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Status Report and Amendments to the Published Business Rescue Plan
Comair Limited
(Incorporated in the Republic of South Africa)
(Registration Number: 1967/006783/06)
ISIN: ZAE00002983
Share Code: COM
(“Comair” or “the Company”)
STATUS REPORT AND AMENDMENTS TO THE PUBLISHED BUSINESS RESCUE PLAN
1 In accordance with section 132(3)(a) and section 132(3)(b) of the Companies Act when
the business rescue proceedings of a company have not concluded within 3 months of
the date on which they started, a business rescue practitioner is required to:
1.1 prepare a report on the progress of the business rescue, and update it at the end
of each subsequent month until the end of the business rescue proceedings; and
1.2 deliver the report and each update to each affected person and to the Companies
and Intellectual Property Commission ("CIPC").
2 This requirement is applicable to the Company.
3 Accordingly, we hereby provide you with the third report on the status of the Company's
business rescue proceedings.
4 Capitalised terms used but not defined in this notice, shall bear the meaning as defined
in the Business Rescue Plan, as amended on 17 September 2020, and Adopted on
18 September 2020.
5 All of the Suspensive Conditions, as set out in paragraph 8.1.1 of the Adopted Business
Rescue Plan have either been fulfilled, or waived, as the case may be as agreed with
the Investors and the Proposed Investment in terms of part 7.2A has become
unconditional and is being implemented by the BRPs.
6 Furthermore, in regard to the fulfilment or waiver of the Suspensive Conditions above,
the BRPs and the Investors have agreed to make immaterial amendments
(“Amendment”) to the Adopted Business Rescue Plan to effect the Equity Investment.
7 In this regard, the Adopted Business Rescue Plan provides at paragraph 13.2 that the
BRPs shall have the ability, in their sole and absolute discretion, to amend, modify or
vary any provision of this Business Rescue Plan, provided that (i) any amendment will
not be materially prejudicial to any of the Affected Persons; (ii) at all times the BRPs act
reasonably, and (iii) with the knowledge and consent of the Investors, which shall not be
unreasonably withheld or delayed by the Investors. For purposes of determining a
materially prejudicial outcome paragraph 13.1 provides that an outcome that results in
Distributions to Creditors that would be less than the estimated liquidation dividend to as
calculated by PWC and set out in Table 1, would be considered to be materially
prejudicial.
8 The BRPs of the Company, with the knowledge and consent of the Investors, hereby
notify Affected Persons of the following amendments to the Adopted Business Rescue
Plan:
Clause of the Adopted Amendment
Business Rescue Plan
New paragraph – 1.3.4A Insert a new paragraph 1.3.4A in between paragraphs 1.3.4
after 1.3.4 and 1.3.5 with the following words: "Best Efforts" - means
the best efforts of the BRPs working together with the
Investors, to achieve the objectives contemplated in new
paragraph 8.5;
New paragraph – 8.5, after Insert a new heading 8.5 after paragraph 8.4.3 with the
8.4.3 following words: Terms of the Business Rescue Plan
Implementation
New paragraph – 8.5.1 after Insert a new paragraph 8.5.1 after the new heading 8.5 in the
8.5 Business Rescue Plan - The BRPs agree that the reduction
in the workforce will be effected in terms of the "Collective
Agreement" concluded on 25 September 2020 and amended
on 27 November 2020 in terms of an addendum thereto
between the Company, Solidariteit/Solidarity (a trade union
registered as such in terms of the LRA) and the Comair Pilots
Association, a branch of ALPA-SA (a trade union registered
as such in terms of the LRA) (the "Collective Agreement"),
and solely in so far as selection is concerned under section
S189A of the LRA by no later than 15 December 2020, and
fair and objective selection criteria will be used to determine
the identity of the specific individuals who are to be selected
for retrenchment. The Company will, subject to the Collective
Agreement, evaluate further and where possible implement
all reasonable alternatives presented by the Trade
Unions/Employees to minimise job losses contemplated by
such agreement. The Company undertakes that dismissal of
any Employee will be subject to compliance with the
conditions attaching to the Competition Tribunal’s approval of
the Proposed Investment which is the subject matter of this
Business Rescue Plan, granted on 30 October 2020
New paragraph – 8.5.2 after Insert paragraph 8.5.2 in the Business Rescue Plan after the
8.5.1 new paragraph 8.5.1 - The Company is required to oppose
the application which the National Union of Metalworkers of
South Africa (NUMSA) filed on 27 November 2020 with the
Labour Court, seeking leave to appeal against the whole of
the order and judgment of the Labour Court granted on 23
November 2020 dismissing an application NUMSA instituted
against the Company before the Labour Court in terms of
