Letter to MCM
Shareholders
2 February 2024
Dear MCM Shareholder,
On behalf of Goldway, I am pleased to enclose an
Offer to acquire all of the MCM Shares not currently held by the
Consortium (who are parties to the Joint Bid Deed with Goldway in
respect of making this Offer, and are the shareholders in Goldway),
at a price of A$0.16 per MCM Share.
As at the date of this Bidder's Statement, the
Consortium holds approximately 64.30% of the MCM Shares. If
following completion of the Offer, the Bidder Parties together own
or control at least 75% of the issued shares in MCM but have not
met the conditions to proceed to compulsorily acquire the remaining
MCM Shares under the Corporations Act, the Bidder Parties
intend to delist MCM from the official lists of the ASX, JSE and
AIM subject to obtaining the necessary South African Reserve Bank
approval in respect of the JSE listing.
Goldway believes the Offer delivers an attractive
premium for MCM Shareholders. The Company continues to experience
quarter on quarter cash burn with a large debt position and an
on-going and longstanding need for considerable equity financing or
financings. The Offer allows MCM Shareholders the opportunity to
realise liquidity for their shareholding, avoid future dilution and
achieve certainty in value in the form of cash consideration
without the need to incur brokerage costs. By ACCEPTING the Offer, you will receive a
simple and attractive cash exit from your investment in MCM.
The full terms and conditions of the Offer are set
out in Section 13 of this Bidder's Statement.
Compelling offer to
MCM Shareholders
The Offer represents:
(a)
|
14.3%
premium to A$0.14, being the closing price of
MCM Shares on the ASX on 1 February 2024;
|
(b)
|
23.1%
premium to A$0.13, being the closing price of
MCM Shares immediately before the intention to make a takeover by
the Consortium was announced on the ASX on 3 November 2023;
and
|
(c)
|
17.1%
premium to A$0.1366, being the 20 day volume
weighted average price (VWAP) of MCM Shares up until 1 February
2024.
|
The Offer values MCM's equity at approximately
A$65.3 million (approximately ZAR803 million or £33.8
million)[1] and assumes the number of
ordinary shares on issue is 407,890,744 and no further issue of
shares occurs.
The Offer represents an enterprise value of the
business of approximately A$75.5 million (approximately ZAR928
million or £39.1 million)[2] assuming a net
debt position of the Company of approximately A$10.25 million
(approximately ZAR126 million or £5.3 million)[3].
Goldway believes the Offer represents a
compelling opportunity for MCM Shareholders to realise liquidity
for their shareholding at a premium. Goldway believes a public
listing is no longer in the best interest of MCM Shareholders for
the following reasons, including:
(a)
|
Impending
dilution - the quarterly report ending 31
December 2023 showed cash burn of approximately US$1.75 million and
the September quarterly report approximately US$3.5 million. With
under US$3.4 million cash at 31 December 2023 and debt of over
US$10.1 million (plus accruing interest), it is anticipated that
MCM will require an equity raise in the near term which will have a
significant dilutive effect on current MCM Shareholders. The Offer
will provide an exit opportunity for MCM Shareholders ahead of any
anticipated dilution event.
|
(b)
|
Balance
sheet - MCM continues to negotiate rolling
extensions to the US$8.7 million (plus interest) debt owed to the
IDC who have withdrawn the conditional US$13.6 million facility
aimed at financing the flagship Makhado Project, leaving the
financing of this project uncertain. MCM is currently in a net debt
position of approximately A$10.25 million (US$6.4 million) with
rising interest costs prior to a Final Investment Decision (FID) on
Makhado.
|
(c)
|
Future funding
requirements - notwithstanding the immediate
need to strengthen the balance sheet from the current net debt
position, MCM will require significant future funding to develop
and unlock any value from its asset base. MCM's flagship project
Makhado has a peak funding requirement of approximately US$98
million which is more than 250% of the current market
capitalisation of MCM.
|
(d)
|
Negative
cashflow - despite record coal prices, MCM has
continued to experience cash burn quarter on quarter throughout
2022 and in 2023.
|
(e)
|
Inability to
add shareholder value - Since 2010, MCM has
raised approximately US$500 million in debt and equity financing.
Despite the considerable funding provided to the Company, MCM
Shareholders have not received any dividends and MCM's operations
have not materially changed. In 2010, a capital raising was
completed with proceeds applied to complete the Makhado Definitive
Feasibility Study (DFS). The most recent update to this DFS was
announced in June 2023.
|
(f)
|
Liquidity - MCM
ordinary shares have extremely low levels of trading and the Offer
presents a liquidity event for MCM Shareholders to realise certain
value for their shares at a premium to the last traded price. The
Consortium holds approximately 64.30% of the MCM Shares. If,
following completion of the Offer, the Bidder Parties own or
control at least 75% of MCM Shares, the Bidder Parties intend to
delist MCM from the official lists of the ASX, JSE and AIM, subject
to obtaining the necessary South African Reserve Bank
approval.
|
(g)
|
Free
float - the Consortium have been the major
source of funding for MCM and, assuming this continues, the
free-float of MCM will decline to levels that do not justify a
public listing.
|
(h)
|
Administrative
cost - the September quarterly report showed
A$5.5 million (US$3.6 million) in administrative and corporate
costs and the December quarterly report an additional A$3.8 million
(US$2.5 million). The administrative burden and costs associated
with being listed on three exchanges is too high for a company
experiencing negative cashflow.
|
(i)
|
Negative coal
sentiment - institutional mandates are
increasingly restrictive and prohibit investment into coal
businesses and fossil fuels. This negatively impacts MCM's ability
to effectively raise capital. There has also been a general
de-rating in trading multiples for listed coal
stocks.
|
(j)
|
Management time
and resources - a considerable amount of
management's time is spent on compliance matters associated with
listing on multiple exchanges. This diverts time and resources away
from MCM's core activities. MCM's headquarters, operations,
Board and management are all based in South Africa with no physical
presence in Australia or London.
|
In light of the above, Goldway believes that the
likelihood of another bidder emerging with a superior proposal is
low.
By accepting this Offer in respect of all their
MCM Shares, MCM Shareholders will no longer be exposed to potential
significant funding and operational risks (including the risk of
further dilution) that they are potentially exposed to by remaining
a MCM Shareholder.
Additionally, the trading price of MCM Shares
may fall if the Offer is unsuccessful, limited trading volumes may
inhibit your ability to dispose of Your MCM Shares on market, and
the value of your shareholding will continue to be subject to
market volatility.
Next
steps
We encourage you to read this document carefully
and in full, and to accept the
Offer for the reasons outlined in this Bidder's
Statement.
To accept the Offer, please follow the
instructions on the accompanying Acceptance Form as relevant to
your jurisdiction.
If you require additional assistance
and:
(a)
|
you are a MCM Shareholder on the MCM Australian
Register, please call the Goldway Australian Offer Information Line
on 1300 737 760 (within Australia), +61 2 9290 9600 (from outside
Australia).
|
(b)
|
you are a MCM Shareholder on the MCM United
Kingdom Register (as you hold your MCM Shares in CREST), please
await further information to be announced by Goldway explaining how
you can accept the Offer (which will include details of an
information line in the United Kingdom).
|
(c)
|
you are a MCM Shareholder on the MCM South
African Register, please call the Goldway South African Offer
Information Line on +27 11 305 7346. Calls are charged at the
standard geographic rate and will vary by provider.
|
Calls from outside Australia, the United Kingdom
and/or South Africa not made to the local lines provided will be
charged at the applicable international rate. Please note that the
above calls may be recorded.
Yours sincerely,
Jun Liu, Director
Goldway Capital Investment Limited
Bidder's Statement
The following is only a summary of the Offer
and is qualified by the detailed information contained in this
Bidder's Statement.
You should read this Bidder's Statement in full
before deciding how to deal with Your MCM Shares. If you have any
doubt as to how to deal with this document, you should contact your
broker, financial adviser or legal adviser immediately.
The terms and conditions of the Offer are
contained in Section 13 of this Bidder's Statement.
Question
|
Answer
|
More Information
|
Who is making
the Offer?
|
The Offer is being made by Goldway which is a
special purpose vehicle incorporated in Hong Kong for the purposes
of the Offer.
The Consortium comprise all of the
shareholders in Goldway.
The Consortium holds approximately 64.30% of
the MCM Shares as at the date of this Bidder's
Statement.
|
See Section 3 for details of the Bidder and
the Consortium.
|
What is the
Offer price and what happens if I accept the
Offer?
|
Goldway is making an Offer to acquire any or
all of Your MCM Shares by way of an all cash off-market takeover
bid. No securities will be offered as part of the
consideration.
The Offer Price is A$0.16 per MCM Share
Goldway does not presently intend to increase the Offer Price,
although it reserves the right to do so.
You may accept this Offer in respect of all or
any number of the MCM Shares you hold.
If you accept the Offer and the Offer is
declared unconditional, you will be paid A$0.16 for each MCM Share
accepted under the Offer, and you will no longer hold the MCM
Shares that you tendered for acceptance.
|
See Section 13 for details of the
Offer.
|
Does the
Offer have any exclusions?
|
The Offer does not extend to:
-
|
MCM Shares that are issued between
the date of the Bidder's Statement and the end of the Offer Period
as a result of the exercise of Options, the vesting or conversion
of Performance Rights or the conversion of any other convertible
securities; nor
|
-
|
MCM Shares issued during the
period from the Register Date to the end of the Offer
Period.
|
|
See Section 13.1 for further
details.
|
What is the
premium under the Offer?
|
The Offer represents:
-
|
14.3% premium to A$0.14, being the
closing price of MCM Shares on the ASX on 1 February
2024;
|
-
|
23.1% premium to A$0.13, being the
closing price of MCM Shares immediately before the intention to
make a takeover bid by the Consortium was announced on the ASX
on 3 November 2023;
|
-
|
17.1% premium to A$0.1366, being
the 20 day volume weighted average price (VWAP) of MCM Shares up
until 1 February 2024.
|
|
|
Is the Offer
subject to conditions?
|
The Offer is conditional. In summary, the
Offer is subject to the following conditions:
-
|
the Bidder Parties receiving
acceptances for at least 50.1% or more of MCM Shares that they do
not have a relevant interest in at the commencement date of the
Offer. This condition cannot be waived by the Bidder Parties unless
relief is granted by ASIC;
|
-
|
MCM does not conduct any form of
capital raising or financing (including the issue of any new
securities) between the Register Date and the end of the Offer
Period, unless with the written consent of the Bidder
Parties;
|
-
|
MCM does not incur any significant
liabilities or change the terms of its debt financing arrangement
in any material respect between the Announcement Date and the end
of the Offer Period, unless with the written consent of the Bidder
Parties;
|
-
|
no Performance Rights, Options or
other convertible securities currently on issue vest and are
converted into MCM Shares between the date of this Bidder's
Statement and the end of the Offer Period;
|
-
|
no material acquisition, disposal
or commitment is undertaken by MCM between the Announcement Date
and the end of the Offer Period;
|
-
|
no material adverse change occurs
in relation to MCM before the end of the Offer Period;
|
-
|
no regulatory action by a Public
Authority which prohibits or restricts the Offer or imposes any new
terms on or amends the existing terms of the rights, licences or
tenements held by MCM between the Announcement Date and the end of
the Offer Period;
|
-
|
no distribution or dividend is
declared or paid by MCM between the Announcement Date and the end
of the Offer Period;
|
-
|
there are no change of control
provisions relating to MCM's material assets; and
|
-
|
no prescribed occurrence occurs
between the Announcement Date and the end of the Offer
Period.
|
|
See Section 13.9 for more details of the
Conditions.
|
What happens
if the Conditions of the Offer are not satisfied or
waived?
|
If the conditions are not satisfied or waived
by the end of the Offer Period, then the Offer will lapse, your
acceptance will be void, Your MCM Shares will not be acquired by
Goldway and no consideration will be due to you under the Offer. In
such circumstances, you will continue to hold Your MCM Shares and
be free to deal with Your MCM Shares as though the Offer had not
been made.
|
See Section 13.10 for further
details.
|
How do I
accept the Offer as an MCM Shareholder on the MCM Australian
Register?
|
You may accept the Offer in respect of all or
any of Your MCM Shares.
Issuer
sponsored shareholders
If Your MCM Shares are registered in an Issue
Sponsored Holding (such holdings will be evidenced by your Security
Holder Reference Number commencing with an 'I'), you may accept the
Offer by using the physical Acceptance Form. You must complete and
sign the Acceptance Form enclosed with this Bidder's Statement and
return it to the address indicated on the form before the Offer
closes.
CHESS
shareholders
If Your MCM Shares are registered in a CHESS
Holding (such holdings will be evidenced by your Holder
Identification Number commencing with an 'X'), you may accept the
Offer by:
-
|
Contacting your Controlling Participant:
You can accept the Offer by instructing your
Controlling Participant (normally your broker) to accept the Offer
on your behalf, before the Offer closes; or
|
-
|
Acceptance Form: Alternatively, you can accept the Offer using a physical
Acceptance Form. You must complete and sign the Acceptance Form
enclosed with this Bidder's Statement and return it to the address
indicated on the form before the Offer closes.
|
Participants
If you are a Participant, acceptance of this
Offer must be initiated in accordance with rule 14.14 of the ASX
Settlement Operating Rules before the Offer closes.
|
See Section 13.3 for further
details.
|
How do I
accept the Offer as an MCM Shareholder on the MCM South African
Register?
|
You may accept the Offer in respect of all or
any of your MCM Shares.
Certificated
Shareholders
If you hold your MCM Shares in Certificated
form on the South African Register and you wish to accept the
Offer, you must complete the yellow SA Acceptance Form enclosed
with this Bidder's Statement, and returning it, together with the
relevant Documents of Title to the Transfer Secretaries, being
Computershare, so as to be received by Computershare by no later
than 10.00am on the day the Offer closes
Dematerialised
Shareholders
If you hold your MCM Shares in Dematerialised
form on the South African Register and you wish to accept the
Offer, you must instruct your duly appointed CSDP or Broker in
accordance with the custody agreement concluded with your CSDP or
Broker. You must not complete the attached yellow SA Acceptance
Form (yellow).
Neither
Goldway nor its authorised agents will accept any responsibility
nor be held liable for any acts or omissions on the part of any
CSDP or Broker of a Dematerialised Shareholder who fails to
communicate its acceptance of the Offer timeously or at all, for
whatsoever reason.
|
See Section 13.3 for further
details.
|
How do I
accept the Offer as an MCM Shareholder on the MCM United Kingdom
Register?
|
If you are a UK Shareholder, but hold your MCM
Shares in certificated form, your shareholding shall be held on the
MCM Australian Register.
If you hold your MCM Shares in the form of UK
Depositary Interests in uncertificated form (that is, in CREST),
Goldway will be appointing a UK Receiving Agent in order for you to
be able to accept the Offer in respect of those MCM Shares, via the
procedure for Electronic Acceptance through CREST. Further
information will be announced by Goldway regarding this in due
course once a UK Receiving Agent has been appointed.
|
See Section 13.3 for further
details.
|
If I accept
the Offer, when will I be paid?
|
Goldway will pay the consideration due to you
under the Offer on or before the earlier of:
-
|
one month after this Offer is
accepted or one month after the condition has been freed or
fulfilled (whichever is the later); and
|
-
|
21 days after the end of the Offer
Period.
|
If you hold your MCM Shareholders
on the MCM South African Register, Goldway will pay the
consideration due to you under the Offer within 6 business days
after:
|
-
|
accepting the Offer; or
|
-
|
the publication of the
finalisation announcement,
|
whichever is the later.
|
|
See Section 13.6 for further
details.
|
How will I be
paid?
|
For MCM Shareholders who hold MCM Shares on
the MCM Australian Share Register and accept the Offer, the
consideration will be settled in Australian currency.
For those MCM Shareholders who hold MCM Shares
on the MCM South African Share Register, to satisfy the Exchange
Control Regulations, the consideration will be settled in ZAR.
Where required, this will involve the Australian cash consideration
being converted into ZAR based on the spot A$/ZAR rate on the
currency conversion date, as announced on SENS.
This means that the value of any consideration
MCM Shareholders who hold MCM Shares on the MCM South African Share
Register receive under the Offer will be affected by the prevailing
market exchange rate at the currency conversion date and there is a
risk that:
-
|
there may be a significant shift
in the exchange rate, between the date of this Bidder's Statement
and the currency conversion date, which may affect the value of the
Offer Price in ZAR terms for that MCM Shareholder; and
|
-
|
there may be a significant shift
in the exchange rate, between the currency conversion date and the
date on which an MCM Shareholder accepts the Offer.
|
Each MCM Shareholder on the MCM United Kingdom
Register accepting the Offer who holds their MCM Shares in
uncertificated form (that is, in CREST) will receive the
consideration payable to them under the Offer in pounds Sterling.
This will involve the Australian cash consideration being converted
into pounds Sterling based on the spot A$/£ rate on the date on
which the consideration is paid and then paid on the same day to
MCM Shareholders on the MCM United Kingdom Register who have
accepted the Offer.
This means that the value of any consideration
MCM Shareholders who hold MCM Shares on the MCM United Kingdom
Register receive under the Offer will be affected by the prevailing
market exchange rate at the time of payment and there
is a risk that:
-
|
the exchange rate prevailing on
the day those MCM Shareholders accept the Offer may differ from the
rate prevailing at the time of payment;
|
-
|
there may be a significant shift
in the exchange rate, which may affect the value of the Offer Price
in pounds Sterling terms for that MCM Shareholder; and
|
-
|
different MCM Shareholders who
hold MCM Shares on the MCM United Kingdom Register who accept the
Offer at different times may receive different £ amounts as
consideration under the Offer. This is because the timing of
payment of consideration may differ depending on when the Offer is
accepted.
|
Goldway will appoint a UK Receiving Agent as
soon as practicable following the publication date of this Bidder's
Statement, and prior to the despatch of the Bidder's Statement and
the Offer opening. Following such appointment, further information
will be announced regarding how MCM Shareholders on the MCM United
Kingdom Register accepting the Offer who holds their MCM Shares in
uncertificated form (that is, in CREST) will receive the
consideration payable to them.
|
See Section 13.6 for further
details.
|
When does the
Offer close?
|
The Offer is scheduled to close at 7.00pm
(Sydney time) / 10.00am (South Africa time), on Friday, 5 April
2024 unless extended or withdrawn in accordance with the
Corporations Act.
|
|
Can the Offer
Period be extended?
|
The Offer Period can be extended at Goldway's
election (subject to compliance with requirements of the
Corporations Act). Goldway will give written notice of any
extension of the Offer Period in accordance with the Corporations
Act. Any extension will be announced on the ASX, AIM and the
JSE.
|
|
Do I have to
pay costs or expenses associated with the Offer?
|
You will not incur any brokerage fees or be
obliged to pay any stamp duty in connection with your acceptance of
the Offer.
|
|
What happens
if I do not accept the Offer?
|
If you do not accept the Offer you will remain
a MCM Shareholder. However, if Goldway
becomes entitled to compulsorily acquire Your MCM Shares, it
will be on the same terms (including the same consideration for
each MCM Share acquired) as the Offer. However, you will receive
the money later than the MCM Shareholders who choose to accept the
Offer.
|
|
Can I accept
the Offer for part of my holding?
|
Yes. As noted above, you can accept the Offer
for all or part of Your MCM Shares.
|
|
Can I
withdraw my acceptance?
|
You may only withdraw your acceptance of the
Offer if the Offer is varied in such a way as to delay the time by
which you would receive payment by more than one month. This may
occur if the Offer Period is extended by more than one month and
the Offer is still subject to any defeating conditions at that
time. A notice will be sent to you at the time explaining your
rights in this regard.
|
|
Can I sell my
MCM Shares on market?
|
Yes. However, once you accept the Offer, you
will not be permitted to sell Your MCM Shares on market, accept any
other offer or otherwise deal with Your MCM Shares.
|
|
What are the
taxation implications of accepting the Offer?
|
A general outline of the taxation implications
for Australian MCM Shareholders accepting the Offer is in Section 9
of this Bidder's Statement.
