TIDMASPL
RNS Number : 6482U
Aseana Properties Limited
30 July 2020
30 July 2020
Aseana Properties Limited
("Aseana" or the "Company")
Posting of Circular and Notice of General Meeting
Aseana Properties Limited (LSE: ASPL LN), a property developer
in both Malaysia and Vietnam which is listed on the Main Market of
the London Stock Exchange, has today published a circular (extracts
of which are set out below) containing recommended proposals in
connection with the demerger of certain of the Company's assets in
exchange for the buyback of certain Shares and Accelerated Rule 9
Waiver. The circular also includes a a Notice of a General Meeting
to be held at 10.15 a.m. on 18 August 2020 to approve the
proposals.
Part 1 Letter from the Chairman
1 Introduction
Further to the announcements released on 7 May 2020 and 16 July
2020 (the "Proposed Demerger Announcements"), the Company confirms
that it is proposing to undertake a share buyback in relation to
the Shares owned by Ireka Corporation Berhad ("Ireka"), along with
certain other Shareholders (together, the "Participating
Shareholders") who together own approximately 50 per cent. in
aggregate of the outstanding shares in the capital of the Company
(the "Proposed Transaction").
The consideration for the Proposed Transaction comprises of the
transfer to Participating Shareholders of shares in the capital of
a special purpose vehicle which is to hold certain assets that are
currently held by the Group (the "Relevant Assets", further details
of which are set out in paragraph 3 of this Part 1). Further
details of the Proposed Transaction, the calculation of the value
of the Relevant Assets and the required balancing cash payment are
set out in paragraph 3 of this Part 1 below.
Following consultation with a number of Non-Participating
Shareholders, the Directors have determined that the Proposed
Transaction is in the best interests of the Company and the
Shareholders as a whole. Accordingly, the purpose of this letter is
to provide you with information about the background to and reasons
for the Proposed Transaction, to convene a general meeting of
Shareholders at which the resolutions required to implement the
Proposed Transaction will be proposed and explain why the Directors
recommend that you vote in favour of those resolutions at that
meeting.
2 Background
As Shareholders will be aware, since internalising the
management and disposal process for the remaining portfolio assets,
the Board has revised all of the sale due diligence processes and
marketing documentation for each of the Company's assets. The new
sales strategy for the Company's assets commenced externally in
September 2019 and the Board has been working hard to move towards
completing asset sales as quickly as possible, in line with the
Divestment Investment Policy.
Ireka Development Management Sdn Bhd, a wholly-owned subsidiary
of Ireka, ("IDM") acted as the Company's manager from its launch in
2007 until 20 June 2019 following expiry of IDM's notice of
termination given to the Company in March 2019. Ireka and its
concert party, Legacy Essence, remain significant shareholders in
the Company, being interested in 41.50 per cent. of the issued
share capital of the Company as at the date of this Circular.
Monica Lai Voon Huey is a director of Ireka and a beneficiary of
Legacy Essence and is therefore classified as a non-independent
non-executive Director of the Company in connection with the
Proposed Transaction.
Since termination of IDM's management agreement with the
Company, a number of employees of Ireka were seconded to the Group
to assist with the operation of the Group's assets. These
secondment arrangements (with the exception of the secondment
arrangements in relation to one employee whose secondment will be
terminated on 30 September 2020) were terminated with effect from
31 May 2020 and the Company is now managed by the Board and its own
employees. The Board has been considering how best to demerge the
Company's interests from those of Ireka. In doing so, the Board has
also considered how to encapsulate the net amount due from Ireka
and its subsidiaries to the Company which is calculated to amount
to approximately US$8.9 million, as stated in the Company's Annual
Report and Consolidated Financial Statements for the financial year
ended 31 December 2019.
Consultation with Non-Participating Shareholders
Following the first Proposed Demerger Announcement released on 7
May 2020, discussions were held with significant Non-Participating
Shareholders to establish their views on the proposals. Those
Non-Participating Shareholders demonstrated unanimous support for
the principle of undertaking the demerger and this Circular enables
all Shareholders (including the Participating Shareholders) to
examine the full details of the Proposed Transaction.
3 The Proposed Transaction
As referred to above, the Proposed Transaction comprises a
buyback by the Company of the Shares held by the Participating
Shareholders in consideration for the transfer of shares in NewCo
(which will hold the Relevant Assets) and the payment by the NewCo
of the Additional Payments.
In connection with the Proposed Transaction, the Company has
also entered into the Global Settlement Agreement with Ireka on 15
July 2020 (a summary of which appears in paragraph 3 of Part 2
(Company Material Contracts) of this Circular) and the secondment
arrangements noted above, together with all other arrangements in
place between the Company, Ireka, Legacy Essence, the Lai Family
and/or any connected person of any of them have been
terminated.
The Company and the Participating Shareholders have also
negotiated and agreed the terms of conditional share buyback
agreements (the "Share Buyback Agreements") which were entered into
on 15 July 2020. Summaries of the Share Buyback Agreements appear
in paragraphs 1 and 2 of Part 2 (Company Material Contracts) of
this Circular.