section 189A(13) of the LRA to interdict the retrenchment and
obtain related relief. The BRPs hereby undertake to use their
Best Efforts to fully and actively oppose the aforesaid
application for leave to appeal and all related legal
proceedings and applications and any ensuing appeal that
Clause of the Adopted Amendment
Business Rescue Plan
may be allowed, and pursue the Company’s opposition of this
and any other legal proceedings of whatsoever nature which
NUMSA may institute against the Company relating to or
connected with the retrenchment of any Employees, to its
final end and conclusion
New paragraph – 8.5.3 after Insert a new paragraph 8.5.3 in the Business Rescue Plan
8.5.2 after the new paragraph 8.5.2 - The BRPs shall procure that
the Company shall use its Best Efforts to procure that Sabre
Inc., a Delaware Corporation, enters into and signs a new
agreement with the Company to replace the existing
agreement between Sabre and the Company, on terms and
conditions which are satisfactory to the Investors
New paragraph – 8.5.4 after Insert a new paragraph 8.5.4 in the Business Rescue Plan
8.5.3 after the new paragraph 8.5.3 - To the extent relevant and
applicable, the Company is required to undertake all relevant
filings and secure all relevant approvals from the Civil
Aviation Authority & Air Service Licensing Council, as well as
the International Air Service Licensing Council, insofar as
they are legally required in relation to the continuation of the
Company's operations and for this purpose, the BRPs
undertake to give their full co-operation and use their Best
Efforts in this regard
New paragraph - 8.5.5 after Insert a new paragraph 8.5.5 in the Business Rescue Plan after
8.5.4 the new paragraph 8.5.4 - The Company is required to receive
unconditional competition approval by the Competition and
Tariff Commission of Zimbabwe, alternatively approval subject to
such conditions as require the sole acceptance, in writing, of the
Investors which shall not unreasonably be withheld or delayed.
The BRPs undertake to give their full co-operation and pursue the
application using their Best Efforts in order to achieve the
approval by the Competition and Tariff Commission of Zimbabwe
as aforesaid. The BRPs shall procure that the transaction which is
the subject matter of the Business Rescue Plan shall not be
implemented in respect of Zimbabwe prior to receipt of approval
by the Competition and Tariff Commission of Zimbabwe as
aforesaid, and in particular no flights shall by undertaken to and
from Zimbabwe until such approval has been obtained
New paragraph – 8.5.6 after Insert a new paragraph 8.5.6 in the Business Rescue Plan
8.5.5 after the new paragraph 8.5.5 - The BRPs acknowledge that
the Investors will procure that an offer ("Offer") to acquire the
remaining 1% of the shares in the Company, to be
implemented by one of a number of possible mechanisms,
including a scheme of arrangement, will (i) be made following
the date of termination of the Business Rescue Proceedings
in respect of the Company; and (ii) include, an application to
terminate the listing of all the Company shares from the main
board of the JSE, immediately following the completion of the
Offer. For the purposes of procuring the passing of the
necessary resolutions by the Company’s shareholders to
achieve the aforegoing, the BRPs confirm they have already
received irrevocable undertakings from certain material
Clause of the Adopted Amendment
Business Rescue Plan
shareholders of the Company and undertake to use their Best
Efforts to the extent that it is within their power so to do to
assist the Investors to procure the support of additional
shareholders so that the requisite majority can be obtained
for the passing of all resolutions required to achieve the
aforegoing.
9 These amendments will not have any materially prejudicial outcome as explained above,
and the Adopted Business Rescue Plan is accordingly amended and should now be read
in conjunction with this notice.
10 The Company's flying operations are commencing on 1 December 2020.
Bonaero Park
1 December 2020
Sponsor
PSG Capital
IMPORTANT NOTICE TO FOREIGN SHAREHOLDERS AND PROSPECTIVE INVESTORS
FOREIGN SHAREHOLDERS AND PROSPECTIVE INVESTORS IN COMAIR LIMITED (“COMAIR”) SHOULD
NOTE THAT, IN ORDER TO ENABLE COMAIR (AS A LICENSED AIR SERVICES OPERATOR IN SOUTH
AFRICA) TO REMAIN COMPLIANT WITH THE FOREIGN OWNERSHIP RESTRICTION CONTAINED
SECTIONS 16(4)(c) AND 19(a) OF THE AIR SERVICES LICENSING ACT, NO. 115 OF 1990, THE VOTING
RIGHTS OF FOREIGN SHAREHOLDERS MAY BE DECREASED PROPORTIONATELY SUCH THAT THE
VOTING RIGHTS OF FOREIGN SHAREHOLDERS DO NOT, IN AGGREGATE, EXCEED 24.99%. FOREIGN
SHAREHOLDERS AND PROSPECTIVE INVESTORS ARE REFERRED TO THE COMAIR’S MEMORANDUM OF
INCORPORATION AND WEBSITE (www.comair.co.za) FOR FURTHER DETAILS. IF FOREIGN
SHAREHOLDERS OR PROSPECTIVE INVESTORS ARE IN ANY DOUBT AS TO WHAT ACTION TO TAKE THEY
SHOULD SEEK ADVICE FROM THEIR BROKER, ATTORNEY OR OTHER PROFESSIONAL ADVISER.
Date: 01-12-2020 02:49:00
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