A general outline of the taxation implications
for MCM Shareholders on the MCM South African Register accepting
the Offer is in Section 10 of this Bidder's Statement.
A general outline of the taxation implications
for MCM Shareholders on the MCM United Kingdom Register accepting
the Offer is in Section 11 of this Bidder's Statement.
As that outline is general in nature and does
not take into account your individual circumstances, you should not
rely on that outline as advice for your particular circumstances.
You should seek your own independent taxation advice as to the
taxation implications applicable to your specific
circumstances.
|
See Section 9, 10 and 11 for further
details.
|
What if I am
a foreign shareholder?
|
Foreign MCM Shareholders will be paid the same
cash consideration as stipulated under the Offer. However, the tax
implications under the Offer for those foreign shareholders may be
different from those relating to Australian resident
shareholders.
The availability of the Offer to
persons not resident in Australia, South Africa or the United
Kingdom may be affected by the laws of the relevant jurisdiction.
Persons who are subject to the laws of any jurisdiction other than
Australia, South Africa or the United Kingdom inform themselves
about, and observe, any applicable requirements. If you remain in
any doubt, you should consult your professional adviser in the
relevant jurisdiction without delay.
|
See Section 9 for further details.
|
What if I
accept the Offer and Goldway increases the Offer
Price?
|
In accordance with the Corporations Act, if
Goldway increases the Offer Price, you will be paid the higher
price irrespective of when you accepted the Offer (assuming the
Offer becomes or is declared unconditional). If you have already
received payment in respect of the Offer, you will be paid the
difference between the amount you have already received and the
higher price.
|
|
Will Goldway
proceed to compulsory acquisition?
|
If Goldway becomes entitled to proceed with a
compulsory acquisition of outstanding MCM Shares in accordance with
Part 6A.1 of the Corporations Act, Goldway may exercise those
rights.
|
|
Where do I go
if I have further questions?
|
For queries on how to accept the Offer using
the physical Acceptance Form, see the enclosed Acceptance
Form.
For any further queries on how to accept the
Offer, or for any other queries in relation to the Offer, if you
are a MCM Shareholder on the MCM Australian Register please contact
the Goldway Australian Offer Information Line on 1300 737 760 (for
calls made within Australia), +61 2 9290 9600 (for calls made
outside Australia).
If you require additional assistance and you
are a MCM Shareholder on the MCM United Kingdom Register (as you
hold your MCM Shares in CREST), await further information to be
announced by Goldway explaining how you can accept the Offer (which
will include details of an information line in the United
Kingdom).
If you require additional assistance and you
are a MCM Shareholder on the MCM South African Register, please
call the Goldway South African Offer Information Line on +27
11 305 7346.
|
|
2.
|
Reasons why you should accept the Offer
|
|
|
2.1
|
The Offer represents an attractive value for Your MCM
Shares
|
The Offer is A$0.16 cash for each MCM Share.
The all cash consideration being offered by Goldway is a compelling
offer and represents a:
(a)
|
14.3% premium to A$0.14, being the
closing price of MCM Shares on 1 February 2024 on the
ASX;
|
(b)
|
23.1% mium to A$0.13,
being the closing price of MCM Shares immediately before the
intention to make a takeover by the Consortium was announced on the
ASX on 3 November 2023; and
|
(c)
|
17.1% premium to A$0.1366, being
the 20 day volume weighted average price (VWAP) of MCM Shares up
until 1 February 2024.
|
2.2
|
All cash Offer provides certain value
|
Goldway is offering all cash consideration for
Your MCM Shares. No securities will be offered as part of the
consideration. If you accept the Offer and the Offer becomes
unconditional, you will:
(a)
|
be paid A$0.16 cash for each of
Your MCM Shares;
|
(b)
|
not incur any brokerage fees if
Your MCM Shares are registered in an Issuer Sponsored Holding in
your name and you post them directly to Goldway. If your MCM Shares
are registered in a CHESS Holding or CREST, or if you are a
beneficial owner whose MCM Shares are registered in the name of a
Broker, CSDP, bank, custodian or other nominee, you should ask your
Controlling Participant (usually your broker), Broker, CSDP or that
nominee whether it will charge any transaction fees or service
charges in connection with acceptance of the Offer. You will incur
brokerage if you sell Your MCM Shares on market; and
|
(c)
|
receive payment via EFT or cheque
if no bank details are provided for your consideration on or before
the earlier of:
|
|
(i)
|
one month after accepting the
Offer or, if the Offer was subject to a defeating condition when
you accepted the Offer, one month after the date that the Offer
becomes, or is declared, unconditional; and
|
|
|
(ii)
|
21 days after the end of the Offer
Period.
|
|
|
|
|
| |
The Offer provides an opportunity to dispose of
any or all of Your MCM Shares, and to realise full and certain
value for your entire MCM holding. The certainty of Goldway's cash
Offer should be compared to the risks and uncertainties of
remaining a MCM Shareholder.
2.3
|
The Offer removes your exposure to further dilutionary and
funding risks
|
The activities report for the quarter ended 31
December 2023 showed cash burn of approximately US$1.75 million, in
addition to the cash burn of approximately US$3.5 million the
previous quarter. With only US$3.4 million cash at 31 December 2023
and debt of more than US$10.1 million (plus accruing interest), it
is anticipated MCM will require an equity raise in the near term
which will have a significant dilutive effect on current
shareholders who decide not to participate.
Further, notwithstanding the immediate need to
repair the balance sheet, MCM will require significant future
funding to develop and unlock any value from its asset base. MCM's
flagship project Makhado has a peak funding requirement of
approximately US$98 million which is more than 250% of the current
market capitalisation of MCM.
The Offer provides an opportunity for MCM
Shareholders to sell their MCM Shares ahead of the anticipated
dilution future dilution and considerable funding / balance sheet
risks facing the Company.
2.4
|
Listing costs and
liquidity
|
MCM Shares are an illiquid security. Over the
course of 2023, the average daily liquidity in MCM on the ASX has
been approximately A$5,300. As of 1 February 2024, a total of
approximately A$2,300 has traded on the ASX in 2024. Similarly, low
levels of liquidity are evident on both the JSE and AIM.
MCM Shareholders bear the cost of the
considerable administrative costs being listed on three exchanges.
The last quarter (December quarter) showed administrative costs of
approximately US$2.5 million (A$3.8 million) and US$3.6 million
(A$5.5million) in the September quarter.
Despite being listed on three exchanges, MCM
has been unable to secure funding from parties outside of the
Consortium.
The costs of remaining listed far outweigh the
benefits for MCM Shareholders.
2.5
|
Devaluation of coal assets and
challenges attracting investment
|
MCM's core business is centred around small
scale thermal and steelmaking coal production and development.
Despite record coal prices, MCM continues to experience quarter on
quarter cash burn. Larger scale production is required for the
business to generate sufficient cashflows and financial
stability.
The global 'green energy' theme continues to
gather momentum which makes it considerably more challenging to
attract external capital on reasonable terms to fund
growth.
Furthermore, MCM's listed peer group has seen a
devaluation of trading multiples in recent years due to investor
preference for 'green energy' investment
opportunities.
2.6
|
If the Offer becomes unconditional
and Goldway acquires control of MCM there are risks to remaining a
minority shareholder in MCM
|
As at the date of this Bidder's Statement, the
Consortium holds 64.30% of MCM Shares. If the Offer becomes
unconditional, the Bidder Parties will have a relevant interest of
at least approximately 82.19% in MCM Shares which means all MCM
Shareholders, other than the Consortium members, will be minority
shareholders in MCM.
Being a minority shareholder in MCM may have
the following implications:
(a)
|
the price at which MCM Shares are
traded on the ASX may fall and may trade at a material discount to
the Offer Price;
|
(b)
|
the market for MCM Shares may
become less liquid;
|
(c)
|
MCM's distribution policy, capital
structure and board configuration may change; and / or
|
(d)
|
if the number of MCM Shareholders
is less than that required by the Listing Rules to maintain an ASX
listing then the ASX may suspend and/or de-list MCM Shares.
Alternatively, MCM may apply for a delisting provided the ASX
listing rules are complied with. If this occurs, any remaining MCM
Shareholders will not be able to sell their MCM Shares on market.
Consequently, there may be a reduced likelihood of a subsequent
takeover bid for MCM from parties other than Goldway.
|
If Goldway becomes entitled to compulsorily
acquire your MCM Shares, it may exercise that right. If your MCM
Shares are compulsorily acquired, you will still receive the Offer
Price, but at a later time than you would have received it if you
had accepted the Offer.
2.7
|
The trading price of MCM Shares may fall if the Offer is
unsuccessful
|
The Offer is at a premium to the recent trading
prices of MCM Shares prior to the announcement of the
Offer.
If the Offer is unsuccessful and there is no
other offer made for Your MCM Shares, the trading price of MCM
Shares may fall and trade at levels even lower than the prices
immediately prior to the announcement of the Offer.
The Offer is the only offer available for any
or all of Your MCM Shares as at the date of this Bidder's
Statement.
As at the date of this Bidder's Statement,
Goldway believes that the likelihood of another bidder emerging
with a superior proposal is low, given the cash premium offered,
the Consortium's holding approximately 64.30% of MCM Shares and the
significant capital expenditure required to develop project Makhado
as outlined in Section 2.3.
3.
|
Information on the Bidder Parties
|
|
|
3.1
|
Background
|
Goldway is a Hong Kong investment vehicle
representing the interests of the Consortium. It was incorporated
on 1 July 2023. The principal activity of Goldway is to acquire MCM
Shares under the Offer.
The Consortium is made up of independent
institutional shareholders, family offices and
individuals.
The shareholding of each Consortium member in
Goldway is set out below:
Consortium member
|
Shareholding percentage in
Goldway
|
Senosi Group
Investment Holdings Proprietary Limited (SGIH)
|
41.23%
|
Shining
Capital GP Limited
|
8.58%
|
Dendocept
Proprietary Limited (Dendocept)
|
6.93%
|
Jun Liu and
Huan Qu as joint trustees for the Golden Eagle
Trust
|
6.50%
|
Pacific Goal
Investment Limited (Pacific Goal)
|
6.11%
|
Ying He Yuan
Investment (S) Pte Ltd
|
5.25%
|
Longelephant
International Trade Limited
|
3.72%
|
Yi
He
|
2.12%
|
Jun
Liu
|
1.65%
|
Golden Archer
Investment (Pty) Ltd (Golden Archer)
|
0.06%
|
Eagle Canyon
International Group Holding (Hong Kong) Limited (Eagle
Canyon)
|
17.85%
|
Total
|
100%
|
The shareholding of each Consortium member in
MCM, and their relationship with the MCM Board, is set out
below.
Consortium member
|
Shareholding in MCM
|
Shareholding percentage in
MCM
|
Relationship of Consortium member with
MCM Board
|
Senosi Group
Investment Holdings Proprietary Limited (SGIH)
|
95,357,455
|
23.38%
|
Ontiretse Mathews Senosi is a Non-Executive
Director of SGIH and MCM.
|
Shining
Capital GP Limited
|
35,000,000
|
8.58%
|
N/A
|
Dendocept
Proprietary Limited (Dendocept)
|
28,265,593
|
6.93%
|
Yi (Christine) He is a Non-Executive Director
of Dendocept and MCM.
|
Jun Liu and
Huan Qu as joint trustees for the Golden Eagle
Trust
|
26,449,345
|
6.50%
|
Jun Liu is the husband of Yi (Christine) He,
who is a MCM Board member.
|
Pacific Goal
Investment Limited (Pacific Goal)
|
24,927,757
|
6.11%
|
N/A
|
Ying He Yuan
Investment (S) Pte Ltd
|
21,413,462
|
5.25%
|
N/A
|
Longelephant
International Trade Limited
|
15,162,581
|
3.72%
|
N/A
|
Yi
He
|
8,664,674
|
2.12%
|
Yi (Christine) He is a Non-Executive Director
of Dendocept and MCM.
|
Jun
Liu
|
6,735,240
|
1.65%
|
Jun Liu is the husband of Yi (Christine) He,
who is a MCM Board member.
|
Golden Archer
Investment (Pty) Ltd (Golden Archer)
|
264,845
|
0.06%
|
Brian He Zhen is a director of Golden Archer
and Non-Executive Director of MCM.
|
Eagle Canyon
International Group Holding (Hong Kong) Limited (Eagle
Canyon)
|
NIL
|
NIL
|
N/A
|
Total
|
262,290,952
|
64.30%
|
N/A
|
Mr Jun Liu is the sole director of
Goldway.
Mr Jun
Liu
Mr Jun Liu is a pioneer of Chinese investment
in Africa. In 1995, Mr Liu founded Eagle International Group
Holdings and later established Qingdao Eagle Canyon Real Estate
Company Limited in China. Mr Jun Liu's business interests span
across a number of sectors including real estate, finance, energy
and mining. Mr Liu's mining interests include large scale gold and
lithium operations in Zimbabwe and his combined substantive equity
interest in MCM together with his partner, Ms Yi He.
3.3
|
Authorised representatives of
Goldway
|
Mr Ontiretse Mathews Senosi and Ms Yi
(Christine) He have authority to represent and act on behalf of
Goldway pursuant to the Joint Bid Deed.
Mr Ontiretse
Mathews Senosi
Mr Senosi is a qualified mining engineer
(University of the Witwatersrand) with over 25 years' experience in
mining and project execution. Mr Senosi gained experience at Anglo
Coal before successfully pursuing personal business interests in
mining, engineering and consulting as well as civil and
construction projects, and was a key contributor in the successful
execution of numerous coal mining projects. Mr Senosi has extensive
experience in opencast and underground coal mining and is the CEO
of the Overlooked Mining Group which produces over 7.5 million
tonnes per annum of thermal coal for the export and domestic
markets.
Ms Yi
(Christine) He
Ms He has a bachelor's degree in English
Literature from Sichuan University and over 20 years' experience at
senior management level. Her broad commercial experience includes,
amongst others, the financing, development and execution of large
construction and mining projects as part of the CRI Eagle Group. Ms
He has extensive interests, direct and indirect, in mining in
Southern Africa.
4.
|
Information on MCM
|
|
|
4.1
|
General overview
|
MCM (listed on the ASX as a primary listing,
AIM and JSE as secondary listings) is a coal exploration and
development company, with metallurgical and thermal coal assets
located exclusively in South Africa. South Africa has limited
metallurgical coal with South Africa's steel manufacturing industry
being dependent on imported product. More information about MCM is
available on its website: https://www.mcmining.co.za/
MCM has two small scale operating collieries
and large undeveloped coal resources at Makhado and The Greater
Soutpansberg Projects.
The Uitkomst Colliery (84% owned by MCM)
produces coal that can be sold as pulverised coal for injection for
use in the steel industry or an export quality thermal coal.
Uitkomst currently has 22.2Mt of mineable coal in situ. Uitkomst
sold 102.266t of coal last quarter.
The Vele Aluwani Colliery (100% owned by MCM)
is situated in the Limpopo province of South Africa and was
originally planned as a semi-soft coking coal and thermal coal
mine. The colliery was recommissioned in late December 2022 with
all mining and processing outsourced to Hlalethembeni Outsourcing
Services (Pty) Ltd (HOS). The contractor delivered 48,268 tonnes of
thermal coal last quarter. Recently, HOS has experienced
operational challenges in achieving the targeted output of 60,000
tonnes of saleable coal per month.
MCM's flagship asset is Makhado (68% owned by
MCM) which is an undeveloped thermal and hard coking coal project
situated in the Limpopo province of South Africa. It spans an area
of over 60km² across five farms in the Soutpansberg coalfield in
the Limpopo province. During 2015, MCM agreed to sell 20% of the
project to the Makhado Colliery Community Development Trust,
comprising seven beneficiary communities. An agreement was also
signed with an industrialist, facilitating his acquisition of a 6%
interest in Makhado, and the IDC acquired a 6.7% shareholding in
terms of its existing loan facility. Subject to obtaining financing
for the US$98 million development cost, the Makhado Project has all
the regulatory permits and owns the necessary surface rights
required to commence mining operations. Further details relating to
the Makhado Project are outlined below:
(a)
|
JORC Code Compliant Coal Resource
of 296Mt of mineable in situ coal in the measured and indicated
categories.
|
(b)
|
Run of mine (ROM) Reserve of 106Mt
in proved and probable categories.
|
(c)
|
In April 2022 a bankable
feasibility study (BFS) envisaged mining 3.2Mtpa which would be
crushed and screened at site and the residual 2Mtpa transported to
the Vele Colliery for processing.
|
(d)
|
In June 2023 an updated
feasibility study was published to incorporate a larger 4Mtpa
project and annual saleable coal of 810ktpa of 64 Mid Volatile
(Vol) steelmaking hard coking coal and 620ktpa of 5,500 kcal
thermal coal.
|
The Greater Soutpansberg Projects (74% owned by
MCM) are thermal and coking coal projects situated to the north of
the Soutpansberg Mountains in the Limpopo province of South Africa.
It has a combined total resource of 7.2 billion gross tonnes in
situ and 1.7 billion mineable tonnes in situ of both thermal and
coking coal products.
As at the date of this Bidder's Statement, the
MCM Board comprises the following directors:
(a)
|
Godfrey Gomwe (Managing Director and Chief Executive
Officer)
|
Mr Gomwe holds the qualifications of Chartered
Accountant (Zimbabwe) B Acc (UZ) MBL(UNISA). He is a businessman
with over 35 years' experience in metals and mining industries. He
is the former Chief Executive Officer (CEO) of Anglo American Plc's
global Thermal Coal business, whose responsibilities included
oversight over Anglo's Manganese interests in the joint venture
with BHP. He served as Executive Director of Anglo American South
Africa until August 2012. His career included roles as Head of
Group Business Development Africa, Finance Director and Chief
Operating Officer of Anglo American South Africa.
Previously, Godfrey was Executive Chairman and
Chief Executive of Anglo American Zimbabwe Limited. He also served
on a number of Anglo American operating Boards and Executive
Committees including Kumba Iron Ore, Anglo American Platinum,
Highveld Steel & Vanadium and Mondi South Africa, the latter
two in the capacity of Chairman. Prior to joining Anglo American in
1999, Godfrey held many leadership positions and directorships in
listed and unlisted companies.
(b)
|
Nhlanhla Nene (Independent Non-Executive
Chairman)
|
Mr Nene holds a B Comm. (Hons) from the
University of the Western Cape, Certificate in Economics (UNISA)
and a Certificate in Macro and Microeconomics (University of
London). He is a former Minister of Finance, in the Republic of
South Africa. Previously, he served as Deputy Minister of Finance
and Chairman of the Public Investment Corporation, the largest
institutional investor in South Africa. During his years in public
office he represented South Africa at a number of Multilateral
Institutions (IMF, World Bank, G20, BRICS, Commonwealth and the
AfDB). Prior to this he held senior positions in financial services
at Metropolitan Life. He served as Chairman of the Supervisory
Board of Arise BV (Dutch based investment company with a focus on
Africa), Non-executive Chairman of Thebe Investment Corporation and
is a former director of Access Bank. He also served as Interim
Director and Head of Wits Business School and Honorary Adjunct
Professor: Wits Business School. He is the Chairman of the Old
Mutual Super Fund.
(c)
|
An Chee Sin (Non-Executive Director)
|
Mr Chee Sin is an Accredited Tax Practitioner
with the Singapore Institute of Accredited Tax Professionals and is
also a Chartered Accountant with the Institute of Singapore
Chartered Accountants. He has more than 17 years of extensive
experience in international and local corporate taxation and
co-founded Pinnacle Tax Services Pty Ltd (Pinnacle Tax) in 2004.
