31 Oct 2012 07:00
Aquarius Platinum Limited EXEMPT COMPANY NO. EC26290 ARBN 087 577 893 Notice of Annual General Meeting and Explanatory Memorandum Date of Meeting: Friday, 30 November 2012 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 readin their entirety. If Shareholders are in doubt as to how they should vote,they should seek advice from their accountant, solicitor or other professionaladviser prior to voting. Your 2012 Annual Report is 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 will be held at 9:00 am on Friday, 30 November 2012 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 2012 To receive the financial statements, directors' report and auditor's report for the Company and its controlled entities for the period ended 30 June 2012. 4. Resolution 1 - Re-election of Mr Tim Freshwater To consider and, if thought fit, to pass, with or without amendment, the following resolution: "That Mr Tim Freshwater, 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 Zwelakhe Mankazana To consider and, if thought fit, to pass, with or without amendment, the following resolution: "That Mr Zwelakhe Mankazana, 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." 6. Resolution 3 - Re-election of Mr Edward Haslam To consider and, if thought fit, to pass, with or without amendment, the following resolution: "That Mr Edward Haslam, 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." 7. Resolution 4 - Re-election of Mr Jean Nel To consider and, if thought fit, to pass, with or without amendment, the following resolution:
"That Mr Jean Nel, who was appointed a director of the Company to fill a
casual vacancy on 3 April 2012, retires in accordance with the ASX Listing Rules and being eligible, offers himself for re-election, be re-elected as a Director." 8. Resolution 5 - Buy back authorisation To consider and, if thought fit, to pass, with or without amendment, the following 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 24,342,566 Shares, representing 5% of the issued capital
of the Company as at 31 October 2012;
(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
to this authority shall not be more than an amount equal to 105% of the average of the middle market prices shown in the quotations for the Shares in the London Stock Exchange Daily Official List for the five business days immediately preceding the day on which that Share is contracted to be purchased and the amount stipulated by Article 5 (1) of the Buy-back and Stabilisation Regulation 2003; and
(d) the authority shall expire at the conclusion of the Company's next
annual general meeting after the passing of this Resolution unless renewed, varied or revoked before that time, but the Company may make a contract or contracts to purchase Shares under this authority before its expiry which will or may be executed wholly or partly
after the expiry of this authority, and may make a purchase of Shares
in pursuance of any such contract." 9. Resolution 6 - Disapplication of pre-emptive rights
To consider and, if thought fit, to pass, with or without amendment, the
following resolution as a special resolution: "That, in accordance with Bye-law 51.2A(f) the Directors be given power to allot Equity Securities (including, for the avoidance of doubt, any
Common Shares held as treasury shares immediately before their sale) for
cash pursuant to the authority conferred on them by Bye-law 51.2 as if Bye-law 51.2A(a) did not apply to any such allotment provided that: (a) this power shall be limited to the allotment of Equity Securities up to a maximum amount of 73,027,700 Shares (or a nominal amount of US$3,651,385); and (b) this power shall expire on the conclusion of the Company's next annual general meeting or, if earlier, close of business on 28 February 2014, however the Company may, before the expiry of this
power, make offers or agreements which would or might require Equity
Securities to be issued after such expiry and, notwithstanding such expiry, the Directors may issue Equity Securities in pursuance of such offers or agreements as if this power had not expired." 10. Resolution 7 - - Ratification of issue of 14,000,000 Shares as part of a transaction intended to preserve the black economic empowerment credentials of Aquarius. To consider and, if thought fit, to pass, with or without amendment, the following resolution: "That, for the purposes of ASX Listing Rule 7.4 and for all other purposes, the Shareholders ratify the issue of 14,000,000 Shares on 28 September 2012 as part of a transaction intended to preserve the black
economic empowerment credentials of Aquarius on the terms and conditions
set out in the Explanatory Memorandum." The Company will disregard any votes cast on this resolution by any
person who participated in the issue, and any associate of such persons.
