GLENCORE BEGINS PROCESS OF ACQUIRING VITERRA
Jul. 10, 2012
Source: Glencore International plc news release
Glencore International plc ("Glencore") announced today that in connection with its agreed acquisition of 100% of the outstanding common shares of Viterra Inc. ("Viterra") by way of a plan of arrangement (the "Arrangement"), Glencore is soliciting consents (the "Consent Solicitations") to approve certain proposed amendments (collectively, the "Proposed Amendments) relating to (i) Viterra's 5.950% Senior Notes due August 1, 2020 (CUSIP 92849TAJ7/C96906AA7) (the "2020 Notes") and (ii) Viterra's 6.406% Senior Unsecured Notes due February 16, 2021 (CUSIP 92849TAL2/92849TAM0) (the "2021 Notes", and together with the 2020 Notes, the "Notes").
In addition to soliciting the written consent of the holders of 2021 Notes to the 2021 Proposed Amendments, Glencore is also soliciting proxies (the "Proxy Solicitation") in connection with a meeting of the holders of 2021 Notes scheduled to take place at 10:00 a.m. (Toronto time) on July 23, 2012 at Suite 3400, One First Canadian Place, Toronto, Ontario, M5X 1A4 (as may be adjourned or postponed, the "2021 Noteholder Meeting"), at which meeting holders of 2021 Notes will be asked to (i) consider and, if deemed appropriate, pass an extraordinary resolution ("2021 Noteholder Resolution") authorizing and approving the 2021 Proposed Amendments and (ii) transact such further or other business as may properly come before the 2021 Noteholder Meeting.
The terms and conditions of the Consent Solicitations and the Proxy Solicitation are described in the consent and proxy solicitation statement of Glencore dated July 9, 2012 and in the accompanying consent form relating to the 2020 Notes (the "2020 Consent Form"), consent form relating to the 2021 Notes (the "2021 Consent Form" and, together with the 2020 Consent Form, the "Consent Forms"), proxy form relating to the 2021 Notes (the "Proxy Form"), Viterra notice of 2021 Noteholder Meeting and Glencore meeting matters document (collectively, the "Consent Solicitation Statement"). Capitalized terms used but not otherwise defined in this announcement have the respective meanings ascribed to them in the Consent Solicitation Statement.
As part of the Consent Solicitations and the Proxy Solicitation, Glencore is offering to noteholders, if the Proposed Amendments become effective:
• in the case of the 2020 Notes, a Consent Solicitation fee of U.S.$5.00 per U.S.$1,000 principal amount of 2020 Notes; and
• in the case of the 2021 Notes, if the 2021 Proposed Amendments become effective in the context of (a) the 2021 Consent Solicitation, a Consent Solicitation fee of C$5.00 per C$1,000 principal amount of 2021 Notes, or (b) the 2021 Noteholder Meeting, a Proxy Solicitation payment of C$5.00 per C$1,000 principal amount of 2021 Notes. In no circumstances will Glencore pay both a Consent Fee and a Proxy Payment (as such terms are defined herein) to the holders of 2021 Notes.
In addition, if the Proposed Amendments become effective, all holders of the Notes will receive a guarantee from each of Glencore and its main operating subsidiary, Glencore International AG ("GIAG" and, together with Glencore, the "Guarantors") in respect of the amended Notes they hold as of the effective date of the applicable supplemental indenture.
Expiration Date and Record Date
Each Consent Solicitation expires at 5:00 p.m., New York time, on July 19, 2012, unless extended or earlier terminated by Glencore (such time and date, as it may be extended by Glencore from time to time, the "Expiration Date"). The "Proxy Cut-Off Date" for the Proxy Solicitation is currently the same as the Expiration Date for the Consent Solicitations, provided that if the 2021 Noteholder Meeting is adjourned or postponed, the Proxy Cut-Off Date shall be 48 hours (excluding Saturdays, Sundays and holidays) prior to any such adjourned or postponed 2021 Noteholder Meeting.
The record date in respect of each Consent Solicitation and the Proxy Solicitation has been set as July 6, 2012 (the "Record Date") to determine which holders of each series of Notes may validly consent to the applicable Proposed Amendments (or, in the case of the 2021 Notes, receive notice of and vote at the 2021 Noteholder Meeting). Only holders of the Notes whose names appear on the applicable register of noteholders maintained on behalf of Viterra at 5:00 p.m., New York time, on the Record Date or their authorized proxies may validly consent to the applicable Proposed Amendments (or, in the case of the 2021 Notes, receive notice of and vote at the 2021 Noteholder Meeting) and accordingly, subject to, among other things, the Proposed Amendments becoming effective, receive the applicable Consent Fee or Proxy Payment.