Prior to joining Pinnacle Tax, he held the position of Director of
Corporate Tax with KPMG and has coordinated various advisory
projects, including cross-border fund structures, corporate
restructurings, treasury and mergers and acquisitions.
(d)
|
Zhen (Brian) He (Non-Executive Director)
|
Mr He holds a Bachelor's degree in Business
Administration from Sichuan University and is currently Marketing
and Public Relations Executive for Pan African Mining Pvt. Ltd.
Between 2012 and 2015, Brian worked as Managing Director of Real
Gain Investment Pvt. Ltd and was responsible for infrastructure and
construction market development, as well as overseas market
investments. He has previously served as Construction Manager for
CRI - Eagle Investments (Pty) Ltd and Eagle Canyon Investments
(Pty) Ltd.
(e)
|
Yi (Christine) He (Non-Executive Director)
|
Ms He has a bachelor's degree in English
Literature from Sichuan University and over 20 years' experience at
senior management level.
Her broad commercial experience includes,
amongst others, the financing, development and execution of large
construction and mining projects.
(f)
|
Julian Hoskin (Independent Non-Executive
Director)
|
Mr Hoskin is a qualified Mining Engineer and
holds a Master of Applied Science (Mining Geomechanics) as well as
a master's degree in Business Administration.
During his 38 years working as a professional
engineer, Mr Hoskin has been exposed to resource evaluation and
project delivery and has managed mining operations as well as the
construction of metallurgical and thermal coal mines and
ports.
Mr Hoskin has developed numerous mining
projects in Australia, driving them up the value-curve from
exploration to feasibility stage and ultimately, construction of
the coal mine. He has extensive mine management experience and has
also optimised established mines, ensuring improved returns for
stakeholders.
(g)
|
Andrew Mifflin (Independent Non-Executive
Director)
|
Mr Mifflin obtained his BSc. (Hons) Mining
Engineering from Staffordshire University and has a Master's Degree
in Business Administration. Andrew has over 30 years' experience
specifically in the coal mining arena. His experience spans various
organisations such as British Coal Corporation, Xstrata and more
recently GVK Resources. He has gained in depth knowledge of coal
operations, both thermal and hard coking coal as well as in project
development.
(h)
|
Khomotso Brian Mosehla (Independent Non-Executive
Director)
|
Mr Mosehla is a Chartered Accountant (South
Africa) and completed his articles with KPMG. Khomotso worked at
African Merchant Bank Limited for five years where he gained a
broad range of experience, including management buy-out, leveraged
buy-out and capital restructuring/raising transactions. In 2003, he
established Mvelaphanda Corporate Finance for the development of
Mvelaphanda's mining and non-mining interests. Mr Mosehla served as
a director on the boards of several companies, including
Mvelaphanda Resources Limited and was the CFO of The Housing
Development Agency until March 2021. Mr Mosehla served as a
Chairman of Northam Platinum Limited as well as Zambezi Platinum
Limited until June 2021.
(i)
|
Ontiretse Mathews Senosi
|
Mr Senosi is a qualified mining engineer
(University of the Witwatersrand) with over 25 years' experience in
mining and project execution. He gained experience at Anglo Coal
before successfully pursuing personal business interests in mining,
engineering and consulting as well as civil and construction
projects, and was a key contributor in the successful execution of
numerous coal mining projects. Mr Senosi has extensive experience
in opencast and underground coal mining and is the CEO of the
Overlooked Mining Group which produces over 7.5 million tonnes per
annum of thermal coal for the export and domestic markets. He
represents the Senosi Group Investment Holdings (Pty) Ltd, MCM's
single largest shareholder.
4.4
|
Financial information on
MCM
|
MCM's last published annual financial
statements are for the financial year ended 30 June 2023, as lodged
with the ASX on 31 October 2023 (2023 Financial Statements).
Goldway is not aware of any changes to MCM's
financial position since the release of the 2023 Financial
Statements, other than from announcements made by MCM to the ASX up
to the date prior to the date of this Bidder's
Statement.
Being a company listed on the ASX, MCM is
subject to periodic and continuous disclosure requirements under
the Corporations Act and Listing Rules. For information regarding
the financial position of MCM and its affairs, you should refer to
the full range of information that has been disclosed by MCM
pursuant to these obligations.
4.5
|
Publicly available information
about MCM
|
MCM is a listed disclosing entity for the
purposes of the Corporations Act and as such is subject to regular
reporting and disclosure obligations. Specifically, as a listed
company, MCM is subject to the ASX Listing Rules, the JSE Listings
Requirements and the FCA Handbook which require continuous
disclosure of any information MCM has concerning it that a
reasonable person would expect to have a material effect on the
price or value of its securities.
ASX maintains files containing publicly
disclosed information about all listed companies. The MCM file is
available for inspection at the ASX during normal business
hours.
In addition, MCM is required to lodge various
documents with ASIC. Copies of documents lodged with ASIC by MCM
may be obtained from, or inspected at, an ASIC office.
A substantial amount of information about MCM
(including copies of its financial statements) is available in
electronic form from the ASX website (https://www.asx.com.au/) or MCM's
website (https://www.mcmining.co.za/).
5.
|
Information on MCM's securities
|
|
|
5.1
|
MCM's issued securities
|
According to the documents provided by MCM to
ASX, as at the date of this Bidder's Statement, MCM has the
following securities on issue:
(a)
|
407,890,744 MCM Shares;
|
(b)
|
14,286,843 Performance Rights;
and
|
(c)
|
8,000,000 Options.
|
5.2
|
MCM Options and Performance Rights
|
According to the documents provided by MCM to
ASX, MCM has a number of unquoted Options and Performance Rights on
issue.
The Options are granted under MCM's employee
share option plan (which was first adopted in 2009) (ESOP).
The Performance Rights are granted under MCM's
performance rights plan which was originally adopted in 2015 to
assist with the attraction, motivation and retention of senior
employees and directors of MCM and its subsidiaries and to align
the interests of those senior employees and directors of MCM and
its subsidiaries with the interests of MCM Shareholders
(Performance Rights Plan).
An updated Performance Rights Plan was adopted at MCM's 2021 annual
general meeting.
5.3
|
Substantial shareholders in
MCM
|
As at the date of this Bidder's Statement, the
following persons are substantial MCM Shareholders:
Substantial MCM
Shareholder
|
Number of MCM Shares
|
Percentage shareholding in
MCM
|
Senosi Group Investment Holdings (Pty)
Ltd
|
95,357,455
|
23.38%
|
Shining Capital GP Ltd
|
35,000,000
|
8.58%
|
Dendocept Proprietary Limited
|
28,265,593
|
6.93%
|
Jun Liu & Huan Qu as trustee for the
Golden Eagle Trust
|
26,499,345
|
6.50%
|
Pacific Goal Investment Limited
|
24,927,757
|
6.11%
|
Haohua Energy International (Hong Kong)
Resource Co., Ltd.
|
23,120,879
|
5.67%
|
Ying He Yuan Investment (S) Pte Ltd
|
21,413,462
|
5.25%
|
5.4
|
No interest in MCM Shares held by
Goldway
|
Goldway has no legal or beneficial interest in
any MCM Shares or other securities (except for the relevant
interest arising under the Joint Bid Deed) as at the date of this
Bidder's Statement.
5.5
|
Consideration provided for MCM
Shares during the previous 4 months
|
Neither Goldway nor any Associate of Goldway
has provided, or agreed to provide, consideration for MCM Shares
under any purchase or agreement during the 4 months before the date
of this Bidder's Statement.
5.6
|
No inducing benefits given during
the previous 4 months
|
Neither Goldway nor any Associate of Goldway,
has during the period of four months ending on the day immediately
before the date of the Offer, given, offered or agreed to give, a
benefit to another person which was likely to induce the other
person, or an Associate of the other person, to:
(a)
|
accept the Offer; or
|
(b)
|
dispose of MCM Shares,
|
and which benefit is not being offered to all
MCM Shareholders under the Offer.
6.
|
Sources of bid Consideration
|
|
|
6.1
|
Total cash consideration under the Offer
|
The consideration for the acquisition of the
MCM Shares by Goldway to which the Offer relates will be satisfied
by the payment of cash.
Based on the number of MCM Shares on issue as
at the date of this Bidder's Statement, the total number of MCM
Shares which could be acquired by Goldway under the Offer is
145,599,792. The consideration payable under the Offer per MCM
Share is A$0.16.
Accordingly, the maximum amount of cash that
Goldway could be required to pay under the Offer is A$23,295,966.72
(Maximum Offer Amount),
excluding transaction costs.
6.2
|
Sources of cash consideration
|
(a)
|
Identity of persons to provide cash
consideration
|
The Maximum Offer Amount will be provided to
Goldway pursuant to the debt commitment letter between Goldway,
SGIH and Eagle Canyon described in Section 6.2(b) below
(Commitment
Letter).
The Maximum Offer Amount has been transferred
by SGIH and Eagle Canyon to the trust account of Morgans Financial
Limited and to the trust account of Werksmans Attorneys and will be
held on trust for and made freely available to Goldway for the
purposes of paying the consideration under the Offer.
The proportion of the Maximum Offer Amount
held in the trust account of Morgans Financial Limited is intended
to be used to settle acceptances received from MCM Shareholders
whose shares are quoted on the ASX and AIM. The proportion of the
Maximum Offer Amount held in the trust account of Werksmans
Attorneys is intended to be used to settle acceptances received
from MCM Shareholders whose shares are quoted on the
JSE.
If Goldway wishes to utilise any part of the
Maximum Offer Amount held in the trust account of Werksmans
Attorneys to settle acceptances received from MCM Shareholders
whose shares are quoted on the ASX or AIM, it will only do so with
the approval of the SARB. No approval from the SARB is required if
this is not the case.
(b)
|
Particulars of Commitment Letter
|
Goldway has a legally binding and irrevocable
debt commitment from SGIH and Eagle Canyon. Key terms of the
Commitment Letter are set out below.
(A)
|
SGIH and Eagle Canyon has
committed to provide cash funding to Goldway for the Maximum Offer
Amount.
|
(B)
|
Under the Commitment
Letter:
|
(1)
|
SGIH will contribute an amount of
no less than 27% but no more than 50% of the Maximum Offer Amount
in cash funding to Goldway; and
|
(2)
|
Eagle Canyon will contribute an
amount of no less than 50% but no more than 73% of the Maximum
Offer Amount in cash funding to Goldway,
|
|
provided always that, in
aggregate, the full Maximum Offer Amount is made available by SGIH
and Eagle Canyon to Goldway.
|
(ii)
|
Conditions to
commitment
|
|
The obligation of SGIH and Eagle
Canyon under the Commitment Letter are subject to the satisfaction
(or waiver by SGIH and Eagle Canyon) of the following
conditions:
|
(A)
|
the Consortium receiving relief
from ASIC under section 655A of the Corporations Act to permit the
Consortium to make an off-market takeover bid for issued ordinary
shares in MCM, without contravening section 606 of the Corporations
Act;
|
(B)
|
MCM not conducting any form of
capital raising (including the issue of any new securities) whilst
the off-market takeover bid process is continuing, unless with the
written consent of the Consortium;
|
(C)
|
MCM not incurring any significant
liabilities or change the terms of its debt financing arrangements
in any material respect whilst the off-market takeover bid process
is continuing, unless with the written consent of the Consortium;
and
|
(D)
|
no convertible securities
currently on issue (consisting of 14,286,843 performance rights and
8,000,000 options) vest and are converted into shares in
MCM.
|
On the basis of the arrangements outlined
above, Goldway believes it has a reasonable basis for holding the
view, and it does hold the view, that it will be able to satisfy
its obligations to fund the Maximum Offer Amount as and when it is
due and payable under the terms of the Offer.
7
|
Joint Bid Arrangements
|
|
|
7.1
|
Overview
|
The Bidder Parties have entered into a Joint
Bid Deed. Key terms of the Joint Bid Deed are summarised in Section
7.2.
A copy of the Joint Bid Deed was annexed to the
Form 603 Notice of Initial Substantial Holder given to ASX by the
Bidder Parties on 18 December 2023, which is available in
electronic form from www.asx.com.au.
On 18 December 2023, the Bidder Parties entered
into a Joint Bid Deed. Under the Joint Bid Deed, the Bidder Parties
agreed the structure and terms of the Offer, the method which they
will co-operate to complete the Offer, the framework for the
resolution of all commercial, financial and legal issues in
relation to the Offer, and the rights and obligations of each party
in respect of the Offer.
Key terms of the Joint Bid Deed are summarised
below.
The Consortium has agreed that shares in
Goldway will be owned by the Consortium members (or their nominees)
in respective proportions according to their relevant interest in
MCM.
(b)
|
Conditions
|
|
(i)
|
The Joint Bid Deed is conditional
on:
|
|
|
(A)
|
MCM Shareholders (other than the
Bidder Parties and their Associates) passing a resolution under
item 7 of section 611 of the Corporations Act approving the
acquisition by the Consortium or their Associates or Goldway of a
relevant interest in the securities of MCM; or
|
|
|
(B)
|
ASIC granting relief to the
Consortium or their Associates or Goldway under section 655A of the
Corporations Act from section 606 of the Corporations Act to permit
the acquisition by a party of a Relevant Interest.
|
|
(ii)
|
If ASIC grants the relief referred
to in Section 7.2(b)(i)(B) subject to some or all of the conditions
set out in Table 9 of ASIC Regulatory Guide 9 (or indicates that it
will grant the relief subject to some or all of those conditions)
then each Consortium member must give any undertakings as required
by ASIC in relation to those conditions, and must do the things
contemplated by those conditions.
|
The Consortium acknowledges that Ontiretse
Mathews Senosi and Yi (Christine) He will carry out all
negotiations on behalf of the Consortium in relation to the Offer
from the commencement of negotiations until termination of the
Joint Bid Deed. The Consortium will be bound by any act, omission,
transaction or arrangement made by Ontiretse Mathews Senosi and Yi
(Christine) He on behalf of the Consortium.
(d)
|
Bidder's Statement
|
|
(i)
|
Goldway must prepare the Bidder's
Statement and take all reasonable steps to ensure that
it:
|
|
|
(A)
|
complies with the Corporations
Act, the ASX Listing Rules, applicable ASIC Regulatory Guides and
Takeover Panel Guidance Notes;
|
|
|
(B)
|
is not misleading or deceptive in
any material respect; and
|
|
|
(C)
|
is updated with all further
information that may arise after the Bidder's Statement is lodged
with ASIC until the close of the Offer Period pursuant to the
Offer, to the extent that such updates are required to ensure it is
not misleading or deceptive.
|
|
(ii)
|
The Consortium must provide all
assistance and all information regarding itself that is necessary
to ensure that the Bidder's Statement complies with the
requirements set out in Section 7.2(d)(i).
|
If a person who is not a Related Body
Corporate or otherwise associated with a Consortium member makes or
varies a takeover bid for MCM Shares (Rival Bid) and that Rival
Bid:
(i)
|
is an offer to buy all of the
securities in the bid class of the Offer; and
|
(ii)
|
the consideration offered under
the bid is more than the value of the considered offered under the
Offer,
|
the Consortium members must meet as soon as
practicable to discuss and agree on how to respond to the Rival
Bid.
The Joint Bid Deed will terminate on the
earlier of:
(i)
|
the Business Day after withdrawal
or termination of the Offer by Goldway;
|
(ii)
|
the end of the Offer Period if the
Conditions are not satisfied or waived prior to the end of the
Offer Period;
|
(iii)
|
a party electing to terminate the
Joint Bid Deed following an event of default by another Consortium
member;
|
(iv)
|
the implementation of the
Offer;
|
(v)
|
the date on which all Consortium
members agree in writing to terminate the Joint Bid Deed;
or
|
(vi)
|
the sunset date which is 12 months
after the date of the Joint Bid Deed, or such other date as agreed
in writing by each Bidder Party.
|
8.
|
Bidder's intentions
|
|
|
8.1
|
Background
|
Goldway has been established for the purpose of
making the Offer and acquiring MCM Shares under the Offer.
Accordingly, the intentions of Goldway are the same as the
intentions of the Bidder Parties.
This Section 8 sets out Goldway's intentions in
relation to the following:
(a)
|
the continuation of the business of MCM;
|
(b)
|
any major changes to be made to
the business of MCM, including any redeployment of its fixed
assets; and
|
(c)
|
the future continuation of the
present employees of MCM.
|
Those intentions have been formed on the basis
of facts and information concerning MCM, and the general business
environment, which are known at the time of preparing this Bidder's
Statement. The intentions of Goldway and the Bidder Parties may
change in the light of information, facts and circumstances not
currently known to them.
8.2
|
Goldway's intentions upon
acquisition of 90% or more of the MCM Shares
|
This Section 8.2 describes Goldway's intentions
if Goldway acquires a relevant interest in 90% or more of the MCM
Shares, and so becomes entitled to proceed to compulsory
acquisition of any outstanding MCM Shares in accordance with Part
6A.1 of the Corporations Act. In that circumstance, Goldway's
current intentions are as follows:
(a)
|
Corporate matters
|
|
Goldway and the Bidder
Parties:
|
|
(i)
|
may proceed with compulsory
acquisition of the outstanding MCM Shares in accordance with the
provisions of Part 6A.1 of the Corporations Act;
|
|
(ii)
|
will apply for termination of the
official quotation of the MCM Shares on the ASX and arrange for MCM
to be removed from the official list of the ASX as well as from its
secondary listing on AIM and JSE; and
|
|
(iii)
|
will replace the members of the
MCM Board with the nominees of Goldway. Replacement board members
have not yet been identified by Goldway and their identity will
depend on the circumstances at the relevant time but may include
certain or all members of the current Board of MCM.
|
In addition, if Goldway becomes entitled at
some later time to exercise the general compulsory acquisition
rights under Part 6A.2 of the Corporations Act, it may exercise
those rights.
If an application is made for MCM's admission
to trading on AIM to be cancelled, it is expected that MCM's
cancellation of admission to trading on AIM will take place no
earlier than 20 Business Days after the date on which Goldway has,
by virtue of its shareholding and acceptances of the Offer,
acquired, or agreed to acquire, 75 per cent of the voting rights
attaching to the MCM Shares. Cancellation of admission to trading
on AIM is likely to significantly reduce the liquidity and
marketability of any MCM Shares in respect of which the Offer has
not at such time been accepted.
If Goldway exercises the general compulsory
acquisition rights under Part 6A.1 and/or Part 6A.2 of the
Corporations Act, in respect of the JSE listing, it is anticipated
that the JSE will initiate a termination of MCM's listing on the
basis that MCM does not meet the JSE public shareholder spread
requirements and is therefore not eligible for an ongoing primary
listing on the JSE. Goldway and the Bidder Parties will not object
to such a delisting by the JSE and will provide the necessary
support to arrange for such the termination of the listing on the
JSE. If Goldway does not exercise the general compulsory
acquisition rights under Part 6A.1 and/or Part 6A.2 of the
Corporations Act, but MCM nonetheless does not meet the
requirements for a primary listing on the JSE, which requires,
inter alia, that 10% or
more of the MCM Shares be held by the public (as defined in section
4.25 of the JSE Listings Requirements), MCM Shares will not be
eligible for a primary listing on the JSE and the JSE may in any
event initiate a termination of MCM's listing on the JSE. In this
case, MCM will be afforded an opportunity to make representations
to the JSE in this regard. Goldway and the Bidder Parties will not
be in support of a continued listing on the JSE.
The Bidder Parties will request the JSE to
terminate MCM's secondary listing on the JSE on the date which
coincides with the termination of the primary listing on the ASX,
subject to obtaining the necessary South African Reserve Bank
approval.
MCM
Shareholders are advised that in the event that MCM is delisted
from the JSE but the Offeror does not acquire 100% of MCM Shares in
issue, the unlisted MCM Shares will constitute a foreign asset for
Exchange Control purposes. MCM Shareholders that do not wish to or
are unable to accept the Offer should establish whether they will
be permitted to continue to hold MCM Shares post such delisting
and/or whether they require any additional Exchange Control
approvals to do so and should ensure that the requisite approvals
are secured before such delisting is effected.
