29 Oct 2010 07:00
Aquarius Platinum Limited EXEMPT COMPANY NO. EC26290 ARBN 087 577 893 Notice of Annual General Meeting and Explanatory Memorandum Date of Meeting: Tuesday, 23 November 2010 Time of Meeting: 9:00 am Place of Meeting: Clarendon House 2 Church Street Hamilton BERMUDA
This Notice of General Meeting and Explanatory Memorandum should be read in
their entirety. If Shareholders are in doubt as to how they should vote, they should seek advice from their accountant, solicitor or other professional
adviser prior to voting. Your 2010 Annual Report is now available at www.aquariusplatinum.com AQUARIUS PLATINUM LIMITED Exempt Company NO. EC26290 ARBN 087 577 893 NOTICE OF ANNUAL GENERAL MEETING
Notice is hereby given that an annual general meeting of shareholders of Aquarius Platinum Limited ("Company") will be held at 9:00 am on Tuesday, 23 November 2010 at Clarendon House, 2 Church Street, Hamilton, Bermuda.
The Explanatory Memorandum which accompanies and forms part of this Notice ofAnnual General Meeting describes the various matters to be considered andcontains a glossary of defined terms for terms that are not defined in full inthis Notice of Annual General Meeting.
Agenda
1. Appointment of Chairman of the Meeting
2. Confirmation of the Notice and Quorum
3. Accounts for the Period Ended 30 June 2010
To receive the financial statements, directors' report and auditor's report for the Company and its controlled entities for the period ended 30 June 2010.
4. Resolution 1 - Re-election of Mr Nicholas Sibley
To consider and, if thought fit, to pass, with or without amendment, the following resolution as an ordinary resolution:
"That Mr Nicholas Sibley, who retires by rotation in accordance with the Company's Bye-laws and being eligible, offers himself for re-election, be re-elected as a Director."
5. Resolution 2 - Re-election of Mr Kofi Morna
To consider and, if thought fit, to pass, with or without amendment, the following resolution as an ordinary resolution:
"That Mr Kofi Morna, who retires by rotation in accordance with the Company'sBye-laws and being eligible, offers himself for re-election, be re-elected as aDirector."
6. Resolution 3 - Amendments to Bye-laws
To consider and, if thought fit, to pass, with or without amendment, the following resolution as an ordinary resolution:
"That, in accordance with Bye-law 94 of the Company's Bye-laws and for all other purposes, the amendments to the Bye-laws set out in Schedule A to the Explanatory Memorandum be approved."
7. Resolution 4 - Buy back authorisation
To consider and, if thought fit, to pass, with or without amendment, the following resolution as an ordinary resolution:
"That the Company be generally and unconditionally authorised to make market purchases of Shares on such terms and in such manner as the Directors may determine, provided that:
(a) the maximum number of Shares that may be purchased pursuant to this authority is 23,161,550 Shares, representing 5% of the issued capital of the Company as at 8 October 2010;
(b) the minimum price which may be paid for any Share purchased pursuant to this authority is US$0.05;
(c) the maximum price which may be paid for any Share purchased pursuant tothis authority shall not be more than an amount equal to 105% of the average ofthe middle market prices shown in the quotations for the Shares in the LondonStock Exchange Daily Official List for the five business days immediatelypreceding the day on which that Share is contracted to be purchased; and(d) the authority shall expire at the conclusion of the Company's next annualgeneral meeting after the passing of this Resolution unless renewed, varied orrevoked before that time, but the Company may make a contract or contracts topurchase Shares under this authority before its expiry which will or may beexecuted wholly or partly after the expiry of this authority, and may make apurchase of Shares in pursuance of any such contract."
8. Resolution 5 - Directors' Fees
To consider and, if thought fit, to pass, with or without amendment, the following resolution as an ordinary resolution:
"That, for the purposes of Bye-law 22.1, ASX Listing Rule 10.17 and for allother purposes, the maximum fees payable to the non-executive Directors of theCompany be increased by US$400,000 to US$1,250,000 per annum, to be dividedamongst the non-executive Directors in such proportions and in such manner asthey may agree and, in default of agreement, in equal shares."The Company will disregard any votes cast on this resolution by a Director andany associate of such Director. However, the Company need not disregard a voteif it is cast by a person as proxy for a person who is entitled to vote, inaccordance with the directions on the proxy form, or it is cast by the personchairing the meeting as proxy for a person who is entitled to vote, inaccordance with a direction on the proxy form to vote as the proxy decides.