However the Proposed Transaction remains subject to the
satisfaction of a number of further conditions, including (but not
limited to):
-- the passing of the Resolutions at the General Meeting;
-- approval of the Proposed Transaction by the shareholders of
Ireka at their general meeting to be held as soon as possible
following the approval of Ireka's circular to its shareholders by
the Bursa Malaysia; and
-- the parties obtaining all required third party consents in
relation to the Group's existing banking and joint venture
arrangements.
In the event that the conditions precedent to completion of the
Proposed Transaction have not been satisfied or, where permitted,
waived, by 5.00 p.m. (London time) on 14 October 2020 (the "Long
Stop Date"), the Proposed Transaction will not complete.
Relevant Assets
In order to determine the consideration for the Proposed
Transaction, the Company assessed the net book value of the Group's
assets based on the unaudited net asset value of each asset as at
30 April 2020 and agreed with Ireka certain adjustments that should
be made to those values, where appropriate, to reflect the
settlement of potential claims that the Company may have against
Ireka or any member of its group in connection with the Company's
projects (the "Agreed Adjustments").
Through this process, the Company identified a number of assets
and interests in projects to comprise the Relevant Assets. These
are:
-- The RuMa Hotel & Residences ;
-- a plot of land at the KK Resort;
-- the residual projects at: SENI Mont Kiara; KL Sentral
Project; Queen's Place; Tiffani by i-Zen; Aloft Kuala Lumpur
Sentral; Waterside Estates Project; Tan Thuan Dong Project; and
-- the equity investment in Nam Long.
The Company engaged an accountancy firm to calculate the
relevant net asset values for the purposes of the Proposed
Transaction, being the aggregate net asset book value of the
Relevant Assets as at 30 April 2020 subject to the Agreed
Adjustments (the "Transaction Relevant Asset Value").
The accountancy firm applied the Transaction Relevant Asset
Value to calculate the relevant NAV of the Group for the purposes
of the Proposed Transaction (which takes into account a number of
factors including the impact of COVID-19 and the Movement Control
Order which is in place in Malaysia) being the sum of: (i) other
than in relation to Sandakan Harbour Square (Harbour Mall Sandakan
and Four Points by Sheraton Sandakan), the aggregate net book value
of the assets of the Group as at 30 April 2020 subject to the
Agreed Adjustments; and (ii) in relation to Sandakan Harbour Square
(Harbour Mall Sandakan and Four Points by Sheraton Sandakan),
US$16,500,000 (the "Transaction NAV").
The Transaction NAV was used to determine the value of the
Shares held by the Participating Shareholders, being: (i) the
Transaction NAV, multiplied by (ii) the number of Shares held by
the Participating Shareholders, divided by (iii) the total number
of issued shares in the capital of the Company (the "Transaction
Participating Shareholder Value").
The Transaction Relevant Asset Value is greater than the
Transaction Participating Shareholder Value. Accordingly, the
Company and Ireka have agreed that the Participating Shareholders
will make the Additional Payments to the Company to address this
imbalance in the consideration for the Proposed Transaction.
Participating Shareholders
The following Shareholders have each entered into an Other
Participating Shareholder Share Buyback Agreement with the Company
dated 15 July 2020: Legacy Essence Limited, Pinnacle Capital
Holdings Inc., Lai Jaat Kong@Lai Foot Kong, Dato Dr Thong Kok
Cheong and Eugene Lee Chin Jin. The terms of the Other
Participating Shareholder Share Buyback Agreements are summarised
in paragraph 2 of Part 2 of this Circular.
Completion
In connection with the Proposed Transaction, the Company has
incorporated a special purpose company in the British Virgin
Islands ("NewCo") to hold the Relevant Assets.
The Company shall, on Completion, transfer its interests in the
Relevant Assets, being the entire issued share capital of each of
the SPV companies that own the real property assets and projects
that comprise the Relevant Assets, to NewCo in consideration for
(i) the allotment to it, conditional on Completion, of the NewCo
Shares and (ii) a cash amount equal to the amount of the Additional
Payments which NewCo shall pay to the Company as each Additional
Payment becomes due.
At Completion, subject to the approvals sought from
Non-Participating Shareholders at the General Meeting, the Company
will buy back the Shares held by the Participating Shareholders, in
consideration for the transfer of its NewCo Shares to the
Participating Shareholders (or to such other entities as they may
direct) on the basis of one NewCo Share for every Share and the
Participating Shareholders shall procure that NewCo shall pay to
the Company US$2,000,000 (the "First Payment"). The Shares that are
bought back from the Participating Shareholders shall be cancelled.
Ireka also holds a small number of Management Shares which it has
agreed to sell and the Company has agreed to procure the purchase
of such Management Shares.
Monica Lai Voon Huey, as a representative of Ireka, will resign
as a director of the Company and as a director from the boards of
any other members of the Group.
Ireka has agreed to contribute US$300,000 to the costs and
expenses incurred by the Company in connection with the
negotiation, preparation and implementation of the Proposed
Transaction.
Post-Completion
The Participating Shareholders shall procure that NewCo shall
pay US$500,000 (the "Second Payment"), to such account as the
Company may advise in writing, by 31 December 2020.