However, the Company need not disregard a vote if it is cast by a person
as proxy for a person who is entitled to vote, in accordance with the directions on the proxy form, or it is cast by the person chairing the
meeting as proxy for a person who is entitled to vote, in accordance with
a direction on the proxy form to vote as the proxy decides.
11. Resolution 8 - Ratification of issue of 2,538,758 Shares as consideration
for the acquisition of mining rights from First Platinum Limited. To consider and, if thought fit, to pass, with or without amendment, the following resolution: "That, for the purposes of ASX Listing Rule 7.4 and for all other purposes, the Shareholders ratify the issue of 2,538,758 Shares on 8
August 2012, being the consideration for the acquisition of mining rights
from First Platinum Limited on the terms and conditions set out in the Explanatory Memorandum." The Company will disregard any votes cast on this resolution by any
person who participated in the issue, and any associate of such persons.
However, the Company need not disregard a vote if it is cast by a person
as proxy for a person who is entitled to vote, in accordance with the directions on the proxy form, or it is cast by the person chairing the
meeting as proxy for a person who is entitled to vote, in accordance with
a direction on the proxy form to vote as the proxy decides. 12. Resolution 9 - Re-appointment of Auditor To consider and, if thought fit, to pass, with or without amendment, the following 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: 31 October 2012 AQUARIUS PLATINUM LIMITED PROXY FORMExempt Company Number EC26290ARBN 087 577 893 PROXY AND VOTING ENTITLEMENT INSTRUCTIONS PROXY INSTRUCTIONSShareholders are entitled to appoint one or more 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 a body corporate isappointed as proxy, the body corporate may appoint an individual as arepresentative to exercise its powers 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 Codan Services Services Pty Ltd OR Clarendon House PO Box 485 2 Church StreetSOUTH PERTH WA 6951 Hamilton HM CX AUSTRALIA 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 at7pm (AEDST) on Wednesday, 28 November 2012. Accordingly, transactionsregistered after that time will be disregarded in determining entitlements toattend and vote at the Meeting. I/We
_______________________________________________________________________________
Of
_______________________________________________________________________________
being a shareholder/(s)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 Friday, 30 November2012 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 ofeach Resolution. If you wish to indicate how your proxy is to vote, pleasetick the appropriate places below. If no indication is given on a Resolution,the proxy may abstain or vote at his or her discretion.
I/we direct my/our proxy to vote as indicated :
Resolution For Against
Abstain
Re-election of Mr Tim Freshwater Re-election of Mr Zwelakhe Mankazana Re-election of Mr Edward Haslam Re-election of Mr Jean Nel Buy back authorisation Disapplication of pre-emptive rights Ratification of issue of 14,000,000 Shares under BEE transaction Ratification of issue of 2,538,758 Shares under First Platinum acquisition Re-appointment of Auditor As witness my/our hand/s this day of 2012 If a natural person: SIGNED by ) In the presence of: ___________________________ )
___________________________ ___________________________
Name (Printed) Witness Name (Printed) If a company: EXECUTED by )
___________________________ ___________________________
in accordance with its constitution ) Director
Director/Secretary
)
___________________________ ___________________________
Name (Printed) Name (Printed) If by power of attorney: SIGNED for on and on behalf of )
___________________________ ___________________________
) Signature of Attorney by _____________________________________________________) under a Power of Attorney dated and who ___________________________ declares that he/she has not received any Signature of Witness 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 Friday, 30 November 2012.
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 Timothy Freshwater as a Director
It is a requirement under the Company's Bye-laws that Mr Timothy Freshwater
retire by rotation. Mr Freshwater has offered himself for re-election as a Director. The remaining Directors recommend to Shareholders that Mr Freshwater be re-elected.
