TIDMSKYW
RNS Number : 8812S
Skywest Airlines Limited
06 December 2012
ASX RELEASE 6 December 2012
PROPOSED SCHEME OF ARRANGEMENT FOR VIRGIN AUSTRALIA TO ACQUIRE
SKYWEST RECEIVES SECURITIES INDUSTRY COUNCIL APPROVAL
VIRGIN AUSTRALIA HOLDINGS LTD. SKYWEST AIRLINES LTD.
(ABN 54 100 686 226) (Incorporated in the Republic
of Singapore)
Company Registration No. 199708548K
JOINT ANNOUNCEMENT
The boards of Virgin Australia Holdings Ltd. ("VAH") and Skywest
Airlines Ltd. ("Skywest") are pleased to announce that formal
approval has been received from the Securities Industry Council of
Singapore ("SIC") for the terms of the proposed acquisition of
Skywest by VAH (the "Acquisition"). The Acquisition will be
undertaken through VAH's wholly-owned subsidiary, VAH Newco No. 2
Pty Ltd ("VAH Sub"), by way of a scheme of arrangement (the
"Scheme") under Section 210 of the Companies Act, Chapter 50 of
Singapore (the "Companies Act"). As a consequence of the approval
from the SIC being received, VAH, VAH Sub and Skywest have today
entered into an implementation agreement ("Implementation
Agreement") to implement the Scheme.
The Scheme will be proposed under the Companies Act and in
accordance with the Singapore Code on Take-overs and Mergers (the
"Singapore Code"). The Scheme will involve the acquisition by VAH
Sub of all the issued ordinary shares in the capital of Skywest
(the "Skywest Shares") held by shareholders of Skywest (the
"Skywest Shareholders").
Pursuant to the terms of the Scheme, VAH will pay A$0.225 in
cash (the "Scheme Cash Consideration") and issue 0.53 new ordinary
shares in the capital of VAH (the "VAH Consideration Shares") for
each Skywest Share(1)
Approval from the SIC represents the satisfaction of a condition
for the Acquisition announced on 30 October 2012. Further approvals
required for the Acquisition, include, but are not limited to:
-- the approval of the Australian Competition and Consumer
Commission, the Australian Foreign Investment Review Board and the
High Court of the Republic of Singapore (the "Court"); and
-- the approval of the Skywest Shareholders at a general meeting to be convened by the Court.
1. ASX has waived ASX listing rule 7.1 to the extent necessary
to permit VAH to issue the VAH Consideration Shares, without
obtaining VAH shareholder approval, to Shareholders in connection
with the Acquisition.
The Acquisition will enable VAH to fast-track its advancements
in growing fly-in-fly-out and regional markets, increasing
competition in these segments. It will also enable VAH to offer a
fully integrated network service and frequent flyer program. Once
acquired, Skywest would become part of the Virgin Australia brand.
VAH will invest to support the growth of Skywest, which will
benefit jobs, business and tourism, particularly in Western
Australia and throughout regional Australia.
In the event that the Scheme becomes effective and binding, the
entire issued share capital of Skywest will be acquired by VAH Sub,
and applications will be made to the Australian Securities Exchange
("ASX") and the Alternative Investment Market operated by the
London Stock Exchange ("AIM") to delist Skywest from the ASX and
AIM, respectively.
The directors of Skywest (the "Skywest Directors") will be
appointing an independent financial adviser (the "IFA") to advise
the Skywest Directors on the Scheme. The Skywest Directors
unanimously consider the Scheme to be in the best interests of
Skywest Shareholders and have agreed in the absence of a superior
offer and subject to the IFA recommending the Scheme, to recommend
that Shareholders vote in favour of the Scheme.
Goldman Sachs Australia Pty Ltd ("Goldman Sachs") has been
appointed as the financial adviser to VAH in relation to the
Scheme. Goldman Sachs, as financial adviser to VAH, confirms that
sufficient financial resources are available to VAH Sub to satisfy
in full the Scheme Cash Consideration to be paid to the
Shareholders pursuant to the Scheme.
Further details of the Scheme, including, but not limited to,
the terms of the Implementation Agreement, information on the
irrevocable undertakings obtained from certain Skywest Shareholders
and the holdings and dealings of VAH in Skywest Shares, are set out
in the various Schedules to this Announcement.
Full details of the Scheme (including the recommendation of the
Skywest Directors along with the advice of the IFA) will be
contained in a document (the "Scheme Document") to be despatched to
the Skywest Shareholders in due course.
VAH and Skywest will keep the market fully informed over the
coming months as the implementation of the Scheme progresses.
Skywest Shareholders, shareholders of VAH and potential investors
should be aware that the implementation of the Scheme is subject to
conditions set out in Schedule 2 being fulfilled and thus the
Scheme may not become effective.
In the meantime, shareholders are advised to exercise caution
when trading in the Skywest Shares or shares of VAH, pending the
receipt of the Scheme Document. Persons who are in any doubt as to
the action they should take should consult their stockbroker, bank
manager, solicitor or other professional advisers.
ENDS
About Skywest Airlines
Skywest Airlines (ASX:SXR, LSE:SKYW) has been in operation for
close to 50 years, currently flying to 16 destinations.
Skywest operates flights across regional Western Australia as
well as to Darwin, Melbourne and internationally to Denpasar, Bali.
With a strong presence in the corporate charter, 'Fly in Fly Out'
mining market and Regular Passenger Transport, the airline carries
approximately 800,000 passengers annually, servicing business
travellers, tourists and regional communities.
Excluding the eight ATR-72 turboprops operated on behalf of
Virgin Australia as part of the Australian Regional Airline Network
(ARAN), Skywest's fleet includes a total of 20 Airbus A320 jet
aircraft, Fokker F100 jet aircraft and Fokker F50 turboprops.
Skywest is a public company incorporated in Singapore and is a
diversified airline, aerospace and investment group. Its current
principal subsidiary, Skywest Airlines (Australia) Pty Ltd, is a
high capacity airline operator and holiday package supplier in the
Australasian region, which holds an Australian High Capacity Air
Operators Certificate enabling the operation of large commercial
aircraft for charter and regular scheduled air passenger traffic.
As at the date of this Announcement, the issued and paid-up share
capital of Skywest consists of 213,040,000 Skywest Shares. The
Skywest Directors are Mr Jeff Chatfield, Mr Ron Aitkenhead, Mr John
Jost and Mr Seah Kian Peng.
About Virgin Australia
VAH launched in 2000 and has since established itself as a
contemporary, full service airline, with a reputation for
exceptional customer service.
The airline employs more than 8,000 people in Australia, New
Zealand and the United States. Virgin Australia has strategic
alliances with four key airline partners: Air New Zealand, Delta
Air Lines, Etihad Airways and Singapore Airlines, providing
customers with access to over 400 destinations worldwide. Its
domestic and international operations are complemented by Virgin
Samoa, a joint venture airline with the Government of Samoa.
VAH operates a fleet of 108 modern Airbus A330, Boeing 777,
Boeing 737, Embraer E-Jet and ATR-72 Turboprop aircraft to 34
Australian ports and 17 international destinations including the
USA, UAE, New Zealand, Indonesia, Thailand, Papua New Guinea,
Solomon Islands, Fiji, Samoa, Tonga, Vanuatu and the Cook
Islands.
As at the date of this Announcement, the issued and paid-up
share capital of VAH consists of 2,455,775,111 ordinary shares
("VAH Shares") plus 50,718,307 in options. The directors of Virgin
Australia are Mr Neil Chatfield, Mr John Borghetti, Mr David Baxby,
Mr Joshua Bayliss, Ms Samantha Mostyn, Mr Robert Thomas and The
Honourable Mark Vaile.
