is contracting as agent or that of a nominee for
such person, such Placing Shares should, subject as provided below,
be so registered free from any liability to UK stamp duty or stamp
duty reserve tax or securities transfer tax.
Representations and Warranties
By participating in the Bookbuild and Placing each Placee (and
any person acting on such Placee's behalf including, for the
avoidance of doubt, any nominee) makes the following
representations, warranties, acknowledgements, undertakings and
agreements (as the case may be) to the Company and to the
Managers:
1 represents and warrants that it has read and understood this
Announcement, including the Appendix, in its entirety and that its
acquisition of Placing Shares is subject to and based upon only the
terms, conditions, representations, warranties, acknowledgements,
agreements and undertakings and other information contained
herein;
2 acknowledges that no offering or admission document or
prospectus has been prepared in connection with the placing of the
Placing Shares and represents and warrants that it has not received
a prospectus or other offering or admission document in connection
therewith;
3 acknowledges that neither the Managers nor the Company nor any
of their respective affiliates or agents nor any person acting on
behalf of any of them has provided, nor will they provide, it with
any information or material regarding the Placing Shares or the
Company other than this Announcement; nor has it requested any of
the Managers, the Company, any of their respective affiliates or
agents or any person acting on behalf of any of them to provide it
with any such information or material;
4 acknowledges that the content of this Announcement is
exclusively the responsibility of the Company and that none of the
Managers, their respective affiliates or agents or any person
acting on behalf of any of them has or shall have any liability for
any information, representation or statement contained in this
Announcement or any information previously published by or on
behalf of the Company and will not be liable for any Placee's
decision to participate in the Placing based on any information,
representation or statement contained in this Announcement or
otherwise. Each Placee further represents, warrants and agrees that
the only information on which it is entitled to rely and on which
such Placee has relied in committing itself to acquire the Placing
Shares is contained in this Announcement and any information
previously published by the Company by notification to a Regulatory
Information Service including, without limitation, the registration
document dated 31 October 2011, such information being all that it
deems necessary and appropriate to make an investment decision in
respect of the Placing Shares and that it has neither received nor
relied on (and will not receive nor rely on) any other information
given or representations, warranties (whether express or implied)
or statements made by any of the Managers or the Company and
neither the Managers nor the Company will be liable for any
Placee's decision to accept an invitation to participate in the
Placing based on any other information, representation, warranty or
statement. Each Placee further acknowledges and agrees that it has
not relied (and is not entitled to rely) on any investigations that
the Managers or any person acting on their behalf may have
conducted with respect to the Placing Shares or the Company and has
made and relied on its own investigation of the business, financial
or other position of the Company in deciding to participate in the
Placing;
5 represents and warrants that it has neither received nor
relied on any confidential price sensitive information concerning
the Company or the Placing Shares in accepting an invitation to
participate in the Placing;
6 acknowledges that the Ordinary Shares are listed, admitted to
trading or quoted (as the case may be) on AIM, the ASX and the JSE
and the Company is therefore required to publish certain business
and financial information in accordance with the rules of such
exchanges and has published a registration document dated 31
October 2011 (collectively, the "Exchange Information"), which
includes a description of the nature of the Company's business and
the Company's most recent resource statements, financial
statements, and similar statements for preceding financial years,
and that it is able to obtain or access the Exchange Information
without undue difficulty;
7 acknowledges that neither the Managers nor any person acting
on their behalf nor any of their affiliates nor its or their
respective directors, officers, employees, agents, partners or
professional advisers has or shall have any liability for any
direct, indirect or consequential loss or damage suffered by any
person as a result of relying on any statement contained in the
Exchange Information, any other information made available by or on
behalf of the Company or made publicly available by the Company on
its website, by press release, by public filing or otherwise or any
other information, provided that nothing in this paragraph excludes
the liability of any person for fraud made by that person;
8 acknowledges that it is not, and at the time the Placing
Shares are acquired will not, be a resident of the United States,
Australia, Canada or Japan, and that the Placing Shares have not
