Voluntary Conditional Cash Offer for the Company
29 August 2014
Asian Plantations Limited
("Asian Plantations" or the "Company")
Voluntary Conditional Cash Offer for the Company
The board of directors of Asian Plantations Limited (the "Board") notes the announcement issued today by Merrill Lynch (Singapore) Pte Ltd acting for and on behalf of FELDA Global Ventures Holdings Berhad ("FELDA" or the "Offeror")(the "Offer Announcement") in which FELDA states its intention to make a voluntary conditional cash offer (the "Offer") for all the issued ordinary shares of no par value in the Company (excluding any treasury shares, of which there are currently none) (the "Ordinary Shares") at a price of 220p per Ordinary Share. This offer represents a premium of 3.53 per cent. to the closing mid-market price of 212.5p per Ordinary Share on 28 August 2014, being the latest practicable date prior to this announcement. The Offer values the entire issued share capital of Asian Plantations at approximately £102.9m.
The Offer Announcement (a copy of which is provided below) also contains a proposal in respect of certain outstanding share options (the "Option Proposal") and proposals in respect of certain convertible notes issued by the Company (the "Notes Offer").
FELDA has received irrevocable undertakings to accept the Offer, as detailed in the Offer Announcement, in respect of approximately 59.9 per cent. of the Ordinary Shares from certain shareholders and directors of the Company.
Further Details of the Offer
Further details of the Offer, the Option Proposal and the Notes Offer are set out in the attached Offer Announcement. Shareholders are advised to refer to and carefully review the full text of the Offer Announcement as it contains important information, including information on the Offeror, the Offer, the rationale for the Offer and the Offeror's intentions for the Company.
Offer Document
A document which will contain the terms and conditions of the Offer (the "Offer Document"), and enclose the appropriate form(s) of acceptance will be dispatched to Shareholders and Option Holders not earlier than 14 days and not later than 21 days following the date of the Offer Announcement.
Offeree Circular
The Board will in due course appoint an independent financial adviser (the "IFA") to advise the director of the Company who is considered independent for the purposes of the Offer and the Option Proposal (the "Independent Director"). A circular containing, inter alia, the advice of the IFA and the recommendation of the Independent Director in respect of the Offer and the Options Proposal, (the "Offeree Circular") will be sent to Shareholders and the Option Holders, within 14 days from the date of despatch of the Offer Document to be issued by the Offeror.
In the meantime, Shareholders and the Option Holders, are advised to exercise caution when dealing in their Ordinary Shares and/or Options (as the case may be) or otherwise refrain from taking any action in relation to their Ordinary Shares and/or Options (as the case may be), which may be prejudicial to their interests, until they or their professional advisers have considered the information and the recommendations of the Independent Director as well as the advice of the IFA set out in Offeree Circular to be issued by the Company in due course.
Shareholders and the Option Holders, who are in doubt as to the action they should take should consult their stockbroker, bank manager, solicitor or other professional advisers.
Responsibility Statement
The directors of the Company (including those who may have delegated detailed supervision of this announcement) have taken all reasonable care to ensure that the facts stated and opinions expressed in this announcement are fair and accurate and that there are no other material facts not contained in this announcement, the omission of which would make any statement in this announcement misleading.
Where any information has been extracted or reproduced from published or otherwise publicly available sources (including, without limitation, the Offer Announcement), the sole responsibility of the directors of the Company has been to ensure, through reasonable enquiries, that such information is accurately extracted from such sources or, as the case may be, accurately reflected or reproduced in this announcement.
The directors of the Company jointly and severally accept full responsibility accordingly.
For further information, please contact:
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Asian Plantations Limited Graeme Brown, Joint Chief Executive Officer Dennis Melka, Joint Chief Executive Officer
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Tel: +65 6325 0970
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Strand Hanson Limited James Harris James Spinney James Bellman Mark Greaves (Singapore)
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Tel: +44 (0) 20 7409 3494
Tel: +65 9670 7921 |
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Macquarie Capital (Europe) Limited Steve Baldwin
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Tel: +44 (0) 203 037 2000
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Panmure Gordon (UK) Limited Charles Leigh-Pemberton Tom Nicholson
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Tel: +44 (0) 20 7886 2500 Tel: +65 6824 8204
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VOLUNTARY CONDITIONAL CASH OFFER
by
MERRILL LYNCH (SINGAPORE) PTE. LTD.
(Incorporated in Singapore)
(Company Registration No.: 198602883D)
for and on behalf of
Felda Global Ventures Holdings Berhad
(Incorporated in Malaysia)
(Company Registration No.: 800165-P)
for
ASIAN PLANTATIONS LIMITED
(Incorporated in Singapore)
(Company Registration No.: 200919551D)
OFFER ANNOUNCEMENT
1. INTRODUCTION
1.1 Merrill Lynch (Singapore) Pte. Ltd. (the "Financial Adviser" or "Merrill Lynch") wishes to announce, for and on behalf of Felda Global Ventures Holdings Berhad (the "Offeror"), that the Offeror intends to make a voluntary conditional cash offer (the "Offer") for all the ordinary shares (excluding treasury shares) ("Shares") in issue in the capital of Asian Plantations Limited (the "Company"), including all the Shares owned, controlled or agreed to be acquired by parties acting or presumed to be acting in concert with the Offeror, but excluding Shares held by the Offeror, its related corporations and their nominees as at the date of the Offer.
1.2 Further details on the Offeror are set out in paragraph 6 below.
2. THE OFFER
2.1 Offer Price. Subject to the terms and conditions set out in the offer document (the "Offer Document") to be issued by the Financial Adviser, for and on behalf of the Offeror, the Offeror will make the Offer for all the Offer Shares (as defined below), in accordance with Section 139 of the Securities and Futures Act, Chapter 289 of Singapore and the Singapore Code on Take-overs and Mergers (the "Code")(1) on the following basis:
For each Offer Share (as defined below): £2.20 in cash (the "Offer Price")
2.2 Offer Shares. The Offer, when made, will be extended, on the same terms and conditions, to:
2.2.1 all issued Shares, including all the Shares owned, controlled or agreed to be acquired by parties acting or presumed to be acting in concert with the Offeror, but excluding Shares held by the Offeror, its related corporations and their nominees as at the date of the Offer;
2.2.2 all new Shares unconditionally issued or to be issued pursuant to the valid exercise of any option to subscribe for new Shares (each, an "Option") granted under the Asian Plantations Limited Share Option Scheme (the "Scheme") prior to the close of the Offer;
2.2.3 all new Shares unconditionally issued or to be issued pursuant to the valid conversion of the Bonds (as defined below) prior to the close of the Offer; and
2.2.4 all new Shares unconditionally issued or to be issued pursuant to the valid conversion of the Notes (as defined below) prior to the close of the Offer,
(collectively, the "Offer Shares").