Virgin Australia contacts
Virgin Australia: Danielle Keighery: +61 400 223 136, Emma
Copeman: +61 421 702 193
Skywest Airlines contacts:
Skywest Airlines Ltd
Jeff Chatfield, Executive Chairman: +65 9735 4151
Nominated Adviser
James Joyce, W H Ireland Limited: +44 (0)207 220 1666
Company Stockbroker
W H Ireland Limited: +44 (0)207 220 1670
Financial Public Relations
Bishopsgate Communications: +44 (0)207 562 3350
Nick Rome
skywest@bishopsgatecommunications.com
Media Enquiries in Australia
Brian O'Dwyer: ++65 6252 2077
The Skywest Directors (including any who may have delegated
detailed supervision of this Announcement) have taken all
reasonable care to ensure that the facts stated and all the
opinions expressed in this Announcement (other than the facts
stated and opinions expressed by or in relation to VAH, VAH Sub,
the Virgin group or Goldman Sachs are fair and accurate and that no
material facts have been omitted from this Announcement, the
omission of which would make any statement in this Announcement
misleading, and the Skywest Directors jointly and severally accept
full responsibility accordingly. Where any information has been
extracted or reproduced from published or otherwise publicly
available sources, the sole responsibility of the Skywest Directors
has been to ensure through reasonable enquiries that such
information is correctly extracted from such sources or, as the
case may be, reflected or reproduced in this Announcement.
The directors of each of VAH and VAH Sub (including any who may
have delegated detailed supervision of this announcement) have
taken all reasonable care to ensure that the facts stated and all
the opinions expressed in this Announcement (other than the facts
stated and opinions expressed by or in relation to Skywest or
Goldman Sachs) are fair and accurate and that no material facts
have been omitted from this Announcement, the omission of which
would make any statement in this Announcement misleading, and the
directors of each of VAH and VAH Sub jointly and severally accept
full responsibility accordingly. Where any information has been
extracted or reproduced from published or otherwise publicly
available sources, the sole responsibility of the directors of each
of VAH and VAH Sub has been to ensure through reasonable enquiries
that such information is correctly extracted from such sources or,
as the case maybe, reflected or reproduced in this
Announcement.
SCHEDULE 1
INFORMATION ON THE SCHEME
1. THE SCHEME
1.1 The Scheme will be proposed in accordance with Section 210
of the Companies Act and the Singapore Code to Skywest Shareholders
and will involve, inter alia, the following:
(i) a transfer of all the Skywest Shares held by the Skywest Shareholders to VAH Sub; and
(ii) in consideration for the transfer of their Skywest Shares,
the Skywest Shareholders will receive:
(a) the Scheme Cash Consideration; and
(b) the VAH Consideration Shares (computed on an issue price of
A$0.424 for each VAH Consideration Share) (the "VAH Consideration
Share Issue Price"),
(collectively, the "Scheme Cash and Securities Consideration")
for each Skywest Share transferred. The aggregate cash amount
payable to each Skywest Shareholder pursuant to the Scheme Cash
Consideration will be rounded down to the nearest whole cent, if
applicable. No fraction of any VAH Consideration Share will be
issued and instead any fractional entitlements to VAH Consideration
Shares will be paid in cash pro-rata based on the VAH Consideration
Share Issue Price. The Scheme Cash and Securities Consideration
shall be paid to the Skywest Shareholders within 10 days after the
effective date of the Scheme (the "Effective Date").
The Scheme will also be extended to all Skywest Shares validly
issued pursuant to the exercise of warrants ("Skywest Warrants")
granted to the directors and senior management of Skywest.
1.2 Pursuant to the Scheme, the Skywest Shares will be
transferred (i) fully paid, (ii) free from all charges, mortgages,
liens, hypothecations, hire purchases, judgments, encumbrances,
easements, security, title retention, preferential rights, trust
arrangements or any other security interests and (iii) together
with all rights, benefits and entitlements attaching thereto as of
the date of this Announcement and thereafter attaching thereto,
including the right to receive and retain all dividends, rights and
other distributions (if any) declared, paid or made by Skywest on
or after the date of this Announcement.
1.3 The VAH Consideration Shares to be issued shall rank pari
passu in all respects with the existing ordinary shares in the
capital of VAH as at the Effective Date.
1.4 For illustrative purposes only, the Scheme Cash and
Securities Consideration to be received by Skywest Shareholders
pursuant to the Scheme shall be as follows:
Number of Skywest Amount of Scheme Cash Number of VAH Consideration
Shares held by Scheme Consideration pursuant Shares to be issued
Shareholder as at to the Scheme to Scheme Shareholder
the record date of pursuant to Scheme
the scheme (after Rounding Down)
1,000 A$225 530
=================================== =======================================
10,000 A$2,250 5,300
=================================== =======================================
100,000 A$22,500 53,000
=================================== =======================================
1,000,000 A$225,000 530,000
=================================== =======================================
1.5 On completion of the Scheme, Skywest will become a
wholly-owned subsidiary of VAH Sub and an indirect wholly-owned
subsidiary of VAH, and the Skywest Shares will be delisted from the
ASX and AIM. Following completion, VAH will undertake a review of
the businesses and operations of the Skywest group with a view to
aligning such businesses and operations with those of the VAH
group. Skywest will continue to operate under its current Air
Operator's Certificate ("AOC") with its own CEO and management
team, based in Western Australia. Pending this review, VAH
currently has no immediate plans to (i) introduce any major changes
to the businesses of the Skywest group, (ii) make any major
disposal or redeployment of assets (including the fixed assets of
the Skywest group) or (iii) discontinue the employment of the
employees of the Skywest group, other than in the ordinary course
of business and as required through the integration process.
Nonetheless, VAH retains its right to consider options or
opportunities which may present themselves, or be required, and
which VAH regards to be in the best interests of VAH and the
Skywest business.
2. WARRANTS PROPOSAL
2.1 As at the date of this Announcement, other than those held
by the VAH group listed in Schedule 8, there are 6,500,000 Skywest
Warrants entitling holders of the Skywest Warrants to subscribe for
a total of 6,500,000 Skywest Shares as follows:
Skywest Warrantholder Number of Skywest Date of Grant Date of Expiry Exercise Price
Shares under
Skywest Warrant
Mr Jeff Chatfield 3,000,000 12 December 11 December 25.78 pence
2011 2013
================== ============== =============== ===============
Mr Ron Aitkenhead 300,000 12 December 11 December 25.78 pence
2011 2013
================== ============== =============== ===============
Mr Mark Shelton 1,200,000 17 February 1 January 25.78 pence
2012 2014
================== ============== =============== ===============
Brian O'Dwyer 1,000,000 8 November 11 December 25.78 pence
2012 2013
================== ============== =============== ===============
Jason Bitter 600,000 8 November 11 December 25.78 pence
2012 2013
================== ============== =============== ===============
Duncan Scott 400,000 8 November 11 December 25.78 pence
2012 2013
================== ============== =============== ===============
2.2 VAH Sub will not make an offer to acquire any Skywest
Warrants which have not been validly exercised and the holder
registered as a Skywest Shareholder prior to or on the Record Date
(as defined in paragraph 4 below). Instead, VAH Sub will make an
appropriate proposal to the holders of the Skywest Warrants (the
"Skywest Warrantholders") that, in consideration for such Skywest
Warrantholders agreeing not to exercise any of their rights as a
holder of the relevant Skywest Warrants and agreeing to surrender
their relevant Skywest Warrants, such holder will receive a cash
amount for each Skywest Warrant (the "Warrants Proposal"). Further
details of the Warrants Proposal will be provided in due
course.
3. REGULATORY APPROVALS
3.1 The SIC has confirmed, inter alia, that
(i) Rules 14, 15, 16, 17, 20.1, 21, 22, 28, 29 and 33.2 and Note
1(b) to Rule 19 of the Singapore Code do not apply to the Scheme,
subject to the following conditions:
(a) the common substantial shareholders of VAH Sub and Skywest
abstain from voting on the Scheme;
(b) VAH Sub and its concert parties abstain from voting on the Scheme;
(c) the directors of Skywest who are also directors of VAH Sub
abstain from making a recommendation on the Scheme to Skywest
Shareholders;
(d) Skywest appoints an independent financial adviser to advise
the Skywest Shareholders on the Scheme;
(e) the Scheme Document contains advice to the effect that by
voting for the Scheme, the Skywest Shareholders are agreeing to VAH
Sub and its concert parties acquiring or consolidating effective
control of Skywest without having to make a general offer for
Skywest; and
(f) the Scheme Document discloses the names of VAH Sub and its
concert parties, their current voting rights in Skywest as of the
latest practicable date and their voting rights in Skywest after
the Scheme;
(ii) it has no objections to the Conditions Precedent (as
defined in paragraph 4 below); and
(iii) VAH Sub is permitted to preserve the right to, subject to
prior consultation with the SIC, implement the Acquisition by way
of an Offer (as defined in paragraph 5 below), subject to
disclosure in this Announcement and the Scheme Document of the fact
that VAH Sub reserves the right to proceed via the Offer.
