5547e4b7678713407f630f.pdf
ASX, LSE, JSE Release
6 October 2015
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
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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 premium1of:
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60.3% to Aquarius' closing share price of GBP0.08 on 5 October 2015, the trading day prior to this announcement; and
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71.4% to Aquarius' volume-weighted average share price of GBP0.07 over the last 30 days up to and including 5 October 2015.
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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.
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
BeesMont Law Limited 5th Floor, Andrew's Place, 51 Church Street, Hamilton, HM12 Bermuda T: (441) 400 4747 F: (441) 236 1999 www.beesmont.bm
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:
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Receipt of an independent expert report;
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Aquarius shareholders approving the Transaction at the shareholder meeting (requiring approval from a simple majority of votes cast at the meeting);
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All necessary regulatory approvals being obtained, including approval from the South African and Zimbabwean Competition Authorities and the South African Reserve Bank; and
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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
[email protected]
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
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DEFINITIONS AND INTERPRETATION II
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AMALGAMATION XVI
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AMALGAMATION CONSIDERATION XVII
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CONDITIONS TO COMPLETION XVIII
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COMPLETION XXIII
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REPRESENTATIONS AND WARRANTIES XXIV
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GENERAL OBLIGATIONS OF THE PARTIES XXIX
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AQUARIUS' SPECIFIC OBLIGATIONS XXIX
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SIBANYE AND BIDCO'S OBLIGATIONS XXXI
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PREPARATION OF THE NOTICE OF AMALGAMATION MEETING XXXI
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INTERIM PERIOD XXXIII
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RELEASES XXXIV
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STANDSTILL XXXV
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EXCLUSIVITY XXXVI
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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
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ANNEXURE
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AMALGAMATION AGREEMENT
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AQUARIUS STATUTORY DECLARATION
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BIDCO STATUTORY DECLARATION
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THIS IMPLEMENTATION AGREEMENT (Agreement) is dated October 2015
BETWEEN:
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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);
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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
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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:
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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.
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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.
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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.
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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.
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The boards of directors of each of the Parties have approved the proposed Amalgamation subject to certain conditions.
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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.
BeesMont Law Limited 5th Floor, Andrew's Place, 51 Church Street, Hamilton, HM12 Bermuda T: (441) 400 4747 F: (441) 236 1999 www.beesmont.bm
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:
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Accepted Plan
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has the meaning set out in Clause 11.
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Accepted Securities Schedule
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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.
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Amalgamation
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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'.
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Amalgamation Agreement
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means the agreement between BidCo and Aquarius setting out the terms of the Amalgamation substantially in the form attached as Annexure A.
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Amalgamated Company
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has the meaning set out in the Recitals to this Agreement.
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Amalgamation Consideration
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means $0.195 for each Aquarius Share held by an Amalgamation Participant payable in cash.
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Amalgamation Meeting
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means the special general meeting of Aquarius Shareholders to be convened by the Aquarius Board to consider the Amalgamation.
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Amalgamation Participant
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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.
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Amalgamation Share
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means an Aquarius Share held by an Amalgamation Participant as at the Record Date.
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Announcement
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means any press release, any circular or any other public statement.
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AQPSA
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means Aquarius Platinum (South Africa) Proprietary Limited (Registration No. 2000/000341/07).
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Aquarius' Attorneys
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means Conyers Dill & Pearman Limited of Clarendon House, 2 Church Street, Hamilton HM 11, Bermuda.
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Aquarius Board
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means the board of directors of Aquarius as constituted from time to time.
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Aquarius Completion Deliverables
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means the items in Clause 5.3.
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Aquarius Director
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means a director of the Aquarius Board.
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Aquarius Group
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means, collectively, Aquarius and its Subsidiaries.
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Aquarius Indemnified Party
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Each of:
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the directors, officers and employees of Aquarius; and
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Aquarius' Subsidiaries and their respective directors, officers and employees.
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Aquarius Prescribed Event
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means each of the following:
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Aquarius, AQPSA or Mimosa:
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converts all or any of its shares into a larger or smaller number of shares;
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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;
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enters into a buy-back agreement or resolves to approve the terms of a buy- back agreement;
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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;
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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;
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Aquarius adopts a new constitution or modifies or repeals its constitution or a provision of it; or
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Aquarius ceases to be admitted to the official list of ASX, FCA or the JSE.
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Aquarius Provided Information
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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
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