2. Resolution 2 - Re-Election of Mr Zwelakhe Mankazana as a Director
It is a requirement under the Company's Bye-laws that Mr Zwelakhe Mankazana
retire by rotation. Mr Zwelakhe Mankazana has offered himself for re-election as a Director. The remaining Directors recommend to Shareholders that Mr Mankazana be re-elected. 3. Resolution 3 - Re-Election of Mr Edward Haslam as a Director It is a requirement under the Company's Bye-laws that Mr Edward Haslam retire by rotation. Mr Edward Haslam has offered himself for re-election as a Director. The remaining Directors recommend to Shareholders that Mr Edward Haslam be re-elected. 4. Resolution 4 - Re-Election of Mr Jean Nel as a Director
It is a requirement under the ASX Listing Rules that Mr Jean Nel, who was
appointed a director of the Company to fill a casual vacancy on 3 April
2012, retire at the Annual General Meeting. Mr Nel has offered himself for
re-election as a Director. Mr Nel obtained his honours degree in Accounting from the University of Stellenbosch in 1995, completed articles with Deloitte & Touche and
qualified as a CA(SA) in 1998. Mr Nel joined the corporate finance division
of Investec Bank in 1999 and focused primarily on the resource sector of Southern Africa until 2003 during which time he obtained the CFA (AIMR) qualification. Mr Nel left Investec in 2003 to act as an independent
corporate finance consultant to mining and resource companies operating in
Southern Africa, where he acted for, amongst others, the Company. In 2009
Mr Nel completed the Advanced Management Programme at Insead. On 8 October 2012, Mr Nel was appointed Chief Operating Officer of the
Company for the interim period during which the Company seeks a replacement
for its Chief Executive Officer. The remaining Directors recommend to shareholders that Mr Nel be re-elected. 5. Resolution 5 - Buy back authorisation
The Company seeks Shareholder approval to empower the Directors to purchase
the Company's Shares in the market representing up to 5% of the Company's
issued capital. Based on the issued capital as at 31 October 2012, the
maximum number of Shares which may be purchased under the authority will be
24,342,566 Shares. The minimum and maximum prices at which Shares may be purchased are set out in the Resolution.
The authority will only be exercised if the Directors are satisfied that any
purchase can be expected to increase the earnings per Share after the
purchase and accordingly, that the purchase is in the best interests of the
Company. The Directors will also give careful consideration to gearing levels of the Company and its general financial position. The purchase would be settled out of funds available for distribution.
If Resolution 5 is approved by Shareholders and the Directors exercise the
authority conferred by the Resolution, they may consider holding those Shares as treasury shares (in accordance with the Bye-laws) or
alternatively, cancelling them. Once held in treasury, the Company is not
entitled to exercise any rights, including the right to attend and vote at
meetings in respect of the Shares. Further, no dividend or other
distribution of the Company's assets may be made to the Company in respect of the treasury shares. 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. 6. Resolution 6 - Disapplication of pre-emptive rights This Resolution seeks Shareholder approval to authorise the Directors to
allot Equity Securities for cash without first being required to offer such
Equity Securities to existing Shareholders (in accordance with the pre-emptive rights provisions included in Bye-law 51.2A).
The Bye-laws were amended in 2011 to include Bye-law 51.2A, which provides
that the Company must not allot Equity Securities for cash to any person
without first offering them to existing Shareholders in proportion to their
existing holdings. Resolution 6 authorises the Directors to allot a certain
amount of Equity Securities for cash without following the pre-emptive rights provisions. This Resolution 6 will be proposed as a special resolution. A special resolution is a resolution that must be passed by a majority of not less than 75% of all votes cast by Shareholders entitled to vote on the resolution.
This authority is being limited to 73,027,700 Shares (or a maximum nominal
amount of US$3,651,385), which is equivalent to 15% of the issued Shares of
the Company as at 31 October 2012. The Directors are of the view that the
appropriate limit to place on this disapplication authority being proposed
in Resolution 6 is 15%, which is the limit which the Company has complied
with in the past, being that set under ASX Listing Rule 7.1. It is also
the limit which was approved by Shareholders at the Company's AGM in 2011.