(b)
|
General operational overview
|
After the Offer Period, Goldway intends to
undertake a general review of MCM's operations covering strategic,
financial and operating matters. As a part of this review, Goldway
intends to evaluate the future operations of MCM. The Bidders do
not intend to make major changes to the core assets and operations
of MCM other than to progress financing and development of its
projects. As a major supplier into the South African steel and
energy sectors respectively, Goldway maintains that MCM, as a
private company, will continue to contribute positively to the
South African economy. Goldway will focus on financing the
development and construction of the flagship Makhado Project after
the Offer process to ensure the sustainable future of the
company.
After the Offer Period, Goldway intends to
ensure that the operations of MCM are optimised to meet the needs
of the expanded business with the development and construction of
the Makhado and Vele projects. This may require reviewing and
restructuring of staff operations to meet the skills requirements
of the business with any such restructuring favouring retaining
current employees where there is a skills match.
8.3
|
Intentions for MCM as a part owned
controlled entity
|
This Section 8.3 describes Goldway's intentions
if MCM becomes a controlled entity of the Bidder Parties, but
Goldway is not entitled to proceed to compulsory acquisition in
accordance with Part 6A.1 of the Corporations Act.
In that circumstance, Goldway's current
intentions are as follows:
(a)
|
Corporate matters
|
|
After the end of the Offer Period,
Goldway:
|
|
(i)
|
intends (subject to the
Corporations Act and the constitution of MCM), to seek to replace
some of the members of the MCM Board. Goldway would consider the
recommendations in the ASX Corporate Governance Guidelines when
determining the composition of the board. Replacement board members
have not yet been identified by Goldway and their identity will
depend on the circumstances at the relevant time. Goldway will
conduct a review to determine the most appropriate replacement
board members;
|
|
(ii)
|
may propose that the MCM Board
apply for termination of the official quotation of the MCM Shares
on the ASX and arrange for MCM to be removed from the official list
of the ASX, JSE and AIM.
|
ASX
requirements
In this regard, ASX guidance indicates that
the usual conditions that ASX would expect to be satisfied in order
for it to approve the removal of MCM from the official list in the
context of a successful takeover bid include but is not limited
to:
(A)
|
at the end of the Offer, Goldway
owns or controls at least 75% of the MCM Shares and the Offer has
remained open for at least two weeks after Goldway has attained
ownership or control of at least 75% of the MCM Shares;
and
|
(B)
|
the number of MCM Shareholders
(other than Goldway) having holdings with a value of at least $500
is fewer than 150,
|
and, in such case, the ASX will not usually
require Goldway to obtain MCM Shareholder approval to remove MCM
from the official list of the ASX.
In addition, ASX may, even if the above
conditions are not satisfied, approve an application for MCM to be
removed from the official list of the ASX with MCM Shareholder
approval and, where such removal is sought later than 12 months
after the close of the Offer, subject to the ASX's discretion, the
Bidder Parties may be entitled to vote on the resolution approving
the removal.
If MCM is removed from the official list of
the ASX, there may be risks related to remaining as a minority
shareholding in MCM. These include reduced or non-existent
liquidity if MCM Shareholders wish to sell their MCM
Shares.
AIM
requirements
With respect to MCM's admission to trading on
AIM, if the Offer becomes or is declared unconditional, and valid
acceptances in respect of MCM Shares which, together with MCM
Shares acquired, or agreed to be acquired, before or during the
Offer by Goldway, represent not less than 75 per cent of the voting
rights attaching to the MCM Shares, Goldway may procure that MCM
will make an application to cancel the admission of the MCM Shares
to trading on AIM. If such application is made, it is expected that
cancellation of admission to trading on AIM will take place no
earlier than 20 Business Days after the date on which Goldway has,
by virtue of its shareholding and acceptances of the Offer,
acquired, or agreed to acquire, 75 per cent of the voting rights
attaching to the MCM Shares.
If the Offer becomes or is declared
unconditional, and valid acceptances in respect of MCM Shares
which, together with MCM Shares acquired before or during the Offer
by Goldway, represent not less than 75 per cent of the voting
rights attaching to the MCM Shares, Goldway may procure that, at a
meeting of MCM Shareholders, a vote is held on a resolution that
MCM make an application to cancel the admission of the MCM Shares
to trading on AIM.
JSE
requirements
If MCM is not eligible for a primary listing
on the JSE, the JSE may initiate a termination of MCM's listing on
the JSE. In this case, MCM will be afforded an opportunity to make
representations to the JSE in this regard. Goldway and the Bidder
Parties will not be in support of a continued listing on the
JSE.
In order to be eligible to qualify for a
primary listing on the JSE, MCM must, inter alia, comply with the
requirement that 10% of MCM Shares must be held by the public (as
defined in section 4.25 of the JSE Listings Requirements). In
the event that MCM does not qualify for a primary listing on the
JSE (for instance MCM does not meet the minimum spread requirements
of the JSE) the JSE may, following consultation with MCM, terminate
MCM's listing on the basis that MCM no longer qualifies for a
listing on the JSE.
MCM
Shareholders are advised that in the event that MCM is delisted
from the JSE but the Offeror does not acquire 100% of MCM Shares in
issue, the unlisted MCM Shares will constitute a foreign asset for
Exchange Control purposes. MCM Shareholders that do not wish to or
are unable to accept the Offer should establish whether they will
be permitted to continue to hold MCM Shares post such delisting
and/or whether they require any additional Exchange Control
approvals to do so and should ensure that the requisite approvals
are secured before such delisting is effected.
It is possible that, even if Goldway is not
entitled to proceed to compulsory acquisition of minority holdings
after the end of the Offer Period under Part 6A.1 of the
Corporations Act, it may subsequently become entitled to exercise
rights of general compulsory acquisition under Part 6A.2 of the
Corporations Act, for example, as a result of acquisitions of MCM
Shares in reliance on the '3% creep' exception in item 9 of section
611 of the Corporations Act. If so, it intends to exercise those
rights.
To the extent that the listing is not
terminated by the JSE following the Offer, either because MCM
continues to qualify for a primary listing on the JSE, or the JSE
has, in consultation with MCM, dispensed with its requirements
(which dispensation Goldway and the Bidder Party does not support),
MCM's listing on the JSE can be terminated in compliance with
section 1.14 - 1.16 of the JSE Listings Requirements, which
requires that an offer must be made to all MCM Shareholders, which
offer must be fair, as determined by a JSE approved independent
expert. The delisting must also be approved by at least 75%
of the votes of all MCM Shareholders present or represented at such
meeting, excluding Goldway, its associates and any party acting in
concert with Goldway.
In the event that MCM is delisted from ASX and
AIM but not the JSE, MCM will have a primary listing on the JSE and
will be required to comply with the JSE Listings Requirements in
full.
(b)
|
General operational review
|
After the end of the Offer Period, Goldway
intends to propose to the MCM Board that an immediate, broad based
review of MCM's operations be conducted on both a strategic and
financial level. The Bidders do not intend to make major changes to
the core assets and operations of MCM other than to progress
financing and development of its projects.
Goldway intends, subject to the approval of
the MCM Board, to participate in this review.
(c)
|
Dividends and funding
|
MCM is currently a loss-making business and
has not paid any dividends since its ASX listing. Given MCM's
historical capital funding requirements and ongoing cash needs,
Goldway does not intend to be supportive of any dividend payments
being made for the foreseeable future.
8.4
|
Limitations in giving effect to
intentions
|
The ability of Goldway to implement the
intentions set out in this Section 8 will be subject to the legal
obligations of MCM directors to have regard to the interests of MCM
and all MCM Shareholders, and the requirements of the Corporations
Act and the Listing Rules relating to transaction between related
parties. Goldway will only make a decision on the above mentioned
courses of action following legal and financial advice in relation
to those requirements.
Subject to the matters described in this
Section 8 and elsewhere in this Bidder's Statement and, in
particular, the completion of the strategic review of MCM's
operations, it is the intention of Goldway, on the basis of the
facts and information concerning MCM that are known to it and the
existing circumstances affecting the assets and operations of MCM
at the date of this Bidder's Statement, that:
(a)
|
the business of MCM will be
conducted in the same manner as at the date of this Bidder's
Statement;
|
(b)
|
there will be no redeployment of
the fixed assets of MCM; and
|
(c)
|
the present employees of MCM will
continue to be employed by MCM.
|
The intentions and statements of future
conduct set out in this Section 8 must be read as being subject
to:
(a)
|
the law (including the
Corporations Act and the Listing Rules), including in particular
the requirements in relation to conflicts of interests and 'related
party' transactions given that, if Goldway obtains control of MCM
but does not acquire all of the MCM Shares, it will likely be
treated as a related party of MCM for these purposes;
and
|
(b)
|
the legal obligations of the MCM
directors at the time, including any nominees of Goldway, to act in
good faith in the best interest of MCM and for proper purposes and
to have regard to the interests of all MCM Shareholders.
|
9.
|
Australian taxation considerations
|
|
|
9.1
|
Introduction
|
The following is a general description of the
Australian income tax, GST and stamp duty consequences for MCM
Shareholders of disposing of MCM Shares under the Offer.
The description does not take into account your
particular circumstances or needs. You should not rely on the
description as advice for your own affairs. You should consult your
taxation adviser for detailed taxation advice before making a
decision as to whether or not to accept the Offer for Your MCM
Shares.
Foreign shareholders will be paid the same cash
consideration as stipulated under the Offer. However, the tax
implications under the Offer for those foreign shareholders may be
different from those relating to Australian resident
shareholders.
This summary only applies to MCM Shareholders
who hold their MCM Shares on capital account for Australian income
tax purposes. In particular, it does not apply to MCM Shareholders
who buy and sell shares in the ordinary course of business or who
otherwise hold their MCM Shares as revenue assets (as defined in
section 977-50 of the Income Tax
Assessment Act 1997 (Cth) (ITAA 1997) or as trading stock (as
defined in subsection 995-1(1) of the ITAA 1997) for Australian tax
purposes.
In addition, this summary does not apply to
(non-exhaustive):
(a)
|
MCM Shareholders who acquired
their MCM Shares under an employee share or option
scheme;
|
(b)
|
MCM Shareholders who acquired
their MCM Shares prior to 20 September 1985, or are treated as
having acquired their MCM shares prior to 20 September 1985 under
the Income Tax Assessment Act 1936 (Cth) (ITAA 1936) or ITAA 1997, and are not
otherwise treated as having acquired their MCM Shares after that
date under ITAA 1936 or ITAA 1997;
|
(c)
|
MCM Shareholders who are subject
to special taxation rules (for example, insurance companies and tax
exempt organisations);
|
(d)
|
MCM Shareholders whose MCM Shares
are subject to the "taxation of financial arrangements" rules in
Division 230 of the ITAA 1997; or
|
(e)
|
non-Australian tax resident MCM
Shareholders who have held their MCM Shares at any time in carrying
on a business at or through a permanent establishment in
Australia.
|
This summary also does not address MCM
Shareholders that are partnerships or trusts, persons that are
partners of such partnerships or persons that are beneficiaries of
a trust that is a MCM Shareholder. If a partnership or a trust is a
MCM Shareholder, the partners of such partnership or the
beneficiaries of such trust should consult their own tax advisers
with respect to the Australian taxation consequences to them of the
partnership or the trust (as applicable) before accepting the
Offer.
The information in this description is based
upon Australian taxation law and practice in effect at the date of
this Bidder's Statement. It is not intended to be an authoritative
or comprehensive analysis of the taxation laws of Australia. The
summary does not consider any specific facts or circumstances that
may apply to particular MCM Shareholders.
You are advised to seek independent
professional advice regarding the Australian tax consequences of
disposing of your Shares according to your particular
circumstances.
9.2
|
MCM Shareholders who are
Australian residents for tax purposes
|
(a)
|
Capital Gains Tax (CGT)
consequences of accepting the Offer or having the MCM Shares
compulsorily acquired.
|
This Section applies to MCM Shareholders who
are residents of Australia for Australian income tax purposes and
hold their MCM Shares on capital account.
If you are an Australian resident for
Australian income tax purposes, the disposal of Your MCM Shares
pursuant to the Offer will constitute a CGT event.
The time of the CGT event is when you dispose
of Your MCM Shares for CGT purposes. If you accept the Offer, you
should be taken to have disposed of Your MCM Shares for CGT
purposes when the contract to sell Your MCM Shares comes into
existence by accepting the Offer to dispose of Your MCM Shares in
accordance with Section 13.5. However, if you do not ultimately
dispose of Your MCM Shares, then no CGT event should happen to Your
MCM Shares.
If Goldway becomes entitled to compulsorily
acquire any outstanding MCM Shares under the Corporations Act and
Your MCM Shares are compulsorily acquired, you will be taken to
have disposed of Your MCM Shares for CGT purposes on the earlier
of:
(i)
|
when you received compensation
from Goldway;
|
(ii)
|
when Goldway became the owner of
the MCM Shares;
|
(iii)
|
when Goldway entered it under that
power; or
|
(iv)
|
when Goldway took possession under
that power.
|
The disposal of Your MCM Shares will give rise
to a capital gain or loss equal to the difference
between:
(i)
|
the capital proceeds received for
the disposal of Your MCM Shares (i.e. the cash received under the
Offer); and
|
(ii)
|
the cost base (or, in the case of
a capital loss, reduced cost base) of Your MCM Shares (which would
generally include the amount paid to acquire the MCM Shares plus
any non-deductible incidental costs of acquisition, e.g. brokerage
fees).
|
Each MCM Share constitutes a separate CGT
asset and, as such, the CGT consequences relating to the disposal
of MCM Shares acquired in different parcels at different times will
need to be considered.
Your net capital gain for the income year is
included in your assessable income for the income year. Broadly,
your net capital gain for an income year is the total of all of the
capital gains made during the income year less capital losses made
in the income year and available net capital losses made in
previous income years. That amount may be reduced further by other
concessions, particularly under the discount capital gains tax
rules discussed below.
If you make a capital loss from the disposal
of Your MCM Shares, the capital loss may be used to offset capital
gains made in the same or subsequent years of income (subject to
satisfying any applicable carry forward loss conditions) but cannot
be offset against ordinary income, nor carried back to offset net
capital gains arising in earlier income years.
(b)
|
Indexation for pre-21
September 1999 shares
|
If Your MCM Shares that you dispose of were
acquired at or before 11.45 am (ACT time) on 21 September 1999, for
the purpose of calculating a capital gain (but not a capital loss),
you may choose that the cost base of those shares be indexed for
inflation to 30 September 1999. If you choose indexation to apply,
the discount capital gains tax provisions discussed below will not
apply.
If you choose the indexation option, capital
losses are applied after calculating the capital gain using the
indexed cost base.
The choice to apply indexation rather than the
discount capital gain provisions must be made by you on or before
the day you lodge your income tax return for the income year in
which the disposal occurs. The manner in which you complete your
income tax return is generally sufficient evidence of your making
of a choice.
If you do not choose to apply indexation, the
discount capital gain provisions may apply, provided you have held
Your MCM Shares for at least 12 months (as discussed further
below).
(c)
|
Discount capital
gains
|
If you are an individual, or you hold Your MCM
Shares as trustee of a trust or a complying superannuation fund,
and have held Your MCM Shares for at least 12 months before
disposal (and have not chosen for indexation to apply, should the
choice be available), the discount capital gain provisions should
apply as follows:
(i)
|
if you are an individual, one half
of the capital gain (without any allowance for indexation in the
cost base of the shares), after offsetting any applicable capital
losses, will be included in your assessable income.
|
(ii)
|
if you are acting as a trustee of
a trust (but not a superannuation fund), one half of the capital
gain (without any allowance for indexation in the cost base of the
shares), after offsetting any applicable capital losses, will be
included in the "net income" of the trust. The discount capital
gains provisions may also apply to capital gains to which
beneficiaries in the trust (other than beneficiaries that are
companies) are entitled. The CGT provisions applying to trustees
and beneficiaries of trusts are complex and you should seek advice
from your professional tax adviser in this regard.
|
(iii)
|
If you are a complying
superannuation fund or a trustee of such an entity, two-thirds of
the capital gain (without any allowance for indexation in the cost
base of the shares) after offsetting applicable capital losses will
be included in the fund's assessable income.
|
The discount capital gain provisions do not
apply to companies.
Where the discount capital gain provisions
apply, any available capital loss will be applied to reduce the
nominal capital gain before discounting the resulting net amount by
either one half or one third (as applicable) to calculate the net
capital gain that is included in assessable income.
9.3
|
MCM Shareholders who are not
Australian residents for tax purposes
|
This Section 9.3 applies to MCM Shareholders
that are not Australian residents for tax purposes and hold their
MCM Shares on capital account. It does not apply to MCM
Shareholders who have held their MCM Shares at any time in carrying
on a business at or through a permanent establishment in
Australia.
If you are not a resident of Australia for
Australian income tax purposes, you will generally not be subject
to CGT on the disposal of Your MCM Shares unless Your MCM Shares
are an "indirect Australian real property interest" at the time you
dispose of Your MCM Shares for CGT purposes.
Broadly, Your MCM Shares should not be an
indirect Australian real property interest as at that time unless
the following conditions are satisfied:
(a)
|
you and your associates (as
defined for tax purposes) together have held at least 10% or more
of the issued shares in MCM at the time that you dispose of Your
MCM Shares for CGT purposes or did so for at least 12 months during
the 24 months before you disposed of Your MCM Shares for CGT
purposes; and
|
(b)
|
the aggregate market value of
MCM's assets which are taxable Australian property (being direct
and indirect interests in real property, including leases of land,
situated in Australia and mining, quarrying or prospecting rights
in respect of materials situated in Australia) exceeds the
aggregate market value of MCM's assets which are not taxable
Australian property.
|
A foreign resident shareholder who has
previously been an Australian tax resident and chose to disregard a
capital gain or loss in respect of their MCM Shares from a CGT
event on ceasing to be an Australian tax resident may be subject to
Australian CGT consequences on disposal of their MCM
Shares.
Foreign resident shareholders should seek their
own independent tax advice as to the tax implications of the Offer,
including tax implications in their country of
residence.
9.4
|
CGT Non-resident withholding
tax
|
The CGT non-resident withholding tax regime
(CGT NRWT) applies to off-market transactions entered into on or
after 1 July 2016. Under this regime buyers of securities in
certain companies and trusts from foreign residents who are subject
to CGT are generally required to pay 12.5% of the purchase price to
the ATO as a pre-payment of the seller's tax liability.
Where the provisions are enlivened a selling
shareholder can apply to the ATO in advance to have the rate of
withholding varied down (including down to zero).
The amount of CGT NRWT is required to be paid
by the buyer to the ATO on or before completion of the transaction.
The seller generally gets a credit against its Australian tax for
the amount paid by the buyer to the ATO.
Where Goldway considers that the provisions may
be enlivened in respect of you, it will use reasonable endeavours
to contact you so that you have the opportunity to provide a notice
to Goldway that:
(a)
|
you are a resident of Australia;
or
|
(b)
|
Your MCM Shares are not taxable
Australian property.
|
If you do not provide such declaration or
Goldway knows it to be false it will withhold 12.5% of the
consideration offered by it and remit that to the ATO.
9.5
|
Goods and Services Tax
|
The disposal of Your MCM Shares in return for
cash under the Offer should not attract GST. To the extent that you
incur GST on acquisitions which you make in connection with the
Offer (such as adviser fees), you may not be entitled to an input
tax credit or only be entitled to a reduced input tax credit for
that GST, depending on your particular circumstances.
You should not be liable for any stamp duty on
the disposal of Your MCM Shares in return for cash under the Offer.
Any stamp duty payable on the disposal of MCM Shares pursuant to
the Offer will be paid by Goldway.