3.2 The Scheme will also be subject to the approval of all
relevant regulatory authorities, including the Foreign Investment
Review Board of Australia, the Australian Competition and Consumer
Commission, the Court, the ASX and AIM, as stated in paragraph 4
below.
4. CONDITIONS PRECEDENT
4.1 The Scheme is conditional upon the satisfaction of a number
of conditions precedent (the "Conditions Precedent") which are set
out in Schedule 2 to this Announcement ("Schedule 2").
Pursuant to the terms of the Implementation Agreement, the
Implementation Agreement may be terminated at any time on or prior
to the date falling on the business day immediately preceding the
Effective Date (the "Record Date") subject to the prior
consultation with or approval of, as may be applicable, the
SIC:
(i) Court Order: by either VAH Sub or Skywest, if any court of
competent jurisdiction or governmental agency has issued an order,
decree, or ruling or taken any other action permanently enjoining,
restraining or otherwise prohibiting the Scheme, the Acquisition or
any part thereof, or has refused to do anything necessary to permit
the Scheme, the Acquisition or any part thereof, and such order,
decree, ruling, other action or refusal shall have become final and
non-appealable;
(ii) Shareholders' Approval: by VAH Sub or Skywest, if the
resolution(s) submitted to the meeting of the Skywest Shareholders
to be convened by the Court to approve the Scheme (the "Court
Meeting") are not approved (without amendment) by the requisite
majorities; and
(iii) Breach: by either (a) VAH Sub, if Skywest is in material
breach of any provision of the Implementation Agreement or has
failed to perform and comply in all respects with any of the
matters referred to in paragraph 9 of Schedule 2 on or prior to the
Record Date, or (b) Skywest, if VAH Sub is in material breach of
any provision of the Implementation Agreement or has failed to
perform and comply in all respects with any of the matters referred
to in paragraph 10 of Schedule 2 on or prior to the Record Date,
provided that either VAH Sub or Skywest, as the case may be, has
given written notice to the other party of such breach (the "Notice
of Breach"). In such circumstance, the party in default (the
"Defaulting Party") will be given a period of 14 days from the date
of the Notice of Breach (or such longer period as may be agreed to
by the party not in default (the "Non-Defaulting Party") in
writing) (the "Remedy Period") to remedy such breach (insofar as
capable of remedy) to the reasonable satisfaction of the
Non-Defaulting Party. If such breach is not remedied to the
reasonable satisfaction of the Non-Defaulting Party by the expiry
of the Remedy Period, the Non-Defaulting Party will be entitled to
terminate the Implementation Agreement by notice in writing to the
Defaulting Party, provided that no party may terminate the
Implementation Agreement if that party is in material and
continuing breach of any provision of the Implementation
Agreement.
An extract of the representations and warranties of each of VAH
Sub and Skywest provided in the Implementation Agreement are set
out in Schedules 3 and 4 to this Announcement. The representations
and warranties by Skywest set out in Schedule 4 to this
Announcement are subject to certain disclosures made by Skywest in
a disclosure letter to VAH Sub dated 6 December 2012 which sets out
certain information constituting exceptions to such representations
and warranties.
4.2 Notwithstanding anything contained in the Implementation
Agreement, the Implementation Agreement will terminate if any of
the Conditions Precedent has not been satisfied (or where
applicable, has not been waived) by 30 April 2013 (the "Long-Stop
Date") except that:
(i) in the event of any non-fulfilment of the conditions
precedent in paragraphs 6, 8 and 9 of Schedule 2, VAH Sub can only
rely on such non-fulfilment of any such condition precedent to
terminate the Implementation Agreement after consultation with the
SIC; and
(ii) in the event of any non-fulfilment of the conditions
precedent in paragraphs 7 and 10 of Schedule 2, Skywest can only
rely on such non-fulfilment of any such condition precedent to
terminate the Implementation Agreement after consultation with the
SIC.
A list of Prescribed Occurrences relating to each of VAH (and
its subsidiaries) and Skywest (and its subsidiaries) are set out in
Schedules 5 and 6 to this Announcement respectively.
4.3 In the event that VAH Sub terminates the Implementation
Agreement by reason of the Prescribed Occurrence relating to
Skywest set out in paragraph 15 of Schedule 6 to this Announcement
resulting in a non-fulfilment of the condition precedent set out in
paragraph 6 of Schedule 2, VAH Sub has agreed to pay Skywest a sum
of A$3,250,000 (without withholding or set-off) within 10 business
days of the date of termination of the Implementation
Agreement.
5. SWITCH OPTION
Pursuant to the terms of the Implementation Agreement, VAH Sub
may at its discretion elect at any time prior to the date of the
Court Meeting, in compliance with the Singapore Code and subject to
prior consultation with (and where applicable) approval of the
SIC:
(i) to implement the Acquisition by way of a pre-conditional or
formal voluntary conditional cash and/or scrip offer (the "Offer").
In such event, VAH will make the Offer on the same or better terms
as those which apply to the Scheme, including without limitation,
the same or higher consideration than the Scheme Cash and
Securities Consideration and an acceptance condition set at more
than 50 per cent. or such higher percentage as VAH Sub may decide,
of the Skywest Shares to which the Offer relates; and
(ii) in the event of a firm competing offer from a third party
for all the Skywest Shares other than those held by such third
party and parties acting in concert with such third party, at a
price higher than the Scheme Cash and Securities Consideration and
which carries no additional conditions other than those necessary
for the implementation of the competing offer, to proceed by way of
an Offer (in the manner described in paragraph 5(i) above).
(the "Switch Option").
6. IRREVOCABLE UNDERTAKINGS
6.1 Certain Skywest Shareholders (the "Undertaking
Shareholders") have each given separate irrevocable undertakings to
VAH Sub (collectively, the "Irrevocable Undertakings") to, inter
alia, vote, or procure the voting of, the Skywest Shares set out in
the respective Irrevocable Undertakings, in favour of the Scheme at
the Court Meeting, on and subject to the terms set out in their
respective Irrevocable Undertakings.
In the event that VAH Sub exercises the Switch Option, the
Undertaking Shareholders will, subject to the terms and conditions
set out in their irrespective Irrevocable Undertakings, accept or
procure acceptance of the Offer in respect of all Skywest Shares
set out in the respective Irrevocable Undertakings.
Where the Undertaking Shareholders are Skywest Directors, such
Undertaking Shareholders have also undertaken to recommend that
Skywest Shareholders vote in favour of the Scheme or accept the
Offer, as the case may be, in the absence of a superior offer and
subject to the receipt by the Skywest Directors of an opinion from
the IFA appointed under Rule 7.1 of the Singapore Code advising
that the Skywest Directors recommend that the Skywest Shareholders
approve the Scheme or accept the Offer, as the case may be.
A list of the Undertaking Shareholders is set out in Schedule 7
to this Announcement.
6.2 The Irrevocable Undertakings shall lapse (i) on the date of
completion of the Acquisition or (ii) the date on which VAH
withdraws from the Acquisition, whichever is the earlier.
Further, for the purposes of the Irrevocable Undertakings (other
than the Irrevocable Undertaking given by Mr Jeff Chatfield), in
the event there is a superior offer, VAH shall be deemed to have
withdrawn from the Acquisition if VAH does not make an announcement
of its proposal to proceed with the Acquisition on terms which will
provide a superior outcome for Skywest Shareholders ("VAH
Counterproposal") than such superior offer (it being acknowledged
that the price or value implied by the VAH Counterproposal does
have to be above, but does not have to be materially above, the
price or value implied by such superior offer and the other terms
and conditions of the VAH Counterproposal taken as a whole are not
less favourable than those in the superior offer) within five
business days prior to, as the case may be (a) the expiry of the
superior offer (in the event the superior offer is effected by way
of a general offer) or (b) the date of the court meeting (in the
event the superior offer is effected by way of a scheme of
arrangement pursuant to Section 210 of the Companies Act).
