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Joint announcement of the revised Firm intention to make an offer to Dorbyl shareholders
Dorbyl Limited Naledi Foundry of Republic
(Incorporated in the of South Africa
Republic of South Africa) Proprietary Limited
Registration Number: (Incorporated in the
1911/001510/06 Republic of South Africa)
Share Code: DLV ISIN: Registration Number:
ZAE000002184 2012/194053/07
("Company" or "Dorbyl") (“Naledi”)
JOINT ANNOUNCEMENT OF THE REVISED FIRM INTENTION TO MAKE AN
OFFER TO DORBYL SHAREHOLDERS TO ACQUIRE UP TO 100% OF THE SHARES
IN THE ISSUED SHARE CAPITAL OF DORBYL
1. INTRODUCTION
1.1 Shareholders are referred to the announcement published on
the Securities Exchange News Service on 8 October 2012
wherein the ordinary shareholders were advised that the
board of directors of Dorbyl (“Dorbyl Board”) had received
an offer letter from the Industrial Development Corporation
of South Africa Limited (“IDC”) in terms of which IDC,
acting on behalf of a private company to be nominated
(“Offeror”), made a firm intention offer (“Initial Offer”)
to acquire up to 100% (one hundred percent) of the total
issued ordinary share capital in Dorbyl for an acquisition
consideration of R0.73 (seventy three cents) per ordinary
share (“Initial Offer Consideration”). The Initial Offer was
subject to the Offeror acquiring at least 75% (seventy five
percent) of the entire issued ordinary share capital of
Dorbyl (“the Initial Minimum Threshold Requirement”).
1.2 Shareholders are advised that the Dorbyl Board has received
a revised firm intention offer letter from the IDC, acting
on behalf of the Offeror, advising that the Offeror has
resolved to revise the Initial Offer as follows (“the
Revised Offer”):
1.2.1 by increasing the Initial Offer Consideration to R0.85
(eighty five cents) per ordinary share;
1.2.2 by making, in addition to the offer for ordinary shares in
Dorbyl in paragraph 1.2.1 above, offers for the:
1.2.2.1 740 025 5% cumulative preference shares (with Share
Code (5%): DLVP ISIN code: ZAE000002200 (“the DLVP –
Preference Shares”)) at a price of R1.00 (one hundred
cents) per DLVP – Preference Share payable in cash,
representing a total offer consideration of R740 025.00
for the entire class of DLVP – Preference Shares; and
1.2.2.2 1 250 000 5.5% cumulative preference shares (with Share
Code (5.5%): DLP1 ISIN code: ZAE000002168 (“the DLP1 –
Preference Shares”)) at a price of R1.10 (one hundred
and ten cents) per DLP1 – Preference Share payable in
cash, representing a total offer consideration of
R1 375 000.00 for the entire class of DLP1 – Preference
Shares,
(the offers to preference shareholders contemplated in
paragraphs 1.2.2.1 and 1.2.2.2 above are hereinafter
referred to collectively as “the Preference Share
Offers”); and
1.2.3 by reducing the Initial Minimum Threshold Requirement to
51% (fifty one percent) (“the Revised Minimum Threshold
Requirement”) instead of 75% (seventy five percent).
1.3 The Revised Offer constitutes:
1.3.1 a firm intention by the Offeror to make an offer to the
Company as contemplated in Chapter 5 of the Companies Act
71 of 2008 (the “Companies Act”) and Chapter 5 of the
Companies Regulations of 2011 (the “Regulations”); and
1.3.2 an “affected transaction” as defined in section 117(c) of
the Companies Act and will be regulated by the Companies
Act, the Regulations and the Takeover Regulation Panel
(“TRP”).
1.4 Accordingly, the terms of the Revised Offer that will be
made to the Dorbyl ordinary shareholders are set out in this
joint firm intention announcement (“Joint Revised
Announcement”).
2. INFORMATION ON THE OFFEROR
2.1 The Offeror is a private company nominated by IDC called
Naledi Foundry of Republic of South Africa Proprietary
Limited (Registration Number 2012/194053/07) (“Naledi”).
2.2 The shareholders of Naledi comprise IDC, the trustees for
the time being of The Ginny Eunice Maphatiane Trust, the
trustees for the time being of The Mukovhe Share 2 Trust, Mr
Sibusiso Maphatiane and Ms Puleng Manaka. Mr Maphatiane and
Ms Manaka are acting (under a stipulatio alteri) as
stipulators on behalf of (i) a trust named “The Dorbyl
Employees Trust” which has been established to hold shares
in Naledi Foundry on behalf of management and employees of
Dorbyl from time to time and (ii) a trust that will be
established on behalf of the surrounding communities where
the Company operates.