2.3 No Encumbrances. The Offer Shares will be acquired, and a shareholder of the Company ("Shareholder") who tenders his Offer Shares in acceptance of the Offer will be deemed to unconditionally and irrevocably warrant that he sells such Offer Shares as, or for and on behalf of, the beneficial owner(s) thereof, (i) fully paid; (ii) free from any mortgage, debenture, lien, charge, pledge, title retention, right to acquire, security interest, option, pre-emptive or similar right, right of first refusal and any other encumbrance or condition whatsoever ("Encumbrance"); and (iii) together with all rights, benefits and entitlements attached thereto as at the date of this Announcement (the "Announcement Date") and hereafter attaching thereto, including the right to receive and retain all dividends, rights, other distributions and return of capital (if any) declared, paid or made by the Company on or after the Announcement Date.
Accordingly, if any dividend, right, other distribution or return of capital is declared, paid or made by the Company on the Offer Shares on or after the Announcement Date and the Offeror is not entitled to receive and retain such dividend, right, other distribution or return of capital in full in respect of any of the Offer Shares tendered in acceptance of the Offer, the Offeror reserves the right to reduce the Offer Price payable in respect of such Offer Shares by the amount of such dividend, right, other distribution or return of capital.
2.4 Conditions. The Offer will be subject to the following conditions:
2.4.1 Level of Acceptances of the Offer. The Offeror having received, by the close of the Offer, valid acceptances (which have not been withdrawn) in respect of such number of Offer Shares which, together with the Shares owned, controlled or agreed to be acquired by the Offeror and parties acting in concert with it (either before or during the Offer and pursuant to the Offer or otherwise), will result in the Offeror and parties acting in concert with it holding such number of Shares carrying more than 75% of the total voting rights attributable to the Shares as at the close of the Offer (the "Acceptance Condition").
Accordingly, the Offer will not become or be capable of being declaredunconditional as to acceptances until the close of the Offer, unless at any time prior to the close of the Offer, the Offeror has received valid acceptances (which have not been withdrawn) in respect of such number of Offer Shares which, when taken together with the Shares owned, controlled or agreed to be acquired by the Offeror and parties acting in concert with it (either before or during the Offer and pursuant to the Offer or otherwise), will result in the Offeror and parties acting in concert with it holdingsuch number of Shares carrying more than 75% of the voting rights attributable to the maximum potential share capital of the Company. For this purpose, the "maximum potential share capital of the Company" (as defined in Rule 28 of the Code) means the total number of Shares which would be in issue had all the outstanding Options, Bonds and Notes which are exercisable or convertible (as the case may be) prior to the close of the Offer (other than those acquired or agreed to be acquired by the Offeror and persons acting in concert with it) been validly exercised or converted (as the case may be) as at the date of such declaration.
The Offeror reserves the right to revise the level of the Acceptance Condition to a level of 75% or below (but more than 50%) of the voting rights attributable to the maximum potential share capital of the Company as at the close of the Offer, subject to the prior consent of the Securities Industry Council of Singapore (the "SIC").
2.4.2 Other Conditions. The other conditions set out in Appendix 1 to this Announcement (collectively, the "Other Conditions").
2.5 Information Pertaining to Holders of Depositary Interests. Holders of depositary interests ("Depositary Interests") representing Offer Shares ("DI Holders") held by Computershare Investor Services PLC (the "Depositary") will receive further information on how to accept the Offer in the Offer Document. DI Holders who wish to accept the Offer are to reply to the Depositary in accordance with the instructions contained within the Offer Document. DI Holders are advised to consult the Depositary if they require further information, and if they are in any doubt as to the action they should take, DI Holders should seek their own independent professional advice. Subject to the Offer becoming or being declared to be unconditional in all respects in accordance with its terms, and subject to paragraph 2.6 below, DI Holders who accept the Offer will receive the Offer Price payable in respect of their Depositary Interests representing Offer Shares held through the Depositary. Further details in relation to DI Holders will be contained in the Offer Document.
2.6 Real Property Gains Tax. Under the Real Property Gains Tax Act 1976 of Malaysia (the "RPGT Act"), Shareholders who accept the Offer may be subject to Real Property Gains Tax ("RPGT") in Malaysia in respect of the consequent transfer of Offer Shares because the Company may be deemed to be a real property company as the Company owns real property or shares or both whereby the defined value of real property or shares or both owned is not less than 75% of the value of the Company's total tangible assets. Under the RPGT Act, a purchaser of real property and/or a real property company is required to retain 2% of the purchase consideration on account of RPGT which shall be paid to the Director General of the Inland Revenue Board of Malaysia within 60 days.
Accordingly, the Offeror reserves the right to retain a sum not exceeding 2% of the Offer Price in discharge of its obligations under the RPGT Act. The statements herein in relation to RPGT do not purport to be a comprehensive or exhaustive description of all implications that may arise under the RPGT Act. Shareholders are advised to seek their own independent professional advice if in doubt.
Note:
(1) For the avoidance of doubt, the United Kingdom City Code on Takeovers and Mergers (the "UK Code") is not applicable to the Company and accordingly, the Offeror is not required to comply with the UK Code.
3. THE OPTIONS PROPOSAL
3.1 Outstanding Options(1). As at the Announcement Date, based on information available to the Offeror, there are 3,482,500 outstanding Options granted under the Scheme, which have vested and are exercisable by the holders of the outstanding Options ("Option Holders") into an aggregate of 3,482,500 new Shares based on exercise prices of between S$1.55 (or approximately the equivalent of £0.75) and S$5.07 (or approximately the equivalent of £2.45) per Share. In addition, there are 712,500 outstanding Options granted under the Scheme with an exercise price of S$1.55 (or approximately the equivalent of £0.75) per Share which have not vested. Upon vesting, these Options are exercisable into an aggregate of 712,500 new Shares. Under the Scheme, all Options which are granted but not vested will vest upon a take-over offer being made which is recommended by the board of the Company. In addition, the vested Options will become exercisable by Option Holders upon the Offer becoming unconditional.
3.2 Options Proposal. Under the Scheme, the Options are not transferable by the Option Holders, unless with the prior approval in writing of the Scheme committee. In view of this restriction, the Financial Adviser, for and on behalf of the Offeror, will not make an offer to acquire the Options (although, for the avoidance of doubt, the Offer will be extended, on the same terms and conditions, to all new Shares unconditionally issued or to be issued pursuant to the valid exercise of any Option prior to the close of the Offer). Instead, the Financial Adviser, for and on behalf of the Offeror, will make an appropriate proposal ("Options Proposal") to the Option Holders. Under the Options Proposal, the Offeror will, subject to:
3.2.1 the Offer becoming or being declared unconditional in all respects in accordance with its terms; and
3.2.2 the relevant Options continuing to be exercisable into new Shares,
pay the Option Holders a cash amount (the "Option Price") in consideration of the Option Holders agreeing not to exercise all or any of their Options into new Shares and surrendering their Options for cancellation. The Option Price will be calculated on a "see-through" basis in accordance with the Code, that is, in relation to any Option, the excess of the Offer Price over the exercise price of the Option. In addition, where the exercise price of an Option is equal to or more than the Offer Price and hence causing the "see through" price to be zero or negative, the Offeror will be offering a nominal amount of £0.001 for each such Option.