7. DISCLOSURES
Save as disclosed in this Announcement (including, inter alia,
Schedule 8 to this Announcement), as at the date of this
Announcement, none of VAH, VAH Sub and, to the best of the
knowledge and belief of VAH and VAH Sub, none of any of the parties
acting in concert with VAH (including Goldman Sachs):
(i) owns, controls or has agreed to acquire any Skywest
Securities (as defined below) or VAH Securities (as defined
below);
(ii) has dealt for value in any Skywest Securities or VAH
Securities during the three-month period immediately preceding 5
December 2012;
(iii) has granted any security interest in any Skywest
Securities or VAH Securities to another person, whether through a
charge, pledge or otherwise;
(iv) has borrowed any Skywest Securities or VAH Securities from
another person (excluding borrowed securities which have been
on-lent or sold); or
(v) has lent to another person any Skywest Securities or VAH Securities.
For the purposes of this Announcement, "Skywest Securities"
means Skywest Shares or securities which carry voting rights,
convertible securities, warrants, options or derivatives in respect
of Skywest Shares or securities which carry voting rights, and "VAH
Securities" means VAH Shares or securities which carry voting
rights, convertible securities, warrants, options or derivatives in
respect of VAH Shares or securities which carry voting rights.
8. SKYWEST SHAREHOLDERS NOT RESIDENT IN SINGAPORE, AUSTRALIA OR THE UNITED KINGDOM
The applicability of the Scheme to persons not resident in
Singapore or Australia or the United Kingdom may be affected by the
laws of the relevant jurisdiction. Skywest Shareholders who are not
resident in Singapore or Australia or the United Kingdom should
inform themselves about and observe any applicable requirements.
Further details in relation to the overseas shareholders will be
contained in the Scheme Document.
Schedule 2
Conditions Precedent
The Conditions Precedent in the Implementation Agreement are
reproduced in this Schedule 2. All capitalised terms used herein
shall have the same meanings given to them in the Implementation
Agreement, a copy of which is available for inspection at the
registered office of Skywest during normal business hours until the
date the Scheme becomes effective.
The Acquisition is conditional upon the following:
(1) Scheme: the approval of the Scheme by the Shareholders in
compliance with the requirements of Section 210(3) of the Companies
Act;
(2) Scheme Court Order: the grant of the Scheme Court Order by
the Court and such Scheme Court Order having become final;
(3) ACRA Registration: the registration of the Scheme Court Order with ACRA;
(4) Regulatory Approvals: the receipt of all Regulatory
Approvals prior to the Condition Precedent Satisfaction Date, and
such approvals not being revoked or withdrawn on or before the
Record Date, including without limitation, the following:
(a) SIC Confirmation: confirmation from the SIC that Rules 14,
15, 16, 17, 20.1, 21, 22, 28, 29, and 33.2 and Note 1(b) to Rule 19
of the Code shall not apply to the Scheme subject to any conditions
the SIC may deem fit to impose;
(b) FIRB: the Treasurer of the Commonwealth of Australia:
(i) Approval: gives (either himself or by his delegate) an
approval under the Foreign Acquisitions and Takeovers Act 1975
(Cth) ("FATA") to the proposed acquisition of Company Shares by the
Acquiror, and that approval is not subject to conditions, or is
subject only to conditions that the Acquiror reasonably considers
to be acceptable;
(ii) No Objection: provides (either himself or by his delegate)
written advice or confirmation that there is no objection to the
proposed acquisition of Company Shares by the Acquiror under the
FATA or the foreign investment policy of the Australian Government,
and that advice or confirmation is not subject to conditions, or is
subject only to conditions that the Acquiror reasonably considers
to be acceptable; or
(iii) Expiry of Notice Period: ceases to be empowered to make
any order under Part II of the FATA in respect of the proposed
acquisition of Company Shares by the Acquiror;
(c) ACCC: one of the following occurs:
(i) the ACCC advises the Acquiror that:
(A) it does not intend to oppose or intervene in the proposed
arrangement advised to the ACCC and as set out in the Scheme
Document; or
(B) it does not intend to oppose or intervene in the proposed
arrangement advised to the ACCC as set out in the Scheme Document,
subject to undertakings that are acceptable to the Acquiror, acting
in its reasonable discretion; or
(ii) the Australian Competition Tribunal grants to the Acquiror
an authorisation in relation to the Scheme, pursuant to section
95AT of the Competition and Consumer Act or approval is otherwise
obtained from the Australian Competition Tribunal or the Federal
Court of Australia; and
(d) Other Regulatory Approvals: all such consents, waivers and
approvals required from ASX or AIM (whether pursuant to the Listing
Rules or otherwise) to implement the Scheme are granted or obtained
and such consents, waivers and approvals are not withdrawn,
cancelled or revoked.
(5) Quotation Approval for Consideration Shares: before the
Condition Precedent Satisfaction Date, ASX provides approval for
the official quotation of all the Consideration Shares to be issued
pursuant to the Scheme, subject to any conditions that ASX may
reasonably require, including customary pre-quotation conditions
and conditions relating to the Scheme becoming effective in
accordance with its terms;
(6) No Company Prescribed Occurrence: between the date of this
Agreement and the Record Date, no Company Prescribed Occurrence in
relation to the Group occurs other than as required by this
Agreement or the Acquisition;
(7) No VAH Prescribed Occurrence: between the date of this
Agreement and the Record Date, no VAH Prescribed Occurrence in
relation to VAH or the Acquiror other than as required by this
Agreement or the Acquisition;
(8) Company Board Recommendation: the Company Board has, in the
Acquisition Announcement and the Scheme Document, unanimously
stated that it considers the Scheme to be in the best interests of
Shareholders and recommended that Shareholders approve the Scheme,
in the absence of a Superior Offer and subject to receipt by the
Company Board of an opinion from the Singapore independent
financial adviser appointed under Rule 7.1 of the Code (the "IFA")
advising that the Company Board should recommend that Shareholders
approve the Scheme, and the Company Board has not withdrawn,
qualified or varied those statements or recommendations before the
Scheme is approved by the requisite majorities of Shareholders. The
Company acknowledges and agrees that in respect of its appointment
of the IFA, the terms of reference for the IFA pursuant to such
appointment shall require, and the Company shall procure that such
terms of reference shall require, the IFA in its opinion to advise
the Company Board whether to recommend that Shareholders approve
the Scheme;
(9) Company Representations, Warranties and Covenants:
(a) the representations and warranties of the Company set out in this Agreement that:
(i) are qualified as to materiality being true and correct; and
(ii) are not qualified as to materiality being true and correct in all material respects,
in each case as of the date of this Agreement except to the
extent any such representation and warranty expressly relates to an
earlier date (in which case as of such earlier date); and
(b) the Company shall have, as of the Record Date, performed and
complied in all material respects with all covenants and agreements
contained in this Agreement which are required to be performed by
or complied with by it, on or prior to the Record Date;
(10) Acquiror Representations, Warranties and Covenants:
(a) the representations and warranties of the Acquiror set out in this Agreement that:
(i) are qualified as to materiality being true and correct; and
(ii) are not qualified as to materiality being true and correct in all material respects,
in each case as of the date of this Agreement except to the
extent any such representation and warranty expressly relates to an
earlier date (in which case as of such earlier date); and
(b) the Acquiror shall have, as of the Record Date, performed
and complied in all material respects with all covenants and
agreements contained in this Agreement which are required to be
performed by or complied with by it, on or prior to the Record
Date; and
(11) No legal or regulatory restraint: between the date of this
Agreement and up to the Record Date, no injunction or other order
being issued by any Governmental Agency or by any court of
competent jurisdiction or other legal or regulatory restraint,
prohibition or condition preventing the consummation of the
Acquisition or the implementation of the Scheme or proposed
transactions relating to the Scheme, being in effect;
Schedule 3
Representations and Warranties of VAH Sub
The representations and warranties of VAH Sub in the
Implementation Agreement are reproduced in this Schedule 3. All
capitalised terms used herein shall have the same meanings given to
them in the Implementation Agreement, a copy of which is available
for inspection at the registered office of Skywest during normal
business hours until the date the Scheme becomes effective.