9. Resolution 6 - Re-appointment of Auditor
To consider and, if thought fit, to pass, with or without amendment, the following resolution as an ordinary resolution:
"That, Messrs Ernst & Young of Perth, Western Australia, be and are hereby appointed as Auditors of the Company until the conclusion of the next annual general meeting at a fee to be agreed by the Directors."
By Order of the BoardWilli BoehmCompany SecretaryDATED: 29 October 2010
AQUARIUS PLATINUM LIMITED PROXY FORM
Exempt Company Number EC26290ARBN 087 577 893 PROXY AND VOTING ENTITLEMENT INSTRUCTIONS PROXY INSTRUCTIONSShareholders are entitled to appoint up to two persons (including a bodycorporate) to act as proxies to attend and vote on their behalf. Where morethan one proxy is appointed each proxy may be appointed to represent a specificproportion of the Shareholder's voting rights. If the appointment does notspecify the proportion or number of votes each proxy may exercise, each proxymay exercise half of the votes. If a body corporate is appointed as proxy, thebody corporate may appoint an individual as a representative to exercise itspowers at the Meeting.The proxy form (and the power of attorney or other authority, if any, underwhich the proxy form is signed) or a copy or facsimile which appears on itsface to be an authentic copy of the proxy form (and the power of attorney orother authority) must be deposited at or sent by facsimile transmission to oneof the following locations, not less than 48 hours before the time for holdingthe Meeting, or adjourned Meeting as the case may be, at which the person namedin the proxy form proposes to vote.
Aquarius Platinum Corporate Services Pty Codan Computershare
Ltd Services Investor Services OR PLC Clarendon The Pavilions PO Box 485 House Bridgwater Road OR Bristol BS99 6ZY SOUTH PERTH WA 6951 2 Church ENGLAND AUSTRALIA Street Hamilton HM CX Facsimile (870) 703 6076 BERMUDA Facsimile (618) 9367 5233 Facsimile (441) 292 4720
The proxy form must be signed by the Shareholder or his/her attorney duly authorised in writing or, if the Shareholder is a corporation in a manner permitted by the Company's Bye-laws and the Companies Act.
The proxy may, but need not, be a Shareholder of the Company.
In the case of shares jointly held by two or more persons, all joint holders must sign the proxy form.
A proxy form is attached to this Notice.
VOTING ENTITLEMENT
For the purposes of determining voting entitlements at the Meeting, shares willbe taken to be held by the persons who are registered as holding the shares at9am on Sunday, 21st November 2010. Accordingly, transactions registered afterthat time will be disregarded in determining entitlements to attend and vote atthe Meeting. I/We _______________________________________________________________________________________________________________________ of
_______________________________________________________________________________________________________________________
being a shareholder/(s) of Aquarius Platinum Limited ("Company") and entitled to _____________________________________________ shares in the Company
hereby appoint_____________________________________________________________________________________________________________________ of
_______________________________________________________________________________________________________________________
or failing him/her____________________________________________________________________________________________________________________of
_______________________________________________________________________________________________________________________
or failing him/her the Chairman of the annual general meeting, being arepresentative of Conyers, Dill and Pearman, the Company's Bermuda counsel (andnot the chairman of the Company) as my/our proxy to vote for me/us and on my/our behalf at the annual general meeting of the Company to be held at ClarendonHouse, 2 Church Street, Hamilton, Bermuda at 9:00 am on Tuesday, 23 November2010 and at any adjournment thereof in respect of ___________________________of my/our shares or, failing any number being specified, ALL of my/our sharesin the Company.
If more than one proxy is appointed, the proportion of voting rights this proxy is authorised to exercise is [ ]%. (An additional proxy form will be supplied by the Company on request.)
In relation to undirected proxies, the Chairman intends to vote in favour of each Resolution.
If you wish to indicate how your proxy is to vote, please tick the appropriateplaces below. If no indication is given on a Resolution, the proxy may abstainor vote at his or her discretion.