Under ASX Listing Rule 7.1, the Company must not issue or agree to issue
equity securities which exceed 15% of its securities on issue during the 12
month period prior to the date of issue or agreement, without shareholder approval. If approved, the Directors will be authorised to issue up to 73,027,700 Shares, without first offering them to Shareholders on a pro rata basis. This authority will continue until the conclusion of the Company's next annual general meeting or 28 February 2014, whichever is the earlier.
The Directors do not currently intend to exercise this authority. However,
the Directors consider the authority is appropriate in order to retain maximum flexibility to take advantage of business opportunities as they arise.
The Directors recommend that Shareholders vote in favour of Resolution 6.
7. Resolution 7 - Ratification of issue of 14,000,000 Shares as part of a
transaction intended to preserve the black economic empowerment credentials of Aquarius As announced on 4 October 2012, 14,000,000 Shares were issued as part of a transaction intended to preserve the black economic empowerment ("BEE") credentials of Aquarius. Following the decrease in the share price of Aquarius over recent months, the financing arrangements of Aquarius'
cornerstone BEE shareholders, being Savannah Platinum SPV, Chuma Platinum
SPV and Malibongwe Platinum SPV, ("BEE Partners"), required the sale of
approximately 35 million of the 64 million Shares held by the BEE Partners.
Aquarius is not a party to the current financing arrangements between the
BEE Partners and its financiers.
The Board of Aquarius considered the implications of these sales of the BEE
Partners' shares and of further potential sales, and resolved that it was in
the interests of Aquarius, and in line with its ongoing commitment to
complying with the BEE and regulatory framework in South Africa, to assist
the BEE Partners to preserve their remaining shareholdings in Aquarius. In order to give effect to such resolution, Aquarius lent to its wholly
owned subsidiary, Aquarius Platinum Investments Limited ("API") the proceeds
of the share issue received by Aquarius which API applied to acquire the 14,000,000 million Shares. API has entered into a limited guarantee and
pledge of the Shares ("Security Arrangements") with the financiers to the
BEE Partners. The purpose of the Security Arrangements is to provide sufficient share security to the BEE Partners' financiers. The Security Arrangements contain customary terms and conditions as well as specific events of release of the security, with the objective of limiting recourse and impact to API. Under ASX Listing Rule 7.1, the Company must not issue or agree to issue
equity securities which exceed 15% of its securities on issue during the 12
month period prior to the date of issue or agreement, without shareholder
approval. However, under Listing Rule 7.4, an issue of securities made without prior shareholder approval under Listing Rule 7.1 is treated as having been made with approval if the issue did not breach the 15% limit
under Listing Rule 7.1 when made and shareholders subsequently approve it.
Accordingly, pursuant to Resolution 7 Aquarius is seeking ratification of
Shareholders under Listing Rule 7.4 so that the Shares will not count
towards the 15% limit in respect of securities issued by the Company going forward. In accordance with Listing Rule 7.5, the following details are provided to Shareholders:
(a) the Company allotted and issued 14,000,000 Shares on 28 September 2012;
(b) the Shares were issued at $0.64 per Share;
(c) the Shares were fully paid common shares in the Company and rank equally
with, and are on the same terms, as the existing Shares on issue;
(d) the Shares are held by API, a wholly owned subsidiary of Aquarius; and
(e) as the funds for the purchase of the Shares were lent to API by Aquarius,
no funds were raised within the Aquarius group by the issue of the Shares. The Directors recommend that Shareholders ratify the issue of 14,000,000 Shares.