been and will not be registered under the securities legislation of
the United States, Australia, Canada or Japan and, subject to
certain exceptions, may not be offered, sold, resold, pledged,
taken up, renounced or delivered or transferred, directly or
indirectly, in or into those jurisdictions;
9 unless otherwise specifically agreed with the Managers,
represents and warrants that it is, or at the time the Placing
Shares are acquired that it will be, the beneficial owner of such
Placing Shares, or that the beneficial owner of such Placing Shares
is not a resident of the United States, Australia, Canada or
Japan;
10 acknowledges that the Placing Shares have not been and will
not be registered under the securities legislation of the United
States, Australia, Canada or Japan and, subject to certain
exceptions, may not be offered, sold, taken up, renounced or
delivered or transferred, directly or indirectly, in or into those
jurisdictions;
11 represents and warrants that the issue to it, or the person
specified by it for registration as holder, of Placing Shares will
not give rise to a liability under any of sections 67, 70, 93 or 96
of the Finance Act, 1986 (depositary receipts and clearance
services) and that the Placing Shares are not being acquired in
connection with arrangements to issue depositary receipts or to
transfer Placing Shares into a clearance system;
12 represents and warrants that it has complied with its
obligations in connection with money laundering and terrorist
financing under the United Kingdom Proceeds of Crime Act, 2002, the
United Kingdom Terrorism Act, 2003 and the United Kingdom Money
Laundering Regulations, 2007 and the equivalent Australian and
South African legislation (the "Regulations") and, if making
payment on behalf of a third party, that satisfactory evidence has
been obtained and recorded by it to verify the identity of the
third party as required by the Regulations and has obtained all
governmental and other consents (if any) which may be required for
the purpose of, or as a consequence of, such purchase, and it will
provide promptly to the Managers such evidence, if any, as to the
identity or location or legal status of any person which any
Manager may request from it in connection with the Placing (for the
purpose of complying with such regulations or ascertaining the
nationality of any person or the jurisdiction(s) to which any
person is subject or otherwise) in the form and manner requested by
the Managers on the basis that any failure by it to do so may
result in the number of Placing Shares that are to be purchased by
it or at its direction pursuant to the Placing being reduced to
such number, or to nil, as the Managers may decide at their sole
discretion;
13 if a financial intermediary, as that term is used in Article
3(2) of the Prospectus Directive, represents and warrants that the
Placing Shares purchased by it in the Placing will not be acquired
on a non-discretionary basis on behalf of, nor will they be
acquired with a view to their offer or resale to, persons in a
member state of the European Economic Area which has implemented
the Prospectus Directive other than Qualified Investors, or in
circumstances in which the prior consent of the Bookrunner has been
given to the offer or resale;
14 represents and warrants that it has not offered or sold and,
prior to the expiry of a period of six months from the relevant AIM
Admission, will not offer or sell any Placing Shares to persons in
the United Kingdom, except to persons whose ordinary activities
involve them in acquiring, holding, managing or disposing of
investments (as principal or agent) for the purposes of their
business or otherwise in circumstances which have not resulted and
which will not result in an offer to the public in the United
Kingdom within the meaning of section 85(1) of FSMA;
15 represents and warrants that it has not offered or sold and
will not offer or sell any Placing Shares to persons in the
European Economic Area prior to the relevant AIM Admission except
to persons whose ordinary activities involve them in acquiring,
holding, managing or disposing of investments (as principal or
agent) for the purposes of their business or otherwise in
circumstances which have not resulted in and which will not result
in an offer to the public in any member state of the European
Economic Area within the meaning of the Prospectus Directive;
16 represents and warrants that it has only communicated or
caused to be communicated and will only communicate or cause to be
communicated any invitation or inducement to engage in investment
activity (within the meaning of section 21 of the FSMA) relating to
the Placing Shares in circumstances in which section 21(1) of the
FSMA does not require approval of the communication by an
authorised person;
17 represents and warrants that it has complied and will comply
with all applicable provisions of FSMA with respect to anything
done by it in relation to the Placing Shares in, from or otherwise
involving, the United Kingdom;
18 represents and warrants that if it resides in a member state
of the European Economic Area it is a Qualified Investor within the
meaning of the Prospectus Directive;
19 represents and warrants that it has complied and will comply
with all applicable provisions of the Australian Corporations Act