Calculation and payment of the Option Price will be made in £, based on the S$ to £ exchange rate extracted from Bloomberg L.P. on the Last Trading Day (as defined below).
3.3 Offer and Options Proposal Mutually Exclusive. For the avoidance of doubt, whilst the Options Proposal is conditional upon the Offer becoming or being declared unconditional in all respects in accordance with its terms, the Offer will not be conditional upon acceptances received in relation to the Options Proposal. The Offer and the Options Proposal are separate and are mutually exclusive. The Options Proposal does not form part of the Offer, and vice versa. Without prejudice to the foregoing, if an Option Holder exercises his Options in order to accept the Offer in respect of the new Shares to be issued pursuant to such exercise, he may not accept the Options Proposal in respect of such Options. Conversely, if an Option Holder wishes to accept the Options Proposal in respect of his Options, he may not exercise those Options in order to accept the Offer in respect of the new Shares to be issued pursuant to such exercise.
3.4 Details of Options Proposal. Details of the Options Proposal will be despatched to the Option Holders no later than the date of despatch of the Offer Document.
Note:
(1) Details of the Options are based on information provided by the Company as at 28 August 2014.
4. NO BONDS OFFER
4.1 Outstanding Bonds(1). As at the Announcement Date, based on information available to the Offeror, an aggregate of US$2.1 million in principal amount of 2.5% convertible bonds due 2015 which were issued by the Company on 15 August 2011 (the "Bonds") remains outstanding. The Bonds are convertible by the holders of the Bonds (each a "Bond Holder") into 434,700 new Shares (subject to such adjustments provided for under the terms of the Bonds), which represent a fixed conversion price of US$4.83 per Share (or approximately the equivalent of £2.91 per Share) (assuming no adjustment event has occurred) (the "Bond Conversion Price"). According to the Company, no adjustment event has occurred since the date of issue of the Bonds. The Bonds, if fully converted at the Bond Conversion Price, would represent approximately 0.8% of the maximum potential share capital of the Company.
4.2 Certain Terms of the Bonds. Under the terms of the Bonds, an event of default will be triggered upon the delisting of the Company which will require all of the Bonds to be redeemed by the Company on the date falling seven days after the date of delivery of the notice of the event of default.
4.3 No Bonds Offer or Proposal. Under the terms of the Bonds, the Bonds are not transferable unless the Company otherwise agrees to such a transfer. In view of this restriction, the Offeror will not make an offer to acquire the Bonds. For the avoidance of doubt, the Offer will be extended, on the same terms and conditions, to all new Shares unconditionally issued or to be issued pursuant to the valid conversion of any Bond prior to the close of the Offer.
Note:
(1) Details of the Bonds are based on information provided by the Company as at 28 August 2014.
5. NOTES OFFER
5.1 Outstanding Notes(1). As at the Announcement Date, based on information available to the Offeror, an aggregate of US$15.0 million in principal amount of convertible notes due 2016 which were issued by the Company on 14 January 2013 and 23 August 2013 (the "Notes") remains outstanding. The Notes are convertible, in whole or in part, by holders of the Notes (each a "Note Holder") into new Shares at the fixed conversion price of £2.86 per Share (the "Note Conversion Price"), subject to such adjustments under the terms of the Notes. The number of new Shares to be issued on conversion of a Note will be determined by dividing the relevant principal amount of the Note (translated into £ at the fixed rate of exchange of £1.00 per US$1.6088) by the Note Conversion Price. According to the Company, no adjustment event has occurred since the date of issue of the Notes. Accordingly, upon full conversion at the Note Conversion Price, the Notes are convertible into 3,260,041 new Shares, which would represent approximately 6.0% of the maximum potential share capital of the Company.
5.2 Certain Terms of the Notes. Under the terms of the Notes, the Notes are transferable by the Note Holders. Further, following the occurrence of a Change of Control Event, the Note Holders have the right to convert the Notes into Shares at the Note Conversion Price, and any Note not converted as aforesaid on the Change of Control Conversion Date will be mandatorily redeemed by the Company together with accrued interest if any, in accordance with the terms of the Notes, on such date. A "Change of Control Event" occurs when, inter alia, a valid, irrevocable offer is made to all (or nearly as may be practicable all) shareholders (or all (or nearly as may be practicable all) shareholders other than the offeror and/or any person acting in concert (as defined in the Code) with the offeror) to acquire more than 30% of the issued capital of the Company. The "Change of Control Conversion Date" shall be the third business day after the expiry of the Change of Control Period, and the "Change of Control Period" shall commence on the date on which a notice of the occurrence of a Change of Control Event is given to the Note Holders by the Company and end on the third business day after completion of all matters relating to the relevant Change of Control Event.
In addition, under the terms of the Notes, an event of default will be triggered upon, inter alia, (i) Graeme Iain Brown, Dennis Nicholas Melka, Tan Sri Datuk Amar Leonard Linggi Anak Jugah, Keresa Plantations Sdn Bhd and Asian Forestry Holdings Limited on an aggregate basis ceasing to legally and beneficially own 40% or more of the total issued share capital of the Company; or (ii) the Company failing to maintain a listing for all the issued Shares on AIM (as defined below) or an alternative stock exchange, upon the occurrence of which, inter alia, the agreed default rate shall apply and holders holding Notes representing not less than two-thirds of the aggregate principal amount of the Notes outstanding may at any time at their option by notice to the Company declare the Notes to be immediately due and payable, in accordance with the terms of the Notes.
5.3 Notes Offer. Pursuant to Rule 19 of the Code, an appropriate offer will be made for the Notes and such offer will be conditional upon the Offer becoming or being declared unconditional in all respects in accordance with its terms(the "Notes Offer").
5.4 Notes Offer Price. The offer price for the Notes (the "Notes Offer Price") will be as follows:
For every US$1,000,000 in principal amount of Notes: £478,139.35 in cash (or approximately the equivalent of US$792,563.78 at the exchange rate of £1.00 to US$1.6575 as extracted from Bloomberg L.P. on the Last Trading Day (as defined below))
The Notes Offer Price is calculated on a "see-through" basis in accordance with the Code, that is, based on the Offer Price of £2.20 for one Offer Share multiplied by the number of new Shares into which US$1,000,000 in principal amount of the Notes may be converted (rounded down to the nearest whole number of a Share). The actual Notes Offer Price payable to each accepting Note Holder will be determined based on the total principal amount of the Notes that are tendered by a Note Holder pursuant to the Notes Offer. Under the terms of the Notes, the minimum principal amount of the Notes that may be converted by means of a partial conversion shall be US$1,000,000, and accordingly, the Notes can only be tendered in acceptance of the Notes Offer in a minimum principal amount of US$1,000,000.
5.5 No Encumbrances. The Notes will be acquired, and a Note Holder who tenders his Notes in acceptance of the Notes Offer will be deemed to unconditionally and irrevocably warrant that he sells such Notes as, or for and on behalf of, the beneficial owner(s) thereof, (i) fully paid; (ii) free from all Encumbrances; and (iii) together with all rights, benefits and entitlements attached thereto as at the Announcement Date and hereafter attaching thereto, including the right to receive and retain all interest, payments, rights and other distributions (if any) declared, paid or made by the Company on or after the Announcement Date.
