1 Introduction. 2 Institutional acceptance facility. 2.1 Overview

Transcription

1 Third Supplementary Bidder s Statement in relation to the takeover bid by PEAMCoal Pty Ltd (ACN ) for all of the ordinary shares in Macarthur Coal Limited (ABN ) 1 Introduction This document is the third supplementary bidder s statement (Third Supplementary Bidder s Statement) to the bidder s statement dated 4 August 2011 issued by PEAMCoal Pty Ltd ACN (PEAMCoal) in relation to its off-market takeover bid for all the ordinary shares in Macarthur Coal Limited ACN (Macarthur). This Third Supplementary Bidder s Statement supplements, and should be read together with, PEAMCoal s other supplementary bidder s statements dated 15 August 2011 and 30 August 2011 and the replacement bidder s statement dated 15 August 2011 (Bidder s Statement). 2 Institutional acceptance facility 2.1 Overview PEAMCoal has established an institutional acceptance facility open to persons identified by PEAMCoal in consultation with UBS Securities Australia Ltd ABN (UBS) as professional investors (as defined in section 9 of the Corporations Act) that hold or beneficially own at least A$500,000 worth of Shares based on the consideration payable under the Offer (Eligible Shareholders) in order to facilitate receipt of acceptances of the Offer (Facility). Investors who are not Eligible Shareholders cannot participate in the Facility. PEAMCoal recognises that some investors in Macarthur may be unable to accept the Offer until the Offer becomes or is declared unconditional. The Facility has therefore been established to provide Eligible Shareholders with the flexibility to register their support for the Offer and their intention to accept the Offer before the Offer becomes unconditional page 1

2 The acceptance facility collection agent for the Facility is UBS. 2.2 Operation of the Facility In summary, the Facility will operate in the following way: (a) (b) (c) (d) (e) (f) An Eligible Shareholder who wishes to participate in the Facility must provide to UBS duly completed and executed documentation appointing UBS as the acceptance facility collection agent together with a signed Acceptance Form and/or direction to its custodian (Custodian Direction) to accept the Offer (together, the Acceptance Instructions). UBS will hold the Acceptance Instructions as acceptance facility collection agent and bare trustee only and will not acquire a Relevant Interest in any of the Shares the subject of the Acceptance Instructions. UBS must cause the Offer to be accepted on behalf of the relevant Eligible Shareholders by delivering as applicable: (1) any Acceptance Forms in accordance with the instructions on the relevant Acceptance Forms; and/or (2) any Custodian Directions to the relevant custodians, as soon as practicable after PEAMCoal confirms to UBS by written notice (Confirmation Letter) that: (3) PEAMCoal has declared the Offer free from all defeating conditions; (4) the Offer will be free from all defeating conditions that have not been fulfilled or previously freed once all the delivered Acceptance Instructions are validly processed or implemented (as appropriate); or (5) PEAMCoal will declare the Offer free from all conditions that have not been fulfilled or previously freed once all the delivered Acceptance Instructions are validly processed or implemented (as appropriate). Eligible Shareholders retain all rights and control over their Shares and will be able to withdraw their Acceptance Instructions at any time prior to UBS receiving the Confirmation Letter from PEAMCoal. PEAMCoal reserves the right to declare the Offer free from all defeating conditions at any time (subject to the Corporations Act) irrespective of the number of acceptances held by PEAMCoal, or the number of Shares that are the subject of Acceptance Instructions held by UBS. A copy of the documentation underlying the Facility will be provided to Eligible Shareholders by UBS and may also be requested from UBS by to victoria.hardie@ubs.com and will.mcmicking@ubs.com or by fax (addressed to Victoria Hardie) or (addressed to Will McMicking). 2.3 Disclosure of Acceptance Instructions By 8.00am (Sydney time) on each business day (or at any other time upon request from PEAMCoal), UBS will notify PEAMCoal of the number of Shares in respect of which Acceptance Instructions have been received as at 7.30pm (Sydney time) the previous day, with the expectation that PEAMCoal will release this information to ASX in conjunction with its substantial holding notices in response to acceptances to the Offer received page 2