The Participating Shareholders shall also procure that NewCo
shall pay US$1,146,445 (the "Third Payment"), to such account as
the Company may advise in writing, by the date that is 18 months
from the date of the Ireka Share Buyback Agreement, i.e. by 15
January 2022.
Following Completion, the Company will hold the following assets
in its portfolio:
-- Four Points Hotel in Sandakan;
-- Harbour Mall in Sandakan;
-- CIH Hospital in Ho Chi Minh; and
-- plots of land in the International Healthcare Park in Ho Chi Minh.
4 Accelerated Rule 9 Waiver
As a company which has its shares admitted to trading on the
Main Market of the London Stock Exchange, the Company is subject to
the Takeover Code.
Under Rule 9 of the Takeover Code if any person acquires an
interest in shares which, when taken together with shares in which
he and persons acting in concert with him are already interested,
carry 30 per cent. or more of the voting rights of a company which
is subject to the Takeover Code, that person is normally required
to make a general offer in cash to all shareholders in the company
at the highest price paid by him or any person acting in concert
with him for an interest in such shares within the preceding 12
months.
Rule 9 also provides that if any person, together with persons
acting in concert with him, is interested in shares which in the
aggregate carry not less than 30 per cent. of the voting rights of
a company which is subject to the Takeover Code but does not hold
shares carrying more than 50 per cent. of such voting rights, and
such person, or any person acting in concert with him, acquires an
interest in any other shares which increases the percentage of
shares carrying voting rights in such company in which he is
interested, that person is normally required to make a general
offer in cash to all shareholders in the company at the highest
price paid by him or any person acting in concert with him for an
interest in such shares within the preceding 12 months.
Under Rule 37 of the Takeover Code, any increase in the
percentage of shares carrying voting rights held by a shareholder
or persons acting in concert with the shareholder resulting from
the purchase by the company of its own shares will be treated as an
acquisition for the purpose of Rule 9. LIM Advisors currently has
an interest in 36,654,192 Shares in the Company representing 18.45
per cent. of the issued share capital of the Company. In the event
that the Proposed Transaction is approved by the Non-Participating
Shareholders at the General Meeting, it is expected that LIM
Advisors' interest in the share capital of the Company will exceed
30 per cent. The maximum interest in the share capital of the
Company that LIM Advisors will hold should the Proposed Transaction
proceed will not exceed 36.8 per cent. Nicholas Paris, a Director
of the Company, is an employee of the LIM Advisors Group and as
such he is classified as a non-independent, non-executive Director
of the Company.
Under Note 1 on the Notes on the Dispensations from Rule 9, the
Takeover Panel will normally waive the requirement for a general
offer to be made in accordance with Rule 9 (a "Rule 9 offer") if,
inter alia, those shareholders of the Company who are independent
of the person who would otherwise be required to make a Rule 9
offer and any person acting in concert with it and do not have any
interest in the Proposed Transaction which may compromise their
independence (the "Independent Shareholders") pass an ordinary
resolution on a poll at a general meeting (a "Whitewash
Resolution") approving such a waiver. The Takeover Panel may waive
the requirement for a Whitewash Resolution to be considered at a
general meeting (and for a circular to be prepared in accordance
with Section 4 of Appendix 1 to the Code) if Independent
Shareholders holding more than 50 per cent. of the company's shares
capable of being voted on such a resolution confirm in writing that
they would vote in favour of the Whitewash Resolution were one to
be put to the shareholders of the company at a general meeting.
The Company has approached Independent Shareholders holding more
than 50 per cent. of the Company's shares capable of being voted on
such a resolution, and obtained confirmation in writing that they
would vote in favour of the Whitewash Resolution were such a
resolution to be put to the shareholders of the company at a
general meeting. The Company subsequently approached the Takeover
Panel and successfully obtained its permission to waive the
requirement for a Whitewash Resolution to be considered at a
general meeting (and for a Circular to be prepared in accordance
with Section 4 of Appendix 1 to the Code).
The Independent Shareholders referred to above confirmed to the
Takeover Panel:
1. that they have absolute discretion over the manner in which
their Shares are voted and that their Shares are held free of all
liens, pledges, charges and encumbrances;
2. that (a) save for the fact that they are shareholders in the
Company, there is no connection between them and LIM Advisors, (b)
they do not have any interest or potential interest, whether
commercial, financial or personal, in the outcome of the Proposed
Transaction, and (c) they are Independent Shareholders of the
Company as defined above; and
3. that, in connection with the Proposed Transaction:
a. they consent to the Takeover Panel granting a waiver from the
obligation for LIM Advisors to make a Rule 9 offer to the
shareholders of the Company;
b. subject to Independent Shareholders of the Company holding
more than 50 per cent. of the shares capable of being voted on a
Whitewash Resolution to approve the waiver from the obligation for
LIM Advisors to make a Rule 9 offer giving confirmations in
writing, they consent to the Takeover Panel dispensing with the
requirement that the waiver from such obligation be conditional on
a Whitewash Resolution being approved by Independent Shareholders
of the Company at a general meeting; and
c. they would vote in favour of a Whitewash Resolution to waive
the obligation for LIM Advisors to make a Rule 9 offer were one to
be put to the Independent Shareholders of the Company at a general
meeting.