10.
|
South African taxation considerations
|
|
|
10.1
|
Introduction
|
MCM Shareholders are specifically informed
that the outline below regarding South African taxation
considerations:
(a)
|
does not constitute tax advice by
Goldway to any MCM Shareholder,
|
(b)
|
is an indicative guide of
Goldway's understanding of the possible tax consequences indicated
below; and
|
(c)
|
should not be relied upon by a MCM
Shareholder in deciding on the tax consequences of their decision
to acquire, hold or dispose of any MCM Shares to
Goldway.
|
Each MCM Shareholder should seek or consult
their own taxation adviser regarding the consequences of acquiring,
holding or disposing of their MCM Shares.
The outline is only an indicative outline of
certain South African tax consequences relating to the acceptance
of the Offer, and relates only to the position of individual and
corporate MCM Shareholders who:
(a)
|
are South African tax residents
(except in so far as express reference is made to the treatment of
non-South African residents), and
|
(b)
|
hold their MCM Shares beneficially
as a capital investment otherwise (in the case of individuals) than
under an employer-related share incentive plan.
|
The outline is based on current South African
tax legislation and practice currently in force. The outline
further does not take into consideration any subjective decisions,
mindset or intentions of any MCM Shareholder.
The comments below may not apply to you if you
buy and sell shares in the ordinary course of business, if you
acquired the MCM Shares for resale at a profit or hold the MCM
Shares as trading stock. In those cases, any gain is generally
taxed as ordinary income.
However, where you have held the MCM Shares for
a period in excess of three years the proceeds from the disposal of
your MCM Shares may be deemed to be capital in nature. Where you
acquired the MCM Shares for resale at a profit or held them as
trading stock, you may be subject to recoveries/recoupments in
expenditure or losses previously deducted from your income when you
acquired the MCM Shares.
The South African income tax system is based on
a residence system for South African tax residents and on a source
basis for non-South African tax residents.
If you are an individual, please consult your
taxation adviser if you are uncertain whether you qualify as a
South African tax resident or not.
A person other than a natural person will be a
South African tax resident if it is incorporated, established or
formed in South Africa, or has its place of "effective management"
in South Africa.
(a)
General
MCM Shareholders will be treated as having
disposed of their MCM Shares for proceeds equal to the cash
consideration received in terms of the Offer. A capital gain will
be realised where such proceeds are in excess of the base cost of
the MCM Shares and a capital loss will be realised where such
proceeds are less than the base cost of the MCM Shares.
(b)
Individual South African tax residents
The capital gain arising from the disposal of
any MCM Shares (after setting off any capital loss allowed), less
the annual capital gains exclusion (ZAR 40,000 for the year of
assessment ending 28 February 2024) and after applying the
resident's inclusion rate, will be subject to income tax at the
individual's marginal rate of tax (maximum of 45 per
cent).
Only 40 per cent of the net capital gain is
included in taxable income, resulting in a maximum effective rate
of tax on capital gains of 18 per cent.
Capital losses may be set off against capital
gains realised in the same or any subsequent year of assessment,
subject to certain conditions.
(d)
Corporate South African tax residents
The taxable portion of a capital gain on the
disposal of any MCM Shares, will be subject to income tax at the
normal corporate rate of tax (currently 27 per cent). Only 60 per
cent of the net capital gain is included in taxable income,
resulting in a maximum effective rate of tax on capital gains of
21.67 per cent, where such gains are not distributed by the
recipient MCM Shareholder to another resident not being a South
African resident company. However, to the extent that the gain is
distributed as a dividend by a corporate MCM Shareholder to a
non-corporate recipient shareholder, the MCM Shareholder's
effective tax rate would take into account the effect of the
dividends withholding tax on companies of 20 per cent. This would
result in an effective tax rate (for capital gains tax purposes) of
37.34 per cent.
Capital losses may be set off against capital
gains realised in the same or any subsequent year of assessment,
subject to certain conditions.
(e)
Non-South African tax residents
Non-South African tax residents are only
subject to capital gains tax in South Africa in respect
of:
(i)
|
the disposal of immovable property
situated in South Africa, or any interest (as prescribed) or right
of whatever nature of that person to or in immovable property
situated in South Africa; or
|
(ii)
|
any asset which is attributable to
a permanent establishment of that person in South
Africa.
|
On the basis that neither of those
requirements is met, non-South African tax resident MCM
Shareholders will not incur capital gains tax in South Africa on
the disposal of their MCM Shares. Please consult your taxation
adviser to determine whether any of the requirements is applicable
to you. Please note that should you, together with any connected
person in relation to you, hold more than 20 per cent or more of
the MCM Shares, one of these requirements may be met.
10.4 Securities
transfer tax
No securities transfer tax will be payable by
MCM Shareholders, who hold MCM Shares on the JSE as a result of
accepting the Offer, as the securities transfer tax will be paid by
Goldway.
11.
|
United Kingdom taxation considerations
|
|
|
11.1
|
Introduction
|
The following statements, which are intended
as a general guide only, are based on the United Kingdom tax
legislation and published HM Revenue & Customs practice in
force and effect at the date of this Bidder's Statement (both of
which are subject to change). They summarise certain limited
aspects of the United Kingdom taxation treatment of acceptance of
the Offer, and they relate only to the position of MCM Shareholders
who hold their MCM Shares beneficially as an investment and who are
resident in the United Kingdom for taxation purposes. The below
comments are intended as a guide only to the general position on
United Kingdom taxation of chargeable gains based on current
legislation and practice for certain classes of United Kingdom
resident MCM Shareholders who accept the Offer and does not relate
to persons such as market makers, brokers, intermediaries and
persons connected with depositary arrangements or clearance
services, to whom special rules apply. If you are in any doubt as
to your taxation position or are resident or domiciled in any
jurisdiction other than the United Kingdom, you should consult an
appropriate independent professional adviser
immediately.
11.2
|
United Kingdom taxation on chargeable gains
|
Liability to United Kingdom capital gains tax
or United Kingdom corporation tax on chargeable gains (as
applicable) (each "CGT") will depend upon the individual
circumstances of MCM Shareholders.
A MCM Shareholder that accepts the
Offer and receives cash under the Offer will make a disposal, or
part disposal, of his or her MCM Shares for CGT purposes. Such a
disposal may, depending on that MCM Shareholder's individual
circumstances (including the availability of exemptions and
allowable losses), give rise to a liability to CGT (or an allowable
loss).
11.3
|
UK stamp duty and stamp duty reserve tax
|
No UK stamp duty or stamp duty
reserve tax should be payable by MCM Shareholders as a result of
accepting the Offer.
12.
|
Other material information
|
|
|
12.1
|
ASIC Relief
|
The Bidder Parties have obtained an exemption
from ASIC under section 655A(1) of the Corporations Act exempting
the Bidder Parties from section 606 of the Corporations Act in
relation to the acquisition of relevant interests arising from the
entry into and performance of the Joint Bid Deed. The terms of the
ASIC exemption are set out in Annexure
A.
The conditions of the ASIC exemption include
the following:
(a)
|
the Bidder Parties must use their
best endeavours to have MCM engage an independent expert to prepare
a report on whether, in the expert's opinion, the Offer is fair and
reasonable to MCM Shareholders not associated with the Bidder
Parties;
|
(b)
|
the Offer must contain a defeating
condition that, during or at the end of the Offer period, the
Bidder Parties have received valid acceptances for at least 50.1%
of the MCM Shares that the Bidder Parties offer to acquire under
the Offer, not being MCM Shares in which the Bidder Parties and
their respective associates have a relevant interest in at the
beginning of the Offer period, and the bidder's statement in
respect of the Offer states that this defeating condition will not
be waived;
|
(c)
|
the Bidder Parties must each
accept any rival bid (whether by takeover bid or scheme of
arrangement) for all bid class securities (Rival Bid) in respect of
all the MCM Shares in which they have a relevant interest within 7
days from the date that all of the following conditions are
satisfied in respect of a Rival Bid:
|
|
(i)
|
the consideration offered under
the Rival Bid is more than (or becomes more than) 105% of the value
of the consideration offered under the Offer (as assessed by ASIC
and notified to the Bidder Parties if the consideration offered
under the Rival Bid is other than cash or is a combination of cash
and other-than-cash consideration);
|
|
(ii)
|
where the Rival Bid is a takeover
bid, it is or has become unconditional except for prescribed
occurrence conditions (being events or circumstances referred to in
subsections 652C(1) or (2) of the Corporations Act); and
|
|
(iii)
|
where the Rival Bid is at takeover
bid, the offer period starts before the end of the Offer
Period
|
|
unless prior to the expiration of
the 7 day period referred to above, the Offer is varied so that the
value of the consideration offered under the Offer is at least
equal to the value of the consideration offered under the Rival
Bid;
|
(d)
|
if, after the announcement of the
Offer, and before the end of the Offer Period, MCM enters into an
agreement with someone else who is not an associate of a Joint
Bidder or the Bidder Parties to propose a compromise or arrangement
under Part 5.1 (Rival Scheme) which, if approved, will result in a
person acquiring a relevant interest in all of the securities in
MCM in exchange for the person providing consideration to MCM
Shareholders that is more than 105% of the value of the highest
consideration offered under the Offer (as assessed by ASIC and
notified to the Bidder Parties where the consideration offered
under either the Offer or the Rival Scheme involves non-cash
consideration) the Bidder Parties must not, and must ensure that
any associate does not, cast a vote against any resolution
necessary to approve the Rival Scheme;
|
(e)
|
the Bidder Parties must
immediately terminate the Joint Bid Deed and all the other relevant
arrangements between the Bidder Parties and their respective
associates in relation to the Offer, if the Offer does not proceed
or fails because of a defeating condition that has neither been
satisfied nor waived.
|
12.2 Date for determining
holders of MCM Shares
For the purposes of section 633 of the
Corporations Act, the date for determining the people to whom
information is to be sent under items 6 and 12 of sub-section
633(1) is the Register Date.
12.3 No collateral
benefits
None of the Bidder Parties nor any of their
Associates has in the four months before the date of this Bidder's
Statement, or in the period between the date of this Bidder's
Statement and the date of the Offer, given, offered to give or
agreed to give a benefit which is not offered to all MCM
Shareholders under the Offer to another person which was likely to
induce the other person (or an associate) to accept the Offer or
dispose of MCM Shares.
12.4 No escalation
agreements
No member of the Bidder Parties, or any of
their associates has entered into any escalation agreement that is
prohibited by section 622 of the Corporations Act.
12.5 Disclosure of adviser
interests
No adviser of the Bidder Parties has a legal or
beneficial interest in any MCM Shares or other securities as at the
date of this Bidder's Statement.
13. Terms of
offer
13.1 Offer
(a)
|
Goldway offers to acquire any or
all of Your MCM Shares on and subject to the terms and conditions
set out in this Section 13. If you accept this Offer for some of
Your MCM Shares by specifying that number on your Acceptance Form
(the Relevant Shares), you may still accept the Offer for the
balance of Your MCM Shares at any time during the Offer
Period.
|
|
|
(b)
|
The consideration under the Offer
is A$0.16 per MCM Share.
|
|
|
(c)
|
By accepting this Offer, you
undertake to transfer to Goldway not only the MCM Shares to which
the Offer relates, but also all Rights attached to those MCM Shares
(see Section 13.5(c)(vi)).
|
|
|
(d)
|
This Offer is being made to each
person registered as the holder of Shares in the register of MCM
Shareholders on the Register Date. It also extends to any person
who becomes registered, or entitled to be registered, as the holder
of Your MCM Shares (which were held by you up to and including the
Register Date) during the Offer Period.
|
|
|
(e)
|
This Offer does not extend to any
MCM Shares that are issued between the date of the Bidder's
Statement and the end of the Offer Period as a result of the
exercise of Options, the vesting or conversion of Performance
Rights, or the conversion of any other convertible
securities.
|
|
|
(f)
|
This Offer does not extend to
holders of any new MCM Shares issued during the period from the
Register Date to the end of the Offer Period.
|
|
|
(g)
|
If, at the time the Offer is made
to you, or at any time during the Offer Period, another person is,
or is entitled to be, registered as the holder of some or all of
the MCM Shares to which this Offer relates:
|
|
(i)
|
a corresponding offer on the same
terms and conditions as this Offer will be deemed to have been made
to that other person in respect of those MCM Shares;
|
|
(ii)
|
a corresponding offer on the same
terms and conditions of this Offer will be deemed to have been made
to you in respect of any other MCM Shares you hold to which this
Offer relates; and
|
|
(iii)
|
this Offer will be deemed to have
been withdrawn immediately at that time.
|
|
|
|
(h)
|
If at any time during the Offer
Period you are registered or entitled to be registered as the
holder of one or more parcels of MCM Shares as trustee or nominee
for, or otherwise on account of, another person, you may accept as
if a separate and distinct Offer on the same terms and conditions
as this Offer had been made in relation to each of those distinct
parcels and any distinct parcel you hold in your own right. To
validly accept the Offer for each parcel, you must comply with the
procedure in section 653B(3) of the Corporations Act. If, for the
purposes of complying with that procedure, you require additional
copies of this Bidder's Statement and/or the Acceptance Form and
you are a Shareholder on the MCM Australian Register, please call
the Goldway Australian Offer Information Line on 1300 737 760 (for
calls made within Australia), +61 2 9290 9600 (for calls made
outside Australia).
|
|
|
(i)
|
If you require additional assistance and you
are a Shareholder on the MCM United Kingdom Register (as you hold
your MCM Shares in CREST), please await further information to be
announced by Goldway explaining how you can accept the Offer (which
will include details of an information line in the United
Kingdom).
|
|
|
(j)
|
If you require additional
assistance and you are a Shareholder on the MCM South Africa
Register, please call the Goldway South Africa Offer Information
Line on +27 11 305 7346.
|
|
|
(k)
|
If the Relevant Shares are
registered in the name of a broker, investment dealer, bank, trust
company or other nominee you should contact that nominee for
assistance in accepting the Offer.
|
|
|
(l)
|
This Offer is anticipated to be
dated Friday, 16 February 2024.
|
13.2 Offer period
(a)
|
The Offer will remain open for
acceptance during the period that commences on the date of this
Offer and ends at 7.00pm (Sydney time) / 10.00am (South Africa
time) on the Closing Date, unless withdrawn or extended in
accordance with the Corporations Act.
|
(b)
|
Goldway may, in accordance with
the Corporations Act, extend the period during which this Offer
remains open for acceptance.
|
13.3 How to accept this Offer
(a)
|
General
|
|
(i)
|
Subject to Section 13.1(f) and
Section 13.1(h), you may accept this Offer for all of Your MCM
Shares or for any number of Your MCM Shares.
|
|
(ii)
|
You may accept this Offer at any
time during the Offer Period.
|
|
(iii)
|
For Australian MCM Shareholders,
if some of Your MCM Shares are in different holdings, your
acceptance of this Offer will require action under Section 13.3(b)
or Section 13.3(c) or in relation to each of your
holdings.
|
Acceptance procedure for MCM
Shareholders on the MCM Australian Register
(b) Shares held in your name on MCM's issuer
sponsored subregister
To accept this Offer for MCM Shares held in
your name on MCM's issuer sponsored subregister (in which case your
Security Holder Reference Number will commence with 'I'), you may
accept this Offer by using a physical Acceptance Form.
To accept this Offer using a physical
Acceptance Form, you must:
(i)
|
Complete and sign the Acceptance
Form in accordance with the terms of this Offer and the
instructions on the Acceptance Form; and
|
(ii)
|
Ensure that the Acceptance Form
(including any documents required by the terms of this Offer and
the instructions on the Acceptance Form) is received before the end
of the Offer Period, at the address shown on the Acceptance
Form.
|
(c)
Shares held in your name in a CHESS
Holding
To accept this Offer for MCM Shares held in
your name in a CHESS Holding (in which case your Holder
Identification Number will commence with 'X'), you may accept this
Offer by instructing your Controlling Participant or alternatively,
by using a physical Acceptance Form.
Instructing
your Controlling Participant
(i)
|
If Your MCM Shares are held in
your name in a CHESS Holding (in which case your Holder
Identification Number will commence with 'X') and you are not a
Participant, you may accept this Offer by instructing your
Controlling Participant (for MCM Shareholders who are not
institutions, this is normally the stockbroker through whom you
bought Your MCM Shares or ordinarily acquire shares on the ASX) to
initiate acceptance of this Offer on your behalf in accordance with
Rule 14.14 of the ASX Settlement Operating Rules before the end of
the Offer Period in sufficient time for this Offer to be accepted
before the end of the Offer Period. Neither Goldway nor Boardroom
will be responsible if your Controlling Participant does not
acknowledge and confirm your acceptance in sufficient
time.
|
|
|
(ii)
|
If Your MCM Shares are held in
your name in a CHESS Holding (in which case your Holder
Identification Number will commence with 'X') and you are a
Participant, you should initiate acceptance of this Offer in
accordance with rule 14.14 of the ASX Settlement Operating Rules
before the end of the Offer Period.
|
Acceptance
Form
(i)
|
Alternatively, to accept this
Offer for MCM Shares held in your name in a CHESS Holding (in which
case your Holder Identification Number will commence with 'X'), you
may sign and complete the physical Acceptance Form in accordance
with the terms of this Offer and the instructions on the Acceptance
Form and ensure that it (including any documents required by the
terms of this Offer and the instructions on the Acceptance Form) is
received before the end of the Offer Period, at the address shown
on the Acceptance Form. This will authorise Goldway and Boardroom
to initiate acceptance of this Offer on your behalf.
|
|
|
(ii)
|
If you are a CHESS holder, Goldway
strongly recommends that you ensure your Acceptance Form (including
any documents required by the terms of this Offer and the
instructions on the Acceptance Form) is received a reasonable
period before the end of the Offer Period. This is because
Boardroom will need to confirm with your Controlling Participant
your proposed acceptance of this Offer via an Acceptance Form
before it can be taken as validly submitted. There may not be
sufficient time to do so for any Acceptance Form received by CHESS
holders too close to the end of the Offer Period.
|
Other
(i)
|
If Your MCM Shares are held in
your name in a CHESS Holding (in which case your Holder
Identification Number will commence with 'X'), you must comply with
any other applicable ASX Settlement Operating Rules.
|
(d) MCM Shares of which you are entitled to
be registered as holder
(i)
|
To accept this Offer for MCM
Shares which are not held in your name, but of which you are
entitled to be registered as holder on the MCM Australian Register,
you must contact the Goldway Australian Offer Information Line on
1300 737 760 (for calls made within Australia) or +61 2 9290 9600
(for calls made outside Australia) to obtain an Acceptance
Form.
|
(ii)
|
To accept this Offer using a
physical Acceptance Form, you must:
|
|
(A)
|
complete and sign the Acceptance
Form in accordance with the terms of this Offer and the
instructions on the Acceptance Form; and
|
|
(B)
|
ensure that the Acceptance Form
(including any documents required by the terms of this Offer and
the instructions on the Acceptance Form) is received before the end
of the Offer Period, at the address shown on the Acceptance
Form.
|
(e) Acceptance Form and other
documents
(i)
|
The Acceptance Form forms part of
the Offer.
|
(ii)
|
If your Acceptance Form (including
any documents required by the terms of this Offer and the
instructions on the Acceptance Form) is returned by post, for your
acceptance to be valid you must ensure that they are posted or
delivered in sufficient time for them to be received by Goldway at
the address shown on the Acceptance Form before the end of the
Offer Period.
|
(iii)
|
When using the Acceptance Form to
accept this Offer in respect of MCM Shares in a CHESS Holding, you
must ensure that the Acceptance Form (and any documents required by
the terms of this Offer and the instruction on the Acceptance Form)
are received by Goldway in time for Goldway to instruct your
Controlling Participant to initiate acceptance of this Offer on
your behalf in accordance with Rule 14.14 of the ASX Settlement
Operating Rules before the end of the Offer Period.
|
(iv)
|
The postage and transmission of
the Acceptance Form and other documents is at your own
risk.
|
Acceptance procedure for holders of MCM
Shares on the MCM South African Share Register
(f) MCM Shares held in certificated
form
You are entitled to accept the Offer in
respect of all or part of your MCM Shares.