(including relevant insider trading provisions) and the ASX Listing
Rules in relation to the Placing Shares;
20 agrees that it must comply with all applicable provisions of
the Australian Foreign Investments and Takeovers Act, 1975 (Cth) in
relation to the Placing Shares by no later than the settlement date
for the relevant Placing Shares;
21 represents and warrants that its participation in the Placing
will not cause its (or its associates) aggregate shareholding in
the Company to be 20% or more of the issued share capital of the
Company;
22 represents and warrants that it is not a 'related party' of
the Company as that term is defined in section 228 of the
Australian Corporations Act and/or the ASX Listing Rules, (or if it
is a 'related party' of the Company, that its acquisition of
Placing Shares would not require the Company to obtain the approval
of its shareholders under section 208(1)(a) of the Australian
Corporations Act);
23 represents and warrants that if it resides in the United
Kingdom it is a Qualified Investor within the meaning of the
Prospectus Directive and a person (a) who has professional
experience in matters relating to investments and is an "Investment
Professional" falling within article 19(5) (investment
professionals) of the Order, or (b) who falls within article
49(2)(a) to (d) (high net worth companies, unincorporated
associations etc.) of the Order;
24 agrees that it will not offer to sell the Placing Shares to
any person that is not a sophisticated or professional investor
under section 708(8) or section 708(11) of the Australian
Corporations Act until the day after a notice is lodged by the
Company with ASX that complies with subsections 708A(5)(e) and (6)
of the Australian Corporations Act;
25 represents and warrants that if it resides in the Republic of
South Africa and qualifies as an addressee described in section
96(1)(a) or 96(1)(b) of the South African Companies Act, 2008 (No
71 of 2008), as amended;
26 represents and warrants that is has complied with and will
comply with all applicable provisions of the South African
Companies Act, 2008 (No 71 of 2008), as amended, Securities
Services Act, 2004 (No 36 of 2004), as amended and the JSE Listings
Requirements in relation to the Placing Shares;
27 represents and warrants that it and any person acting on its
behalf is entitled to acquire the Placing Shares under the laws of
all relevant jurisdictions and that it has all necessary capacity
and has obtained all necessary consents and authorities (including
without limitation any and all approvals that may be required for
the purposes of the South African Exchange Control Regulations,
1961) to enable it to commit to this participation in the Placing
and to perform its obligations in relation thereto (including,
without limitation, in the case of any person on whose behalf it is
acting, all necessary consents and authorities to agree to the
terms set out or referred to in this Announcement) and will honour
such obligations, and it has had access to such financial and other
information concerning the Company and the Placing shares as it
deems necessary in connection with its decision to purchase the
Placing Shares;
28 where it is acquiring Placing Shares for one or more managed
accounts, represents and warrants that it is authorised in writing
by each managed account: (a) to acquire the Placing Shares for each
managed account; (b) to make on its behalf the representations,
warranties, acknowledgements, undertakings and agreements in this
Appendix and the Announcement of which it forms part; and (c) to
receive on its behalf any investment letter and/or Placing
Allocation Letter relating to the Placing in the form provided to
you by any of the Managers;
29 undertakes that it (and any person acting on its behalf) will
make payment for the Placing Shares allocated to it in accordance
with this Announcement and any Placing Allocation Letter on the due
time and date set out herein and it has obtained all necessary
consents and authorities to enable it to give its commitment so to
subscribe, failing which the relevant Placing Shares may be placed
with other placees or sold as the Bookrunner may in its sole
discretion determine and without liability to such Placee and it
will remain liable for any shortfall below the net proceeds of such
sale and the placing proceeds of such Placing Shares and may be
required to bear any stamp duty or stamp duty reserve tax (together
with any interest or penalties due pursuant to or referred to in
these terms and conditions) which may arise upon the placing or
sale of such Placee's Placing Shares on its behalf;
30 acknowledges that none of the Managers, nor any of their
respective affiliates, nor their respective agents nor any person
acting on behalf of any of them, is making any recommendations to
it, advising it regarding the suitability of any transactions it
may enter into in connection with the Placing and that
participation in the Placing is on the basis that it is not and
will not be a client of any of the Managers and that none of the
Managers have any duties or responsibilities to it for providing
the protections afforded to their respective clients or customers
or for providing advice in relation to the Placing nor in respect
of any representations, warranties, acknowledgements, undertakings
or indemnities contained in the Placing Agreement nor for the