In giving the confirmations referred to above, such Independent
Shareholders acknowledged:
1. that, if the Takeover Panel receives such confirmations from
Independent Shareholders of the Company holding more than 50 per
cent. of the shares capable of being voted on a Whitewash
Resolution, the Takeover Panel will approve the waiver from the
obligation for LIM Advisors to make a Rule 9 offer without the
requirement for the waiver having to be approved by Independent
Shareholders of the Company at a general meeting;
2 that if no general meeting is held to approve the Whitewash
Resolution to waive the obligation for LIM Advisors to make a Rule
9 offer:
(a) there will not be an opportunity for any other person to
make any alternative proposal to the Company conditional on such
Whitewash Resolution not being approved by Independent Shareholders
of the Company;
(b) there will not be an opportunity for other shareholders in
the Company to make known their views on the Proposed Transaction;
and
(c) there will be no requirement for the Company either (i) to
obtain and make known to its shareholders competent independent
advice under Rule 3 of the Code on the Proposed Transaction and the
waiver of the obligation for LIM Advisors to make a Rule 9 offer or
(ii) to publish a circular to shareholders of the Company in
compliance with Appendix 1 of the Code in connection with this
matter.
5 Additional considerations for Shareholders
In connection with the Proposed Transaction, Shareholders should
be aware that t he Proposed Transaction will not have any effect on
the saleability of the Group's remaining investments. Accordingly,
whilst the Board will continue to work hard to fulfil the
Divestment Investment Policy the remaining assets may be disposed
of at a discount to their current valuations and there remains no
guarantee that the Company will be able to realise its remaining
investments at any value or at all.
6 General Meeting
The implementation of the Proposed Transaction is conditional on
the outcome of the votes cast by Non-Participating Shareholders in
connection with the Resolutions to be proposed at the General
Meeting. A notice convening the General Meeting, which is to be
held at 10.15 a.m. on 18 August 2020, is set out at the end of this
Circular.
In compliance with the Movement Restrictions and the Social
Distancing advice in place as a result of COVID-19, the General
Meeting will be restricted to a maximum of three attendees
(including the chairman of the General Meeting), two of whom will
be Shareholders or a proxy for a Shareholder or Shareholders for
the purposes of forming a quorum. The chairman of the General
Meeting has the power, under the current government guidance, to
secure the safety of the people attending the General Meeting.
Therefore, any Shareholder who seeks to physically attend the
General Meeting may be refused entry and the chairman of the
General Meeting may adjourn the meeting because of the attendance
of any additional Shareholder above the number necessary to form a
quorum.
The Proposed Transaction requires the passing of two
resolutions, to be proposed at the General Meeting:
-- Resolution 1 - the Buyback Resolution will be proposed as a
special resolution of Shareholders (excluding the Participating
Shareholders) and will require not less than two thirds of the
votes cast to be voted in favour of it in order to be validly
passed The Directors are unanimously recommending that you vote FOR
the Buyback Resolution; and
-- Resolution 2 - the Share Buyback Agreements Resolution will
be proposed as an ordinary resolution of Shareholders (excluding
the Participating Shareholders) and will require a vote in favour
by Shareholders holding a majority of the Shares represented at the
General Meeting to be voted in favour of it in order to be validly
passed. The Directors are unanimously recommending that you vote
FOR the Share Buyback Agreements Resolution.
For the avoidance of doubt, the Shares to be bought back by the
Company from the Participating Shareholders on the terms of the
Share Buyback Agreements are considered to be purchased by the
Company otherwise than on a stock exchange for the purposes of
Jersey Companies Law, with the consequence that Participating
Shareholders will be precluded from voting on the Resolutions to be
proposed at the General Meeting by virtue of Article 57 of the
Jersey Companies Law.
Completion of the Proposed Transaction is conditional upon both
of the Resolutions being passed.
Action to be taken by Non-Participating Shareholders
Those Shareholders who are not seeking to demerge from the
Company will find enclosed with this Circular a Form of Proxy for
use in connection with the General Meeting. In compliance with the
Movement Restrictions and the Social Distancing advice in place as
a result of COVID-19, the General Meeting will be restricted to a
maximum of three attendees (including the chairman of the General
Meeting), two of whom will be Shareholders or a proxy for a
Shareholder or Shareholders for the purposes of forming a quorum.
Shareholders who seek to physically attend the General Meeting may
be refused entry and the chairman of the General Meeting may
adjourn the meeting because of the attendance of any additional
Shareholder above the number necessary to form a quorum.
Accordingly, each Shareholder is strongly advised to complete and
return the enclosed Form of Proxy as soon as possible.
To be valid, Forms of Proxy for use at the General Meeting must
be completed and returned in accordance with the instructions
printed thereon to the registered office of the Company at 12
Castle Street, St. Helier, Jersey, JE2 3RT, Channel Islands by post
as soon as possible and, in any event, so as to arrive no later
than 10.15 a.m. on 17 August 2020 (or, in the case of an
adjournment, not later than 24 hours before the time fixed for the
holding of the adjourned meeting).