You will find enclosed with this Bidder's
Statement a yellow SA Acceptance Form for use in relation to the
Offer. You should note that, if you hold MCM Shares in certificated
form, but under different designations, you should complete a
separate yellow SA Acceptance Form in respect of each designation.
Further SA Acceptance Forms can be obtained from Computershare at
1st Floor, Rosebank Towers, 15 Biermann Avenue, Rosebank, 2196,
South Africa, or by emailing the Computershare at
corporate.events@computershare.co.za.
To accept the Offer in respect of all or part
of Your MCM Shares, you must complete the yellow SA Acceptance Form
and insert the number of MCM Shares in respect of which you are
accepting the Offer in the box provided. In all cases, you must
complete and sign the yellow SA Acceptance Form in accordance with
the instructions printed on the yellow SA Acceptance
Form.
You should return the completed yellow SA
Acceptance Form (together with your share certificate(s) and any
other document(s) of title) by post or by hand (during normal
business hours) to Computershare at the address indicated in
Section 1.1(a) as soon as possible, and in any event, so as to be
received by Computershare not later than the Closing Date, being
7.00pm (Sydney time) / 10.00am (South Africa time) on the Closing
Date, (unless extended or withdrawn).
(i) General
requirements
If you are an individual, you are requested to
sign the yellow SA Acceptance Form in accordance with the
instructions printed on it.
Any MCM Shareholder which is a company should
execute the yellow SA Acceptance Form in accordance with the
instructions printed on it.
MCM Shareholders who are registered on the MCM
South African Share Register are referred to Section 13.6(g) which
summarises the Exchange Control Regulations in accordance with
which the settlement of the consideration will be
effected.
Furthermore, such MCM Shareholders who are
emigrants from the Common Monetary Area or non-residents of the
Common Monetary Area should observe the instructions printed on the
yellow SA Acceptance Form.
(ii)
Share certificates not readily available or lost
Your completed yellow SA Acceptance Form
should be accompanied by the relevant share certificate(s) and/or
document(s) of title. If for any reason, your share certificate(s)
and/or other document(s) of title is/are not readily available, you
should nevertheless complete, sign and return your completed yellow
SA Acceptance Form as stated above. You should send with the yellow
SA Acceptance Form any share certificate(s) and/or other
document(s) of title which you may have available, accompanied by a
letter stating that the remaining documents will follow or that you
have lost one or more of your share certificates and/or other
document of title and such certificate(s) and/or document(s) of
title should be forwarded as soon as possible
thereafter.
If you have lost your share certificate(s)
and/or other document(s) of title, you should contact Computershare
at 1st Floor, Rosebank Towers, 15 Biermann Avenue, Rosebank, 2196,
South Africa, or by emailing the Computershare at
corporate.events@computershare.co.za as soon as possible to request
a letter of indemnity for lost share certificate(s) and/or other
document(s) of title which, when completed in accordance with the
instructions given, should be returned to Computershare at the
address indicated under Section 13.3(h). Your acceptance will not
be treated as valid until a letter of indemnity has been
received.
(g)
MCM Shares held in
dematerialised form
If you hold your MCM Shares, or any of them,
in dematerialised form and you wish to accept the Offer, either in
whole or in part, you should instruct, your CSDP or Broker in terms
of the custody or mandate agreement concluded between you and the
CSDP or Broker, as the case may be. These instructions must be
provided in the manner and by the cut-off date and time advised by
your CSDP or Broker. MCM Shareholders are accordingly advised to
confirm with their CSDP or Broker as to what the cut-off time will
be.
Neither Goldway, MCM nor any of its authorised
agents take any responsibility nor will they be held liable for any
failure on the part of any CSDP or Broker to notify you of the
Offer and/or to obtain instructions from you timeously or at all,
for whatsoever reason.
You must not complete the attached yellow SA
Acceptance Form.
Acceptance procedure for holders of MCM
Shares on the MCM United Kingdom Register
(h)
MCM Shares held in
certificated form
(i) If
you hold your MCM Shares in certificated form, you will be
Shareholder on the MCM Australian Share Register and you are
directed to section 13.3(b) above.
(i)
MCM Shares held in
uncertificated form (i.e. in CREST)
(i) If your
MCM Shares are in uncertificated form, you will be able to accept
the Offer via the procedure for Electronic Acceptance through
CREST. Goldway is in the process of appointing a UK Receiving Agent
in order for this method of settlement to be available and will
notify MCM Shareholders of the acceptance procedure applicable for
MCM Shares held via UK Depositary Interests in CREST in due
course.
13.4 Validity of
acceptances
(a)
|
Subject to this Section, your
acceptance of the Offer will not be valid unless it is made in
accordance with the procedures set out in Section 13.3.
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(b)
|
Goldway will determine, in its
sole discretion, all questions as to the form of documents,
eligibility to accept the Offer and time of receipt of an
acceptance of the Offer. Goldway is not required to communicate
with you prior to making this determination. The determination of
Goldway will be final and binding on all parties.
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(c)
|
Notwithstanding Sections 13.3(b),
13.3(c), 13.3(d) and 13.3(e), Goldway may, in its sole discretion,
at any time and without further communication to you, deem any
Acceptance Form it receives to be a valid acceptance in respect of
the Relevant Shares, even if a requirement for acceptance has not
been complied with but the payment of the consideration in
accordance with the Offer may be delayed until any irregularity has
been resolved or waived and any other documents required to procure
registration have been received by Goldway.
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(d)
|
Where you have satisfied the
requirements for acceptance in respect of only some of Your MCM
Shares, Goldway may, in its sole discretion, regard the Offer to be
accepted in respect of those of Your MCM Shares but not the
remainder.
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(e)
|
Goldway will provide the
consideration to you in accordance with Section 13.6, in respect of
any part of an acceptance determined by Goldway to be
valid.
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13.5 The effect of
acceptance
(a)
|
Once you have accepted the Offer
you will be unable to revoke your acceptance and the contract
resulting from your acceptance of the Offer will be binding on you
and you will be unable to withdraw the Relevant Shares form the
Offer or otherwise dispose of the Relevant Shares except as
follows:
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(i)
|
If, by the relevant time specified
in Section 13.5(b), the Conditions in Section 13.6(g) have not been
fulfilled or waived, in which case this Offer will automatically
terminate and the Relevant Shares will be returned to you;
or
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(ii)
|
if the Offer Period is extended
for more than one month and the obligations of Goldway to pay the
consideration are postponed for more than one month and, at the
time, this Offer is subject to the Conditions in Section 13.6(g),
you may be able to withdraw your acceptance and the Relevant Shares
in accordance with section 650E of the Corporations Act. A notice
will be sent to you at the time explaining your rights in this
regard.
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(b)
|
The relevant time for the purposes
of Section 13.5(a)(i) is the end of the third business day after
the end of the Offer Period.
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(c)
|
By signing and returning the
Acceptance Form or otherwise accepting this Offer in accordance
with Section 13.3, you will be deemed to have:
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(i)
|
accepted this Offer (and any
variation of it) in respect of, and, subject to the condition to
this Offer in Section 13.6(g) being fulfilled or waived, agreed to
transfer to Goldway, the Relevant Shares, subject to Section
13.1(f) and Section 13.1(h);
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(ii)
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represented and warranted to
Goldway, as a fundamental condition going to the root of the
contract resulting from your acceptance, that at the time of
acceptance, and the time the transfer of the Relevant Shares
(including any rights) to Goldway is registered, that all the
Relevant Shares are and will be fully paid and free from all
Security Interests, mortgages, charges, liens, encumbrances and
adverse interests of any nature (whether legal or otherwise) and
free from restrictions on transfer of any nature (whether legal or
otherwise), that you have full power and capacity to accept this
Offer and to sell and transfer the legal and beneficial ownership
in the Relevant Shares (including any Rights) to Goldway, and that
you have paid to MCM all amounts which at the time of acceptance
have fallen due for payment to MCM in respect of the Relevant
Shares;
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(iii)
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irrevocably authorised Goldway
(and any director, secretary or nominee of Goldway) to alter the
Acceptance Form on your behalf by inserting correct details of the
Relevant Shares, filling in any blanks remaining on the form and
rectifying any errors or omissions as may be considered necessary
or desirable by Goldway to make it an effective acceptance of this
Offer or to enable registration of the Relevant Shares in the name
of Goldway;
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(iv)
|
if you signed the Acceptance Form
in respect of MCM Shares which are held in a CHESS Holding,
irrevocably authorised Goldway (or any director, secretary or agent
of Goldway) to instruct your Controlling Participant to initiate
acceptance of this Offer in respect of the Relevant Shares in
accordance with Rule 14.14 of the ASX Settlement Operating
Rules;
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(v)
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if you signed the Acceptance Form
in respect of MCM Shares which are held in a CHESS Holding,
irrevocably authorised Goldway (or any director, secretary or agent
of Goldway) to give any other instructions in relation to the
Relevant Shares to your Controlling Participant, as determined by
Goldway acting in its own interests as a beneficial owner and
intended registered holder of those Shares;
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(vi)
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irrevocably authorised and
directed MCM to pay to Goldway, or to account to Goldway for, all
Rights in respect of the Relevant Shares, subject, if this Offer is
withdrawn, to Goldway accounting to you for any such Rights
received by Goldway;
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(vii)
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irrevocably authorised Goldway to
notify MCM on your behalf that your place of address for the
purpose of serving notices upon you in respect of the Relevant
Shares is the address specified by Goldway in the
notification;
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(viii)
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with effect from the date on which
the Conditions to this Offer in Section 13.6(g) have been fulfilled
or waived, to have irrevocably appointed Goldway (and any director,
secretary or nominee of Goldway) severally from time to time as
your true and lawful attorney to exercise all your powers and
rights in relation to the Relevant Shares, including (without
limitation) powers and rights to requisition, convene, attend and
vote in person, by proxy or by body corporate representative, at
all general meetings of MCM and to request MCM to register, in the
name of Goldway or its nominee, the Relevant Shares, as
appropriate, with full power of substitution (such power of
attorney, being coupled with an interest, being
irrevocable);
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(ix)
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with effect from the date on which
the Conditions to this Offer in Section 13.6(g) has been fulfilled
or waived, to have agreed not to attend or vote in person, by proxy
or by body corporate representative at any general meeting of MCM
or to exercise or purport to exercise any of the powers and rights
conferred on Goldway (and its directors, secretaries and nominees)
in Section 13.5(c)(viii);
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(x)
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agreed that in exercising the
powers and rights conferred by the powers of attorney granted under
Section 13.5(c)(viii), the attorney will be entitled to act in the
interests of Goldway as the beneficial owner and intended
registered holder of the Relevant Shares;
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(xi)
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agreed to do all such acts,
matters and things that Goldway may require to give effect to the
matters the subject of this Section 13.5(c) (including the
execution of a written form of proxy to the same effect as this
Section 13.5(c) which complies in all respects with the
requirements of the constitution of MCM) if requested by
MCM;
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(xii)
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agreed to indemnify Goldway in
respect of any claim or action against it or any loss, damage or
liability whatsoever incurred by it as a result of you not
producing your Holder Identification Number or Security Holder
Reference Number or in consequence of the transfer of your
Acceptance Shares to Goldway being registered by MCM without
production of your Holder Identification Number or your Security
Holder Reference Number for the Relevant Shares;
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(xiii)
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represented and warranted to
Goldway that, unless you have notified it in accordance with
Section 13.1(h), the Relevant Shares do not consist of separate
parcels of MCM Shares;
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(xiv)
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irrevocably authorised Goldway
(and any nominee) to transmit a message in accordance with Rule
14.17 of the ASX Settlement Operating Rules to transfer the
Relevant Shares to Goldway's Takeover Transferee Holding,
regardless of whether it has paid the consideration due to you
under this Offer;
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(xv)
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where, at that time, you have a
right to be registered as a holder of the MCM Shares the subject of
your acceptance as the result of an on-market purchase (but are not
a MCM Shareholder):
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(A)
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agreed to use best endeavours to
procure the delivery of the Relevant Shares to Goldway in
accordance with your acceptance (including giving Goldway all
documents considered necessary or desirable by Goldway to vest the
Relevant Shares in Goldway or otherwise to give Goldway the benefit
or value of the Relevant Shares;
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(B)
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agreed not to do or omit to do
anything which may frustrate your acceptance of this Offer, or
otherwise obstruct registration of the transfer of the Relevant
Shares to Goldway;
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(C)
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irrevocably assigned to Goldway
all contractual rights and recourse against the vendor in respect
of your on-market purchase which contractual rights and recourse
may arise by reason of that person's failure to complete that
trade;
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(D)
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agreed to assign to Goldway
(without any further action being required) all rights in respect
of your on-market purchase immediately on any failure by you to
complete that trade, including irrevocably assigning to Goldway the
right to (at Goldway's sole discretion) complete that trade on your
behalf and agreed that Goldway may deduct from the consideration
otherwise payable to you (pursuant to a valid acceptance of this
Offer and the delivery of the Relevant Shares the subject of that
acceptance) any amount paid by Goldway in order to settle that
on-market purchase on your behalf. If Goldway does not, or cannot,
make such a deduction, you must pay such amount to Goldway;
and
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(E)
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agreed that if you are unable to
assign to Goldway any of the rights and recourse specified under
Sections 13.5(c)(xv)(C) and 13.5(c)(xv)(D), you will assign such
rights and recourse as soon as you are legally able to;
and
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(xvi)
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agreed, subject to the Conditions
of this Offer in Section 13.6(g) being fulfilled or waived, to
execute all such documents, transfers and assurances, and do all
such acts, matters and things that Goldway may consider necessary
or desirable to convey and transfer the Relevant Shares registered
in your name and Rights to Goldway.
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13.6 Payment of
consideration
Settlement of the Offer Consideration
for MCM Shares on the MCM Australian Register
(a)
|
Subject to Section 13.4(b), this
Section 13.6, Section 13.6(g) and the Corporations Act, Goldway
will provide the consideration due to you for the Relevant Shares
on or before the earlier of:
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(i)
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one month after the date of your
acceptance or, if this Offer is subject to a defeating condition
when you accept this Offer, within one month after this Offer
becomes unconditional; and
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(ii)
|
21 days after the end of the Offer
Period.
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(b)
|
Where the Acceptance Form requires
an additional document to be delivered with your Acceptance Form
(such as a power of attorney):
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(i)
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if that document is given with
your Acceptance Form, Goldway will provide the consideration in
accordance with Section 0;
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(ii)
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if that document is given after
your Acceptance Form and before the end of the Offer Period while
this Offer is subject to a defeating condition, Goldway will
provide the consideration due to you on or before the earlier of
one month after this Offer becomes unconditional and 21 days after
the end of the Offer Period;
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(iii)
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if that document is given after
your Acceptance Form and before the end of the Offer Period while
this Offer is not subject to a defeating condition, Goldway will
provide the consideration due to you on or before the earlier of
one month after that document is given and 21 days after the end of
this Offer Period; and
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(iv)
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if that document is given after
the end of the Offer Period, and the Offer is not subject to a
defeating condition, Goldway will provide the consideration within
21 days after that document is delivered. However, if at the time
the document is given, the Offer is still subject to a defeating
condition that relates only to the happening of an event or
circumstance referred to in section 652C(1) or (2) of the
Corporations Act, Goldway will provide the consideration due to you
within 21 days after the Offer becomes unconditional.
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If you accept this Offer, Goldway
is entitled to all Rights in respect of the Relevant Shares.
Goldway may require you to provide all documents that Goldway may
consider necessary or desirable to vest title to those Rights in
Goldway, or otherwise to give it the benefit or value of those
Rights. If you do not give those documents to Goldway, or if you
have (or any previous owner of the Relevant Shares has) received
the benefit of those Rights Goldway will deduct from the
consideration otherwise due to you the amount (or value, as
reasonably assessed by Goldway) of those Rights. However, no amount
will be deducted in respect of the franking credits (if any)
attached to the Rights.
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(c)
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The consideration payable by
Goldway to you under the Offer will be paid to you via EFT cheque
if no bank details are provided in Australian currency. Cheques
will be posted to you at your risk by ordinary mail (or in the case
of overseas shareholders, by airmail) at the address as shown
either, at the discretion of Goldway, on your Acceptance Form or
the register copy supplied by MCM from time to time.
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(d)
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If at the time you accept the
Offer, any consent, authority, clearance or approval is required
for you to receive any consideration for the Relevant Shares,
including (but not limited to) any consent, authority, clearance or
approval of:
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(i)
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the Reserve Bank of Australia
(whether under the Banking (Foreign) Exchange Regulations 1959
(Cth) or otherwise);
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(ii)
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the Minister for Foreign for
Foreign Affairs (whether under the Charter of the United Nations
Act 1945 (Cth), the Charter of the United Nations (Dealing with
Assets) Regulations (Cth) or any other regulations thereunder, or
otherwise), or any other regulations made thereunder, or
otherwise);
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(iii)
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the ATO; or
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(iv)
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any other person as required by
any other law of Australia that would make it unlawful for Goldway
to provide any consideration for the Relevant Shares,
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then you will not be entitled to
receive any consideration for the Relevant Shares until all
requisite consents, authorities, clearances or approvals have been
received by Goldway.
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Settlement of the Offer Consideration
for MCM Shares on the MCM South African Register
(e)
|
MCM Shares held in certificated form
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(i)
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The discharge of the Offer
Consideration will be made in ZAR.
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(ii)
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If the Offer becomes unconditional
and you have both: (i) forwarded your completed yellow SA
Acceptance Form; and (ii) surrendered your documents of title to
Computershare on or before 10.00am on the Closing Date, you will be
paid the Offer Consideration by way of EFT into your bank account
on record with Computershare or the bank account nominated by you
in the yellow SA Acceptance Form, as the case may be, on the
settlement date.
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(iii)
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If you do not have banking details
on record with Computershare or you have failed to provide your
banking details in the completed yellow SA Acceptance Form, the
Offer Consideration due to you will be held in trust by
Computershare on your behalf, but only for a period of five years
after the settlement date, after which the Offer Consideration due
to you will be paid to the Guardian's Fund of the Master of the
High Court of South Africa on your behalf. In this regard
such MCM Shareholders irrevocably authorise and appoint each of
Goldway and Computershare (or their respective agents, as appointed
by each of them) in rem suam (that is irrevocably for Goldway and
Computershare's benefit and advantage), with full power of
substitution, to act as agent in the name, place and stead of such
MCM Shareholder to pay the Offer Consideration to the Guardian's
Fund of the Master of the High Court of South Africa for their
benefit in the aforesaid manner.
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(f)
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MCM Shares held in dematerialised form
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(i)
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The discharge of the Offer
Consideration will be made in ZAR.
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(ii)
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If the Offer becomes
unconditional, and you have accepted the Offer, you will have your
account at your CSDP or Broker credited with the Offer
Consideration and debited with the MCM Shares that you are
transferring to Goldway within 6 business days after:
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(A)
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accepting the Offer; or
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(B)
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the publication of the
finalisation announcement,
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whichever is the later.
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Settlement of the Offer Consideration
for MCM Shares on the MCM United Kingdom Register
(g)
Where an acceptance relates to MCM Shares held in uncertificated
form, the cash consideration in pounds Sterling to which an
accepting MCM Shareholder is entitled shall be paid by means of a
CREST Payment in favour of the accepting MCM Shareholder's payment
bank in respect of the cash consideration due, in accordance with
CREST assured payment arrangements. Goldway will appoint a UK
Receiving Agent, as soon as practicable following the publication
date of this Bidder's Statement, and prior to the despatch of the
Bidder's Statement and the Offer opening. Following such
appointment, further information will be announced regarding how
MCM Shareholders on the MCM United Kingdom Register accepting the
Offer who holds their MCM Shares in uncertificated form (that is,
in CREST) will receive the consideration payable to them. Goldway
reserves the right to settle all or any part of the consideration
referred to in this paragraph, for all or any accepting MCM
Shareholder(s), by cheque, if, for any reason, it wishes to do so,
except in circumstances where the accepting MCM Shareholder has
informed the UK Receiving Agent (once appointed) in writing prior
to the Offer becoming or being declared unconditional that it is
unwilling to accept settlement of the consideration by
cheque.