exercise or performance of any of its rights and obligations
thereunder including any rights to waive or vary any conditions or
exercise any termination right;
31 undertakes that the person whom it specifies for registration
as holder of the Placing Shares will be: (a) itself; or (b) its
nominee, as the case may be. Neither the Managers nor the Company
will be responsible for any liability for stamp duty or stamp duty
reserve tax or securities transfer tax resulting from a failure to
observe this requirement. Each Placee and any person acting on
behalf of such Placee agrees to participate in the Placing and it
agrees to indemnify the Company and the Managers in respect of the
same on the basis that the Placing Shares will be allotted to the
CREST or Strate stock account of the Relevant Manager or its
affiliate or agent who will hold them as nominee on behalf of such
Placee until settlement in accordance with its standing settlement
instructions;
32 acknowledges that any agreements entered into by it pursuant
to these terms and conditions shall be governed by and construed in
accordance with the laws of England and Wales and it submits (on
behalf of itself and on behalf of any person on whose behalf it is
acting) to the exclusive jurisdiction of the English courts as
regards any claim, dispute or matter arising out of any such
contract, except that enforcement proceedings in respect of the
obligation to make payment for the Placing Shares (together with
any interest chargeable thereon) may be taken by the Company or the
Managers in any jurisdiction in which the relevant Placee is
incorporated or in which any of its securities have a quotation on
a recognised stock exchange;
33 acknowledge that time shall be of the essence as regards to
obligations pursuant to this Appendix to the Announcement;
34 agrees that the Company and the Managers and their respective
affiliates and agents and others will rely upon the truth and
accuracy of the foregoing representations, warranties,
acknowledgements, undertakings and agreements which are given to
the Managers on their own behalf and on behalf of the Company and
are irrevocable, and with respect to any of the representations,
warranties, acknowledgements, undertakings and agreements deemed to
have been made by a purchaser of the Placing Shares as a fiduciary
or agent for one or more investor accounts, it has sole investment
discretion with respect to each such account and it has full power
and authority to make the foregoing representations, warranties,
acknowledgements, undertakings and agreements on behalf of each
such account;
35 agrees to indemnify on an after tax basis and hold the
Company and the Managers and their respective affiliates and agents
harmless from any and all costs, claims, liabilities and expenses
(including legal fees and expenses) arising out of or in connection
with any breach of the representations, warranties,
acknowledgements, agreements and undertakings in this Appendix and
further agrees that the provisions of this Appendix shall survive
after completion of the Placing;
36 represents and warrants that it is an institution or an
addressee which: (a) has such knowledge and experience in financial
and business matters and expertise in assessing credit, market and
all other relevant risks as to be capable of evaluating, and has
evaluated independently, the merits, risks and suitability of its
investment in the Placing Shares; and (b) it and any accounts for
which it is acting are each able to bear the economic risk of such
investment, and are each able to sustain all or a substantial
portion of any investment in the Placing Shares and the Placee will
not look to the Managers for all or any part of any such loss or
losses it may suffer;
37 represents and warrants that it is entitled to subscribe for
the Placing Shares under the laws of all relevant jurisdictions
which apply to it;
38 represents and warrants that it is outside the United States;
has not purchased the Placing Shares as a result of any directed
selling efforts within the meaning of Rule 902(c) of Regulation S;
and its purchase of the Placing Shares will be in compliance with
the requirements of Regulation S, including, without limitation,
that the offer and sale of the Placing Shares to it constitute an
"offshore transaction" as such term is defined in Regulation S;
39 understands and acknowledges that the Placing Shares have not
been and will not be registered under the Securities Act or the
securities laws of any state or other jurisdiction of the United
States. It agrees that the Placing Shares may not be reoffered,
sold, pledged or otherwise transferred, and that it will not
directly or indirectly reoffer, sell, pledge or otherwise transfer
the Placing Shares, except in an offshore transaction in accordance
with Rule 903 or 904 of Regulation S or another exemption from, or
transaction not subject to, the registration requirements of the
Securities Act and that such offer, sale, pledge or transfer must,
and will, be made in accordance with any applicable securities laws
of any state or other jurisdiction; and
40 understands that no representation has been, is being or will
be made by the Company as to the availability of an exemption from
the registration for the reoffer, resale, pledge or transfer of the
Placing Shares in accordance with the Securities Act.
