IMPALA PLATINUM HOLDINGS LIMITED - Mandatory offer by Implats to acquire shares in RBPlat that it does not already hold- offer circular
17 January 2022 8:00
Mandatory offer by Implats to acquire shares in RBPlat that it does not already hold- offer circular
IMPALA PLATINUM HOLDINGS LIMITED
(Incorporated in the Republic of South Africa)
(Registration number: 1957/001979/06)
JSE Share code: IMP ISIN: ZAE000083648
ADR code: IMPUY
(“Implats”)
MANDATORY OFFER BY IMPALA PLATINUM HOLDINGS LIMITED TO ACQUIRE
SHARES IN ROYAL BAFOKENG PLATINUM LIMITED THAT IT DOES NOT ALREADY
HOLD – DISTRIBUTION OF OFFER CIRCULAR AND SALIENT DATES AND TIMES
NOT FOR RELEASE, PUBLICATION OR DISTRIBUTION, IN WHOLE OR IN PART,
DIRECTLY OR INDIRECTLY, IN, INTO OR FROM ANY JURISDICTION WHERE TO DO SO
WOULD CONSTITUTE A VIOLATION OF THE RELEVANT LAWS OR REGULATIONS OF
SUCH JURISDICTION
1. INTRODUCTION
(a) Implats refers to its mandatory offer (Offer) to the holders (RBPlat
Shareholders) of issued ordinary shares (RBPlat Shares) in Royal Bafokeng
Platinum Limited (RBPlat) and to its prior announcements in that regard,
including its announcements of 29 November 2021 and 1, 2, 8 and 9 December
2021.
(b) The purpose of this announcement is to update RBPlat Shareholders on the
publication and distribution of Implats' offer circular relating to the Offer
(Circular) and the salient dates and times relating to the Offer.
2. OFFER CIRCULAR
(a) Implats' Circular has been published and distributed to RBPlat Shareholders
earlier today, Monday, 17 January 2022. The Circular is available on Implats'
website at https://www.implats.co.za/rbplats-acquisition.php
(b) The Circular sets out the terms and conditions of the Offer, as well as the
conditions precedent to which the Offer is still subject, being:
(i) the Takeover Regulation Panel issuing a compliance certificate as
required under section 121(b) of the Companies Act, 2008 and
regulation 102(13) of the Takeover Regulations, 2011;
(ii) the JSE approving the listing on the main board of the exchange
operated by the JSE of all shares in Implats that are to be issued
pursuant to the Offer (and to the extent applicable, the entitlement to
such shares); and
(iii) to the extent required, Implats and RBPlat obtaining all approvals
required for the implementation of the Offer and the acquisition by
Implats of the relevant RBPlat Shares pursuant to the Offer from the
Competition Commission, the Competition Tribunal and/or the
Competition Appeal Court (as the case may be), as are required in terms
of the Competition Act, 1998 on terms and conditions (if any) that
Implats have confirmed in writing to RBPlat are satisfactory to Implats
(acting in its sole discretion).
(c) In accordance with the prescribed time table for the Offer, Implats expects that
RBPlat will publish and distribute its response circular to RBPlat Shareholders
by Monday, 14 February 2022.
3. SALIENT DATES AND TIMES
The salient dates and times of the Offer, as contained in the Circular, are set out below.
All capitalised terms in this paragraph have the meanings ascribed to such terms in
the Circular.
2022
Record date for RBPlat Shareholders to be eligible to receive the
Circular Friday, 7 January
Circular posted to RBPlat Shareholders Monday, 17 January
Announcement released on SENS relating to the posting of the Monday, 17 January
Circular
Offer opens (09:00) Tuesday, 18 January
Anticipated date of posting of RBPlat Response Circular to RBPlat Monday, 14 February
Shareholders
Offer becomes wholly unconditional by no later than (subject to note Monday, 30 May
4 below)
Finalisation date announcement published on SENS Tuesday, 31 May
Last day for US Shareholders to deliver US Investor Letters Tuesday, 7 June
Last day to trade in RBPlat Shares in order to participate in the Offer Monday, 13 June
RBPlat Shares trade “ex” the Offer Tuesday, 14 June
Record date to determine which RBPlat Shareholders may accept the Friday, 17 June
Offer
Offer closes at 12:00 on Friday, 17 June
Results of the Offer to be announced on SENS Monday, 20 June
Offer Consideration credited to Dematerialised Offer Participants' Monday, 20 June
account at CSDP or Broker as per notes 7 and 8 below
Offer Consideration posted to Certificated Offer Participants (subject Monday, 20 June
to receipt by RBPlat’s Transfer Secretaries of documents of title on or
prior to 12:00 on the Closing Date and a duly completed Form of
Acceptance and Transfer (blue)) as per notes 7 and 8 below
Notes:
1. All dates and times above are South African local times unless otherwise stated.
2. Certificated RBPlat Shareholders are required to complete and return the Form of Acceptance and Transfer (blue)
attached to the Circular in accordance with the instructions contained therein to be received by RBPlat’s Transfer
Secretaries by no later than 12:00 on the Closing Date.