I/we direct my/our proxy to vote as indicated :
Resolution For Against Abstain Re-election of Mr Nicholas Sibley Re-election of Mr Kofi Morna Amendments to Bye-laws Buy back authorisation Directors' Fees Re-appointment of Auditor As witness my/our hand/s this day 2010 of If a natural person: SIGNED by ) in the presence of: ) Name (Printed) Witness Name (Printed) If a company: EXECUTED by ) in accordance with its ) Director Director/ Secretary consitution ) Name Name (Printed) (Printed) If by power of attorney: SIGNED for and on behalf of Signature of Attorney by under a Power of Attorney dated and/ Signature of who Witness declares that he/she has not received any revocation of such Power ) of Attorney in the presence of AQUARIUS PLATINUM LIMITED Exempt Company NO. EC26290 ARBN 087 577 893 Explanatory Memorandum
This Explanatory Memorandum has been prepared for the information of Shareholders in connection with the business to be conducted at the Annual General Meeting of the Company to be held at Clarendon House, 2 Church Street, Hamilton, Bermuda at 9:00 am on Tuesday, 23 November 2010.
This Explanatory Memorandum should be read in conjunction with, and forms partof, the accompanying Notice of Annual General Meeting. A glossary of terms isincluded at the end of this Explanatory Memorandum.
Full details of the Resolutions to be considered at the Meeting are set out below.
1. Resolution 1 - Re-Election of Mr Nicholas Sibley as a Director
It is a requirement under the Company's Bye-laws that Mr Nicholas Sibley retire by rotation. Mr Sibley has offered himself for re-election as a Director.
The remaining Directors recommend to Shareholders that Mr Sibley be re-elected.
2. Resolution 2 - Re-Election of Mr Kofi Morna as a Director
It is a requirement under the Company's Bye-laws that Mr Kofi Morna retire by rotation. Mr Morna has offered himself for re-election as a Director.
The remaining Directors recommend to Shareholders that Mr Morna be re-elected.
3. Resolution 3 - Amendments to Bye-laws
Resolution 3 proposes amendments to the Company's Bye-laws to incorporate the provisions set out in Schedule A to this Explanatory Memorandum ("Proposed Amendments").
A copy of the Bye-laws incorporating the Proposed Amendments will be sent toany Shareholder upon request. A copy of the Bye-laws incorporating theProposed Amendments will also be available for inspection during normalbusiness hours at the Company's registered office in Bermuda and at the officesof the Company's share registry in England and Australia.
A description of the Proposed Amendments, which essentially have two elements, are set out below:
(a) Proportional Takeover Bid approval provisions
In October 2002 the Company amended its Bye-laws to incorporate significant shareholder protection mechanisms which regulate a proposed takeover of the Company. These mechanisms were modelled on the takeover and substantial shareholder provisions of the Australian Corporations Act, the fundamental principles of which are also reflected in the UK City Code on Takeovers and Mergers.
One aspect of the shareholder protection mechanisms introduced in October 2002related to a proportional takeover bid. Bye-law 70B provided that any takeoverbid for a specified proportion of all Shares ("Proportional Takeover Bid") mayonly proceed if it is approved (by a 50% majority) by a meeting of allShareholders who are not either the bidder or associated with the bidder. However, this Bye-law 70B ceased to apply in 2005.
The Company is now seeking Shareholder approval to amend its Bye-laws so as to include this Bye-law 70B in the Bye-laws again.
If Bye-law 70B is included in the Bye-laws, in the event that a ProportionalTakeover Bid is made, the Directors are required to convene a meeting of thoseShareholders entitled to vote on a resolution to approve the ProportionalTakeover Bid. The meeting is to be called upon not less than 14 days prior tothe end of the offer period for the Proportional Takeover Bid ("Deadline").If the Proportional Takeover Bid is not approved by Shareholders, Aquarius mustrefuse to register any transfer of Shares which purports to give effect to atakeover contract pursuant to that Proportional Takeover Bid. If no resolutionin relation to the Proportional Takeover Bid is voted on as at the end of theday before the Deadline, the resolution will be deemed to have been passed.
Where the approving resolution is passed or deemed to have been passed, the Proportional Takeover Bid may proceed and the Company is not prevented from registering transfers pursuant to the Proportional Takeover Bid.