Placees should note that they will be liable for any stamp duty
and all other stamp, issue, securities, transfer, registration,
documentary or other duties or taxes (including any interest, fines
or penalties relating thereto) payable outside the UK by them or
any other person on the subscription by them of any Placing Shares
or the agreement by them to acquire any Placing Shares.
Each Placee, and any person acting on behalf of the Placee,
acknowledges that none of the Managers owe any fiduciary or other
duties to any Placee in respect of any representations, warranties,
undertakings, acknowledgements, agreements or indemnities in the
Placing Agreement.
Each Placee and any person acting on behalf of the Placee
acknowledges and agrees that the Managers or any of their
respective affiliates or agents may, at their absolute discretion,
agree to become a Placee in respect of some or all of the Placing
Shares.
When a Placee or person acting on behalf of the Placee is
dealing with the Managers, any money held in an account with any of
the Managers, on behalf of the Placee and/or any person acting on
behalf of the Placee will not be treated as client money within the
meaning of the rules and regulations of the FSA made under the
FSMA. The Placee acknowledges that the money will not be subject to
the protections conferred by the client money rules; as a
consequence, this money will not be segregated from the Relevant
Manager's money, as the case may be, in accordance with the client
money rules and will be used by the Managers in the course of their
own respective businesses and the Placee will rank only as a
general creditor of the Managers.
If the Company or any of the Managers or their respective
affiliates or agents request any information about a Placee's
agreement to acquire Placing Shares, including, without limitation,
any information required by the South African Reserve Bank in
respect of the Placing Shares and any evidence supporting the
representations and warranties given above, such Placee shall (and
it undertakes to) promptly disclose it to them.
All times and dates in this Announcement may be subject to
amendment. The Managers shall notify the Placees and any person
acting on behalf of the Placees of any changes.
Definitions
AIM Admission the admission by the London
Stock Exchange of the Firm
Placing Shares or the Conditional
Placing Shares, as the context
requires, to trading on AIM
becoming effective in accordance
with the AIM Rules
AIM the AIM market operated by
London Stock Exchange plc
AIM Rules the AIM Rules for Companies
as issued by the London Stock
Exchange from time to time
Announcement this announcement (including
the Appendix)
Appendix the appendix to the Announcement
ASIC the Australian Securities &
Investments Commission
ASX ASX Limited (ACN 008 624 691),
a company registered under
the Australian Corporations
Act and, where the context
permits, the Australian Securities
Exchange operated by ASX Limited
ASX Listing Rules the Listing Rules of the ASX
and any other rules of ASX
which are applicable while
the Company is admitted the
Official List of ASX
Australian Corporations the Corporations Act 2001 (Cth)
Act of Australia and any Class
Orders issued by ASIC
Bookbuild the bookbuilding process to
be conducted by the Bookrunner
to arrange participation by
Placees in the Placing which
will establish the number of
Placing Shares at the Placing
Price
Bookrunner J.P. Morgan Cazenove
certificated or in where a share or other security
certificated form is not in uncertificated form
CIPC the South African Companies
and Intellectual Property Commission,
previously the South African
Companies and Intellectual
Property Registration Office
Company Coal of Africa Limited
Conditional Placing Placing Shares to be placed
Shares with investors conditional
on shareholder approval at
the GM
CREST the relevant system (as defined
in the CREST Regulations) for
the paperless Settlement of
Share transfers and the holding
of shares in uncertified form
in respect of which Euroclear
UK & Ireland Limited is the