8. Resolution 8 - Ratification of issue of 2,538,758 Shares as consideration
for the acquisition of mining rights from First Platinum Limited In February 2009, Aquarius, AQPSA and FirstPlats entered into the
FirstPlats Agreement pursuant to which AQPSA was to acquire from FirstPlats
a prospecting and mining business for PGMs in the Salene Mining Area and
FirstPlats Mining Area. The consideration for the acquisition was
determined by reference to the aggregate cash value of 2,538,758 Shares.
Payment for purchase of the mineral rights was subject to the transfer of
ownership of the relevant mining licences to AQPSA. The transfer of these
mineral rights occurred earlier this year and on 8 August 2012, the Company
issued 2,538,758 Shares as consideration for the acquisition under the FirstPlats Agreement. Although the Company sought shareholder approval for the issue of these Shares in August 2009, due to the delay in the transfer of the relevant mining licences to AQPSA and accordingly, the issue of the Shares, that shareholder approval is no longer relevant or valid.
Under ASX Listing Rule 7.1, the Company must not issue or agree to issue
equity securities which exceed 15% of its securities on issue during the 12
month period prior to the date of issue or agreement, without shareholder
approval. However, under Listing Rule 7.4, an issue of securities made without prior shareholder approval under Listing Rule 7.1 is treated as
having been made with approval if the issue did not breach the 15% limit
under Listing Rule 7.1 when made and shareholders subsequently approve it.
Accordingly, pursuant to Resolution 8 Aquarius is seeking ratification of
Shareholders under Listing Rule 7.4 so that the Shares will not count towards the 15% limit in respect of securities issued by the Company going forward. In accordance with Listing Rule 7.5, the following details are provided to Shareholders: (a) the Company allotted and issued 2,538,758 Shares on 8 August 2012; (b) the Shares were issued as consideration for the acquisition of a
prospecting and mining business for PGMs in the Salene Mining Area and
First Plats Mining Area from FirstPlats under the FirstPlats Agreement;
(c) the Shares were fully paid common shares in the Company and rank equally with, and are on the same terms, as the existing Shares on issue;
(d) the Shares were issued to Sunspeak Global Corporation, on the direction
of FirstPlats, in accordance with the FirstPlats Agreement; and (e) no funds were raised by the issue of the Shares. The Directors recommend that Shareholders ratify the issue of 2,538,758 Shares. 9. Resolution 9 - Re-Appointment of Auditor Section 89(2) of the Companies Act provides that members of a company at each annual general meeting shall appoint one or more auditors to hold
office until the close of the next annual general meeting. In addition,
Section 89(6) provides that the remuneration of an auditor appointed by the
members shall be fixed by the members or by the Directors, if they are authorised to do so by the members. 10. Glossary of Terms
In the Notice of Annual General Meeting and this Explanatory Memorandum the
following words and expressions have the following meanings: "API" means Aquarius Platinum Investments Limited, a wholly owned subsidiary of Aquarius incorporated in Bermuda.
"AQPSA" means Aquarius Platinum (South Africa) (Pty) Ltd, a wholly owned
subsidiary of Aquarius incorporated in the Republic of South Africa; "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.
"BEE" has the meaning given in section 7 of the Explanatory Memorandum.
"BEE Partners" has the meaning given in section 7 of the Explanatory Memorandum. "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.
"Consideration Shares" has the meaning given in section 4 of this Explanatory Memorandum. "Directors" means the directors of the Company from time to time.
"Equity Security" means a Share (other than a bonus share), or a right to
subscribe for, or convert securities into, Shares including the sale of any
Shares if, immediately before the sale, the Shares were held as treasury shares. "Explanatory Memorandum" means this explanatory memorandum.
"FirstPlats" means First Platinum (Pty) Ltd, a company incorporated
in the Republic of South Africa. "FirstPlats Agreement" means the agreement between Aquarius, AQPSA and First Plats dated 5 February 2009. "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. "PGM" means platinum group metals.
"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.
"special resolution" means a resolution that is required to be passed by a
majority of not less than 75% of the votes cast by members entitled to vote
on the resolution.
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