VAH Sub represents and warrants that:
1. VAH Group Companies
1.1 Incorporation
Each of the VAH Group companies is a company duly incorporated
and validly existing under its law of incorporation. VAH and/or the
respective VAH Group company, as the case may be, is the legal and
beneficial owner of the equity interest (as such percentage equity
interests are disclosed in the latest annual report of VAH for
FY2012) of the VAH Group companies (other than VAH or as disclosed
in the audited FY2012 financial statements of VAH) held by the VAH
Group.
1.2 VAH Shares
All the issued VAH Shares have been duly authorised and validly
issued, and are fully paid-up and rank pari passu in all respects
with each other. All the Consideration Shares, when issued, shall
be duly authorised and validly issued.
1.3 Solvency
Each VAH Group company is solvent and no resolutions have been
passed nor has any other step been taken or legal proceedings
commenced or threatened against any VAH Group company for the
winding up, dissolution or termination of that VAH Group company or
for the appointment of a liquidator, receiver, administrator, or
similar officer over any or all of VAH Group company's assets.
2. Accounts
As far as the Acquiror is aware and save as disclosed, there
have been no material adverse changes in the financial position of
the VAH Group since 28 September 2012.
3. Legal Matters
3.1 Compliance with Laws
Each of VAH, VAA and the Acquiror has carried on and is carrying
on its business and operations so that there have been no breaches
in any material respect of applicable laws, regulations and
bye-laws in each country in which they are carried on that would
have a material adverse effect upon the VAH Group and its business
taken as a whole, except that where any breach arises by reason
only of any law, regulation and/or bye-law having been enacted
after the date of this Agreement which has retrospective effect,
such company shall not be regarded as having been in breach of this
paragraph 3.1 to the extent that such company (i) takes all
reasonable steps to comply with, and/or (ii) seeks a waiver from
having to comply with, such law, regulation and/or bye-law
3.2 Licences and Consents
All statutory, municipal and other licences, consents,
authorisations, orders, warrants, confirmations, permissions,
certificates, approvals and authorities ("VAH Licences") necessary
for the carrying on of the businesses and operations of each of the
Acquiror Group companies have been obtained, are in full force and
effect and all conditions applicable to any such VAH Licence have
been and are being complied with in all material respects, unless
the failure to obtain any such VAH Licence does not have a material
adverse effect upon the VAH Group and its business taken as a
whole.
4. Litigation
4.1 As of the date of this Agreement, no litigation, arbitration
or administrative proceeding which has or could have a material
adverse effect upon the VAH Group and its business taken as a
whole, is current or pending or, so far as Acquiror is aware,
threatened, to restrain the entry into, exercise of Acquiror's or
VAH's rights under and/or performance or enforcement of or
compliance with its obligations under this Agreement.
4.2 No litigation, arbitration or administrative proceeding is
current or pending or, so far as Acquiror is aware, threatened,
which has or could have a material adverse effect upon the VAH
Group and its business taken as a whole.
5. Contractual Arrangements
The Acquiror is not aware of any circumstances that exist which
may entitle the Civil Aviation Safety Authority to withdraw or
suspend VAH's AOC or impose any new restrictions on the AOC.
6. Power
Each of the Acquiror and VAH has the corporate power to enter
into and perform its obligations under this Agreement and to carry
out the transactions contemplated by this Agreement.
7. Authority
Each of the Acquiror and VAH has taken all necessary corporate
action and obtained all necessary corporate approval to authorise
the entry into this Agreement and the performance of this Agreement
and to carry out the transactions contemplated in this
Agreement.
8. Binding Obligation
Each of the Acquiror's and VAH's obligations under this
Agreement are valid, legally binding and enforceable in accordance
with its terms.
9. No Breach
Neither the execution nor performance by the Acquiror of this
Agreement nor any transaction contemplated under this Agreement
will violate any provision of their constitutive documents, any
order, writ, injunction or decree of any Governmental Agency
applicable to the VAH, Acquiror or its assets, or any agreement or
instrument to which the Acquiror or VAH is a party or by which the
Acquiror, VAH or its assets are bound.
Schedule 4
Representations and Warranties of Skywest
The representations and warranties of Skywest in the
Implementation Agreement are reproduced in this Schedule 4. All
capitalised terms used herein shall have the same meanings given to
them in the Implementation Agreement, a copy of which is available
for inspection at the registered office of Skywest during normal
business hours until the date the Scheme becomes effective.
The Company represents and warrants that:
1. Group Companies
1.1 Incorporation
Each of the Group Companies is a company duly incorporated and
validly existing under its law of incorporation. The Company and/or
the respective Group Company, as the case may be, is the legal and
beneficial owner of the equity interest (as such percentage equity
interests are disclosed in the latest annual report of the Company
for FY2012) of the Group Companies (other than the Company or as
disclosed in the Audited FY2012 Financial Statements) held by the
Group and holds such equity interest-free from any
Encumbrances.
1.2 Company Shares
1.2.1 All the issued Company Shares have been duly authorised
and validly issued, and are fully paid-up and rank pari passu in
all respects with each other. The Company is not subject to any
actual or contingent obligation to issue or convert securities
except as required or contemplated by this Agreement or in
accordance with the terms of the Company Warrants.
1.2.2 As at the date of this Agreement, there are (i) 6,500,000
unexercised Company Warrants and (ii) 6,410,000 warrants owned by
VB Investco Pty Ltd to subscribe for Company Shares. For the
avoidance of doubt the aggregate number of Company Shares to be
issued pursuant to the Company Warrants shall not exceed 6,500,000
Company Shares.
1.3 Solvency
Each Group Company is solvent and no resolutions have been
passed nor has any other step been taken or legal proceedings
commenced or threatened against any Group Company for the winding
up, dissolution or termination of that Group Company or for the
appointment of a liquidator, receiver, administrator, or similar
officer over any or all of that Group Company's assets.
2. Full Disclosure
All information contained in this Agreement and the Disclosure
Letter and all other information which has been given in writing by
or on behalf of the Group to the Acquiror or its agents, directors,
officers, representatives and advisers in the course of due
diligence or other investigations carried out by or on behalf of
the Acquiror prior to entering into this Agreement was when given
true and accurate in all material respects and not misleading in
any material respect and as of the date of this Agreement, so far
as the Company is aware, there is no fact, matter or circumstance
in existence which renders or will render any such document and/or
information untrue, inaccurate or misleading in any material
respect.
3. Accounts
3.1 Accounts
The Audited FY2012 Financial Statements have been properly drawn
up in accordance with the Companies Act and the International
Financial Reporting Standards. The Audited FY2012 Financial
Statements give a true and fair view of the state of affairs of the
Group as at 30 June 2012, and the results of operations and the
cash flow of the Group for the year ended 30 June 2012, and as at
that date make adequate provision for all actual liabilities and
proper provision for all contingent liabilities, including but not
limited to, adequate maintenance and end-of-lease provisions for
all aircraft owned or leased by the Group.
3.2 Changes since 30 June 2012
As far as the Company is aware and save as disclosed, there have
been no material adverse changes in the financial position of the
Group since 30 June 2012 and, in particular:
3.2.1 its business has been carried on solely in the ordinary
and usual course, without any material interruption or alteration
in its nature, scope or manner, and so as to maintain the same as a
going concern, save and except for events that may occur as a
result of an act of God;
3.2.2 it has not entered into any material transaction or
assumed or incurred any material liabilities (including contingent
liabilities) or made any material payment or given any guarantee,
indemnity or suretyship not provided for in the Audited FY2012
Financial Statements otherwise than in the ordinary and usual
course of carrying on its business;
3.2.3 it has not entered into any unusual, long term and onerous
commitments and contracts that would have a material adverse effect
on the business, operations, assets and/or financial condition of
the Group taken as a whole; and
3.2.4 none of the Group Companies has entered into or proposed
to enter into any capital commitments other than in the ordinary
course of business.
3.3 Absence of Undisclosed Liabilities
There are no material liabilities (including contingent
liabilities) of any of the Group Companies which are outstanding on
the part of such Group Company, other than (i) liabilities
disclosed or provided for in the Audited FY2012 Financial
Statements; (ii) liabilities disclosed elsewhere in this Agreement;
or (iii) liabilities incurred in the ordinary and usual course of
business, since 30 June 2012, none of which is material.