Accordingly, if any interest, payment, right or other distribution is declared, paid or made by the Company on the Notes on or after the Announcement Date and the Offeror is not entitled to receive and retain such interest, payment, right or other distribution in full in respect of any of the Notes tendered in acceptance of the Notes Offer, the Offeror reserves the right to reduce the Notes Offer Price payable in respect of such Notes by the amount of such interest, payment, right or other distribution.
5.6 Offer and Notes Offer Mutually Exclusive. For the avoidance of doubt, whilst the Notes Offer is conditional upon the Offer becoming or being declared unconditional in all respects in accordance with its terms, the Offer will not be conditional upon acceptances received in relation to the Notes Offer. The Offer and the Notes Offer are separate and are mutually exclusive. The Notes Offer does not form part of the Offer, and vice versa. Without prejudice to the foregoing, if a Note Holder converts his Notes in order to accept the Offer in respect of the new Shares to be issued pursuant to such conversion, he may not accept the Notes Offer in respect of such converted Notes. Conversely, if a Note Holder wishes to accept the Notes Offer in respect of his Notes, he may not convert those Notes in order to accept the Offer in respect of the new Shares to be issued pursuant to such conversion.
5.7 Details of Notes Offer. Details of the Notes Offer will be despatched to the Note Holders no later than the date of despatch of the Offer Document.
Note:
(1) Details of the Notes are based on information provided by the Company as at 28 August 2014.
6. INFORMATION ON THE OFFEROR
6.1 The Offeror, based in Malaysia, is a leading globally-integrated, diversified agri-business company focusing on the whole supply chain of palm oil and rubber, sugar manufacturing and downstream activities in oils & fats and oleo-chemicals. The Offeror operates globally in more than 10 countries across 4 continents such as North America, Europe, Asia, and Australia. Incorporated in Malaysia as a private limited company in 2007, the Offeror initially operated as the commercial arm of the Federal Land Development Authority (FELDA) of Malaysia. On 28 June 2012, the Offeror was listed on the main market of Bursa Malaysia Securities Berhad as Felda Global Ventures Holdings Berhad.
6.2 As at the Announcement Date, the directors of the Offeror are:
(a) YB Tan Sri Haji Mohd Isa Dato' Haji Abdul Samad (Chairman, Non-Independent and Non-Executive Director);
(b) Mohd Emir Mavani Abdullah (Group President / Chief Executive Officer, Non-Independent and Executive Director);
(c) Tan Sri Dato' Sri Dr. Wan Abdul Aziz Wan Abdullah (Independent andNon-Executive Director);
(d) Datuk Dr. Omar Salim (Non-Independent and Non-Executive Director);
(e) Dato' Yahaya Abd Jabar (Senior Independent and Non-Executive Director);
(f) Tan Sri Ismee Ismail (Independent and Non-Executive Director);
(g) Datuk Nozirah Bahari (Non-Independent and Non-Executive Director);
(h) YB Datuk Noor Ehsanuddin Bin Haji Mohd Harun Narrashid (Independent and Non-Executive Director);
(i) Fazlur Rahman Bin Ebrahim (Independent and Non-Executive Director);
(j) Datuk Hj. Faizoull Bin Ahmad (Non-Independent and Non-Executive Director); and
(k) Tan Sri Dr. Sulaiman Bin Mahbob (Independent and Non-Executive Director).
6.3 As at 28 August 2014, the Offeror had a market capitalisation of RM14,337 million (approximately equivalent to £2,742 million). The audited consolidated net asset value ("NAV") of the Offeror and its subsidiaries ("Offeror Group") as at 31 December 2013 and the unaudited NAV of the Offeror Group as at 30 June 2014 were RM6,571 million (approximately equivalent to £1,257 million) and RM6,493 million (approximately equivalent to £1,242 million) respectively. The unaudited consolidated turnover of the Offeror Group for the six months ended 30 June 2014 was RM7,810 million (approximately equivalent to £1,494 million). Further information on the Offeror Group is available on its website at http://www.feldaglobal.com.
6.4 None of the Offeror and its related corporations holds or controls any Shares as at the Announcement Date.
6.5 As at the Announcement Date, certain existing Shareholders, namely, Keresa Plantations Sendirian Berhad, Steadfast Capital, L.P., American Steadfast, L.P., Steadfast International Master Fund Limited, East Pacific Capital Limited, Dennis Nicholas Melka, Waddell Holding Limited, Graeme Iain Brown and Tan Sri Datuk Amar Leonard Linggi (collectively, the "Undertaking Shareholders"), have each given irrevocable undertakings (the "Irrevocable Undertakings") in favour of the Offeror to, inter alia, accept, or procure the acceptance of, the Offer in respect of an aggregate of 28,011,209 Shares that are directly or indirectly held and/or controlled by the Undertaking Shareholders, representing approximately 59.9% of the total number of issued Shares as at the Announcement Date (collectively, the "Undertaking Shares"). Further details of the Irrevocable Undertakings are set out in paragraph 8 below.
7. INFORMATION ON THE COMPANY
7.1 The Company was incorporated in Singapore on 20 October 2009 as a public company under the Companies Act, Chapter 50 of Singapore (the "Singapore Companies Act"). It was listed on the Alternative Investment Market of the London Stock Exchange (the "AIM") on 30 November 2009.
7.2 Based on information published by the Company, the Company and its subsidiaries (the "Offeree Group") are in the business of acquisition and development of palm oil plantation land in Sarawak, Malaysia. The Company's business is in the acquisition of properly zoned agricultural land in Malaysia which can be developed into high-quality, mature palm oil estates. As at year-end 2013, the Company had five wholly-owned plantation estates totaling approximately 24,622 hectares.
7.3 As at the Announcement Date, based on information available to the Offeror, the directors of the Company are:
(a) Tan Sri Datuk Amar Leonard Linggi Anak Jugah (Chairman and Non-Executive Director);
(b) Tan Sri Datuk Amar Leo Moggie (Independent and Non-Executive Director);
(c) Mr. Graeme Iain Brown(Joint Chief Executive Officer and Executive Director); and
(d) Mr. Dennis Nicholas Melka(Joint Chief Executive Officer and Executive Director).
7.4 Based on an instant information search obtained from the Accounting and Corporate Regulatory Authority of Singapore on the Announcement Date, the Company's issued share capital is S$59,268,587, £16,000,001.60 and US$21,500,000comprising 33,717,752 Shares, 7,272,728 Shares and 5,770,654 Shares respectively and there are no Shares held in treasury. Accordingly, the Company has an aggregate of 46,761,134 Shares in issue as at the Announcement Date. Based on information published by the Company, as at 7 August 2014, 28,011,209 Shares representing approximately 59.9% of the total issued Shares are not held by public Shareholders.
