| Wed 16 Nov 2011, 12:00 | | GEN - General - Announcement regarding the expression of interest from a |
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JSE
GEN
GEN - General - Announcement regarding the expression of interest from a
Consortium to acquire the entire issued share capital of Optimum and
withdrawal of cautionary announcement
Piruto BV
(Registration number
B.V. 1610663)
Lexshell 849 Investments (Proprietary) Limited
(Registration number 2010/023373/07)
ANNOUNCEMENT REGARDING THE EXPRESSION OF INTEREST FROM A CONSORTIUM TO
ACQUIRE THE ENTIRE ISSUED SHARE CAPITAL OF OPTIMUM AND WITHDRAWAL OF
CAUTIONARY ANNOUNCEMENT
1. INTRODUCTION
Shareholders of Optimum are referred to the joint cautionary
announcement released on 1 September 2011 ("Joint Cautionary
Announcement"), in terms of which shareholders of Optimum were advised
that a consortium ("Consortium") comprising of Piruto B.V.
("Glencore"), a whollyowned subsidiary of Glencore International AG,
and Lexshell 849 Investments (Proprietary) Limited, a company
whollyowned by Mr Cyril Ramaphosa ("Lexshell"), had submitted a letter
to the Board of Directors of Optimum ("Board") advising of its
interest to acquire, directly and indirectly, the entire issued
ordinary share capital of Optimum other than the shares of certain
shareholders that are restricted from selling ("Proposed
Transaction"). The Proposed Transaction was to include a general
offer to the shareholders of Optimum ("General Offer")
The Consortium wishes to advise Optimum shareholders of certain
additional transactions that have been concluded by the Consortium and
the Consortium`s intentions in respect of Optimum.
2. TRANSACTIONS CONCLUDED BY THE CONSORTIUM
2.1 BEE Transactions
2.1.1 As was noted in the Joint Cautionary Announcement, the Consortium
has concluded agreements ("Acquisition Agreements") with the
relevant shareholders of the certain companies ("BEE Companies")
(all of which hold shares in Optimum) to acquire, subject to
certain conditions precedent, either directly or through a
special purpose vehicle, Lexshell 165 General Trading
(Proprietary) Limited ("SPV"), the following percentages of the
issued share capital of such companies
2.1.1.1 100% of Warrior Coal Investments (Proprietary) Limited
("Warrior"), which holds a 15.90% interest in Optimum;
2.1.1.2 49% of Micsan Investments (Proprietary) Limited ("Micsan"), which
holds a 7.55% interest in Optimum; and
2.1.1.3 52% of Kwini Mining Investments (Proprietary) Limited ("Kwini"),
which holds a 10.33% interest in Optimum.
2.1.2 The Consortium has since the date of the Joint Cautionary
Announcement concluded further Acquisition Agreements to acquire
the following percentages of the following BEE Companies
2.1.2.1 a further 48% of Kwini, such that the Consortium has now
concluded agreements to acquire 100% of Kwini; and
2.1.2.2 45% of Monkoe Coal Investments (Proprietary) Limited
("Monkoe"), which holds a 5.28% interest in Optimum.
The Acquisition Agreements are all subject to the approval of the
Competition Authorities in terms of the Competition Act 89 of
1998, as amended. The relevant merger filing was filed with the
Competition Commission on 29 September 2011.
2.1.3 As noted in the Joint Cautionary Announcement, the Consortium has
also entered into put and call option arrangements with Mr
Michael Teke, the sole shareholder of Micsan, in respect of the
balance of his shares in Micsan, which, if exercised, will
provide the Consortium with an additional effective interest of
3.85% in the issued share capital of Optimum. The Consortium,
however, supports the retention of Mr Michael Teke as CEO of
Optimum and neither party currently intends to exercise the put
and call option.
2.1.4 The various transactions have all been concluded at a price that
values the shares in Optimum at a price per share not exceeding
R38.
2.1.5 The following table sets out the interests held by each of the
BEE Companies in Optimum and the effective interest in such BEE
Companies and Optimum that the Consortium will acquire, if the
approval from the Competition Authorities is obtained:
BEE Percentage Percentage Effective
Company interest interest in interest in
in Optimum BEE Company Optimum
to be acquired by the
acquired by Consortium
the
Consortium
Warrior 15.90%1 100% 15.90%1
Micsan 7.55% 49%2 3.70%2
Kwini 10.33% 100% 10.33%
Monkoe 5.28% 45% 2.38%
Total 39.06% _ 32.31%3
Notes
1 The current percentage interest in Optimum held by Warrior is 13.7%.
Warrior is, however, party to a scrip lending agreement pursuant to
which it has lent Optimum shares comprising 2.2% of the issued share
capital of Optimum to a shareholder of Warrior. Glencore will assume
the obligation from such shareholder to return the shares to Warrior
if the Acquisition Agreement in respect of Warrior becomes
unconditional. After these shares have been returned to Warrior,
Warrior`s percentage interest in Optimum will increase to 15.9% and,
accordingly, this percentage more accurately reflects the interest of
Warrior in Optimum.
2 If either of the put and call options with Mr Teke are exercised,
the Consortium will acquire 100% of the issued share capital of Micsan
so that it will control the full 7.55% held by Micsan. As there is no
intention to exercise such put and call options at this stage, only
49% of this percentage has been included in this table.