3. Any change to the above dates and times will be agreed upon by Implats and the TRP and RBPlat Shareholders will
be advised by release on SENS and, if required, publication in the South African press.
4. This date is dependent upon the Conditions Precedent contained in paragraph 3.6 of the Circular being fulfilled or
waived (to the extent that the waiver is competent in law) by no later than this date and is subject to change. Any change
to the above date will be advised to RBPlat Shareholders by release on SENS and, if required, publication in the South
African press.
5. No dematerialisation or rematerialisation of RBPlat Shares will take place between the trading ex-date, Tuesday, 14
June 2022, and the record date, Friday, 17 June 2022, both days inclusive.
6. RBPlat Shareholders should note that acceptance of the Offer will, subject to paragraph 3.8.2 of the Circular, be
irrevocable.
7. In the event that the fulfilment or waiver (to the extent that the waiver is competent in law) of the Conditions Precedent
is unduly delayed, the above dates and times relating to the crediting and posting of the Offer Consideration will be
amended. Such amended dates and times will be released on SENS and, if required, published in the South African
press.
8. Settlement of the Offer Consideration will take place within six Business Days of the later of the Offer being declared
wholly unconditional and acceptance of the Offer by Offer Participants. The last day for settlement of the Offer
Consideration is on the Settlement Date. No fractions of Implats Shares will be issued and any fraction of an Offer
Consideration Share to which the Offer Participant becomes entitled pursuant to the Offer will be rounded to the nearest
whole Offer Consideration Share as set out in Annexure 1 to the Circular (fractions of less than 0.5 being rounded down
and fractions of 0.5 and more being rounded up), resulting in allocations of whole securities only
4. TAX IMPLICATIONS
The tax implications for RBPlat Shareholders who accept the Offer are dependent on
the individual circumstances and the jurisdiction(s) and relevant tax laws of such
jurisdiction(s) that may be applicable to such RBPlat Shareholders. Accordingly, it is
recommended that if RBPlat Shareholders are uncertain about the tax treatment of the
sale of their RBPlat Shares to Implats and the receipt of the Offer consideration
pursuant to the Offer, they seek appropriate advice in this regard. The securities
transfer tax payable under the Securities Transfer tax Act, 2007 in respect of the
transfer of RBPlat Shares to Implats pursuant to the Offer, will be payable by Implats.
5. FOREIGN RBPLAT SHAREHOLDERS
All capitalised terms in this paragraph have the meanings ascribed to such terms in
the Circular.
(a) The availability and impact of the Offer on RBPlat Shareholders who are
resident or located or who have registered addresses in any jurisdiction outside
South Africa and who may not be entitled to receive the Offer Consideration
Shares without violating applicable law or regulatory requirements or to whom
the issue of Offer Consideration Shares may be prohibited or subject to
requirements that are unduly onerous or impractical, may be affected by the
laws of the relevant jurisdiction. RBPlat Shareholders who are in doubt
regarding such matters should consult their CSDP, Broker or professional
advisor immediately.
(b) Implats may determine that the Offer Consideration Shares to which Foreign
Offer Participants are entitled as part of the Offer Consideration under the Offer,
will not be issued to such Foreign Offer Participants but will instead be issued
to the Sales Agent to hold same for and on behalf of such Foreign Offer
Participants on the basis that the Sales Agent will, as soon as practicable
following the date on which the Offer is declared to be fully unconditional and
is implemented, sell those Offer Consideration Shares through a market sale
process (which may occur on or off a securities exchange and in one or more
tranches, whether pursuant to a bookbuild or otherwise) and remit the net
proceeds of such Offer Consideration Shares to the relevant Foreign Offer
Participants as if it were part of the Offer Consideration Cash.
(c) To enable Implats to make its determination, RBPlat Shareholders who are
resident or located or who have registered addresses in any jurisdiction outside
South Africa and who wish to accept the Offer must please inform RBPlat’s
Transfer Secretaries as soon as possible (and in any event by no later than the
record date to determine which RBPlat Shareholders may accept the Offer as
indicated in the table of salient dates and times set out above) as to whether
they believe that they may lawfully receive the Offer Consideration Shares, or
that they may not lawfully receive the Offer Consideration Shares and then
provide such further documentation in proof as may be required by RBPlat's
Transfer Secretaries.