The results of the votes cast by the Non-Participating
Shareholders at the General Meeting will be announced as soon as
possible, once known, through a Regulatory Information Service.
7 Recommendation and voting intentions
The Independent Directors consider the Proposed Transaction to
be in the best interests of the Company and Shareholders as a
whole. Accordingly, the Independent Directors unanimously recommend
that Non-Participating Shareholders vote in favour of the
Resolutions to be proposed at the General Meeting.
Christopher Lovell, an Independent Director who is also a
beneficial holder of Shares amounting to 0.02 per cent. of the
total voting rights of the Company will make arrangements for the
Shares he beneficially owns to be voted in favour of the
Resolutions at the General Meeting accordingly.
Yours faithfully
Nicholas John Paris
Chairman
for and on behalf of
Aseana Properties Limited
Part 2 Company Material Contracts
Material Contracts
The following contracts are material contracts (not being
contracts entered into in the ordinary course of business) which
have been entered into by the Company in connection with the
Proposed Transaction.
1 Ireka Share Buyback Agreement
The Ireka Share Buyback Agreement was entered into on 15 July
2020 between the Company and Ireka. Conditional on Completion of
the Proposed Transaction, pursuant to its terms, Ireka has agreed
to sell its Shares and the Management Shares that it holds and the
Company has agreed to purchase the Shares in consideration for one
NewCo Share for every Share held by Ireka and to procure the
purchase of all of the Management Shares.
Completion of the Proposed Transaction is conditional upon,
inter alia, (i) the Company effecting the transfer of the Relevant
Assets to NewCo pursuant to an agreement in a form as agreed
between the Company and Ireka and the allotment, conditional on
Completion, of the NewCo Shares to which Ireka will become
entitled; (ii) the passing of the Resolutions at the General
Meeting; (iii) Ireka procuring the approval of the Proposed
Transaction by its shareholders in accordance with the Main Market
Listing Requirements of Bursa Malaysia and the Malaysian Companies
Act 2016; (iv) the Directors giving a solvency statement in
accordance with the laws of Jersey in connection with the Proposed
Transaction prior to Completion; (v) all necessary consents
required in order to complete the Proposed Transaction being
obtained from all relevant third parties; (vi) the parties
procuring the execution of such security documentation as the
Company may reasonably require from NewCo, or its subsidiaries, in
order to secure the Company's interests in receiving payment of the
Second Payment and the Third Payment by the parties thereto; (vii)
Ireka certifying to the Company that it has delivered to the
Company a full list of all companies incorporated under the Company
by or under the authority or instructions of Ireka and all
documents within the possession or under the control of Ireka that
relate to the Group and its assets (if Ireka breaches this
certification, the Company and Ireka acknowledge that damages may
not be an adequate remedy and the Company is entitled to seek an
injunction or specific performance); (viii) Ireka having delivered
to the Company a certification from an independent third party
structural engineer confirming the structural integrity of Harbour
Mall Sandakan and Four Points by Sheraton Sandakan Hotel and
completion of rectification works in respect of cracks in the walls
of the building that comprises Harbour Square Sandakan by, or on
behalf of Ireka, in a form that is reasonably acceptable to the
Company; and (ix) there having been no material adverse change in
the business, operations, assets, position (financial, trading or
otherwise), profits or prospects of the Company prior to
Completion.
If the conditions set out in the Ireka Share Buyback Agreement
are not satisfied by the Long Stop Date, then the Ireka Share
Buyback Agreement shall be capable of termination by either the
Company or Ireka, provided that the party proposing to terminate
has itself complied with its own obligations under the Ireka Share
Buyback Agreement.
From the date of the Ireka Share Buyback Agreement until
Completion, Ireka has undertaken, pursuant to the terms of the
Ireka Share Buyback Agreement, not to take any action which
precludes or inhibits any of the Group from operating on a basis
that is otherwise than in the ordinary course.
At Completion, inter alia:
(i) subject to the approvals sought from Non-Participating
Shareholders at the General Meeting, the Company will buy back the
Shares held by Ireka, transfer its NewCo Shares in NewCo to the
Participating Shareholders (or to such other entities as they may
direct) and the Participating Shareholders shall procure that NewCo
shall pay to the Company the First Payment;
(ii) the Company will procure the purchase of the Management Shares;
(iii) the Shares that are bought back from Ireka shall be cancelled;
(iv) Monica Lai Voon Huey, as a representative of Ireka, will
resign from her respective offices of all companies in the Group
(including as a director of the Company) and Wong Yim Cheng, also a
representative of Ireka, will resign as company secretary of all
members of the Group to which she has been appointed.
Ireka has agreed to contribute US$300,000 to the costs and
expenses incurred by the Company in connection with the
negotiation, preparation and implementation of the Proposed
Transaction, even if Completion does not occur by the Long Stop
Date. Ireka shall also procure the payment by NewCo of the Second
Payment and the Third Payment to the Company. Ireka shall also be
responsible for all of its own costs incurred in connection with
the negotiation, preparation and execution of the Ireka Share
Buyback Agreement. Following Completion, Ireka shall direct NewCo
to pay, and shall procure that NewCo adhere to such direction, to
the Company an amount equal to 50 per cent. of any stamp duty
and/or real property gains tax (and any grossing up thereon)
liability of the Group arising directly as a result of the transfer
of the Relevant Assets to NewCo within 20 Business Days of a
written request from the Company to Ireka for NewCo to make sure
payment, together with written evidence of the stamp duty and/or
real property gains tax (and any grossing up thereon) liability of
the Company.