2.3 All of the ordinary and preference shares to be acquired
pursuant to the Revised Offer will be beneficially acquired
and held through Naledi.
3. MECHANICS OF THE PROPOSED OFFER
3.1 In terms of the Revised Offer, the Offeror offers to acquire
all of:
3.1.1 the ordinary shares in Dorbyl (excluding any treasury
shares) for the Revised Offer Consideration, being R0.85
(eighty five cents); and
3.1.2 the DLVP – Preference Shares at a price of R1.00 (one
hundred cents) per DLVP – Preference Share; and
3.1.3 the DLP1 – Preference Shares at a price of R1.10 (one
hundred and ten cents) per DLP1 – Preference Share.
3.2 The aggregate consideration payable in terms of the Revised
Offer for the ordinary and preference shares comprises a
total offer consideration of R31 074 573.00 (thirty one
million seventy four thousand five hundred and seventy three
Rand) (“the Aggregate Offer Consideration”).
3.3 The Aggregate Offer Consideration will be paid in cash.
3.4 The Revised Offer is subject to the achievement of the
Revised Minimum Threshold Requirement and on such further
terms and conditions as set out in paragraph 5 below.
3.5 The Revised Offer will be implemented by way of a general
offer to the affected Dorbyl shareholders in terms of the
Act and the Regulations.
3.6 The posting of the circular required to implement the
Revised Offer (“the Circular”) will be subject to the
Posting Conditions set out in paragraph 4 hereunder (“the
Posting Conditions”).
4. POSTING CONDITIONS
4.1 The posting of the Circular to the Dorbyl shareholders is
subject to the Posting Conditions that, by no later than 31
January 2013 (or such later date as may be agreed in writing
between the IDC, the Offeror and the Dorbyl Board):
4.1.1 the Dorbyl Board has retained an independent expert in
terms of Regulation 110 of the Takeover Regulations and
such expert has prepared and issued a report concerning
the Revised Offer;
4.1.2 the independent board of Dorbyl recommends to the
shareholders of Dorbyl that they accept the Revised Offer;
and
4.1.3 to the extent applicable, all requisite approvals have
been received from the JSE, the TRP and the Financial
Surveillance Department of the South African Reserve Bank
for the posting of the Circular.
4.2 The conditions in paragraph 3.1.1 to 3.1.3 are regulatory in
nature and cannot be waived, although the time period within
which such conditions are to be fulfilled may be extended,
by the Offeror in its sole discretion by notice to Dorbyl in
writing.
5. CONDITIONS AS TO THE REVISED OFFER
5.1 The Revised Offer will be subject to (and will become
operative on the relevant operative date upon) the
fulfilment of the following Revised Offer Conditions on or
before 31 March 2013:
5.1.1 the acceptance of the Revised Offer by such number of
ordinary shareholders so as to achieve the Revised Minimum
Threshold Requirement referred to in paragraph 1.2.3
above;
5.1.2 in respect of the implementation of the Revised Offer and
only to the extent that same may be applicable, the
approval of the Competition Authorities, the South African
Reserve Bank, the JSE, the TRP (through the issue of the
requisite compliance certificate) and any other relevant
regulatory authorities (either unconditionally or subject
to conditions acceptable to the Offeror).
5.2 The fulfilment of the Conditions to the Revised Offer in
paragraphs 4.1.1 and 4.1.2, may not be waived but may be
extended by the Offeror, by up to 60 (sixty) days, in its
sole discretion, upon written notice to Dorbyl, but the
Offeror shall not be entitled to extend the date to a date
later than the aforesaid 60 (sixty) day period without the
prior written consent of Dorbyl.
6. IRREVOCABLE UNDERTAKINGS TO ACCEPT
The Offeror received irrevocable undertakings from Dorbyl
ordinary shareholders, collectively representing 51.03% of
the total issued ordinary shares of Dorbyl, to accept the
Revised Offer. Full details of the aforementioned irrevocable
undertakings will be disclosed in the Circular to
shareholders.
7. CERTAINTY OF FUNDS
The TRP has been given appropriate written confirmation by
Siyaka Beja Inc, Absa Bank Limited and Nedbank Limited, as
contemplated in Regulation 111(4) and Regulation 111(5) of
the Regulations, that the Offeror has sufficient cash
resources and/or facilities available to it to meet its cash
commitments to the Dorbyl shareholders in relation to the
Revised Offer (incorporating the Preference Share Offers).
8. COMPETITION AND OTHER REGULATORY ISSUES
8.1 The Offeror does not anticipate any obstacles to obtaining
competition approval that will unnecessarily delay the
completion of the transaction.
8.2 The Offeror is aware that certain bodies will require
notification of the proposed transaction and will work
together with the Dorbyl shareholders and their advisors to
ensure that any standard regulatory approvals are achieved
timeously, and that all reasonably necessary actions
required to secure competition approval (if any) are taken.