3 2.4 ASIC relief (a) (b) ASIC has granted a modification of subsection 624(2) of the Corporations Act. The effect of this modification is that the Shares of Eligible Shareholders who have provided valid Acceptance Instructions to UBS will count toward the voting power of PEAMCoal in Macarthur for the purposes of subsection 624(2) of the Corporations Act. Accordingly, if the voting power of PEAMCoal in Macarthur for the purposes of subsection 624(2) of the Corporations Act (as so modified) increases to more than 50% in the last 7 days of the Offer Period, the Offer Period would automatically be extended for a period of 14 days after that event. ASIC has also granted a modification of Part 6.8 of the Corporations Act. The effect of this modification is that if an Eligible Shareholder authorises PEAMCoal in writing to accept, or to instruct another person to accept, the Offer in respect of Shares on the Eligible Shareholder s behalf, the Offer is taken to have been accepted in relation to those Shares when PEAMCoal receives that authority. 3 Broker handling fee arrangements PEAMCoal has also established a broker handling fee arrangement in consultation with Link Market Services Limited. If the Offer is declared unconditional, PEAMCoal will, subject to the terms below, pay a handling fee to participating organisations of the ASX (Brokers), in respect of valid acceptances received from Retail Macarthur Shareholders (defined below) in connection with the Offer (Acceptances). A handling fee will only be payable where such Acceptances are from clients of the Broker and were procured by the Broker. For these purposes, a Retail Macarthur Shareholder is a Macarthur Shareholder who is not a Broker or an Associate of a Broker (as determined in the sole discretion of PEAMCoal) and who is, as at the date of the Acceptance, recorded on the Macarthur Register as holding 32,000 Shares or fewer. The handling fee is payable to Brokers only. It is not payable to Macarthur Shareholders and will not be paid in respect of Shares held by a Broker or an Associate of the Broker on its own account. The handling fee payable in respect of an Acceptance will be 0.75% of the consideration payable by PEAMCoal under the Offer as a result of the Acceptance, subject to the minimum handling fee payable in respect of any Acceptance being A$50 (excluding GST) and the maximum being A$750 (excluding GST). The handling fee will not be increased. The handling fee is only currently scheduled to apply to Acceptances received by PEAMCoal before the currently scheduled end of the Offer Period, being 7.00pm (Brisbane time) on 20 September 2011 (the Initial Closing Date). PEAMCoal reserves the right to extend the handling fee arrangement beyond the Initial Closing Date (or beyond any subsequent closing date, if the Offer Period is extended). PEAMCoal will announce any decision to extend the handling fee arrangement to the ASX at or around the time when the Offer Period is extended. A handling fee will be payable to a Broker who submits to Link Market Services Limited: (1) a valid and duly completed claim form (Claim Form) which sets out: the Broker s Participant Identification Number; and a representation that neither the Broker nor its Associates are the accepting Macarthur Shareholders and that the fee will not be passed on or otherwise shared directly or indirectly with the accepting Macarthur Shareholder; and page 3

4 (2) a list of Acceptances (Acceptance List) that contains: the name and address, as recorded on the Macarthur Register, for each Macarthur Shareholder to whom the Claim Form relates; the Holder Identification Number or Shareholder Reference Number of each Macarthur Shareholder to whom the Claim Form relates; and the number of Shares in respect of which each accepting Macarthur Shareholder has accepted the Offer and the date of the relevant Acceptance; and (3) if the handling fee is claimed in respect of an Acceptance for a holding of Shares on the Macarthur issuer sponsored subregister, a copy of the Acceptance Form (where applicable) bearing the Broker s stamp, (together the Broker Handling Documentation), such that the Broker Handling Documentation is received by Link Market Services Limited by 5.00pm (Brisbane time) on the day which is five Business Days after the end of the Offer Period. A Broker must also provide any additional information that is reasonably requested by Link Market Services Limited to evidence that an Acceptance meets the requirements for the handling fee. No handling fee will be paid in respect of any Acceptance for which more than one Broker tenders a Claim Form. Each Broker firm should submit only one Claim Form, which covers all Acceptances in respect of which the Broker firm (including its employee brokers) is claiming the handling fee. Claim Forms must be requested by from Link Market Services Limited by contacting PEAMCoal@linkmarketservices.com.au. The Broker Handling Documentation must be submitted to the Link Market Services Limited in hard copy format to either of the addresses below. By Post Link Market Services Limited Macarthur Takeover Attention Michael Cheung Locked Bag A14 Sydney South NSW 1235 Delivery Link Market Services Limited Macarthur Takeover Attention: Michael Cheung Level 12, 680 George Street Sydney NSW 2000 In addition, a soft copy of the Claim Form and completed Acceptance List (in Microsoft Excel format) must also be sent by to PEAMCoal@linkmarketservices.com.au. Where a Macarthur Shareholder holding Shares in a CHESS Holding directly requests PEAMCoal and not the relevant Broker to initiate acceptance of the Offer on their behalf, that Broker will not be entitled to receive the handling fee. No handling fee will be payable in respect of an Acceptance where an Acceptance Form has been sent to Link Market Services Limited directly by the Macarthur Shareholder or through an agent other than PEAMCoal. No handling fees are payable in respect of Acceptances that are not treated as valid by PEAMCoal or are validly withdrawn (if withdrawal rights exist under the Corporations Act). PEAMCoal reserves the right to aggregate any Acceptances in determining the handling fee payable to any Broker if PEAMCoal reasonably believes that a party has structured holdings of Shares to take advantage of the handling fee. PEAMCoal may, in its discretion, determine any dispute as to whether a handling fee is payable. Subject to the terms set out above, payment of the handling fee in respect of any Acceptances will be made by cheque or electronic funds transfer by the later of: 10 Business Days after the date of receipt by Link Market Services Limited of: - an Acceptance Form (where applicable) bearing the Broker s stamp; and page 4

5 - the Broker Handling Documentation in the format described above; and 21 days after the end of the Offer Period. 4 Other notices PEAMCoal is indirectly owned by Peabody Energy Corporation and by ArcelorMittal S.A. Unless the context otherwise requires, terms defined in the Bidder s Statement have the same meaning in this Third Supplementary Bidder s Statement. A copy of this Third Supplementary Bidder s Statement has been lodged with ASIC. Neither ASIC nor any of its officers take any responsibility for its contents. This Third Supplementary Bidder's Statement prevails to the extent of any inconsistency with the Bidder's Statement. Signed for and on behalf of PEAMCoal following a resolution of the directors of PEAMCoal. Julian Thornton Director 13 October page 5