Purpose of the Proposed Amendments
Glencore has requested that Viterra complete the Acquisition Asset Transfers (as hereinafter defined) in connection with the Arrangement in order to facilitate the integration of Viterra following its acquisition by Glencore and to allow the integrated company greater flexibility in operations. The Proposed Amendments would also approve the Acquisition Asset Transfers and align the reporting requirements under the indentures governing the Notes (the "Indentures") with Glencore's public reporting requirements, all as more particularly described below. If the Proposed Amendments become effective, each of the Guarantors will guarantee Viterra's obligations in respect of the Notes and a corresponding negative pledge will be added to each of the Indentures restricting each of the Guarantors and their respective material subsidiaries from pledging their properties or assets as security for certain present or future indebtedness.
Summary of the Proposed Amendments
The primary effects of the Proposed Amendments will be to (i) approve the change of the jurisdiction of incorporation of Viterra to Australia (currently intended to be the State of Victoria); (ii) approve the transfer by Viterra, directly and indirectly, of up to all or substantially all of its assets and liabilities to a number of direct or indirect wholly-owned subsidiaries in connection with the acquisition of Viterra by Glencore (the "Acquisition Asset Transfers"); (iii) amend the financial reporting requirements under each of the Indentures so that Viterra may provide only those financial statements that Viterra is required to file on SEDAR (if Viterra obtains the relief being sought under its relief application to the Saskatchewan Financial Services Commission and the Ontario Securities Commission, such financial statements shall be the annual audited and semi-annual unaudited financial statements of Glencore under International Financial Reporting Standards); (iv) modify the provisions of the existing negative pledge of Viterra under each of the Indentures to make them consistent with the provisions of the negative pledge to which each of Glencore and GIAG is subject in connection with Glencore's Euro medium-term note program (the negative pledge from the Guarantors described below will also be added); (v) eliminate in the Indenture governing the 2021 Notes certain restrictions on related party transactions, and (vi) provide for certain consequential amendments.
Each of the Guarantors will provide a guarantee (the "Parent Guarantees") of Viterra's obligations in respect of the Notes as part of the Proposed Amendments and a corresponding negative pledge will be added to each of the Indentures restricting each of the Guarantors and their respective material subsidiaries from pledging their properties or assets as security for certain present or future indebtedness. The Parent Guarantees would be unsecured obligations and would rank pari passu in right of payment of principal and interest and premium, if any, with all existing and future unsubordinated, unsecured obligations of the Guarantors.
Consents Required; Payment of Consent Fee; Payment of Proxy Payment
In order for the Proposed Amendments to be approved:
• in the case of the 2020 Notes, valid consents from holders of not less than a majority in aggregate principal amount Outstanding (for the purposes of the Deutsche Bank Indenture) of 2020 Notes must have been received (and not subsequently revoked) by the applicable Expiration Date and accepted by Glencore (the "2020 Requisite Consents"); and
• in the case of the 2021 Notes, (i) valid consents from holders of not less than 66 2 / 3 % in aggregate principal amount Outstanding (for the purposes of the BNY Indenture) of 2021 Notes must have been received (and not subsequently revoked) by the applicable Expiration Date and accepted by Glencore (the "2021 Requisite Consents" and, together with the 2020 Requisite Consents, the "Requisite Consents"); or (ii) the 2021 Noteholder Resolution is passed by the holders of Outstanding (for the purposes of the BNY Indenture) 2021 Notes representing not less than 66 2 / 3 % of the votes cast in respect of such resolution and the 2021 Noteholder Resolution is in full force and effect and must not have been cancelled, rescinded, amended, repealed or supplemented as of the date of execution of the Supplemental Indenture for the 2021 Notes (the "Requisite Meeting Approval").