If at any time before or at Completion any Other Participating
Shareholder Share Buyback Agreement is terminated in accordance
with its terms then all Share Buyback Agreements shall terminate
automatically. The Company shall not be obliged (but shall have the
option) to complete the Ireka Share Buyback Agreement unless all
Other Participating Shareholder Share Buyback Agreements are
completed simultaneously.
Post-Completion, Ireka shall procure that NewCo shall pay the
Second Payment, to such account as the Company may advise in
writing, by 31 December 2020. Ireka shall also procure that NewCo
shall pay the Third Payment, to such account as the Company may
advise in writing, by 15 January 2022.
The Ireka Share Buyback Agreement is governed by the laws of
England and Wales.
2 Other Participating Shareholder Share Buyback Agreement
Each Participating Shareholder (other than Ireka) entered into
an Other Participating Shareholder Share Buyback Agreement on 15
July 2020.
Conditional on Completion of the Proposed Transaction, pursuant
to its terms, each Participating Shareholder has agreed to sell its
Shares and the Company has agreed to purchase its Shares in
consideration for one NewCo Share for every Share held by the
relevant Participating Shareholder.
Completion, pursuant to the terms of each Other Participating
Shareholder Share Buyback Agreement, is conditional upon completion
of the Ireka Share Buyback Agreement summarised at paragraph 1
above, on or before the Long Stop Date.
If at any time prior to Completion the Ireka Share Buyback
Agreement or any Other Participating Shareholder Share Buyback
Agreement is terminated in accordance with its terms then all
Shareholder Buyback Agreements shall terminate automatically. The
Company shall not be obliged (but shall have the option) to
complete any Other Participating Shareholder Share Buyback
Agreement unless all other Share Buyback Agreements are completed
simultaneously.
Post-Completion, each Participating Shareholder that has entered
into an Other Participating Shareholder Share Buyback Agreement has
undertaken to procure that NewCo shall pay the Second Payment and
the Third Payment on the dates that they fall due.
Each Participating Shareholder warrants to the Company on the
date of its relevant Other Participating Shareholder Share Buyback
Agreement and immediately prior to Completion that with regard to
its decision to enter into such agreement ("Decision"), it has
neither received nor relied on any information given or
representations, warranties or statements made by the Company or
any of the Company's directors, officers or employees or any person
acting on behalf of them, or, if received, it has not relied upon
any such information, representations, warranties or statements,
and the Company shall not be liable to the Participating
Shareholder for any losses which the Participating Shareholder may
suffer by reason of or arising out of the Decision.
Pursuant to the terms of each Other Participating Shareholder
Share Buyback Agreement, each Participating Shareholder is
responsible for its own costs incurred in connection with the
negotiation, preparation and existing of its agreement with the
Company.
Each Other Participating Shareholder Share Buyback Agreement is
governed by the laws of England and Wales.
3 Global Settlement Agreement
The Global Settlement Agreement was entered into on 15 July 2020
between the Company and Ireka.
Conditional on (i) Completion and (ii) the Company procuring the
discontinuance of the Proceedings within seven days of the date of
the Global Settlement Agreement, each of the Company and Ireka
agrees to release and forever discharge (and with respect to its
connected parties shall procure such release and discharge) all
and/or any actions, claims, rights, demands and set-offs, in any
jurisdiction, whether or not presently known to the parties or to
the law, and whether in law or equity, that it, its connected
parties or any of them have ever had, may have or thereafter can,
shall or may have against the other or any of its connected parties
(the "Released Claims").
A Notice of Discontinuance of the Proceedings was filed with the
High Court in Kuala Lumpur on 20 July 2020. In the event that
Completion is not achieved for any reason whatsoever, Amatir
Resources Sdn Bhd shall be at liberty to re-file the Proceedings
against Ireka Engineering & Construction Sdn Bhd and
re-litigate that dispute.
Each of the Company and Ireka agrees on behalf of itself and on
behalf of its connected parties (which it shall procure) not to
sue, commence, voluntarily aid in any way, prosecute or cause to be
commenced or prosecuted against the other party or any of its
connected parties any action, suit or other proceedings concerning
any Released Claims in any jurisdiction.
At the date of the Global Settlement Agreement and as at
Completion, Ireka warrants and represents to the Company that:
(i) it has fairly disclosed with sufficient details to enable a
reasonable person to identify the nature, scope and import of the
matters disclosed ("Disclosed") to the Company details of all
transactions and/or arrangements entered into by Ireka, or any of
its connected parties, on behalf of or with the Company, or any of
the Company's connected parties that were not in the ordinary
course of business ("ASPL Transactions");
(ii) save as Disclosed, no ASPL Transaction was made otherwise
than in the ordinary course of business; and
(iii) save as Disclosed, neither Ireka nor any of its connected
parties is in default under, or in breach of any of the terms of,
any ASPL Transaction.