7.5 As at the Announcement Date, based on information available to the Offeror(1), the Company has, inter alia:
(a) an aggregate of 3,482,500 outstanding Options, which have vested and are exercisable into an aggregate of 3,482,500 new Shares at exercise prices of between S$1.55 (or approximately the equivalent of £0.75) and S$5.07 (or approximately the equivalent of £2.45) per Share;
(b) an aggregate of 712,500 outstanding Options, which have not vested and which upon vesting, are exercisable into an aggregate of 712,500 new Shares at an exercise price of S$1.55 (or approximately the equivalent of £0.75) per Share;
(c) an aggregate of US$2.1 million in principal amount of Bonds, which are convertible into 434,700 new Shares at a conversion price of US$4.83 per Share (or approximately the equivalent of £2.91 per Share); and
(d) an aggregate of US$15.0 million in principal amount of Notes, which are convertible into 3,260,041 new Shares at a conversion price of £2.86 per Share.
Note:
(1) Details of the Options, Bonds and Notes are based on information provided by the Company as at 28 August 2014.
8. IRREVOCABLE UNDERTAKINGS
8.1 As set out in paragraph 6.5 above, as at the Announcement Date, the Undertaking Shareholders have each given an Irrevocable Undertaking to the Offeror pursuant to which, each of the Undertaking Shareholders has undertaken, inter alia:
(a) to accept, or procure the acceptance of, the Offer in respect of their respective Undertaking Shares as set out in paragraph 8.2 below; and
(b) not to: (i) sell, transfer, charge, encumber, grant any option over or otherwise dispose of any of the Undertaking Shares or any other shares or securities in the Company except to the Offeror under the Offer; or (ii) accept any other offer in respect of any of the Undertaking Shares (whether it is conditional or unconditional and irrespective of the means by which it is to be implemented).
8.2 The names of the Undertaking Shareholders and the number of Undertaking Shares to be tendered by each of them in acceptance of the Offer are as follows:
|
Name of Undertaking Shareholders |
Number of Shares |
Percentage of issued Shares (%)(1)(3) |
Percentage of maximum potential share capital of the Company (%)(2)(3) |
|
Keresa Plantations Sendirian Berhad |
13,749,208 |
29.4% |
25.2% |
|
Steadfast Capital, L.P. |
437,564 |
0.9% |
0.8% |
|
American Steadfast, L.P. |
2,361,285 |
5.0% |
4.3% |
|
Steadfast International Master Fund Ltd |
4,861,151 |
10.4% |
8.9% |
|
East Pacific Capital Limited |
2,210,000 |
4.7% |
4.0% |
|
Dennis Nicholas Melka |
250,000 |
0.5% |
0.5% |
|
Waddell Holding Limited |
2,101,001 |
4.5% |
3.8% |
|
Graeme Iain Brown |
5,000 |
n.m.(4) |
n.m.(4) |
|
Tan Sri Datuk Amar Leonard Linggi |
2,036,000 |
4.4% |
3.7% |
|
Total |
28,011,209 |
59.9% |
51.3% |
Notes:
(1) As a percentage of the total number of 46,761,134Shares in issue as at the Announcement Date. As at the Announcement Date, the Company does not hold any Shares in treasury.
(2) As a percentage of the maximum potential share capital of the Company of 54,650,875 Shares, assuming all the outstanding Options, Bonds and Notes are exercisable or convertible (as the case may be) prior to the close of the Offer.
(3) For the purposes of the table above, all percentage figures are rounded to the nearest one decimal place. Any discrepancies in the table above between the listed amounts and the totals thereof are due to rounding.
(4) Not meaningful.
8.3 All obligations under the Irrevocable Undertakings will lapse if: (i) the Offer Document has not been posted within 21 days after the Announcement Date (or within such longer period as the Offeror, with the consent of the SIC, determines); or (ii) the Offer lapses or is withdrawn.
8.4 Save as set out above, neither the Offeror nor any party acting in concert with it has received any irrevocable undertaking from any party to accept or reject the Offer as at the Announcement Date.
9. RATIONALE FOR THE OFFER
9.1 The Offeror pursues a strategic expansion programme to ensure the continued growth of its businesses. 50% of the Offeror's listing proceeds of RM4.5 billion has been earmarked to pursue strategic expansion of its upstream business. The proposed acquisition of the Offeree Group through the Offer is in line with the Offeror's expansion roadmap.
9.2 The Offeror will have the opportunity to tap into the Company's established plantation and milling operations in Sarawak. This will result in the expansion of the Offeror's plantation presence in Sarawak and increase its plantation landbank by approximately 24,622 hectares. The Offer is also expected to give rise to cost savings from operational synergies following the integration of the businesses. This is expected to contribute positively to the enlarged Offeror Group's financial performance in the future.
9.3 The Offer provides the Shareholders, Option Holders, Bond Holders and Note Holders the opportunity to realise their investments in cash.
10. THE OFFEROR'S INTENTION FOR THE COMPANY
10.1 The Offeror's Future Plans for the Company. Following the close of the Offer, the Offeror will undertake a comprehensive review of the businesses and fixed assets of the Offeree Group. This review will help the Offeror to determine the optimal business strategy for the Offeree Group. Save as disclosed in this Announcement, the Offeror intends to continue the Offeree Group's existing businesses and presently has no plans to (a) introduce any major changes to the existing businesses of the Offeree Group; (b) redeploy any of the fixed assets of the Offeree Group; or (c) discontinue the employment of any of the existing employees of the Offeree Group, in each case, other than in the ordinary course of business. However, the Offeror retains the flexibility at any time to consider any options or opportunities in relation to the Offeree Group which may present themselves and which it may regard to be in the interests of the Offeree Group.
10.2 Compulsory Acquisition. If the Offeror receives valid acceptances pursuant to the Offer in respect of not less than 90% of the total Shares (other than those already held by the Offeror, its related corporations or their respective nominees as at the date of the Offer and excluding any treasury shares), the Offeror will be entitled to exercise its right in accordance with Section 215(1) of the Singapore Companies Act to compulsorily acquire, at the Offer Price, all the Shares of Shareholders who have not accepted the Offer. In addition, in accordance with Section 215(11) of the Singapore Companies Act, any Shares which the Offeror acquires or contracts to acquire, other than through valid acceptances of the Offer, for a consideration that does not exceed that under the Offer, shall be deemed to be acquired by virtue of valid acceptances of the Offer.
The Offeror intends to make the Company its wholly-owned subsidiary and does not intend to preserve the listing status of the Company. Accordingly, the Offeror when entitled, intends to exercise its rights to compulsorily acquire all the Shares from Shareholders who have not accepted the Offer on the same terms as those offered under the Offer.
If the Offeror acquires such number of Shares which, together with Shares held by it, its related corporations and their respective nominees, comprise 90% or more of the total Shares (excluding treasury shares), Shareholders who have not accepted the Offer have a right to require the Offeror to acquire their Shares on the same terms as those offered under the Offer in accordance with Section 215(3) of the Singapore Companies Act. Shareholders who have not accepted the Offer and who wish to exercise such right are advised to seek their own independent professional advice if in doubt.