If the Requisite Consents have been obtained (or alternatively, in the case of the 2021 Notes, if there is Requisite Meeting Approval), the other conditions to the Proposed Amendments are satisfied or waived (the satisfaction or waiver of all of the conditions precedent to the Arrangement is a condition precedent to the implementation of the Proposed Amendments) and the Proposed Amendments become effective, Glencore will pay (a) to each holder of record of the Notes as of the Record Date that has delivered (and not subsequently revoked) a valid consent prior to the applicable Expiration Date, * U.S.$5.00 per U.S.$1,000 principal amount of 2020 Notes and (y) C$5.00 per C$1,000 principal amount of 2021 Notes in respect of which such consent has been so delivered and not revoked (the "Consent Fee"); or (b) alternatively, in the case of the 2021 Notes, if there is Requisite Meeting Approval, to each holder of record of the 2021 Notes as of the Record Date that has validly delivered (and not subsequently revoked) a Proxy Form prior to the Proxy Cut-Off Date (as defined herein) appointing the Glencore nominees designated in the Proxy Form as proxyholders and containing instructions to vote in favour of the 2021 Noteholder Resolution, C$5.00 per C$1,000 principal amount (the "Proxy Payment") of 2021 Notes in respect of which such Proxy Form has been so delivered (and not subsequently revoked) with such instructions. In no circumstances will Glencore pay both a Consent Fee and Proxy Payment to the holders of 2021 Notes.
Failure to deliver a properly completed Proxy Form does not constitute a vote against the 2021 Noteholder Resolution for the purposes of the 2021 Noteholder Meeting. In order to vote in favour or against the 2021 Noteholder Resolution at the 2021 Noteholder Meeting, a holder of 2021 Notes must validly deliver (and not subsequently revoke) a Proxy Form to the 2021 Information and Tabulation Agent prior to the Proxy Cut-Off Date.
If valid consents from holders of not less than 66⅔% in aggregate principal amount Outstanding (for the purposes of the BNY Indenture) of 2021 Notes have been received (and have not been subsequently revoked) by the applicable Expiration Date, the 2021 Noteholder Meeting is expected to be cancelled.
Background to the Arrangement and the Sales to Agrium and Richardson
On March 20, 2012, Glencore, 8115222 Canada Inc. ("Glencore Purchaser"), a wholly-owned indirect subsidiary of Glencore, and Viterra entered into an agreement (the "Arrangement Agreement") whereby Glencore, through Glencore Purchaser, agreed to acquire 100% of the outstanding shares of Viterra at a price per share of C$16.25 for an aggregate purchase price of approximately C$6.1 billion. On May 29, 2012, the shareholders of Viterra approved the Arrangement with 99.8% of the shareholders represented in person or by proxy at the meeting having voted in favour. The Arrangement was subsequently approved by the Ontario Superior Court of Justice (Commercial List) on May 31, 2012. Glencore continues to work to close the Arrangement by the end of July, 2012. However, it is not possible at this time to determine with certainty when the effective date of the Arrangement will occur. The closing of the Arrangement is subject to the satisfaction or waiver of all applicable conditions, including the granting of outstanding approvals or clearances under the Investment Canada Act, the Australian Foreign Acquisitions and Takeovers Act 1975 and the Chinese Anti-Monopoly Law. Significant approvals that have been granted to date include Viterra shareholder approval, the final order issuance by the Ontario Superior Court of Justice approving the Arrangement under the Canada Business Corporations Act, the No Action letter from the Competition Bureau of Canada, the expiration of the U.S. statutory waiting period for antitrust review, the statement made by the Australian Competition and Consumer Commission that it will not oppose the Arrangement, and most recently, notification by the European Commission that it has decided not to oppose the Arrangement. Nonetheless, there can be no assurance that the Arrangement will be completed on the terms expected or in accordance with the anticipated timing or at all.
Separately from the Arrangement, Glencore has also agreed to sell certain of Viterra's assets, following closing of the Arrangement, to Agrium Inc. ("Agrium") (the "Agrium Assets") for an aggregate purchase price of approximately C$1.8 billion, including estimated working capital and subject to adjustment in certain circumstances, and to Richardson International Limited (" Richardson ") (the "Richardson Assets") for an aggregate purchase price of C$0.8 billion plus net working capital and subject to adjustment in certain circumstances. Agrium and Richardson have each agreed to lend to the Glencore Purchaser an amount equal to the corresponding purchase price of the Agrium Assets and Richardson Assets, respectively (such loans being referred to herein as the "Agrium Loan" and the "Richardson Loan"). The Agrium Loan and the Richardson Loan would each be satisfied by the transfer of the Agrium Assets to Agrium and the Richardson Assets to Richardson (which, in both cases, may be accomplished in a series of closings in the period following the completion of the Arrangement). The proposed sales of the Agrium Assets and the Richardson Assets are each subject to a number of conditions precedent, some of which are beyond the control of Glencore, including the receipt of certain regulatory approvals. There can be no assurance that the proposed sales of the Agrium Assets or the Richardson Assets will be completed on the terms expected or at all.