4. Legal Matters
4.1 Compliance with Laws
4.1.1 Each of the Group Companies has carried on and is carrying
on its business and operations so that there have been no breaches
in any material respect of applicable laws, regulations and
bye-laws in each country in which they are carried on that where
any breach arises by reason only of any law, regulation and/or
bye-law having been enacted after the date of this Agreement which
has retrospective effect, such Group Company shall not be regarded
as having been in breach of this paragraph 4.1 to the extent that
such Group Company (i) takes all reasonable steps to comply with,
and/or (ii) seeks a waiver from having to comply with, such law,
regulation and/or bye-law.
4.1.2 There have not been and there are no material breaches by
any Group Company of its constitutional documents.
4.1.3 As at the date of this Agreement, the Company is not aware
of any investigation or enquiry by, or order, decree, decision or
judgment of, any court, tribunal, arbitrator, governmental agency
or regulatory body outstanding or anticipated by any Group Company
or any person for whose acts or defaults it may be vicariously
liable which has had or may have a material adverse effect upon its
assets or business.
4.1.4 As of the date of this Agreement, there is no notice or
other communication (official or otherwise) from any court,
tribunal, arbitrator, governmental agency or regulatory body with
respect to an alleged, actual or potential violation of and/or
failure to comply with any such applicable law, regulation, bye-law
or constitutional document, or requiring it to take or omit any
action which has had or may have a material adverse effect upon its
assets or business.
4.2 Licences and Consents
4.2.1 All statutory, municipal and other licences, consents,
authorisations, orders, warrants, confirmations, permissions,
certificates, approvals and authorities ("Company Licences")
necessary for the carrying on of the businesses and operations of
each of the Group Companies have been obtained, are in full force
and effect and all conditions applicable to any such Company
Licence have been and are being complied with in all material
respects, unless the failure to obtain any such Company Licence
does not have a material adverse effect upon the assets or business
of the relevant Group Company.
4.2.2 As of the date of this Agreement, as far as the Company is
aware, there is no investigation, enquiry or proceeding outstanding
or anticipated which will or is likely to result in the suspension,
cancellation, modification or revocation of any of the Company
Licences.
4.2.3 None of the Company Licences has been breached or, as far
as the Company is aware, is likely to be suspended, cancelled,
refused, modified or revoked (whether as a result of the entry into
this Agreement or otherwise), except that where any breach arises
by reason only of any changes to the Company Licence imposed by the
relevant authority and/or any changes to any applicable law,
regulation and/or bye-law between the date of this Agreement and
the Record Date which has retrospective effect, such Group Company
shall not be regarded as having been in breach of this paragraph
4.2.3 if such Group Company takes all reasonable steps to comply
with such changes to the Company Licence immediately
thereafter.
4.2.4 Except as expressly provided for in this Agreement and
save as otherwise disclosed in the Disclosure Letter, all actions,
conditions and things required to be taken, fulfilled and done
(including the obtaining of consents from third parties) in order
(a) to enable each Group Company lawfully to enter into, exercise
its rights and perform and comply with its obligations under this
Agreement and (b) to ensure that those obligations are valid,
legally binding and enforceable have been taken, fulfilled and
done.
4.3 Litigation
4.3.1 As of the date of this Agreement, no litigation,
arbitration or administrative proceeding is current or pending or,
so far as Company is aware, threatened, to restrain the entry into,
exercise of Company's rights under and/or performance or
enforcement of or compliance with its obligations under this
Agreement.
4.3.2 No litigation, arbitration or administrative proceeding is
current or pending or, so far as Company is aware, threatened,
which has or could have a material adverse effect on the Group
taken as a whole.
4.4 Power
The Company has the corporate power to enter into and perform
its obligations under this Agreement and to carry out the
transactions contemplated by this Agreement.
4.5 Authority
The Company has all the necessary corporate power and authority
to enter into and perform its obligations under this Agreement and
to carry out the transactions contemplated by this Agreement.
4.6 Binding Obligation
The Company's obligations under this Agreement are valid,
legally binding and enforceable in accordance with its terms.
5. Contractual Arrangements
5.1 Capital Commitments
Between 30 June 2012 and the date of this Agreement, there are
no capital commitments entered into or proposed by any of the Group
Companies in excess of A$500,000 other than in the ordinary course
of business.
5.2 Debts, Contracts and Arrangements with Connected Persons etc.
Save as disclosed in the Disclosure Letter and in the Audited
FY2012 Financial Statements, there is no related party transaction
between any Group Company and a related party of the Company.
5.3 Effect of the Acquisition
Save as disclosed in the Disclosure Letter, the execution and
delivery of, and the performance by Company of its obligations
under this Agreement and the transactions contemplated
hereunder:
5.3.1 do not and will not result in a breach of any provision of
the Memorandum or Articles of Association or the constitutional
documents of any Group Company;
5.3.2 do not and will not conflict with or result in the breach
of or constitute a default under any agreement or instrument to
which any Group Company is now a party, or any loan to or mortgage
created by any Group Company, or relieve any other party to a
contract with any Group Company of its obligations under such
contract, or entitle such party to terminate or modify such
contract, whether summarily or by notice, or result in the creation
of any Encumbrance under any agreement, licence or other
instrument, or result in a breach of any order, judgment or decree
of any court, governmental agency or regulatory body to which any
Group Company is a party or by which any Group Company or any of
their respective assets is bound unless such conflict, breach or
default does not result in a material adverse effect upon its
assets or business; or
5.3.3 will not result in any amount or benefits which are paid
or given or will be paid or given by any member of the Group to any
of its directors or employees which in aggregate will result in a
material adverse effect upon its assets or business.
5.4 Contracts
5.4.1 No Group Company is, or has been, a party to any contract or transaction which:
(i) is outside the ordinary and usual course of business;
(ii) is not wholly on an arm's length basis; and
(iii) is of a loss-making nature (that is, known to be likely to
result in a materialloss on completion of performance).
5.4.2 Save as disclosed in the Disclosure Letter, none of the Group Companies:
(i) is, or has agreed to become a party to any agency,
distributorship, marketing, purchasing, manufacturing or licensing
agreement or arrangement or any agreement or arrangement which
restricts its freedom to carry on its business in any part of the
world in such manner as it thinks fit;
(ii) is, or has agreed to become, a member of any joint venture,
consortium, partnership or other unincorporated association; or
(iii) is, or has agreed to become, a party to any agreement or
arrangement for participating with others in any business, sharing
commissions or other income, otherwise than in the ordinary course
of business.
5.5 Compliance with Agreements
5.5.1 All the contracts and all leases, tenancies, licences,
concessions and agreements (breach of which will have a material
adverse effect on the relevant Group Company) to which any of the
Group Companies is a party are valid, binding and enforceable
obligations of relevant Group Company, and the terms thereof have
been complied with by the relevant Group Company.
5.5.2 The Company is not aware of any circumstances that exist
which may entitle the Civil Aviation Safety Authority to withdraw
or suspend the Company's AOC or impose any new restrictions on the
AOC. Save as disclosed, all aircraft owned, leased or utilised by
any Group Company pursuant to any other arrangement are available
for operations as authorised under the Company's AOC.
5.5.3 As of the date hereof, there are no circumstances likely
to give rise to any breach of such terms, breach of which has had a
material adverse effect upon the assets and business of the
relevant Group Company, and the Group Company has not done or
omitted to do anything which gives rise to grounds for rescission,
avoidance or repudiation of any of the contracts or such leases,
tenancies, licences, concessions or agreements and no notice of
termination or of intention to terminate has been received in
respect of any thereof.
5.6 Guarantees etc.
Save as disclosed in the Audited FY2012 Financial Statements,
there is not outstanding any guarantee, indemnity, suretyship or
comfort (whether or not legally binding) given by or for the
benefit of any Group Company, other than in the ordinary course of
business.
6. No Breach
Neither the execution nor performance by the Company of this
Agreement nor any transaction contemplated under this Agreement
will violate or accelerate the obligations of it or of any of its
subsidiaries under any order, writ, injunction or decree of any
Governmental Agency applicable to the Company or its assets, the
effect of which has had or may have a material adverse effect upon
the assets or business of the Company.