The Company agrees that Ireka shall not be liable for a breach
of the warranty and representation in (iii) above unless ASPL's
claim in respect of the relevant breach shall have exceeded
US$175,000 (and, for these purposes, a number of liabilities
arising out of the same circumstances shall be treated as a single
liability).
Pursuant to the terms of the Global Settlement Agreement, each
of the Company and Ireka indemnifies, and shall keep indemnified,
the other party against all costs and damages (including the entire
legal expenses of the parties on a solicitor-client basis) incurred
in all future actions, claims and proceedings in respect of any of
the Released Claims which it or its connected parties or any of
them may bring against the other party or its connected parties or
any of them.
The Global Settlement Agreement is governed by the laws of
England and Wales.
Part 3 Definitions
The following definitions apply throughout this Circular unless
the context otherwise requires:
"Accelerated Rule 9 Waiver" the approval by the Takeover Panel of a waiver from the
obligations that would otherwise apply
to LIM Advisors to make a general offer for the Company
pursuant to Rule 9 of the Takeover
Code as a result of the Proposed Transaction, the Takeover
Panel having received written confirmation
from Independent Shareholders holding, in aggregate, in
excess of 50 per cent. of the existing
voting rights in the Company, capable of being voted at a
general meeting, consenting to this
waiver without the requirement for the waiver to be
approved by Independent Shareholders at
the General Meeting
"acting in concert" has the meaning given to it in the Takeover Code
"Additional Payments" the aggregate cash payment due from NewCo to the Company
as referred to in paragraph 3 of
Part 1 (Letter from the Chairman) of this Circular,
comprising the First Payment, the Second
Payment and the Third Payment
"Agreed Adjustments" the adjustments, as agreed between the Company and Ireka,
to be made to the Transaction NAV
to reflect the settlement of the potential claims that the
Company may have against Ireka
or any member of Ireka's group in connection with the
Company's projects
"Articles" the articles of association of the Company, as amended
from time to time
"Board" or "Directors" the directors of the Company
"Bursa Malaysia" the stock exchange of Malaysia
"Buyback Resolution" Resolution 1 to be proposed as a special resolution at the
General Meeting to approve the
Proposed Transaction
"Circular" this circular to Shareholders, explaining the Proposed
Transaction and incorporating the Notice
of General Meeting
"Company" Aseana Properties Limited
"Completion" means completion of the Proposed Transaction in accordance
with the terms of clause 5 of the
Ireka Share Buyback Agreement
"COVID-19" the novel coronavirus 2019
"Divestment Investment Policy" the divestment investment policy of the Company adopted on
22 June 2015
"Excluded Territories" Australia, Canada, Japan, Malaysia, Republic of South
Africa and the United States of America
"FCA" Financial Conduct Authority
"financial collateral arrangements" has the meaning given to it in the Takeover Code
"First Payment" the cash payment of US$2,000,000 due from NewCo to the
Company on Completion
"Form of Proxy" the form of proxy for use by Non-Participating
Shareholders in connection with the General
Meeting
" General Meeting" the general meeting of the Company to be held on 18 August
2020 at 10.15 a.m. (or any adjournment
thereof), notice of which is set out at the end of this
Circular
"Global Settlement Agreement" the conditional agreement entered into between the Company
and Ireka on 15 July 2020 pursuant
to which each party waives all current and future claims
and liabilities against the other
in consideration for Completion of the Proposed
Transaction, further details of which are
set out in paragraph 3 of Part 2 (Company Material
Contracts) of this Circular
"Group" the Company and its subsidiaries from time to time
"IDM" Ireka Development Management Sdn Bhd
"Independent Directors" Christopher Henry Lovell and Helen Siu Ming Wong
"Independent Shareholders" has the meaning given to it in paragraph 4 of Part 1
(Letter from the Chairman) of this Circular
"interest in shares" has the meaning attributed to it in the Takeover Code
"Jersey Companies Law" Companies (Jersey) Law 1991, as amended
"Ireka" Ireka Corporation Berhad
"Ireka Share Buyback Agreement " the conditional share buyback agreement entered into
between the Company and Ireka on 15 July
2020 to document the commercial agreement for the Proposed
Transaction and the buyback by
the Company of the Shares held by Ireka, further details
of which are set out in paragraph
1 of Part 2 (Company Material Contracts) of this Circular
"Latest Practicable Date" 29 July 2020, being the latest practicable date prior to
the posting of this Circular
"Legacy Essence" collectively Legacy Essence Limited, Pinnacle Capital
Holdings Inc. and Lai Jaat Kong@Lai
Foot Kong
"Liberum" Liberum Capital Limited, the Company's corporate broker
"LIM Advisors" LIM Advisors Limited
"London Stock Exchange" London Stock Exchange plc
"Long Stop Date" 5.00 p.m. (London time) on 14 October 2020
"Management Shares" such number of management shares of US$0.05 in the capital