10.3 Cancellation of Trading on AIM. If the Offeror acquires or agrees to acquire a total of 75% of the voting rights attached to the Shares in issue (or, if permitted by the London Stock Exchange under the AIM Rules of the London Stock Exchange (the "AIM Rules"), 75% of the voting rights attached to the Shares represented by Depositary Interests), the Offeror intends to seek the cancellation of admission to trading of the Depositary Interestson AIM in accordance with the AIM Rules. It is anticipated that any cancellation of admission to trading on AIM would take effect no earlier than 20 clear business days after the Offeror has acquired or agreed to acquire 75% of the voting rights attaching to the Shares (or, if permitted by the London Stock Exchange under the AIM Rules, 75% of the voting rights attached to the Shares represented by Depositary Interests). The cancellation would significantly reduce the liquidity and marketability of Depositary Interestsrepresenting Shares not assented to the Offer at that time.
11. FINANCIAL ASPECTS OF THE OFFER
11.1 The information below relating to certain financial aspects of the Offer is based on data extracted from Bloomberg L.P.(1).
11.2 The Offer Price generally represents a premium over the historical traded prices of the Shares and the NAV of the Company, as highlighted in paragraphs 11.3 and 11.4 below. The Offeror strongly believes that the Offer reflects the value of the business of the Company and represents an attractive proposition to the Shareholders to realise their entire investment in the Offer Shares for cash.
11.3 Market Price Comparisons. The Offer Price of £2.20 for each Offer Share represents:
11.3.1 a premium of approximately 3.5% over the last transacted price per Share on the AIM of £2.1250 on 28 August 2014, being the last full trading day in the Shares prior to the Announcement Date (the "Last Trading Day");
11.3.2 a premium of approximately 6.1% over the volume weighted average price on the AIM ("VWAP") of £2.0739 for the 1-month period prior to the Last Trading Day;
11.3.3 a premium of approximately 4.3% over the VWAP of £2.1096 for the 3-month period prior to the Last Trading Day;
11.3.4 a discount of approximately 3.0% over the VWAP of £2.2685 for the 6-month period prior to the Last Trading Day; and
11.3.5 a premium of approximately 5.1% over the VWAP of £2.0939 for the 12-month period prior to the Last Trading Day.
11.4 Net Asset Value per Share Comparison. The Offer Price represents a premium of approximately 294.8% over the NAV per Share of £0.5572 as at 31 December 2013.
11.5 Comparison of Offer Price to historical prices since listing. The price per Share on the AIM (at the close of trading on the relevant day) over the period since the Company's listing on 30 November 2009 to the Last Trading Day has only closed higher than the Offer Price on 683 trading days, and the average daily turnover of the Shares during this period was approximately 24,365 Shares.
Note:
(1) Bloomberg L.P. has not consented to the inclusion of the prices, trading volumes and exchange rates quoted in this Announcement and is thereby not liable for the inclusion of such information in this Announcement. The Offeror has included the above information in their proper form and context in this Announcement and has not verified the accuracy of these statements.
12. DISCLOSURES OF HOLDINGS AND DEALINGS
12.1 Holdings and Dealings. As at the Announcement Date and based on information available to the Offeror, save as disclosed in this Announcement:
12.1.1 neither the Offeror nor any of the parties acting in concert with it owns, controls or has agreed to acquire any Shares or securities which carry voting rights in the Company or convertible securities, warrants, options or derivatives in respect of such Shares or securities which carry voting rights in the Company (the "Company Securities"); and
12.1.2 neither the Offeror nor any of the parties acting in concert with it has dealt for value in any Company Securities during the 3-month period immediately prior to the Announcement Date.
12.2 Other Arrangements.
12.2.1 As at the Announcement Date, neither the Offeror nor any of the parties acting in concert with the Offeror has:
(a) granted any security interest relating to any Company Securities to any person, whether through a charge, pledge or otherwise;
(b) borrowed any Company Securities from another person (excluding borrowed Company Securities which have been on-lent or sold); or
(c) lent any Company Securities to another person.
12.2.2 As at the Announcement Date, save as disclosed in this Announcement, neither the Offeror nor any of the parties acting in concert with it has entered into any arrangement (whether by way of option, indemnity or otherwise) in relation to the shares of the Offeror or the Company which might be material to the Offer.
12.3 Confidentiality. In the interests of confidentiality, the Offeror has not made enquiries prior to this Announcement in respect of certain other parties who may be presumed to be acting in concert with the Offeror in connection with the Offer.
13. CONFIRMATION OF FINANCIAL RESOURCES
Merrill Lynch, as financial adviser to the Offeror in respect of the Offer, the Options Proposal and the Notes Offer, confirms that sufficient financial resources are available to the Offeror to satisfy full acceptances of the Offer, the Options Proposal and the Notes Offer on the basis of the Offer Price, the Option Price and the Notes Offer Price respectively.
14. DOCUMENTS FOR INSPECTION
Copies of the Irrevocable Undertakings will be made available for inspection during normal business hours at the office of Merrill Lynch at 50 Collyer Quay, #14-01, OUE Bayfront, Singapore 049321 and at the office of Computershare Investor Services PLC at The Pavilions, Bridgwater Road, Bristol, BS13 8AE, United Kingdom, during the period of the Offer.
15. OFFER DOCUMENT AND DURATION OF THE OFFER
15.1 Further information on the Offer, the Options Proposal and the Notes Offer will be set out in the Offer Document. The Offer Document, which will contain the terms and conditions of the Offer, the Options Proposal and the Notes Offer and enclose the appropriate form(s) of acceptance, will be despatched to Shareholders, Option Holders and Note Holders, as the case may be, not earlier than 14 days and not later than 21 days from the Announcement Date. The Offer, the Options Proposal and the Notes Offer will remain open for acceptances by Shareholders, Option Holders and Note Holders, as the case may be, for a period of at least 28 days after the date of posting of the Offer Document.
15.2 Shareholders should exercise caution and seek appropriate independent professional advice when dealing in the Shares.
16. UNITED KINGDOM Financial Services and Markets Act 2000
Communication by the Offeror, or by Merrill Lynch on behalf of the Offeror, of this Announcement, the Offer Document and any other documents or materials relating to the Offer is not being made and such documents and/or materials have not been approved by an authorised person for the purposes of Section 21 of the Financial Services and Markets Act 2000 (the "FSMA"). Accordingly, such documents and/or materials are not being distributed to, and must not be passed on to, the general public in the United Kingdom. The communication of such documents and/or materials is exempt from the restriction on financial promotions under Section 21 of the FSMA on the basis that it is a communication by or on behalf of a body corporate which relates to a transaction to acquire shares in a body corporate and such shares include 50 per cent. or more of the voting securities in such body corporate within Article 62 of the Financial Services and Markets Act 2000 (Financial Promotion) Order 2005.
17. OVERSEAS SHAREHOLDERS
17.1 This Announcement does not constitute an offer to sell or the solicitation of an offer to subscribe for or buy any security, nor is it a solicitation of any vote or approval in any jurisdiction, nor shall there be any sale, issuance or transfer of the securities referred to in this Announcement in any jurisdiction in contravention of applicable law. The Offer will be made solely by the Offer Document and the relevant acceptance forms accompanying the Offer Document, which will contain the full terms and conditions of the Offer, including details of how the Offer may be accepted.