Operator (as defined in the
CREST Regulations)
Depositary Interests independent securities constituted
or DIs under English law and issued
or to be issued by Computershare
Investor Services PLC in respect,
and representing on a 1 for
1 basis, underlying Ordinary
Shares which may be held or
transferred through the CREST
system
European Economic the European Union, Iceland,
Area Norway and Liechtenstein
Evolution Evolution Securities Limited
Firm Placing Shares Placing Shares to be placed
firm and issued by the Company
further to the directors' authority
to allot Ordinary Shares for
cash, on a non-pre-emptive
basis
FSA the UK Financial Services Authority
FSMA the Financial Services and
Markets Act 2000
General Meeting or a general meeting of the shareholders
GM of the Company to be convened
to be held on or around 14
December 2011 in order, among
other things, to consider,
and if thought fit pass, the
Shareholder Resolution
GM Notice the notice convening the General
Meeting
LIBOR London Interbank Offered Rate
London Stock Exchange London Stock Exchange plc
or LSE
J.P. Morgan Cazenove J.P. Morgan Securities Ltd.
JSE JSE Limited, a public company
incorporated with limited liability
under the laws of the Republic
of South Africa, with registration
number 2005/022939/06 and licensed
as an exchange under the South
African Securities Services
Act, 2004 (No 36 of 2004),
as amended, often referred
to as the "Johannesburg Stock
Exchange"
Managers J.P. Morgan Cazenove, Mirabaud
and Evolution
Mirabaud Mirabaud Securities LLP
Ordinary Shares ordinary shares in the share
capital of the Company
Placee any person (including individuals,
funds or otherwise) by whom
or on whose behalf a commitment
to acquire Placing Shares has
been given
Placing the placing of the Placing
Shares with Placees to be effected
by the Managers on the terms
and subject to the conditions
set out in this Placing Announcement
and the Placing Agreement
Placing Agreement the placing agreement dated
3 November 2011 among the Company,
the directors of the Company
and the Managers in respect
of the Placing
Placing Allocation the confirmation to be sent
Letters by each of the Placees in certain
jurisdictions referring to
the terms and conditions of
the Placing
Placing Price the price per Ordinary Share
at which the Placing Shares
are placed, such price being
determined as part of the Bookbuild
Placing Shares the aggregate of the Firm Placing
Shares and the Conditional
Placing Shares or any of them
as the context requires
Pounds Sterling, the lawful currency of the
GBP or GBP United Kingdom
Prospectus Directive the Directive of the European
Parliament and of the Council
of the European Union 2003/71/EC
Regulatory Information one of the regulatory information
Service services approved by the London
Stock Exchange for the distribution
to the public of AIM announcements,
the Companies Announcement
Platform in relation to announcements
released by the Company to
the ASX and the Securities
Exchange News Service in relation
to announcements released to
the JSE
Regulation S Regulation S under the Securities
Act
Securities Act the US Securities Act of 1933,
as amended
Shareholder Resolution the resolution of the shareholders
of the Company set out in the
GM Notice which is required
to be passed to enable the
Company to issue the Conditional
Placing Shares to Placees
South African Rand the lawful currency of the
Republic of South Africa
Strate Strate Limited, a company duly
registered and incorporated
in the Republic of South Africa
under registration number 1998/02224/06,
licensed as a central securities
depository under the South
African Securities Services
Act, 2004 (No 36 of 2004)
United Kingdom or the United Kingdom of Great
UK Britain and Northern Ireland
United States or the United States of America,
US its territories and possessions,
any state of the United States
and the District of Columbia
This information is provided by RNS
The company news service from the London Stock Exchange
END
MSCEAKFDEDPFFEF
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