The implementation of the Proposed Amendments is not a condition to the implementation of the Arrangement or the sales of the Agrium Assets to Agrium or the Richardson Assets to Richardson. The sales of the Agrium Assets to Agrium and the Richardson Assets to Richardson are permitted under the Indentures and do not require the consent or approval of noteholders. Therefore, these transactions, subject to the provisions of the applicable agreements, would be expected to proceed irrespective of the results of the Consent Solicitations or the Proxy Solicitation.
Conditions to the Proposed Amendments
Provided that Glencore has determined in its sole discretion to proceed with the Proposed Amendments, Glencore's payment of (a) the applicable Consent Fee with respect to valid and unrevoked consents; or (b) the Proxy Payment with respect to validly delivered and unrevoked proxies appointing the Glencore nominees designated in the Proxy Form and containing instructions to vote in favour of the 2021 Noteholder Resolution, is conditioned on the satisfaction or waiver by Glencore of the following conditions:
• all of the conditions precedent to the Arrangement having been satisfied or waived;
• the 2020 Requisite Consents having been obtained;
• the 2021 Requisite Consents having been obtained (or alternatively, there being Requisite Meeting Approval);
• the execution and delivery by Viterra, the Guarantors and the applicable Trustees of the applicable Supplemental Indentures providing for the applicable Proposed Amendments; and
• the absence of any law or regulation which would, and the absence of any pending or threatened injunction or other proceeding which (if adversely determined) would make unlawful or invalid or enjoin the implementation of the applicable Proposed Amendments or the payment of the Consent Fee or the Proxy Payment or require the registration of the Notes or the Parent Guarantees under the U.S. Securities Act or any state securities laws or qualification under any provincial or territorial securities law in Canada or that would question the legality or validity thereof.
The Proposed Amendments relating to the 2020 Notes are interdependent with the Proposed Amendments relating to the 2021 Notes, each being conditional on the other being approved by the applicable noteholders; provided that Glencore may waive such conditions in each case and proceed with the proposed amendments relating to one series of the Notes without proceeding with the proposed amendments relating to the other series of the Notes. Glencore and GIAG will only provide Parent Guarantees in respect of a series of the Notes if the Proposed Amendments relating thereto become effective as described in the Consent Solicitation Statement.
Consequences of Proposed Amendments not being implemented
If the Proposed Amendments are not implemented, Glencore (a) would proceed with the acquisition of Viterra in accordance with the terms of the Arrangement Agreement; and (b) intends to consummate the sale of the Agrium Assets to Agrium and the Richardson Assets to Richardson which transactions are permitted under the Indentures and do not require the consent or approval of noteholders. Noteholders are cautioned that the steps set out above and in the Consent Solicitation Statement are subject to further revision at Glencore's discretion (subject to the terms of any binding commitments entered into by Glencore or Viterra). Further, if the Proposed Amendments are not implemented, Glencore will not pay any Consent Fees or Proxy Payment and the Guarantors will not guarantee Viterra's obligations under the Notes as described in the Consent Solicitation Statement.
Effect of the Proposed Amendments on Non-Consenting and Non-Voting Holders
If the applicable Proposed Amendments become effective, each applicable noteholder, irrespective of whether such noteholder delivered a Consent Form or Proxy Form (as applicable), will be bound by the applicable Proposed Amendments and will have the benefit of the Parent Guarantees.
About Glencore International plc
Glencore is one of the world's leading integrated producers and marketers of commodities, headquartered in Baar, Switzerland, and listed on the London and Hong Kong Stock Exchanges. Glencore has worldwide activities in the production, sourcing, processing, refining, transporting, storage, financing and supply of Metals and Minerals, Energy Products and Agricultural Products.
About Viterra Inc.
Viterra provides premium quality ingredients to leading global food manufacturers. Headquartered in Canada, the global agri-business has operations across Canada, the United States, Australia, New Zealand and China, as well as a growing international presence that extends to offices in Japan, Singapore, Vietnam, Switzerland, Italy, Ukraine, Germany, Spain and India. Driven by an entrepreneurial spirit, Viterra operates three distinct business segments: Grain Handling and Marketing, Agri-Products and Processing. Viterra's expertise, close relationships with producers and superior logistical assets allow Viterra to consistently meet the needs of the most discerning end-use customers, helping to fulfill nutritional needs of people around the world. Viterra shares are traded on the Toronto Stock Exchange and Viterra CHESS Depository Interests (CDIs) representing beneficial interests in Viterra shares trade on the Australian Securities Exchange.