17.2 The release, publication or distribution of this Announcement in certain jurisdictions may be restricted by law and therefore persons in any such jurisdictions into which this Announcement is released, published or distributed should inform themselves about and observe such restrictions.
17.3 Copies of this Announcement and any formal documentation relating to the Offer are not being, and must not be, directly or indirectly, mailed or otherwise forwarded, distributed or sent in or into or from any jurisdiction where the making of or the acceptance of the Offer would violate the applicable law of that jurisdiction ("Restricted Jurisdiction") and will not be capable of acceptance by any such use, instrumentality or facility within any Restricted Jurisdiction and persons receiving such documents (including custodians, nominees and trustees) must not mail or otherwise forward, distribute or send them in or into or from any Restricted Jurisdiction. For the avoidance of doubt, the Offer shall be made to all Shareholders including those to whom the Offer Document and the relevant acceptance form(s) will not be sent.
17.4 The Offer (unless otherwise determined by the Offeror and permitted by applicable law and regulation) will not be made, directly or indirectly, in or into, or by the use of mails of, or by any means or instrumentality (including, without limitation, telephonically or electronically) of interstate or foreign commerce of, or any facility of a national, state or other securities exchange of, any Restricted Jurisdiction and the Offer will not be capable of acceptance by any such use, means, instrumentality or facilities.
17.5 The availability of the Offer to, and the ability of, the Shareholders who are not resident in the United Kingdom or Singapore or whose registered addresses are outside the United Kingdom or Singapore (the "Overseas Shareholders") to accept the Offer may be affected by the laws of the relevant jurisdictions. Overseas Shareholders should inform themselves of, and observe, any applicable requirements.
17.6 Subject to compliance with applicable laws, any affected Overseas Shareholder may, nonetheless, attend in person and obtain a copy of the Offer Document and the appropriate form(s) of acceptance from the Offeror c/o Computershare Investor Services PLC, The Pavilions, Bridgwater Road, Bristol, BS13 8AE, United Kingdom (or such other address as may be specified by the Offeror). Alternatively, an Overseas Shareholder may, subject to compliance with applicable laws, write in to the Offeror c/o Computershare Investor Services PLC, Corporate Actions Projects, Bristol BS99 6AH, United Kingdom (or such other address as may be specified by the Offeror) to request for the Offer Document and the appropriate form(s) of acceptance to be sent to an address in the United Kingdom or Singapore by ordinary post at his own risk.
17.7 Further details in relation to the overseas holders of the Company's securities will be contained in the Offer Document.
18. RESPONSIBILITY STATEMENT
The directors of the Offeror (including any director who may have delegated detailed supervision of this Announcement) have taken all reasonable care to ensure that the facts stated and all opinions expressed in this Announcement are fair and accurate and that no material facts have been omitted from this Announcement.
Where any information in this Announcement has been extracted or reproduced from published or otherwise publicly available sources or obtained from a named source (including, without limitation, information in relation to the Company or the Offeree Group), the sole responsibility of the directors of the Offeror has been to ensure, through reasonable enquiries, that such information has been accurately and correctly extracted from such sources or, as the case may be, accurately reflected or reproduced in this Announcement.
The directors of the Offeror jointly and severally accept responsibility accordingly.
Note:In this Announcement, where applicable, the exchange rates of S$1.00 to £0.4831 and US$1.00 to £0.6033 extracted from Bloomberg L.P. on the Last Trading Day respectively have been used for purposes of calculation.
Issued by
MERRILL LYNCH (SINGAPORE) PTE. LTD.
For and on behalf of
Felda Global Ventures Holdings Berhad
29 August 2014
Forward-Looking Statements
All statements other than statements of historical facts included in this Announcement are or may be forward-looking statements. Forward-looking statements include but are not limited to those using words such as "seek", "expect", "anticipate", "estimate", "believe", "intend", "project", "plan", "potential", "strategy", "forecast" and similar expressions or future or conditional verbs such as "will", "would", "should", "could", "may" and "might". These statements reflect the current expectations, beliefs, hopes, intentions or strategies of the party making the statements regarding the future and assumptions in light of currently available information. Such forward-looking statements are not guarantees of future performance or events and involve known and unknown risks and uncertainties. Accordingly, actual results may differ materially from those described in such forward-looking statements. Shareholders and investors should not place undue reliance on such forward-looking statements, and neither the Offeror nor the Financial Adviser undertakes any obligation to update publicly or revise any forward-looking statements.
APPENDIX 1
Other Conditions
(a) No Share Issue: The Company does not (i) allot or issue any Shares; (ii) grant any Options; (iii) issue anyinstrument convertible into, rights to subscribe for or options in respect of securities being offered for or which carry voting rights in the Company ("Stocks"); or (iv) enter into any agreement or undertaking to do any of the same or cause to be done any act which would have the same effect as allotting or issuing Stocks or otherwise have the same effect as diluting the voting rights in the Company, after the Announcement Date, except the allotment or issue of Shares pursuant to the valid exercise of the Options already granted as at the Announcement Date or the valid conversion of the Bonds and the Notes.
(b) No Repayment Acceleration: The Company having obtained all necessary consents or waivers of Acceleration Rights (other than in respect of loan or credit facilities which together, have principal amounts outstanding that in aggregate do not exceed RM24,750,000) from any party, and if any such consent or waiver is subject to conditions, such conditions being on terms reasonably satisfactory to the Offeror.
For such purposes:
"Acceleration Rights" means the right to accelerate the repayment of any loan or credit facilities to any member of the Offeree Group prior to maturity of the repayment of such loan or credit facilities (including but not limited to the Specified Loans), whether as a result directly or indirectly of the implementation of the Offer, the delisting of the Company, a breach of any cross-default provision or otherwise, or any other rights having similar effects, whether through the payment of monies or issuance of securities or otherwise.
"Specified Loans" shall comprise the following:
(i) The Notes;
(ii) Medium Term Notes Programme of RM255,000,000 guaranteed by a Maybank facility;
(iii) Term Loan Facility with Maybank for RM71,400,000;
(iv) Term Loan Facility with Maybank for RM24,750,000;
(v) Banking Facilities (Term Loan and Overdraft) with Maybank for RM47,500,000; and
(vi) Banking Facilities (Term Loan and Overdraft) with Maybank for RM43,000,000.
(c) Regulatory/Third Party Approvals: All approvals, authorisations, clearances, licenses, orders, confirmations, consents, exemptions, grants, permissions, recognitions and waivers (the "Authorisations") necessary for the implementation of the Offer or the acquisition of any Shares by the Offeror required on the part of the Company to be obtained from any governmental, quasi-governmental, supranational, statutory, regulatory, administrative, investigative, fiscal or judicial agency, authority, body, court, association, institution, commission, or department, exchange, tribunal or any other body or person whatsoever in any jurisdiction in which any member of the Offeree Group carries on business (each a "Relevant Authority") or any other third party (i) having been obtained; (ii) if such Authorisations are subject to conditions which are required to be fulfilled prior to close of the Offer, the fulfilment of those conditions; and (iii) such Authorisations remaining in full force and effect and no notice or intimation of any intention to revoke, modify or not to renew any of the same having been received.