13.7 South African Exchange
Control Regulations
The following is a summary of the Exchange
Control Regulations. It is intended as a guide only and is not a
comprehensive statement of the Exchange Control Regulations which
may apply to MCM Shareholders in relation to the payment of the
consideration consequent to the sale of their MCM Shares. MCM
Shareholders who have any queries regarding the Exchange Control
Regulations should contact their own professional advisors without
delay.
The Exchange Control Regulations provide for
restrictions on the export of capital from the Common Monetary
Area. The Common Monetary Area consists of South Africa, the
Republic of Namibia and the kingdoms of Lesotho and eSwatini.
Transactions between residents of the countries comprising the
Common Monetary Area and non-residents are subject to Exchange
Control Regulations provisions, which are administered by the
SARB.
Various reforms have been made to the Exchange
Control Regulations with a view to relax the rules pertaining to
foreign investment. A considerable degree of flexibility is built
into the system and the SARB has substantial discretionary powers
in approving or rejecting a specific application that has been
submitted through an Authorised Dealer in foreign exchange
appointed by the SARB. The relaxations of the provisions of the
Exchange Control Regulations are contained in the AD Manual. As
provided for in the Exchange Control Regulations, the SARB has also
delegated to Authorised Dealers the power to approve certain
transactions. The obligations to Authorised Dealers are contained
in the AD Manual, which is updated from time to time through the
release of circulars by the SARB.
It was announced in the South African 2020
Budget that the Exchange Control Regulations would be replaced with
a new capital flow management framework and regulations, which
would be implemented within a period of 12 months from the
announcement. It was subsequently announced in the South African
2021 Budget on 24 February 2021, that in 2021, National Treasury
and the SARB will continue to develop the legislative framework for
the new capital flow management system announced in the South
African 2020 Budget. It is proposed that the SARB will issue a new
set of "Capital Flows Management Regulations" in terms of the
Currency and Exchanges Act, No. 9 of 1933, as amended. This
framework is being developed with the Financial Intelligence Centre
and SARS, but has not yet been finalised. Insofar as the
acquisition of your MCM Shares is concluded before the Exchange
Control Regulations are replaced, the Exchange Control Regulations
will still apply.
It was further stated that the concept of
"emigration" as recognised by the SARB would be phased out with
effect from 1 March 2021 and be replaced by a verification process.
Exchange Control Circular 6/2021 dated 26 February 2021 and
Circular 8/2021 dated 21 May 2021 set out the changes in relation
to emigrants and changes to the AD Manual with effect from 1 March
2021. Accordingly, the Exchange Control Regulations now distinguish
between natural persons who are residents and natural persons who
have ceased to be tax resident in South Africa.
Until 28 February 2021, the Exchange Control
Regulations read with the AD Manual distinguished between
residents, non-residents and emigrants. As of 1 March 2021, under
the new framework, natural person residents and natural person
emigrants are treated identically in relation to their South
African assets. To ensure a smooth transition from the old
framework to the new framework, natural persons who applied to be
emigrants under the old framework, by obtaining a MP336(b) form
that was attested by an Authorised Dealer on or before 28 February
2021, will be dealt with in terms of the exchange control
procedures relating to emigration for exchange control purposes
prior to 1 March 2021.
For the purposes of the Exchange Control
Regulations:
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a resident means any person, being
a natural person or a legal entity, who has taken up permanent
residence, is domiciled or registered in South Africa;
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-
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a non-resident is a person, being
a natural person or a legal entity, whose normal place of
residence, domicile or registration is outside the Common Monetary
Area; and
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an emigrant means a South African
resident who has left South Africa to take up permanent residence
or has been granted permanent residence in any country outside of
the Common Monetary Area. For purposes of the Exchange Control
Regulations read with the AD Manual in relation to the old
framework, a South African resident will only be regarded as an
emigrant if he placed his emigration on record with the SARB under
the exchange control policy which applied up to 28 February
2021.
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MCM Shareholders who are uncertain as to
whether they are residents or non-residents or South African
non-tax resident for purposes of the Exchange Control Regulations
read with the AD Manual, are advised to approach SARS to request
confirmation of their status.
Importantly, there are no restrictions on
dealings in securities in foreign companies by residents or natural
persons who have ceased to be tax resident in South Africa or
emigrants of the Common Monetary Area where those securities are
held on the South African share register of the foreign company and
listed on the JSE. However, different rules apply to the remittance
abroad of the proceeds from the sale of such securities.
(a)
Residents of the Common Monetary Area
The consideration payable to a resident in
consideration for their MCM Shares is not freely transferable from
South Africa and must be dealt with in terms of the Exchange
Control Regulations read with the AD Manual.
(b)
Emigrants from the Common Monetary Area and natural persons who
have ceased to be a tax resident in South Africa
Natural person emigrants of the Common
Monetary Area or natural persons who have ceased to be tax resident
in South Africa remain subject to exchange controls in relation to
securities in foreign companies which are listed on the JSE and
held in an account with the natural person emigrant's or non-tax
resident's Broker or CSDP, where the account has not been flagged
as "non-resident" (in other words, the Broker or CSDP account is
designated "resident" or "emigrant).
In terms of current exchange controls,
emigrants and persons who have ceased to be tax resident in South
Africa may externalise the consideration for the disposal of their
MCM Shares by making application to the Authorised Dealer after
obtaining the necessary SARS Tax Compliance Status Verification
PIN.
(c)
All other non-residents of the Common Monetary
Area
In the case of a MCM Shareholder who is not a
South African tax resident and whose Broker or CSDP account has
been flagged "non-resident', the consideration will be transferred
to its account with its duly appointed Broker or CSDP and may be
freely remitted from South Africa.
As regards the delisting of MCM from the JSE,
MCM previously obtained approval from the SARB for the
listing of its ordinary shares on the main board of the JSE, which
listing is classified as a "inward listing" in terms of the
Exchange Control Regulations. All inward listed shares on the JSE,
traded and settled in Rand are classified as domestic for purposes
of the Exchange Control Regulations. Pursuant to the delisting,
subject to obtaining the necessary South African Reserve Bank
approval, MCM Shares will no longer be classified as domestic for
the Purposes of the Exchange Control Regulations and will again be
classified as a foreign asset for the purposes of the Exchange
Control Regulations.
MCM Shareholders
who wish to continue to hold unlisted MCM Shares should note that
following the delisting, the unlisted MCM Shares will constitute a
foreign asset for exchange control purposes. MCM Shareholders who
do not accept the Offer should establish whether they will be
permitted to continue to hold the unlisted MCM Shares post the
delisting or whether they require additional exchange control
approval to do so and ensure that the requisite approvals are
secured before the delisting is effected.
13.8 UK Takeover Code and
South African Take-over Regulations
As MCM is incorporated in Australia and is not
resident in the UK, Channel Islands or the Isle of Man it is not
subject to the UK Takeover Code. Similarly, because MCM is not
incorporated in South Africa, it is not subject to the South
African Take-over Regulations. Accordingly, this Bidder's Statement
has not been prepared in accordance with the requirements of the UK
Takeover Code nor the South African Take-over
Regulations.
13.9 Conditions of this
Offer
Subject to Section 13.10, the completion of
this Offer and any contract resulting from acceptance of the Offer
is subject to fulfilment of the following defeating
conditions:
(a)
Minimum acceptance
The Bidder Parties must receive acceptances
for at least 50.1% or more of the MCM Shares that they do not have
a relevant interest at the commencement date of the
Offer.
This is a condition that cannot be waived by
the Bidder Parties or any other party.
(b)
Conduct of business in the ordinary course and no material
acquisitions, disposals or new commitments
Except as proposed in any announcement by MCM
to the ASX prior to the Announcement Date:
(i)
|
during the period from the
Announcement Date to the end of the Offer Period (each inclusive),
MCM's business and the business of MCM's subsidiaries is carried on
in the ordinary course;
|
(ii)
|
none of the following events
occurs during the period from the Announcement Date to the end of
the Offer Period (each inclusive):
|
|
(A)
|
MCM or any subsidiary of MCM
acquires, offers to acquire or agrees to acquire one or more
entities, businesses or assets (or any interest in one or more
entities, businesses or assets) for an amount in aggregate greater
than A$5 million;
|
|
(B)
|
MCM or any subsidiary of MCM
disposes of, offers to dispose of or agrees to dispose of, or
grants an option, or other right or entitlement (including a
pre-emptive right) the effect of which could be the disposal or
loss of control of, one or more entities, businesses or assets (or
any interest in one or more entities, businesses or assets) for an
amount, or in respect of which the book value (as recorded in MCM's
consolidated statement of financial position as at 30 June 2023)
is, in aggregate, greater than A$5 million;
|
|
(C)
|
MCM or any subsidiary of MCM
enters into, or offers to enter into or agrees to enter into, any
agreement, joint venture or partnership which would require
expenditure, or the foregoing of revenue, by a MCM of an amount
which is, in aggregate, more than A$5 million;
|
|
(D)
|
MCM or any subsidiary of MCM
incurs or otherwise becomes exposed to a liability or contingent
liability for one or more related items with an aggregate amount or
value greater than A$5 million;
|
|
(E)
|
MCM or any subsidiary of MCM
enters into, offers to enter into, agrees to enter into any
transaction, or is otherwise affected by any transaction or
proposal under which any third party would acquire any legal or
economic interest in, or there would be any diminution in the
rights granted under any mineral tenement held by MCM;
|
|
(F)
|
MCM or any subsidiary of MCM
enters into, offers to enter into, agrees to enter into any
transaction, or is otherwise affected by any transaction or
proposal under which any third party would acquire any legal or
economic interest in production from MCM's current or future
operations or right to sell or market that production;
|
|
(G)
|
MCM or any subsidiary of MCM
announces an intention to do any of the matters referred to in
Sections 13.9(b)(ii)(A) to 13.9(b)(ii)(F) above, or brings forward
the time for performance of any commitments to, or releases any
rights it has against, third parties relating to such matters in
existence at the Announcement Date.
|
(c)
No material adverse
change
Before the end of the Offer Period, no event,
change or circumstances occurs, is announced or becomes known to
Goldway where that event change or circumstance (either
individually or aggregated with other events, changes or
circumstances) has had, or could reasonably be expected to have, a
material adverse effect on any of the following:
(i)
|
the business, assets, liabilities,
financial or trading position, profitability or prospects of MCM
and any of its subsidiaries, taken as a whole; or
|
(ii)
|
on the status or terms of material
arrangements entered into by MCM or any of its subsidiaries;
or
|
(iii)
|
the status or terms of any
Approvals, licences, tenements or permits issued by any Public
Authority to any member of MCM or any of its
subsidiaries,
|
|
including, without limitation, any
one or more events, matters, change or circumstances which have had
or could reasonably be expected to have any of the following
effects, which are taken to constitute a material adverse
effect:
|
(iv)
|
diminishing the fair market value
of the net assets of the MCM by $5 million or
more;
|
(v)
|
any material rights under any of
the tenements in which a MCM (or management company associated with
a joint venture in which MCM has an interest) has an interest, or
any contract in which MCM (or management company associated with a
joint venture in which MCM has an interest) has an interest, being
suspended, revoked, invalidated, varied, terminated, or otherwise
coming to an end;
|
(vi)
|
a material restraint on or
hindrance to the development, timely completion, feasibility,
operation, or profitability of the material projects in which a MCM
has an interest;
|
(vii)
|
the incurring of any obligations,
liabilities, costs or expenses (whether contingent or otherwise),
other than capital expenditure, where the quantum (whether
individually or when aggregated) exceeds $5 million, except in the
course of business;
|
(viii)
|
any change in any applicable laws
or regulations which would result in a material impairment of the
costs structure of MCM;
|
(ix)
|
any person announcing, commencing
or threatening any litigation against MCM (whether in aggregate or
for any single litigation) which may result in a judgement against
MCM of more than $5 million (individually or in
aggregate);
|
but does not include any of the
following, which are taken not to constitute a material adverse
effect:
|
(x)
|
any matter fairly disclosed to
Goldway or their representatives, or to the ASX or otherwise widely
known publicly on or before the Announcement Date;
|
(xi)
|
any event, occurrence,
circumstance or matter affecting the iron ore or coal mining
industries generally;
|
(xii)
|
any change in general economic,
financial, currency exchange, securities or commodities market
conditions;
|
(xiii)
|
any change in accounting policy
required by law.
|
(d)
No regulatory actions
During the period from the Announcement Date
to the end of the Offer Period (each inclusive):
(i)
there is not in effect any preliminary or
final decision, order or decree issued by any Public
Authority;
(ii)
no action or investigation is announced,
commenced or threatened by any Public Authority;
(iii)
no application is made to a Public
Authority (other than by Goldway or their Associates),
in consequence of or in connection with the
Offer (other than an application to, or a decision or order of,
ASIC or the Takeovers Panel for the purpose or in exercise of the
powers and discretions conferred on it by the Corporations Act),
which:
(iv)
restrains, prohibits, or impedes or
threatens to restrain, prohibit or impeded or may otherwise
materially adversely impact upon the making of the Offer, the
acquisition of MCM Shares under the Offer, the rights of either of
Goldway in their capacity as a shareholder of MCM, or the
completion of any transaction contemplated by the Offer or the
Bidder's Statement (including any transaction contemplated by the
Joint Bid Deed; or
(v)
seeks to require the divesture of any MCM
Shares by Goldway; or
(vi)
seeks to require the divesture of any
material assets by any MCM Group Entity; or
(vii)
imposes any new
terms on, amends the existing terms of or otherwise materially
affects the rights held by MCM as at the Announcement Date under
any Approval licence, tenement or permit issued by any Public
Authority to MCM.
(e)
No
distributions
Between the Announcement Date and the end of
the Offer Period (each inclusive), MCM does not make, determine as
payable or declare, or announce an intention to make, determine as
payable or declare any distribution (whether by way of dividend,
capital reduction or otherwise and whether in cash or in
specie).
(f)
Non-existence of
certain rights
No person has any right (whether subject to
conditions or not) as a result of Goldway acquiring MCM Shares
to:
(i)
acquire, or require MCM or a subsidiary of
MCM to dispose of, or offer to dispose of, any material asset of
MCM or a subsidiary of MCM; or
(iI)
terminate or vary any material agreement
with MCM or a subsidiary of MCM.
(g)
No prescribed
occurrences
During the period between the date that the
Bidder's Statement is given to MCM and the end of the Offer Period
(each inclusive), none of the following events occur:
(i)
|
MCM converts all or any of its
shares into a larger or smaller number of shares under section 254H
of the Corporations Act;
|
(ii)
|
MCM or a subsidiary of MCM
resolves to reduce its share capital in any way;
|
(iii)
|
MCM or a subsidiary of MCM enters
into a buy-back agreement or resolves to approve the terms of a
buy-back agreement under section 257C(1) or 257D(1) of the
Corporations Act;
|
(iv)
|
MCM or a subsidiary of MCM issues
shares (other than shares issued as a result of the exercise of
Options, or the vesting of Performance Rights, the existence of
which had been notified to ASX before the Announcement Date) or
grants an option over its shares, or agrees to make such an issue
or grant such an option;
|
(v)
|
MCM or a subsidiary of MCM issues,
or agrees to issue, convertible notes;
|
(vi)
|
MCM or a subsidiary of MCM
disposes, or agrees to dispose, of the whole, or a substantial
part, of its business or property;
|
(vii)
|
MCM or a subsidiary of MCM grants,
or agrees to grant, a security interest in the whole, or a
substantial part, of its business or property;
|
(viii)
|
MCM or a subsidiary of MCM
resolves to be wound up;
|
(ix)
|
a liquidator or provisional
liquidator of MCM or a subsidiary of MCM is appointed;
|
(x)
|
a court makes an order for the
winding up of MCM or a subsidiary of MCM;
|
(xi)
|
an administrator of MCM or a
subsidiary of MCM is appointed under section 436A, 436B or 436C of
the Corporations Act;
|
(xii)
|
MCM or a subsidiary of MCM
executes a deed of company arrangement; or
|
(xiii)
|
a receiver, or a receiver and
manager, is appointed in relation to the whole, or a substantial
part, of the property of MCM or a subsidiary of MCM.
|
(h)
No prescribed
occurrences prior to
dispatch
None of the events referred to in Sections
13.9(g)(i) to 13.9(g)(xiii) happens during the period commencing on
the Announcement Date and ending at the end of the day immediately
preceding the date the Bidder's Statement is given to
MCM.
13.10 Nature and operation of the
Conditions
(a)
|
Nature of the Conditions
|
|
(i)
|
None of the Conditions prevent a
contract to sell Your MCM Shares resulting from your acceptance of
this Offer, but:
|
|
|
(A)
|
the Conditions in Section 13.9(a)
are conditions precedent to the provisions of that contract
relating to Goldway's acquisition of an interest in Your MCM Shares
becoming binding;
|
|
|
(B)
|
breach of any of the Conditions
entitles Goldway to rescind that contract by written notice to you;
and
|
|
|
(C)
|
non-fulfilment of any of the
Conditions at the end of the Offer Period will have the
consequences set out in Section 13.10(e) can.
|
(b)
|
Separate Conditions for benefit of Bidder
|
|
(i)
|
Each of the Conditions in each
paragraph and each sub-paragraph of Section 13.6(g) constitutes,
and is to be construed as, a separate, several and distinct
Condition. No Condition will be taken to limit the meaning or
effect of any other Condition.
|
|
(ii)
|
Subject to the Corporations Act,
Goldway is entitled to the benefit of the Conditions and to rely on
breach or non-fulfilment of, or to waive compliance with, any of
those conditions except for Section 13.9(a).
|
(c)
|
Fulfilment of Conditions
|
|
Goldway will use all reasonable
endeavours to ensure that the Condition contained in Section
13.9(a) is fulfilled as soon as possible after the date of this
Bidder's Statement.
|
(d)
|
Waiver of Conditions
|
|
(i)
|
Subject to the Corporations Act,
Goldway may free this Offer and any contract resulting from your
acceptance of this Offer from all or any of the Conditions except
for the Defeating Condition contained in Section 13.9(a) generally
or in relation to a specific occurrence by giving written notice to
MCM:
|
|
|
(A)
|
in the case of the Conditions in
Section 13.9(g) - not later than three business days after the end
of the Offer Period; and
|
|
|
(B)
|
in the case of the other
Conditions - not less than seven days before the last day of the
Offer Period.
|
(e)
|
Contract is void if Conditions not
fulfilled
|
|
Your acceptance of this Offer, and
any contract resulting from your acceptance of this Offer, will be
automatically void if:
|
|
(i)
|
at the end of the Offer Period,
any of the Conditions is not fulfilled; and
|
|
(ii)
|
Goldway has not declared this
Offer and any contract resulting from your acceptance of it free
from that Condition in accordance with Section 13.10(d).
|
13.11 Notice on status of
conditions
The anticipated date for giving the notice on
the status of conditions required by section 630(1) of the
Corporations Act is Friday, 22 March 2024 (subject to extension in
accordance with section 630(2) of the Corporations Act if the Offer
Period is extended).
13.12 Stamp Duty
Goldway will pay all costs and expenses of the
preparation and circulation of this Offer and any Australian stamp
duty payable on the transfer of any MCM Shares to Goldway under
this Offer.