3 This percentage would be 36.16% if the Teke put and call option is
exercised.
2.2 Non-BEE Transactions
2.2.1 At the time of the Joint Cautionary Announcement, Glencore had
acquired a direct beneficial interest of 14.1% in Optimum.
Glencore had, as at the close of business on 15 November 2011,
acquired an additional 14.48% direct beneficial interest in
Optimum such that it holds a 28.58% direct beneficial interest in
Optimum. As noted above, if the Acquisition Agreements become
unconditional, Glencore will be required to deliver 2.2% of the
issued share capital of Optimum to Warrior, so that its direct
beneficial interest will be reduced to 26.38%.
2.2.2 Glencore has concluded a conditional agreement with Mercuria
Energy Asset Management B.V. ("Mercuria") to acquire a direct
beneficial interest of 6.45% in Optimum, which is currently held
by Mercuria. This agreement is also subject to approval by the
Competition Authorities.
2.2.3 Accordingly, in aggregate, at the date of this announcement, the
Consortium, has acquired, or has entered into conditional
agreements to acquire, a total direct beneficial interest of
32.83% in the issued share capital of Optimum, excluding the 2.2%
direct beneficial interest that will be delivered to Warrior.
3. TOTAL DIRECT AND INDIRECT BENEFICIAL INTERESTS OF THE CONSORTIUM IN
OPTIMUM
Accordingly, in aggregate, including the BEE transactions referred to
in paragraph 2.1 and the NonBEE transactions referred to in paragraph
2.2, at the date of this announcement, the Consortium, directly and
indirectly, has acquired, or has entered into conditional agreements
to acquire, a total effective interest of 65.14% in the issued share
capital of Optimum.
4. MANDATORY OFFER
4.1 If the Competition Authorities approve of the various transactions
with the shareholders of the BEE Companies and Mercuria, it will
result in the Consortium acquiring more than 35% of the issued share
capital of Optimum. The Consortium has confirmed to Optimum that it
will, in compliance with its obligations under the Companies Act 71 of
2008, as amended, ("Companies Act") and the Takeover Regulations, make
a mandatory offer ("Mandatory Offer") to the remaining shareholders of
Optimum to acquire their shares in Optimum at not less than R38 per
Optimum share. The Consortium believes that it will preferable for
the Consortium to proceed with the Mandatory Offer as opposed to the
General Offer, because the Mandatory Offer will be unconditional and
capable of immediate implementation once accepted by an Optimum
shareholder.
4.2 The Consortium is not able to anticipate when the approval of the
Competition Authorities will be obtained, but it does not expect that
it will be before the first quarter of 2012. The Consortium will,
however, endeavour to be in a position to make the Mandatory Offer as
soon as possible after receipt of such approval, and, in any event,
within the time period set out in the Companies Act and the Takeover
Regulations. As soon as the necessary approval is obtained and the
various transactions are implemented, an announcement will be released
to shareholders regarding the Mandatory Offer, which will include
salient dates and times for the Mandatory Offer. A circular will
thereafter be dispatched to Optimum shareholders advising them of the
full terms of the Mandatory Offer, which circular will include the
views of the Board on the Mandatory Offer.
5. RESPONSIBILITY STATEMENT
The Directors of Glencore and Lexshell accept responsibility for the
information contained in this announcement to the extent that it
relates to the Consortium, including any statement regarding the
beneficial interest secured by the Consortium, or members of it. In
addition, they certify that, to the best of their knowledge and
belief, the information in this announcement regarding the Consortium
and its interests are true.
Johannesburg
16 November 2011
Financial Adviser to Legal Adviser to Legal Adviser to
Glencore Glencore Lexshell
Bank of America Werksmans Edward Nathan
Merrill Lynch Sonnenbergs
General
The release, publication or distribution of this announcement in
jurisdictions other than South Africa may be restricted by law and,
therefore, any persons who are subject to the laws of any jurisdiction
other than South Africa should inform themselves about, and observe any
applicable requirements in, those jurisdictions. This announcement has
been prepared for the purposes of complying with the Companies Act and the
Takeover Regulations and the information disclosed may consequently not be
the same as that which would have been disclosed if this announcement had
been prepared in accordance with the laws and regulations of any
jurisdiction outside of South Africa.
This announcement is not intended to, and does not constitute, or form part
of, an offer to sell or an invitation to purchase or subscribe for any
securities or a solicitation of any vote or approval in any jurisdiction.
This announcement does not constitute a prospectus or a prospectus
equivalent document. Shareholders of Optimum are advised to read carefully
the formal documentation in relation to the Mandatory Offer once it has
been dispatched. The Mandatory Offer will be made solely through the offer
circular, which will contain the full terms and conditions of the Mandatory
Offer. Any decision to accept the Mandatory Offer or other response to the
proposals should be made only on the basis of the information contained in
the offer circular.
Merrill Lynch International and Merrill Lynch South Africa (Proprietary)
Limited, subsidiaries of Bank of America Corporation, are acting
exclusively for Glencore in connection with the Proposed Transaction and
for no one else and will not be responsible to anyone other than Glencore
for providing the protections afforded to its clients or for providing
advice in relation to the Proposed Transaction.
Date: 16/11/2011 12:00:01 Produced by the JSE SENS Department.