Without Bye-law 70B, a Proportional Takeover Bid for the Company may enableeffective control of the Company to be acquired without Shareholders having theopportunity to dispose of all of their Shares to the bidder. Accordingly,Shareholders could be at risk of passing control to the bidder without aneffective premium for all their Shares whilst leaving themselves as part of aminority interest in the Company. Without Bye-law 70B, if there was a Proportional Takeover Bid and Shareholdersconsidered that control of the Company was likely to pass, Shareholders wouldbe placed under pressure to accept the offer even if they did not want controlof the Company to pass to the bidder. Including Bye-law 70B will make thissituation less likely by permitting Shareholders to decide whether aProportional Takeover Bid should be permitted to proceed.
(b) Buy-back provisions
Existing Bye-law 52.4 currently gives the Company the right to acquire its own Shares in accordance with specific provisions of the Companies Act.
However, in 2006 amendments were made to the Companies Act which allowed a company, if authorised to do so by its bye-laws, to acquire its own shares to be held as treasury shares, for cash or any other consideration.
Treasury shares are shares of a company which were, or are treated as havingbeen, acquired by the company and have not been cancelled but have been held bythe company continuously since they were acquired.Accordingly, the Company proposes to amend its existing Bye-law 52.4 so that itretains the power to buy back its own Shares in accordance with the CompaniesAct generally, however also giving it the power to buy back its own Shares andhold them as treasury shares.
The Directors recommend that Shareholders vote in favour of the Proposed Amendments.
4. Resolution 4 - Buy back authorisation
The Company seeks Shareholder approval to buy back Shares representing up to 5%of its issued capital. Based on the issued capital as at 8 October 2010, themaximum number of Shares which may be purchased under the authority will be23,161,550 Shares. The minimum and maximum prices at which Shares may bepurchased are set out in the Resolution.The authority will only be exercised if the Directors are satisfied that anypurchase can be expected to increase the earnings per Share after the purchaseand accordingly, that the purchase is in the best interests of Shareholdersgenerally. The Directors will also give careful consideration to gearinglevels of the Company and its general financial position. The purchase wouldbe settled out of distributable profits.If Resolutions 3 and 4 are approved by Shareholders and the Directors exercisethe authority conferred by Resolution 4, they may consider holding those Sharesas treasury shares (in accordance with amended Bye-law 52.4) or alternatively,cancelling them.
The authority will expire at the conclusion of the Company's next annual general meeting. The Company intends to renew this authority annually at each annual general meeting.
5. Resolution 5 - Directors' Fees
The Company seeks Shareholder approval to increase the maximum fees payable to the Directors each year by US$400,000, from the present US$850,000 to US$1,250,000 per annum. The last increase was made in 2005.
The proposed maximum fee level is considered comparable to directors' fees paidby other companies of a similar size that have exposure to the ASX, LSE andJSE. The increase in aggregate Directors' fees is to enable the Board to be ina position to pay and retain Directors at commercial rates commensurate withtheir experience and expertise and to ensure that the Company is able toattract and retain appropriately qualified and experienced candidates asDirectors and also allow for any future increase in Board numbers.
Given their interest in the subject matter of this Resolution, the Directors make no recommendation to Shareholders on Resolution 5.
6. Resolution 6 - Re-Appointment of Auditor
Section 89(2) of the Companies Act provides that members of a company at eachannual general meeting shall appoint one or more auditors to hold office untilthe close of the next annual general meeting. In addition, Section 89(6)provides that the remuneration of an auditor appointed by the members shall befixed by the members or by the Directors, if they are authorised to do so bythe members.Ernst & Young are the Company's auditors. Pursuant to Resolution 6, Ernst &Young will be re-appointed the Company's auditors until the close of the nextannual general meeting at a fee to be agreed by the Directors.
7. Glossary of Terms
In the Notice of Annual General Meeting and this Explanatory Memorandum the following words and expressions have the following meanings:
"ASX"means ASX Limited, or the stock exchange conducted by ASX, as the context requires.
"ASX Listing Rules"means the official listing rules of ASX.
"Board"means the board of Directors.
"Bye-laws" means the bye-laws of the Company as amended from time to time.
"Companies Act" means the Companies Act 1981 of Bermuda as amended from time to time.
"Company"and "Aquarius" means Aquarius Platinum Limited ARBN 087 557 893.
"Deadline" has the meaning given in section 3(a) of the Explanatory Memorandum.
"Directors"means the directors of the Company from time to time.
"Explanatory Memorandum"means this explanatory memorandum.