(d) In particular, in the United States, the Offer Consideration Shares have not
been and will not be registered under the US Securities Act or under any laws
or with any securities regulatory authority of any state, district or other
jurisdiction, of the United States, and may only be offered or sold pursuant to
an exemption from, or in a transaction not subject to, the registration
requirements of the US Securities Act and in compliance with any applicable
state and other securities laws. There will be no public offer of any securities in
the United States.
(e) Accordingly, the Offer Consideration Shares to be issued pursuant to the Offer
will be issued to a US Shareholder only if such US Shareholder is a QIB and
has agreed to certain transfer restrictions applicable to the Offer Consideration
Shares. Accordingly, to be eligible to receive Offer Consideration Shares
pursuant to the Offer, each US Shareholder that is a QIB must execute and
deliver a US Investor Letter to its immediate custodian, nominee or other
financial intermediary, with a copy to Implats, before 17:00, on Tuesday, 7 June
2022. The form of the US Investor Letter will be distributed to custodians,
nominees and other financial intermediaries to distribute to those US
Shareholders they hold for in due course and is also available to QIBs from the
Company Secretary of Implats at Tebogo.Llale@implats.co.za.
(f) Any US Shareholder who is not a QIB or in respect of which no US Investor
Letter is received by the immediate custodian, nominees or other financial
intermediary holding on its behalf, with a copy to Implats, before 17:00, on
Tuesday, 7 June 2022, will be a Foreign Offer Participant and will be treated as
set out elsewhere in this paragraph 5.
(g) Implats may reject or accept any US Investor Letter which is completed and/or
delivered to it other than or later than in accordance with the instructions
provided in this paragraph 5.
(h) The offering of the Offer Consideration Shares, and the distribution of any
related offering materials, is not, and under no circumstances are to be
construed as, an advertisement or a public offering in any province or territory
of Canada. Any offering in Canada may only be in those jurisdictions and to
those persons where and to whom they may lawfully be offered for sale, and
therein only by persons permitted to sell such securities. No securities
commission or similar authority in Canada has reviewed or in any way passed
upon these documents or the merits of the securities described herein, and any
representation to the contrary is an offence. Any offer or sale of the Offer
Consideration Shares in any province or territory of Canada will only be made
on a private placement basis, under an exemption from the requirement that
the issuer prepare and file a prospectus with the relevant Canadian securities
regulatory authorities. Any resale of the Offer Consideration Shares by a holder
in Canada must be made pursuant to an exemption from prospectus
requirements and in compliance with, or in a transaction that is not subject to,
the registration requirements of applicable Canadian securities laws.
Recipients of the Offer Consideration Shares are advised to seek legal advice
prior to any resale of such Offer Consideration Shares.
6. RESPONSIBILITY STATEMENT
The board of directors of Implats (to the extent that the information relates to Implats)
accepts responsibility for the information contained in this announcement and, to the
best of the Implats board’s knowledge and belief, that information is true and this
announcement does not omit anything likely to affect the importance of the information
included.
Illovo, Johannesburg
17 January 2022
Corporate Advisor and Lead Financial Advisor to Implats
Macquarie Advisory and Capital Markets South Africa (Pty) Ltd
Financial Advisors to Implats
J.P. Morgan
Nedbank Limited
The Standard Bank of South Africa Limited
Legal Advisors to Implats
Alchemy Law Africa
Edward Nathan Sonnenbergs Incorporated
Legal Advisor to Implats as to US law
Davis Polk & Wardwell London LLP
Transaction Sponsor to Implats
Nedbank Corporate and Investment Banking, a division of Nedbank Limited
Queries:
Johan Theron
E-mail: johan.theron@implats.co.za
T: +27 (0) 11 731 9013/17
M: +27 (0) 82 809 0166
Emma Townshend
E-mail: emma.townshend@implats.co.za
T: +27 (0) 21 794 8345
M: +27 (0) 82 415 3770
Alice Lourens
E-mail: alice.lourens@implats.co.za
T: +27 (0) 11 731 9033/17
M: +27 (0) 82 498 3608
NOT FOR RELEASE, PUBLICATION OR DISTRIBUTION, IN WHOLE OR IN PART,
DIRECTLY OR INDIRECTLY, IN, INTO OR FROM ANY JURISDICTION WHERE TO DO SO
WOULD CONSTITUTE A VIOLATION OF THE RELEVANT LAWS OR REGULATIONS OF
SUCH JURISDICTION.
This announcement is for information purposes only. It is not intended to and does not
constitute, or form part of, any offer, invitation or the solicitation of any offer to purchase,
otherwise acquire, subscribe for, sell or otherwise dispose of any securities, or the solicitation
of any vote or approval in any jurisdiction, pursuant to the acquisitions of securities
contemplated hereby or otherwise nor shall there be any sale, issuance or transfer of
securities in any jurisdiction in contravention of applicable law.