7. Taxation Matters
7.1 Returns, Information and Clearances
7.1.1 Each Group Company has complied in all material respects
with all applicable tax laws, regulations, concessions, consents
and/or clearances imposed by the relevant Taxation authorities.
7.1.2 As of the date of this Agreement, no Group Company has
done or omitted to do anything since any application for any
concession, consent or clearance from any Taxation authority that
was made which might reasonably be expected to cause such
concession, consent or clearance to be or become invalid, or to be
withdrawn by the relevant Taxation authorities.
7.1.3 The Company will not take or omit to take any action that
will cause such consent or clearance to be or become invalid, or to
be withdrawn by the relevant Taxation authorities.
7.2 Company Residence
Each Group Company has been resident for tax purposes in its
country of incorporation and nowhere else at all times since its
incorporation, and will be so resident at the Record Date.
8. Assets (including Properties)
8.1 Subsidiaries, Associates and Branches
Save as disclosed in the Disclosure Letter and save as permitted
under this Agreement, no Group Company:
8.1.1 is the holder or beneficial owner of, or has agreed to
acquire, any share or loan capital of any other company (whether
incorporated in Singapore or elsewhere); or
8.1.2 has any branch, agency, division, establishment or
operations outside the jurisdiction in which it is
incorporated.
8.2 Title to Assets
8.2.1 All assets of each Group Company which are included in the
Audited FY2012 Financial Statements are the absolute property of
such Group Company and all such assets and all assets and debts
which have subsequently been acquired or arisen are the absolute
property of such Group Company and none is the subject of any
assignment or Encumbrance (excepting only liens arising by
operation of law in the normal course of trading), or the subject
of any factoring arrangement, hire purchase, conditional sale or
credit sale agreement.
8.2.2 All such assets are, where capable of possession, in the
possession of or under the control of the relevant Group Company,
or the relevant Group Company is entitled to take possession or
control of such assets.
8.2.3 Any assets held under lease by a Group Company is held
under a valid, subsisting and enforceable lease agreement and such
Group Company is in compliance in all respects with the terms of
such leases.
8.3 Insurance
All the assets of each of the Group Companies which are capable
of being insured have at all material times been, and are insured
to the full replacement value thereof against fire and other risks
normally insured against by companies carrying on similar
businesses or owning assets of a similar nature.
8.4 Title to Properties
8.4.1 The title to all real property owned by each Group Company
is good and properly deduced, and in each case free from any
Encumbrances.
8.4.2 Any real property in Singapore and elsewhere which is held
under lease by a Group Company, is held under a valid, subsisting
and enforceable lease/tenancy agreement with such exceptions as do
not materially interfere with the use or proposed use of such
property and buildings.
Schedule 5
Prescribed Occurrences relating to VAH or VAH Sub
The prescribed occurrences relating to VAH or VAH Sub in the
Implementation Agreement are reproduced in Schedule 5. All
capitalised terms used herein shall have the same meanings given to
them in the Implementation Agreement, a copy of which is available
for inspection at the registered office of Skywest during normal
business hours until the date the Scheme becomes effective.
For the purposes of this Announcement, "Prescribed Occurrence"
in relation to VAH or VAH Sub means any of the following:
(1) Conversion of Company Shares: VAH converting all or any of
its shares into a larger or smaller number of shares;
(2) Share Buy-back: VAH entering into a share buy-back agreement
or resolving to approve the terms of a share buy-back agreement
under the Corporations Act or the equivalent companies or
securities legislation;
(3) Reduction of Share Capital: VAH resolving to reduce its share capital in any way;
(4) Injunctions: an injunction or other order issued by any
court of competent jurisdiction or other legal restraint or
prohibition preventing the consummation of the Scheme or the
Acquisition or any part thereof by VAH or the Acquiror;
(5) Resolution for Winding Up: VAH, VAA or the Acquiror resolving that it be wound up;
(6) Appointment of Liquidator and Judicial Manager: the
appointment of a liquidator, provisional liquidator, judicial
manager, provisional judicial manager and/or other similar officer
of VAH, VAA or the Acquiror;
(7) Order of Court for Winding Up: the making of an order by a
court of competent jurisdiction for the winding up of VAH, VAA or
the Acquiror;
(8) Composition: VAH, VAA or the Acquiror entering into any
arrangement or general assignment or composition for the benefit of
its creditors generally;
(9) Appointment of Receiver: the appointment of a receiver or a
receiver and manager, in relation to the property or assets of VAH,
VAA or the Acquiror;
(10) Insolvency: VAH, VAA or the Acquiror becoming or being
deemed by law or a court to be insolvent;
(11) Cessation of Business: VAH, VAA or the Acquiror ceases or
threatens to cease for any reason to carry on business in the usual
course;
(12) Deregistration: VAH, VAA or the Acquiror is deregistered as
a company or otherwise dissolved; or
(13) Analogous Event: any event occurs which, under the laws of
any jurisdiction, has an analogous or equivalent effect to any of
the foregoing event(s).
Schedule 6
Prescribed Occurrences relating to Skywest
The prescribed occurrences relating to Skywest in the
Implementation Agreement are reproduced in this Schedule 6. All
capitalised terms used herein shall have the same meanings given to
them in the Implementation Agreement, a copy of which is available
for inspection at the registered office of Skywest during normal
business hours until the date the Scheme becomes effective.
For the purposes of this Announcement, "Prescribed Occurrence"
in relation to Skywest and its subsidiaries means any of the
following:
(1) Conversion of Company Shares: the Company converting all or
any of its shares into a larger or smaller number of shares;
(2) Share Buy-back: the Company entering into a share buy-back
agreement or resolving to approve the terms of a share buy-back
agreement under the Companies Act or the equivalent companies or
securities legislation;
(3) Reduction of Share Capital: the Company resolving to reduce
its share capital in any way;
(4) Issuance of Debt Securities: the Company (or any subsidiary
of the Company), issuing, or agreeing to issue, convertible notes
or other debt securities;
(5) Injunctions: an injunction or other order issued by any
court of competent jurisdiction or other legal restraint or
prohibition preventing the consummation of the Scheme or the
Acquisition or any part thereof by the Company;
(6) Resolution for Winding Up: the Company (or any subsidiary of
the Company) resolving that it be wound up;
(7) Appointment of Liquidator and Judicial Manager: the
appointment of a liquidator, provisional liquidator, judicial
manager, provisional judicial manager and/or other similar officer
of the Company (or of any subsidiary of the Company);
(8) Order of Court for Winding Up: the making of an order by a
court of competent jurisdiction for the winding up of the Company
(or of any subsidiary of the Company);
(9) Composition: the Company (or any subsidiary of the Company)
entering into any arrangement or general assignment or composition
for the benefit of its creditors generally;
(10) Appointment of Receiver: the appointment of a receiver or a
receiver and manager, in relation to the property or assets of the
Company (or of any subsidiary of the Company);
(11) Insolvency:the Company becoming or being deemed by law or a
court to be insolvent, and in relation to any subsidiary of the
Company, the Company withdrawing its financial support such that
the said subsidiary becomes or is deemed by law or a court to be
insolvent;
(12) Cessation of Business: the Company (or any subsidiary of
the Company) ceases or threatens to cease for any reason to carry
on business in the usual course;
(13) Disposal of Share Capital: the Company (or any subsidiary
of the Company) disposes, or agrees to dispose, of shares in a
Group Company;
(14) Deregistration: the Company (or any subsidiary of the
Company) is deregistered as a company or otherwise dissolved;
(15) Material Adverse Event: any event, occurrence, fact or
matter occurring between the Acquisition Announcement Date and up
to the Record Date which individually or when aggregated with all
such events, occurrences, facts or matters in each case diminishes,
or is reasonably likely to diminish, (whether now or in the future)
the consolidated net assets of the Group by an amount equal to 20
per cent. or more, as compared to the consolidated net assets of
the Group as at 30 June 2012 reported in Company's financial
statements for the financial year ended 30 June 2012 (the "Relevant
Financial Statements") (each a "Material Adverse Event") other than
an issue, event, occurrence, fact, circumstance or matter:
(1) required to be undertaken or procured by the Group pursuant
to the Scheme or this Agreement;
(2) to the extent that issue, event, occurrence, fact or matter
was fairly disclosed to the Acquiror prior to the date of this
Agreement;
(3) to the extent that event, occurrence, fact or matter was
known to the Acquiror prior to the date of this Agreement (which
does not include knowledge of the risk of an event, occurrence or
matter happening);
(4) to the extent that issue, event, occurrence, fact or matter
was caused directly by the entry into this Agreement; or
(5) to the extent that issue, event, occurrence, fact or matter
was caused directly by the Acquiror and/or VAH,
provided that for the purposes of this paragraph 15, in
determining whether a Material Adverse Event under paragraph 15 has
occurred, the Company shall require the Auditors to prepare and
deliver to the Acquiror, within 15 Business Days of the Material
Adverse Event or the receipt of notification from the Acquiror of a
Material Adverse Event, using the same accounting standards,
policies and principles adopted for the preparation of the Relevant
Financial Statements, the proforma consolidated balance sheet and
consolidated profit and loss statement for the same financial
period as the Relevant Financial Statements, assuming that such
Material Adverse Event had, for the purposes of the proforma
consolidated balance sheet occurred as at the end of such financial
period, and for the purposes of the proforma profit and loss
statement, occurred as at the beginning of such financial
period;
(16) AOC: if any AOC held by any Group Company is withdrawn,
suspended or is made subject to any new material restrictions after
the date of this Agreement and any such withdrawal, suspension or
such new restrictions is not removed, lifted or reinstated within
10 Business Days;
(17) Warranties: if any of the representations and warranties
set out in paragraphs 1.1, 1.2.1, 1.3, 2, 3, 4.1.1, 4.1.2, 4.2,
4.3.2, 4.4, 4.5, 4.6, 5.1, 5.3, 5.4.1(i), 5.4.1(ii), 5.5.1, 5.5.2,
5.6 and 8 of Schedule 2 are not true and correct in all material
respects as at the Record Date; or
(18) Analogous Event: any event occurs which, under the laws of
any jurisdiction, has an analogous or equivalent effect to any of
the foregoing event(s).