"Meeting"and "Annual General Meeting" means the annual general meeting of Shareholders or any adjournment thereof, convened by the Notice.
"Notice"and "Notice of Annual General Meeting" means the notice of annual general meeting which accompanies this Explanatory Memorandum.
"ordinary resolution" means a resolution that is required to be passed by more than 50% of the votes cast by members entitled to vote on the resolution.
"Proportional Takeover Bid" has the meaning given in section 3(a) of this Explanatory Memorandum.
"Proposed Amendments" has the meaning given in section 3 of this Explanatory Memorandum.
"Resolution" means a resolution in the Notice of Annual General Meeting.
"Shareholder" means a registered holder of Shares.
"Share" means a fully paid common share of US$0.05 in the capital of the Company.
Schedule A
Proposed Amendments to Bye-laws
(i) Proportional Takeover Bid approval provisions
Insert the following new Bye-law 70B immediately after existing Bye-law 70A: PROPORTIONAL TAKEOVER BID APPROVAL 70B Proportional Takeover Bid approval
In addition to the meanings and rules of interpretation set out in Bye-law 1, capitalised terms used in this Bye-law 70B have the following meanings:
Approving Resolution means a resolution to approve a Proportional Takeover Bid in accordance with this Bye-law 70B.
Associate has the meaning given in Bye-law 70A.
Deadline means the 14th day before the last day of the offer period for a Proportional Takeover Bid.
Person has the meaning given in Bye-law 70A.
Proportional Takeover Bid means a Takeover for a specified proportion of all Shares.
Relevant Stock Exchange has the meaning given in Bye-law 70A.
Takeover Bid has the meaning given in Bye-law 70A.
Voter means a Person (other than the bidder under a Proportional Takeover Bid or an Associate of that bidder) who, as at the end of the day on which the first offer under that bid was made, held Shares.
70B.1 Where offers are made under a Proportional Takeover Bid, theDirectors must call and arrange to hold a meeting of Voters for the purpose ofvoting on an Approving Resolution before the Deadline. Notwithstanding Bye-law33, for the purposes of this Bye-law 70B.1, the meeting of Voters may be calledupon not less than 10 days' notice.70B.2 If an Approving Resolution in relation to a Proportional TakeoverBid is voted on in accordance with this Bye-law 70B before the Deadline, theCompany must, on or before the Deadline, give the bidder and each RelevantStock Exchange a written notice stating that an Approving Resolution has beenvoted on and whether the resolution was passed or rejected.
70B.3 Notwithstanding any other Bye-law, the Board must refuse to register a transfer of Shares giving effect to a takeover contract for a Proportional Takeover Bid unless and until an Approving Resolution is passed in accordance with this Bye-law 70B.
70B.4 Voting on an Approving Resolution(a) Subject to Bye-law 70B.1, the provisions of these Bye-laws concerning meetings of Members (with the necessary changes) apply to a meeting held pursuant to Bye-law 70B.1.(b) Subject to these Bye-laws, every Voter present at the meeting held under Bye-law 70B.1 is entitled to one vote for each Share that the Voter holds.(c) To be effective, an Approving Resolution must be passed before the Deadline.(d) An Approving Resolution that has been voted on is taken to have been passed if the proportion that the number of votes in
favour of
the resolution bears to the total number of votes on the
resolution
is greater than 50%, and otherwise is taken to have been
rejected.
(e) If no Approving Resolution has been voted on as at the end of the day before the Deadline, an Approving Resolution is taken, for the purposes of this Bye-law 70B, to have been passed in accordance with this bye-law 70B.
70B.5 This Bye-law 70B ceases to apply on the third anniversary of its last adoption, or last renewal.
(ii) Buy-back provisions
Insert the following immediately after existing definition of "these Bye-laws"and immediately before existing definition of "Uncertificated Share" in Bye-law1.1:
"Treasury Share" means a share of the Company that was, or is treated as having been acquired and held by the Company and has been held continuously by the Company since it was so acquired and has not been cancelled.
Delete the existing Bye-law 52.4 and replace with the following:
52.4 The Company may purchase its own shares for cancellation oracquire them as Treasury Shares in accordance with the Act on such terms as theBoard shall think fit. The Board may exercise all the powers of the Company topurchase or acquire all or any part of its own shares in accordance with theAct.
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