Forward-Looking Statements
This announcement contains "forward-looking statements". Forward-looking statements can
be identified by words like "may," "will," "likely," "should," "expect," "anticipate," "future," "plan,"
"believe," "intend," "goal," "seek," "estimate," "project," "continue" and similar expressions.
Forward-looking statements are neither historical facts nor assurances of future performance.
Instead, they are based only on our current beliefs, expectations and assumptions regarding
the future of Implats' business, future plans and strategies, projections, anticipated events and
trends, the economy and other future conditions. Because forward-looking statements relate
to the future, they are subject to inherent uncertainties, risks and changes in circumstances
that are difficult to predict and many of which are outside of Implats' control. Implats' actual
results and financial condition may differ materially from those indicated in the forward-looking
statements. Therefore, you should not rely on any of these forward-looking statements. The
forward-looking statements included in this announcement are made only as of the date of
this announcement, and except as otherwise required by law, Implats does not have any
obligation to publicly update or revise any forward-looking statements to reflect subsequent
events or circumstances.
Important information for US shareholders
RBPlat is a public company incorporated in South Africa. The Offer will be made to RBPlat
Shareholders in the United States in compliance with the applicable US tender offer rules
under the US Securities Exchange Act of 1934, as amended (US Exchange Act), including
Regulation 14E thereunder, and otherwise in accordance with the requirements of South
African law. Accordingly, the Offer will be subject to disclosure and other procedural
requirements, including with respect to withdrawal rights, the offer timetable, settlement
procedures and timing of payments that are different from those applicable under US domestic
tender offer law and practice. The financial information of RBPlat and Implats, including any
included in the offer documentation, will not have been prepared in accordance with US GAAP,
or derived therefrom, and may therefore differ from, and not be comparable with, financial
information of US companies.
The Implats Shares to be issued pursuant to the Offer as part of the Offer Consideration (the
Consideration Shares) have not been, and will not be, registered under the US Securities
Act of 1933, as amended (the US Securities Act), or under any laws or with any securities
regulatory authority of any state, district or other jurisdiction, of the United States, and may
only be offered or sold pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the US Securities Act and in compliance with any applicable state
and other securities laws. There will be no public offer of any securities in the United States.
This announcement does not constitute an offer to sell or solicitation of an offer to buy any of
the shares in the United States. Further details of which US and other RBPlat Shareholders
are eligible to receive the Consideration Shares, and the procedural steps required to be taken
by such persons to so receive such shares, as well as the procedures for those US and other
RBPlat Shareholders who do not so qualify to receive the Consideration Shares, will be set
forth in the Offer Circular. Also see paragraph 5 of this announcement.
Implats and its affiliates or brokers (acting as agents for Implats and its affiliates, as applicable)
may from time to time, and other than pursuant to the Offer, directly or indirectly, purchase, or
arrange to purchase outside the United States, shares in RBPlat or any securities that are
convertible into, exchangeable for or exercisable for such shares before or during the period
in which the Offer remains open for acceptance, to the extent permitted by, and in compliance
with, Rule 14e-5 under the US Exchange Act. These purchases may occur either in the open
market at prevailing prices or in private transactions at negotiated prices. Information about
any such purchases or arrangements to purchase that is made public in accordance with
South African law and practice will be available to all investors (including in the United States)
via announcements on the Stock Exchange News Service (or SENS) of the JSE Limited.
Neither the US Securities and Exchange Commission (SEC) nor any US state securities
commission has approved or disapproved of the Consideration Shares to be issued in
connection with the Offer, or determined if this announcement or the Offer Circular is accurate
or complete. Any representation to the contrary is a criminal offence in the United States.
The Consideration Shares have not been and will not be listed on a US securities exchange
or quoted on any inter-dealer quotation system in the United States. Implats does not intend
to take any action to facilitate a market in the Consideration Shares in the United States.
The Offer, if consummated, may have consequences under US federal income tax and
applicable US state and local, as well as non-US, tax laws for RBPlat Shareholders. Each
RBPlat Shareholder is urged to consult his or her independent professional adviser regarding
the tax consequences of the Offer.
It may not be possible for RBPlat Shareholders in the United States to effect service of process
within the United States upon RBPlat and/or Implats (each a company incorporated in South
Africa), or their respective officers or directors, some or all of which may reside outside the
United States, or to enforce against any of them judgments of the United States courts
predicated upon the civil liability provisions of the federal securities laws of the United States
or other US law. It may not be possible to bring an action against RBPlat and/or Implats or
their respective officers or directors, in a non-US court for violations of US law, including the
US securities laws. Further, it may be difficult to compel a non-US company and its affiliates
to subject themselves to a US court’s judgement. In addition, it may be difficult to enforce in
South Africa original actions, or actions for the enforcement of judgments of US courts, based
on the civil liability provisions of the US federal securities laws.
Date: 17-01-2022 08:00:00
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