13.13 Withdrawal
This Offer may be withdrawn with the written
consent of ASIC, which consent may be subject to conditions. If
ASIC gives such consent, Goldway will give notice of the withdrawal
to ASX and to MCM and will comply with any other conditions imposed
by ASIC.
13.14 Variation
Goldway may vary this Offer in accordance with
the Corporations Act.
13.15 Notices and other
communications
Subject to the Corporations Act, a notice or
other communication given by Goldway to you in connection with this
Offer will be deemed to be duly given if it is in writing and
is:
(a)
delivered to your address as recorded on the MCM Register or the
address shown in any Acceptance Form; or
(b)
sent by ordinary mail (or in the case of overseas securityholders,
by airmail) to you at either of those addresses.
14. Additional
information
14.1 Consents
This Bidder's Statement contains statements
made by, or statements based on statements made by, the Bidder
Parties and certain of their related entities. Each of them has
consented to being named in this Bidder's Statement and has
consented to the inclusion of:
(a)
each statement it has made; and
(b)
each statement which is said to be based on a statement it has
made,
in the form and context in which the statements
appear and has not withdrawn that consent as at the date of this
Bidder's Statement.
This Bidder's Statement includes statements
which are made in, or based on statements made in, documents lodged
with ASIC or given to ASX. Under the terms of ASIC Corporations (Takeover Bids) Instrument
2023/683, the parties making those statements are not
required to consent to, and have not consented to, inclusion of
those statements in this Bidder's Statement. If you would like to
receive a copy of any of those documents, or the relevant parts of
the documents containing the statements, (free of charge), during
the bid period, and you are a Shareholder on the MCM Australian
Register, please call the Goldway Australian Offer Information Line
on 1300 737 760 (for calls made within Australia), +61 2 9290 9600
for calls made outside Australia). If you would like to receive a
copy of any of those documents, or the relevant parts of the
documents containing the statements, (free of charge), during the
bid period, and you are a Shareholder on the MCM United Kingdom
Register, please await further information to be announced by
Goldway explaining how you can accept the Offer (which will include
details of an information line in the United Kingdom). If you would
like to receive a copy of any of those documents, or the relevant
parts of the documents containing the statements, (free of charge),
during the bid period, and you are a Shareholder on the MCM South
African Register, please call the Goldway South Africa Offer
Information Line on +27 11 305 7346.
As permitted by ASIC Corporations (Consents to Statements)
Instrument 2016/72 (Corporations Instrument 2016/72), this
Bidder's Statement may include or be accompanied by certain
statements:
(a)
which fairly represent what purports to be a statement by an
official person; or
(b)
which are a correct and fair copy of, or extract from, what
purports to be a public official document; or
(c)
which are a correct and fair copy of, or extract from, a statement
which has already been published in a book, journal or comparable
publication.
Morgans has given, and not withdrawn before the
lodgement of this Bidder's Statement with ASIC, its written consent
to be named in this Bidder's Statement as the Bidder Parties'
financial adviser in the form and context in which it is so named.
Morgans has not caused or authorised the issue of this Bidder's
Statement, does not make or purport to make any statement in this
Bidder's Statement or any statement on which a statement in this
Bidder's Statement is based and takes no responsibility for any
part of this Bidder's Statement other than any reference to its
name.
Ares Capital Proprietary Limited has given, and
not withdrawn before the lodgement of this Bidder's Statement with
ASIC, its written consent to be named in this Bidder's Statement as
the Bidder Parties' South African financial adviser in the form and
context in which it is so named. Ares Capital Proprietary Limited
has not caused or authorised the issue of this Bidder's Statement,
does not make or purport to make any statement in this Bidder's
Statement or any statement on which a statement in this Bidder's
Statement is based and takes no responsibility for any part of this
Bidder's Statement other than any reference to its name.
HWL Ebsworth Lawyers has given, and not
withdrawn before the lodgement of this Bidder's Statement with
ASIC, its written consent to be named in this Bidder's Statement as
the Bidder Parties' Australian legal adviser in the form and
context in which it is so named. HWL Ebsworth Lawyers has not
caused or authorised the issue of this Bidder's Statement, does not
make or purport to make any statement in this Bidder's Statement or
any statement on which a statement in this Bidder's Statement is
based and takes no responsibility for any part of this Bidder's
Statement other than any reference to its name.
Werksmans Attorneys has given, and not
withdrawn before the lodgement of this Bidder's Statement with
ASIC, its written consent to be named in this Bidder's Statement as
the Bidder Parties' South African legal adviser in the form and
context in which it is so named. Werksmans Attorneys has not caused
or authorised the issue of this Bidder's Statement, does not make
or purport to make any statement in this Bidder's Statement or any
statement on which a statement in this Bidder's Statement is based
and takes no responsibility for any part of this Bidder's Statement
other than any reference to its name.
Hill Dickinson LLP has given, and not withdrawn
before the lodgement of this Bidder's Statement with ASIC, its
written consent to be named in this Bidder's Statement as the
Bidder Parties' United Kingdom legal adviser in the form and
context in which it is so named. Hill Dickinson LLP has not caused
or authorised the issue of this Bidder's Statement, does not make
or purport to make any statement in this Bidder's Statement or any
statement on which a statement in this Bidder's Statement is based
and takes no responsibility for any part of this Bidder's Statement
other than any reference to its name.
Boardroom has given, and not withdrawn before
the lodgement of this Bidder's Statement with ASIC, its written
consent to be named in this Bidder's Statement as the Bidder
Parties' security registrar in the form and context in which it is
so named. Boardroom has not caused or authorised the issue of this
Bidder's Statement, does not make or purport to make any statement
in this Bidder's Statement or any statement on which a statement in
this Bidder's Statement is based and takes no responsibility for
any part of this Bidder's Statement other than any reference to its
name.
Computershare Investor Services Proprietary
Limited has given, and not withdrawn before the lodgement of this
Bidder's Statement with ASIC, its written consent to be named in
this Bidder's Statement as the Bidder Parties' South African
Transfer Secretaries in the form and context in which it is so
named. Computershare Investor Services Proprietary Limited has not
caused or authorised the issue of this Bidder's Statement, does not
make or purport to make any statement in this Bidder's Statement or
any statement on which a statement in this Bidder's Statement is
based and takes no responsibility for any part of this Bidder's
Statement other than any reference to its name.
Questco Corporate Advisory has given, and not
withdrawn before the lodgement of this Bidder's Statement with
ASIC, its written consent to be named in this Bidder's Statement as
the Bidder Parties' JSE transaction sponsor in the form and context
in which it is so named. Questco Corporate Advisory has not caused
or authorised the issue of this Bidder's Statement, does not make
or purport to make any statement in this Bidder's Statement or any
statement on which a statement in this Bidder's Statement is based
and takes no responsibility for any part of this Bidder's Statement
other than any reference to its name.
14.2 Governing law
(a)
The Offer and any contract that results from your acceptance of it
are to be governed by the laws in force in Victoria,
Australia.
(b)
If you accept this Offer, you:
(i)
irrevocably submit to the non-exclusive jurisdiction of the courts
exercising jurisdiction in Western Australia and the courts of
appeal from them in respect of any proceedings arising out of or in
connection with this Offer; and
(ii)
irrevocably waive any objection to the venue of any legal process
in these courts on the basis that the process has been brought in
an inconvenient forum.
14.2 No other material
information
Except as disclosed elsewhere in this Bidder's
Statement, there is no other information that:
(a)
is material to the making of a decision by a MCM Shareholder
whether or not to accept the Offer; and
(b)
known to the Bidder Parties,
which has not previously been disclosed to MCM
Shareholders.
15. Glossary and
interpretation
15.1
Glossary
The following is a glossary of certain terms
used in this Bidder's Statement unless the context clearly requires
otherwise.
Expression
|
Meaning
|
A$, AU or
AUD
|
means the lawful currency of
Australia.
|
AD
Manual
|
means the Currency and Exchanges Manual for
Authorised Dealers.
|
Acceptance
Form
|
means the Form of Acceptance and Transfer
accompanying this Bidder's Statement.
|
AIM
|
means AIM, the sub-market of the London Stock
Exchange.
|
Announcement
Date
|
means the date of announcement of the Offer,
being Friday, 2 February 2024.
|
Approvals
|
means:
(a) a
consent, authority, licence, approval, order, ruling, waiver or
exemption which is required by law or by a Public Authority;
or
(b) in
relation to anything which will be fully or partly prohibited or
restricted by law if a Public Authority intervenes or acts in any
way within a specified period after lodgement, filing, registration
or notification, the expiry or termination of that period without
intervention or action.
|
ASIC
|
means Australian Securities and Investments
Commission.
|
Associate
|
has the meaning given in the Corporations
Act.
|
ASX
|
means ASX Limited (ACN 008 624 691) or the
financial market known as the Australian Securities
Exchange.
|
ASX
Settlement
|
means ASX Settlement Pty Ltd ABN 49 008 504
532.
|
ASX
Settlement Operating Rules
|
means the operating rules of the settlement
facility provided by ASX Settlement.
|
Bidder
Parties
|
means Goldway and the Consortium.
|
Bidder's
Statement
|
means this document including its annexures
(if any).
|
Boardroom
|
means Boardroom Pty Limited ABN 14 003 209
836.
|
Broker
|
means any person registered as a broking
member (equities) in terms of the rules of the JSE made in
accordance with the provisions of the South African Financial
Markets Act, 19 of 2012.
|
CHESS
|
means holding of MCM Shares on the CHESS
Subregister of MCM.
|
Closing
Date
|
means 7.00pm (Sydney time) / 10.00am (South
Africa time) on Friday, 5 April 2024 or such later date to which
the Offer is extended.
|
Commitment
Letter
|
has the meaning given to that term in Section
6.2(a).
|
Computershare
|
means:
(a) in
respect of Australia, Computershare Investor Services Pty Limited;
and
(b) in
respect of South Africa, Computershare Investor Services
Proprietary Limited.
|
Conditions or
Offer Conditions
|
means each condition set out in Section
13.6(g).
|
Consortium
|
means the following:
(a)
|
Senosi Group Investment Holdings
Proprietary Limited;
|
(b)
|
Dendocept Proprietary
Limited;
|
(c)
|
Jun Liu & Huan Qu as joint
trustees of the Golden Eagle Trust;
|
(d)
|
Pacific Goal Investment
Proprietary Limited;
|
(e)
|
Yi He;
|
(f)
|
Jun Liu;
|
(g)
|
Golden Archer Investment (Pty)
Ltd;
|
(h)
|
Shining Capital GP
Limited;
|
(i)
|
Ying He Yuan Investment Pte
Ltd;
|
(j)
|
Longelephant International Trade
Limited; and
|
(k)
|
Eagle Canyon International Group
Holdings (Hong Kong) Limited).
|
|
Controlling
Participant
|
has the meaning given in the ASX Settlement
Operating Rules. Usually your Controlling Participant is a person,
such as a broker, with whom you have a sponsorship agreement
(within the meaning of the ASX Settlement Operating
Rules).
|
Corporations
Act
|
means the Corporations Act 2001 (Cth) as amended
from time to time.
|
CREST
|
means the system for paperless settlement of
trades in securities operated by Euroclear in accordance with CREST
Regulations.
|
CREST
Manual
|
means the manual published by Euroclear for
further information on the CREST procedure.
|
CREST
Payment
|
has the meaning given in the CREST
Manual.
|
CREST
Regulations
|
means the Uncertificated Securities
Regulations 2001 (SI2001 No. 3755).
|
CSDP
|
means a South African Central Securities
Depository Participant.
|
Dematerialise
or Dematerialisation
|
means the process by which physical share
certificates or other documents of title are replaced with
electronic records evidencing ownership of shares and recorded in
the sub-register of security holders maintained by a
CSDP.
|
Dematerialised Shares
|
means MCM Shares which have been
dematerialised.
|
Depositary
|
means Computershare Investor Services
PLC.
|
Documents of
Title
|
means share certificates and/or certificated
transfer deeds and/or balance receipts or any other document/s of
title in respect of the Offer Shares held on the JSE.
|
Eagle
Canyon
|
means Eagle Canyon International Group Holding
(Hong Kong) Limited.
|
Electronic
Acceptance
|
means the inputting and settling of a TTE
Instruction which constitutes or is deemed to constitute an
acceptance of the Offer on the terms set out in this Bidder's
Statement.
|
ESOP
|
has the meaning given to that term in Section
5.2.
|
Euroclear
|
means Euroclear UK & International
Limited, the operator of CREST.
|
Exchange
Control Regulations
|
means the South African Exchange Control
Regulations, 1961, as amended, promulgated in terms of section 9 of
the South African Currency and Exchanges Act, 9 of 1993, as
amended.
|
Goldway
|
means Goldway Capital Investment Limited CR
Number. 3294426 incorporated in Hong Kong.
|
Goldway
Australian Offer Information
Line
|
means the telephone line that MCM Shareholders
on the MCM Australian Register can call if they have any questions
in relation to the Offer, being 1300 737 760 (for
calls made within Australia), +61 2 9290 9600 for calls made
outside Australia).
|
Goldway South
Africa Offer Information Line
|
means the telephone line of Ince that MCM
Shareholders on the MCM South African Register can call if they
have any questions in relation to the Offer, being +27 11 305
7346.
|
Joint Bid
Deed
|
means the joint bid deed dated 18 December
2023 entered between the Bidder Parties in respect of making the
Offer.
|
JSE
|
means the JSE Limited (Registration number
2005/022939/06), a public company duly incorporated in accordance
with the laws of South Africa and licensed as an exchange under the
South African Financial Markets Act, 19 of 2012.
|
Listing
Rules
|
means the ASX listing rules as amended from
time to time.
|
Maximum Offer
Amount
|
has the meaning given to that term in Section
6.1.
|
MCM
|
means MC Mining Limited ACN 008 905
388.
|
MCM
Board
|
means the board of directors of
MCM.
|
MCM
Australian Register
|
means the register of members of MCM
maintained in accordance with the Corporations Act.
|
MCM
Register
|
means the MCM Australian Register, MCM South
African Register and MCM United Kingdom Register.
|
MCM South
African Register
|
means that part of MCM's register of MCM
Shareholders kept and maintained on behalf of MCM by Computershare
in South Africa.
|
MCM United
Kingdom Register
|
means that part of MCM's register of MCM
Shareholders kept and maintained on behalf of MCM by Computershare
in the United Kingdom.
|
MCM
Share
|
means a fully paid ordinary share issued in
the capital of MCM.
|
MCM
Shareholder
|
means a person who is recorded in MCM's
register of members as the holder of one or more MCM
Shares.
|
Morgans
|
means Morgans Corporate Limited ACN 010 539
607.
|
Offer
|
means the offer for MCM Shares not owned by
the Bidder Parties as set out in this Bidder's
Statement.
|
Offer
Price
|
means $0.16 per MCM Share, on and subject to
the terms and conditions set out in this Bidder's
Statement.
|
Options
|
has the meaning given to that term in the
ESOP.
|
Offer
Period
|
means the period during which the Offer will
remain open for acceptance in accordance with Section 13.2 of this
Bidder's Statement.
|
Participant
|
means an entity admitted to participate in the
Clearing House Electronic Sub-register System under Rule 4.3.1 and
4.4.1 of the ASX Settlement Operating Rules.
|
Performance
Rights
|
has the meaning given to that term in the
Performance Rights Plan.
|
Performance
Rights Plan
|
has the meaning given to that term in Section
5.2.
|
Public
Authority
|
means any government or any governmental,
semi-governmental, statutory or judicial entity or authority, or
any minister, department, office or delegate of any government,
whether in Australia or elsewhere. It also includes any
self-regulatory organisation established under statute and any
stock exchange.
|
Register
Date
|
means the date set by the Bidder under section
633(2) of the Corporations Act, being 7.00pm (Sydney time) on
Monday, 5 February 2024.
|
Related Body
Corporate
|
has the meaning given in section 50 of the
Corporations Act.
|
Relevant
Interest
|
has the meaning given in section 608 of the
Corporations Act.
|
Relevant
Shares
|
has the meaning given in Section
13.1(a).
|
Restricted
Jurisdiction
|
means the United States, Canada, Japan and any
other jurisdiction where local laws or regulations may result in
significant risk of civil, regulatory or criminal exposure if
information concerning the Offer is sent or made available to MCM
Shareholders in that jurisdiction.
|
Rights
|
means all accretions, rights or benefits of
whatever kind attaching to or arising from MCM Shares directly or
indirectly, including all dividends or other distributions and all
rights to receive any dividends or other distributions, or to
receive or subscribe for shares, stock units, notes, bonds, options
or other securities, declared, paid or made by MCM or any of its
subsidiaries.
|
RNS
|
means the regulatory news service for
announcements on behalf of publicly listed companies in the United
Kingdom.
|
SARB
|
means the Financial Surveillance Department of
the South African Reserve Bank.
|
Section
|
means a section of this Bidder's
Statement.
|
Security
Interest
|
has the same meaning as in section 51A of the
Corporations Act.
|
SENS
|
means the stock exchange news service for
announcements on behalf of publicly listed companies on the
JSE.
|
SGIH
|
means Senosi Group Investment Holdings
Proprietary Limited.
|
Ince
|
Ince Proprietary Limited, a South African
service provider appointed to assist MCM Shareholders who hold
their MCM Shares on the MCM South African Register to accept the
Offer.
|
Strate
|
means Strate Proprietary Limited, a private
company registered and incorporated in South Africa and the
registered CSD in South Africa, which operates as a clearing and
settlement system for share transactions in respect of MCM Shares
listed on the JSE to be settled and the transfer of ownership
recorded electronically.
|
Takeover
Transferee Holding
|
has the same meaning as in the ASX Settlement
Operating Rules.
|
TTE
Instruction
|
means a Cash Offer TTE instruction or other
Transfer to Escrow instruction (as defined by the CREST Manual) as
the context requires.
|
UK Depositary
Interests
|
means the interests representing Ordinary
Shares in the United Kingdom issued through the
Depositary.
|
UK Receiving
Agent
|
means the receiving agent to be appointed by
Goldway for the purposes of enabling the acceptance and settlement
of the Offer for MCM Shareholders on the MCM United Kingdom
Register.
|
UK Takeover
Code
|
means the United Kingdom City Code
on Takeovers and Mergers.
|
Your MCM
Shares
|
means the MCM Shares in respect of which a MCM
Shareholder is registered as the holder on the Register Date and to
which that person is able to give good title at the time they
accept the Offer during the Offer Period.
|
ZAR
|
means South African Rand, the official
currency of South Africa.
|
£ or pounds
Sterling
|
means the lawful currency of the United
Kingdom
|
15.2
Interpretation
In this Bidder's Statement and in the
Acceptance Form, unless the context clearly indicates
otherwise:
(a)
|
words and phrases have the same
meaning (if any) given to them in the Corporations Act;
|
(b)
|
words importing a gender include
any gender;
|
(c)
|
words importing the singular
include the plural and vice versa;
|
(d)
|
specifying anything after the
words 'include', 'including', 'for example' or similar expressions
does not limit what else is included;
|
(e)
|
a reference to a section,
attachment and schedule is a reference to a section of and an
attachment and schedule to this Bidder's Statement as
relevant;
|
(f)
|
a reference to any statute,
regulation, proclamation, ordinance or by law includes all
statutes, regulations, proclamations, ordinances, or by laws
amending, varying, consolidating or replacing it and a reference to
a statute includes all regulations, proclamations, ordinances and
by laws issued under that statute;
|
(g)
|
headings and bold type are for
convenience only and do not affect the interpretation of this
Bidder's Statement;
|
(h)
|
an expression importing a natural
person includes any company, partnership, joint venture,
association, corporation or other body corporate and vice
versa;
|
(i)
|
a reference to dollars, $, A$,
cents and currency is a reference to the lawful currency of the
Commonwealth of Australia;
|
(j)
|
a reference to writing includes
facsimile transmissions; and
|
(k)
|
a reference to a time is to time
in Sydney, New South Wales, Australia.
|
(a)