9. AMENDMENT OR VARIATION OF THE REVISED OFFER
No amendment or variation of any terms of the Revised Offer
shall be valid unless it is agreed to by the Offeror in
writing and approved by the TRP.
11. NO SET-OFF OF REVISED OFFER CONSIDERATION
Settlement of the Aggregate Offer Consideration will be
implemented in full in accordance with the terms of the
Revised Offer without regard to any lien, right of set-off,
counterclaim, deduction, withholding or other analogous right
to which the Offeror may otherwise be, or claim to be,
entitled against any shareholder.
12. ARRANGEMENTS, AGREEMENTS AND UNDERTAKINGS
There are no arrangements, agreements or undertakings between
the Offeror, Dorbyl, any director of Dorbyl, any person who
was a director of Dorbyl in the previous 12 (twelve) months,
any shareholder of Dorbyl or any shareholder of Dorbyl in the
previous 12 (twelve) months, that is material to the Revised
Offer.
13. OPINIONS AND RECOMMENDATIONS
As required in terms of the Companies Act and the
Regulations, Dorbyl has to constitute an independent board
(the “Dorbyl Independent Board”). Tracy Morkel, Phildo Steyn
and Jacques Badenhorst have been appointed as members of the
Dorbyl Independent Board.
The Dorbyl Independent Board have appointed BDO Corporate
Finance Proprietary Limited as independent expert to provide
the Dorbyl Independent Board with external advice with regard
to the Revised Offer and to make appropriate recommendations
to the Dorbyl Independent Board for the benefit of the Dorbyl
shareholders. The substance of the external advice and the
views of the Dorbyl Independent Board will be detailed in the
Circular.
14. DELISTING
If the Revised Offer is successfully implemented, application
will be made to terminate the listing of Dorbyl on the JSE.
15. DOCUMENTATION
Further details of the Revised Offer will be included in the
Circular to be sent to the Dorbyl shareholders.
16. DIRECTORS’ RESPONSIBILITY STATEMENT
16.1 The directors of the Offeror, insofar as the information in
this Joint Revised Announcement relates to the Offeror:
16.1.1 collectively and individually accept full responsibility
for the accuracy of the information given in this Joint
Revised Announcement;
16.1.2 certify that, to the best of their knowledge and belief,
the information in this Joint Revised Announcement is true
and correct; and
16.1.3 certify that, the Joint Revised Announcement does not omit
anything likely to affect the importance of the
information disclosed.
16.2 The Dorbyl Independent Board, insofar as the information in
this Joint Revised Announcement relates to Dorbyl:
16.2.1 collectively and individually accept full responsibility
for the accuracy of the information given in this Joint
Revised Announcement;
16.2.2 certify that, to the best of their knowledge and belief,
the information in this Joint Revised Announcement is true
and correct; and
16.2.3 certify that, the Joint Revised Announcement does not omit
anything likely to affect the importance of the
information disclosed.
17. ADVISOR
PSG Capital Proprietary Limited has been appointed by Dorbyl
as transaction advisor to Dorbyl and will be responsible for
the drafting of all documentation, including but not limited
to the SENS announcements and/or the Circular documentation
as may be required by the Company to execute the Revised
Offer.
18. COSTS
18.1 Following the fulfilment of the Posting Conditions, should
the Revised Offer thereafter fail as a result of non-
fulfilment of any of the Revised Offer Conditions, the
Offeror will make a contribution equal to 50% (fifty
percent) of the costs of posting the Circular plus 50%
(fifty percent) of any printing fees towards Dorbyl’s
expenses incurred as a result of posting the Circular on
behalf of the Offeror.
18.2 Upon the successful implementation of the Revised Offer, the
Offeror shall be responsible for all of the agreed costs
associated with the implementation of the Revised Offer.
19. GOVERNING LAW
The Revised Offer will be governed by and construed in
accordance with the laws of South Africa and shall be subject
to the exclusive jurisdiction of the South African courts.
Johannesburg
7 December 2012
Transaction advisor and sponsor to Dorbyl: PSG Capital
Proprietary Limited
Legal Advisor to the Offeror: Norton Rose South Africa
(incorporated as Deneys Reitz Inc)
Date: 07/12/2012 03:15:00 Produced by the JSE SENS Department. The SENS service is an information dissemination service administered by the JSE Limited ('JSE').
The JSE does not, whether expressly, tacitly or implicitly, represent, warrant or in any way guarantee the truth, accuracy or completeness of
the information published on SENS. The JSE, their officers, employees and agents accept no liability for (or in respect of) any direct,
indirect, incidental or consequential loss or damage of any kind or nature, howsoever arising, from the use of SENS or the use of, or reliance on,
information disseminated through SENS.
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