Schedule 7
Undertaking Shareholders
Name of Undertaking Shareholder Number of Skywest Shares held
Direct Interest Deemed Interest
================ ================
Robert Jeffries Chatfield 2,400,100 33,720,855
================ ================
Seah Kian Peng 2,050,000 -
================ ================
John Leonard Jost 27,250 4,675,412
================ ================
Ronald Lewis Aitkenhead 200,000 -
================ ================
Schedule 8
Disclosures
Party Name Name in which Securities Description Number of Securities Trading in
Securities held as at the period
held date of announcement 30 July 2012
to 5 December
2012
VAH
VAH VB Investco Convertible Notes 17,777,778 Nil
Pty Ltd - A$8 million convertible
debt instrument, convertible
into SXR Shares at
any time until 15
April 2015 at a conversion
price of A$0.45 per
share
------------------- ------------------------------ ---------------------- ---------------
VAH VB Investco Warrants over SXR 6,410,000 Nil
Pty Ltd Shares, with a grant
price of A$0.05 per
warrant, exercise
price of A$0.45, exercisable
at any time until
15 April 2015
------------------- ------------------------------ ---------------------- ---------------
VAH Directors
John Borghetti Massimo John VAH Shares 296,296 Nil
Borghetti
------------------- ------------------------------ ---------------------- ---------------
John Borghetti BT Portfolio VAH Shares 572,811 Nil
Services Limited
<Borghetti
Family Account>
------------------- ------------------------------ ---------------------- ---------------
John Borghetti John Borghetti Options over unissued 4,941,481 Nil
VAH Shares, granted
in accordance with
the VAH Senior Executive
Option Plan
Vesting Date: 60%
will vest on 30 June
2014 and 40% on 30
June 2015 provided
performance hurdles
are met
------------------- ------------------------------ ---------------------- ---------------
John Borghetti John Borghetti Performance rights 658,544 Nil
over VAH Shares, granted
pursuant to the terms
of the CEO Co-Investment
Scheme
Vesting Date: 30 June
2013 provided performance
conditions are met
------------------- ------------------------------ ---------------------- ---------------
John Borghetti John Borghetti Options over unissued 4,115,903 Nil
VAH Shares, granted
in accordance with
the VAH Senior Executive
Option Plan
Vesting Date: 8 May
2013 provided performance
hurdles are met
------------------- ------------------------------ ---------------------- ---------------
Neil Chatfield Neil Chatfield VAH Shares 1,000,392 Nil
------------------- ------------------------------ ---------------------- ---------------
Neil Chatfield Jennifer Chatfield VAH Shares 4,664 80,000 VAH
Shares sold
on 31 August
2012
------------------- ------------------------------ ---------------------- ---------------
David Baxby David Baxby VAH Shares 40,000 Nil
------------------- ------------------------------ ---------------------- ---------------
Robert Thomas Rob Thomas VAH Shares 450,000 Nil
Super Fund
------------------- ------------------------------ ---------------------- ---------------
Robert Thomas Robert Bain VAH Shares 21,632 Nil
Thomas
------------------- ------------------------------ ---------------------- ---------------
Robert Thomas Thomas Family VAH Shares 14,288 Nil
Account
------------------- ------------------------------ ---------------------- ---------------
Mark Vaile Wendmar - VAH Shares 30,000 Nil
Vaile Superfund
------------------- ------------------------------ ---------------------- ---------------
Samantha Samantha Mostyn VAH Shares 100,000 Nil
Mostyn
------------------- ------------------------------ ---------------------- ---------------
Keith Roberts Keith Roberts VAH Shares 12,000 Nil
(Alternate
director)
------------------- ------------------------------ ---------------------- ---------------
VAH Group Companies Directors
Sankar Narayan Sankar Narayan VAH Shares 39,767 Nil
------------------- ------------------------------ ---------------------- ---------------
Sankar Narayan Sankar Narayan Options over unissued 413,614 Nil
VAH Shares, granted
in accordance with
the VAH Senior Executive
Option Plan
Vesting Date: Date
of Announcement of
2013 Annual Results
(approx 27 August
2013) provided performance
hurdles are met
------------------- ------------------------------ ---------------------- ---------------
Sankar Narayan Sankar Narayan Options over unissued 1,060,445 Nil
VAH Shares, granted
in accordance with
the VAH Senior Executive
Option Plan
Vesting Date: Date
of Announcement of
2014 Annual Results
(approx 26 August
2014) provided performance
hurdles are met
------------------- ------------------------------ ---------------------- ---------------
Mark Pitt Mark Pitt Options over unissued 338,454 Nil
VAH Shares, granted
in accordance with
the VAH Senior Executive
Option Plan
Vesting Date: 27 August
2013 provided performance
hurdles are met
------------------- ------------------------------ ---------------------- ---------------
Mark Pitt Mark Pitt Options over unissued 497,526 Nil
VAH Shares, granted
in accordance with
the VAH Senior Executive
Option Plan
Vesting Date: Date
of Announcement of
2014 Annual Results
(approx 26 August
2014) provided performance
hurdles are met
------------------- ------------------------------ ---------------------- ---------------
Sean Donohue Sean Donohue VAH Shares 115,854 Nil
(Alternate
director)
------------------- ------------------------------ ---------------------- ---------------
Sean Donohue Sean Donohue Options over unissued 765,934 Nil
(Alternate VAH Shares, granted
director) in accordance with
the VAH Senior Executive
Option Plan
Vesting Date: 27 August
2013 provided performance
hurdles are met
------------------- ------------------------------ ---------------------- ---------------
Sean Donohue Sean Donohue Options over unissued 813,008 Nil
(Alternate VAH Shares, granted
director) in accordance with
the VAH Senior Executive
Option Plan
Vesting Date: Date
of Announcement of
2014 Annual Results
(approx 26 August
2014) provided performance
hurdles are met
------------------- ------------------------------ ---------------------- ---------------
Goldman Sachs
Goldman Sachs Goldman Sachs VAH Shares - Short 300,000 Nil
Australia Position
Capital Markets
Limited
------------------- ------------------------------ ---------------------- ---------------
This information is provided by RNS
The company news service from the London Stock Exchange
END
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