of the Company held by Ireka
"NewCo" the special purpose company incorporated in the British
Virgin Islands, established to hold
the Relevant Assets, whose shares will be transferred from
the Company to the Participating
Shareholders pursuant to the Proposed Transaction
"NewCo Share" a share in the capital of NewCo
"Non-Participating Shareholders" Shareholders, other than Participating Shareholders
"Notice of General Meeting" the notice convening the General Meeting set out on pages
21 to 23 of this Circular
"Official List" the Official List of the FCA
"Other Participating Shareholder Share Buyback Agreement " the conditional share buyback agreement entered into
between the Company and each of the Participating
Shareholders (excluding Ireka) on 15 July 2020 to document
the commercial agreement for the
Proposed Transaction and the buyback by the Company of the
Shares held by such Participating
Shareholders, further details of which are set out in
paragraph 2 of Part 2 (Company Material
Contracts) of this Circular
"Participating Shareholders" Ireka, Legacy Essence, Dato Dr Thong Kok Cheong and Eugene
Lee Chin Jin
"Proceedings" the court proceedings commenced by Amatir Resources Sdn
Bhd, a subsidiary of the Company,
against Ireka Engineering & Construction Sdn Bhd, a
subsidiary of Ireka on 30 March 2020 in
the Kuala Lumpur High Court (Suit No.:
WA-22NCvC-192-03/2020) regarding the non-payment of
a sum of RM 7,198,890 owed to Amatir Resources Sdn Bhd by
Ireka Engineering & Construction
Sdn Bhd relating to its acquisition of SENI Mont' Kiara
units and expenses
"Proposed Demerger Announcements" the public announcements released on behalf of the Company
on 7 May 2020 and 16 July 2020
in connection with the Proposed Transaction
"Proposed Transaction" the proposed transaction as more fully described in Part 1
(Letter from the Chairman) of this
Circular
"Regulatory Information Service" a service approved by the London Stock Exchange for the
distribution to the public of announcements
and included within the list maintained on the London
Stock Exchange's website
"Relevant Assets" has the meaning given to it in Part 1 (Letter from the
Chairman) of this Circular
"relevant securities" has the meaning given to it in the Takeover Code
"Resolutions" the Buyback Resolution and the Share Buyback Agreements
Resolution
"Rule 9 offer" a general offer under Rule 9 of the Takeover Code
"Second Payment" the cash payment of US$500,000 due from NewCo to the
Company by 31 December 2020
"Share Buyback Agreements" the Ireka Share Buyback Agreement and the Other
Participating Shareholder Share Buyback Agreement(s),
further details of which are set out in paragraphs 1 and 2
of Part 2 (Company Material Contracts)
of this Circular
"Share Buyback Agreements Resolution" Resolution 2 to be proposed as an ordinary resolution at
the General Meeting to approve the
Share Buyback Agreements
"Shareholder" a holder of Shares
"Shares" ordinary shares of US$0.05 in the capital of the Company
"Takeover Code" the City Code on Takeovers and Mergers in the UK
"Takeover Panel" the Panel on Takeovers and Mergers in the UK
"Third Payment" the cash payment of US$1,146,445 due from NewCo to the
Company by 15 January 2022
"Transaction NAV" has the meaning given to it in Part 1 (Letter from the
Chairman) of this Circular
"Transaction Participating Shareholder Value" has the meaning given to it in Part 1 (Letter from the
Chairman) of this Circular
"Transaction Relevant Asset Value" has the meaning given to it in Part 1 (Letter from the
Chairman) of this Circular
"US Dollars" or "US$" United States Dollars, the lawful currency of the United
States
"Whitewash Resolution" has the meaning given to it in Part 1 (Letter from the
Chairman) of this Circular
Expected Timetable of Principal Events
Latest time and date for receipt 10.15 a.m. on 17 August 2020
of Forms of Proxy
General Meeting 10.15 a.m. on 18 August 2020
Results of General Meeting announced 18 August 2020
Completion of the Proposed Transaction Expected to be on or around 30
September 2020
Long Stop Date 5.00 p.m. (London time) 14 October
2020
Notes:
(i) The times and dates set out in the timetable above and
mentioned throughout this Circular are indicative only and may be
adjusted by the Company without further notice. Any changes will be
notified to Shareholders through an RIS.
(ii) References to times in this Circular are to Jersey time
(BST) unless otherwise stated.
This announcement contains inside information for the purposes
of Article 7 of the Market Abuse Regulation (2014/596/EU).
For further information:
Aseana Properties Limited Tel: 020 7920 3150
(via Tavistock)
Liberum Capital Tel: 020 3100 2000
Gillian Martin / Owen Matthews
Tavistock Tel: 020 7920 3150/07836 734 625
Jeremy Carey / James Verstringhe jeremy.carey@tavistock.co.uk
This information is provided by RNS, the news service of the
London Stock Exchange. RNS is approved by the Financial Conduct
Authority to act as a Primary Information Provider in the United
Kingdom. Terms and conditions relating to the use and distribution
of this information may apply. For further information, please
contact rns@lseg.com or visit www.rns.com.
END
MSCFLFFFDFIIVII
(END) Dow Jones Newswires
July 30, 2020 09:00 ET (13:00 GMT)
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