(d) No Injunctions: No third party, including any Relevant Authority, shall have taken, instituted, implemented or threatened to take, institute or implement (including in relation to the Offer) (other than as a consequence of any act or omission of the Offeror Group or its concert parties) any action, proceeding, suit, investigation, inquiry or reference, or made, proposed or enacted any statute, regulation, decision, ruling, statement or order or taken any steps, and there not continuing to be in effect or outstanding any statute, regulation, decision, ruling, statement or order which would or might:
(i) make the Offer, its implementation or outcome or the acquisition of any Shares or of control of the Offeree Group by the Offeror void, illegal and/or unenforceable or otherwise restrict, restrain, prohibit or otherwise frustrate or be adverse to the same (including requiring any amendment or revision of the Offer);
(ii) render the Offeror unable to acquire all or any Shares or control of the Offeree Group;
(iii) require the divestiture by any member of the Offeree Group of all or any part of its undertakings, or impose any limitation or prohibition on the ability of it to conduct businesses under any name which it presently does so or own its assets or property;
(iv) impose any limitation on, or result in a delay in, the ability of any member of the Offeree Group to acquire, hold or exercise effectively any rights of ownership of shares or securities convertible into shares in any member of the Offeree Group or on its behalf or to exercise management control over any member of the Offeree Group and/or to exercise management or ownership rights over all or any part of the Offeree Group's business, undertakings and/or assets;
(v) save pursuant to the Offer or the requirements of the Code or the SIC, require any member of the Offeror Group to offer to acquire any shares or other securities in any member of the Offeree Group or any asset owned by any third party;
(vi) require, prevent or delay a divestiture by any member of the Offeror Group of any shares in any member of the Offeree Group; and/or
(vii) otherwise materially and adversely affect the business, assets, liabilities, financial condition, results of operations, profits or prospects of any member of the Offeree Group, which may result in the Offeree Group's losses before interest, tax, depreciation and amortisation and share of losses of associates ("LBITDA") in respect of the period since 1 January 2014 exceeding US$6.0 million.
(e) No Material Transaction: No announcement, agreement, arrangement, memorandum of understanding and/or statement of intention (whether or not legally binding) relating to any Material Transaction (as defined below) shall have been released, entered into and/or completed or consummated.
For these purposes, a "Material Transaction" means a transaction or proposed transaction involving:
(i) any member of the Offeree Group or to which any member of the Offeree Group is a party, unless made with the prior written consent of the Offeror (1) which would result in the Offeree Group's LBITDA in respect of the period since 1 January 2014 exceeding US$6.0 million; or (2) which is outside the ordinary course of business of the Offeree Group;
(ii) any issue of shares or securities which carry voting rights in the Company or are convertible into shares or securities which carry voting rights in the Company, or rights to subscribe for or options in respect of such securities (including without limitation, the grant of options under the Scheme (save in respect of shares issued pursuant to the exercise of Options already granted under the Scheme or the valid conversion of the Bonds and the Notes)); and
(iii) a recommendation, declaration or payment by the Company of dividends or other distributions (including without limitation, interim dividends), whether such transaction (1) involves an acquisition, disposal, takeover or tender offer, scheme of arrangement or reconstruction, merger, consolidation or other combination, dual listed companies structure, joint venture, strategic alliance or otherwise; or (2) involves a single transaction or a number of related transactions and whether at one time or over a period of time.
(f) No Material Actions on Part of Company: Since 31 December 2013, the Company and any member of the Offeree Group shall not have:
(i) incurred any indebtedness exceeding US$7.5 million, other than in the ordinary course of business;
(ii) authorised, recommended, proposed or entered into an agreement, agreement in principle or arrangement with respect to any merger, consolidation, liquidation, dissolution, business combination, material acquisition or disposal of any business or undertaking, release or relinquishment of any material contractual right, any material change in the Company's capitalisation or other right in the Company or any member of the Offeree Group or any comparable event not in the ordinary course of business unless made with the prior written consent of the Offeror;
(iii) entered into, or announced its intention to enter into, any agreement with any person or group that would result in the Offeree Group's LBITDA in respect of the period since 1 January 2014 exceeding US$6.0 million;
(iv) except as may be required by law, taken any action to terminate or amend any employee benefit plan or share option plan of the Company; and
(v) amended or authorised or proposed any amendment to the Company's constitutional documents.
(g) No Material Adverse Change: Since 31 December 2013:
(i) there having been at any time prior to the final close of the Offer or its lapsing or its being withdrawn no material adverse change in the assets, business, financial condition, profits, liabilities, prospects or results of operations of the Offeree Group taken as a whole;
(ii) no litigation, arbitration, prosecution or other legal proceedings having been instituted, announced or threatened by or against or remaining outstanding against any member of the Offeree Group which could have a material adverse effect on the Offeree Group taken as a whole;
(iii) save as disclosed in writing by the Company to the Offeror prior to the Announcement Date, the Offeror not having discovered that any member of the Offeree Group is or is reasonably likely to be subject to any liability, contingent or otherwise, which is material in the context of the Offeree Group taken as a whole; and/or
(iv) the Offeror not having discovered that any financial, business or other information concerning the Offeree Group publicly disclosed at any time by any member of the Offeree Group is materially misleading, contains a material misrepresentation of fact or omits to state a fact necessary to make the information not misleading which in any case is material and adverse to the financial or trading position of the Offeree Group taken as a whole,
in each case:
(1) so as to result in the Offeree Group's LBITDA in respect of the period since 1 January 2014 exceeding US$6.0 million; or
(2) having the effect of causing a diminution in the consolidated net tangible asset value (excluding goodwill) of the Offeree Group to an amount below US$25.0 million, provided that any diminution or increase in the value of any asset and liability arising from currency translation shall not be taken into account. For the avoidance of doubt, the consolidated net tangible asset value of the Offeree Group shall mean net assets excluding intangible assets, goodwill and minority interests.
(h) No Misstatement of Accounts: Save as publicly disclosed by the Company prior to the Announcement Date, there having been no material restatement of the audited consolidated financial statements of the Offeree Group for any financial period since the date of incorporation of the Company, which will result in a negative impact of more than 5% on (1) the consolidated profit/loss attributable to equity holders of the Company; or (2) the consolidated net assets of the Offeree Group, in such financial period.
In accordance with Note 2 of Rule 15.1 of the Code, the Offeror will only invoke any of the Other Conditions above:
(i) when the circumstances which give rise to the right to invoke such condition(s) are of material significance to the Offeror in the context of the Offer; and
(ii) after prior consultation with the SIC.
The Offeror reserves the right to waive any of the Other Conditions, in whole or in part, in its absolute discretion.
This information is provided by RNS
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