W.A Business News 14/01/2008 Yilgarn threatens Midwest with legal action 14-April-08 by Rebecca Lawson
Yilgarn Infrastructure has flagged a potential $1 billion damages claim for breach of contract by Midwest Corporation Ltd, which allegedly signed a binding agreement to formally nominate it as its preferred developer for the Oakajee port and rail.
The potential face off between the iron ore miner and Yilgarn, an unlisted public company based in Perth, stems from heads of agreements entered into during September last year over development of the port and related infrastructure.
Development of Oakajee is currently up for tender between Midwest and rival iron ore miner Murchison Metals, with the latter already nominating its subsidiary Oakajee Port and Rail before the May 9 deadline.
Yilgarn said in a statement today that the agreements entered into last year are binding and that Midwest has an obligation to nominate it as its infrastructure provider.
"The only threat to Yilgarn's proposal is Midwest Corporations's failure to date to formally nominate Yilgarn to the RFP [Request for Proposal] process," Yilgarn executive chairman Dr John Sanders said.
Midwest announced earlier that it was under no obligation to do either of these, with negotiations for the terms of the agreements ongoing.
Complicating matters is Sinosteel's hostile takeover of Midwest, where it has acquired a 19.9 per cent stake in the miner and is also a major investor in Yilgarn.
Midwest said the relationship between Sinosteel and Yilgarn had triggered a related party transaction over the Oakajee port and infrastructure agreements entered into previously, and in order for those agreements to go ahead it needed shareholder approval in accordance with ASX rules.
"Midwest intends to discuss this and other matters with the DPI [Department of Planning and Infrastructure] this week," the company said.
"Midwest is confident that the DPI will understand that this process has been forced on Midwest by Sinosteel's shareholding in Midwest and will respect that it has to comply with the ASX Listing Rules."
Yilgarn believes a shareholder vote is not necessary, stating that its proposal to be nominated as the Oakajee infrastructure provider did not make it and Sinosteel "associates".
In an open letter to Midwest dated last Friday, Yilgarn alleged the iron ore miner was in breach of an Infrastructure Implementation Agreement and reserved all of its rights in respect of the alleged breaches and as a shareholder of the company.
In the same letter, Midwest said Yilgarn has threatened that in the event that the iron ore miner refused to nominate it as its infrastructure provider, it may initiate proceedings against the company and or its directors.
"There is no merit in Yilgarn's allegations," Midwest said.
"Midwest will write to Yilgarn confirming its intention to continue to negotiate with a view to nominating Yilgarn."
A statement from Midwest Corporation is pasted below:
The Board of Directors of Midwest Corporation Limited has recently met and now provides an update to shareholders and the market on its participation in the new port development at Oakajee.
Yilgarn
On or about 21 September 2007 (when Sinosteel Corporation ("Sinosteel") was not a substantial shareholder of Midwest), Yilgarn Infrastructure Limited ("Yilgarn") and Midwest entered into agreements in relation to the development of the Oakajee Port and related infrastructure.
These included an Infrastructure Implementation Agreement (in which Midwest has certain obligations of exclusivity and non-solicitation to Yilgarn in relation to port and rail infrastructure) and a Foundation User Term Sheet (which is currently due to expire on 28 May 2008 and which envisages that the parties may execute a Foundation Infrastructure User Agreement).
On 3 December 2007 the Western Australian State Government (via the Department of Planning and Infrastructure ("DPI") advised that it would offer each of Midwest and Murchison Metals Limited ("Murchison") the opportunity to develop the port infrastructure at Oakajee through a contestable process and conferred on the two companies the right to nominate an infrastructure provider of choice.
On 28 February 2008 the DPI issued to each of Midwest and Murchison a Request for Proposal for Development of a Deep Water Port at Oakajee ("RFP") which the companies (or their nominated infrastructure providers) must respond to by 9 May 2008. Murchison has nominated an organisation called Oakajee Port and Rail as its infrastructure provider.
Yilgarn has requested Midwest to nominate Yilgarn as Midwest's infrastructure provider so that it can respond to the RFP.
Yilgarn has also requested that Midwest affirm its status as a foundation user and to extend the date by which the Foundation Infrastructure User Agreement has to be executed so that these dates fall into line with the RFP timetable. Midwest is under no obligation to do either of these.
The nomination sought by Yilgarn would give it the right to respond to the RFP which is to design, construct, own, operate, maintain and finance various elements of the Oakajee Port.
The port, and supporting rail infrastructure, is critical for the development of Midwest's assets including the Weld Range, Jack Hills and Robinson Range projects.
Sinosteel Becomes a Substantial Shareholder of Midwest
Sinosteel Corporation became a substantial shareholder of Midwest on 24 January 2008.
Murchison remains as a 4.77% shareholder of Midwest following its unsuccessful takeover bid.
Yilgarn, together with Sinosteel and others, are promoting or propose to promote Yilgarn as the infrastructure provider for the mid west region. Midwest is of the view that this makes Yilgarn and Sinosteel associates for the purposes of Chapter 10 of the ASX Listing Rules.
As required under Chapter 10, the nomination of Yilgarn and/or the entering into the Foundation Infrastructure User Agreement with Yilgarn, therefore requires Midwest shareholder approval if the aggregate value of these transactions exceed 5% of Midwest's net asset value (approximately $7,000,000).
The Directors of Midwest are concerned that this aggregate value of these two transactions is greater than the $7,000,000 Chapter 10 Listing Rule threshold. Midwest has and will continue to consult ASX on this matter.
Sinosteel, under cover of letters from its lawyers, has advised Midwest that it supports the nomination of Yilgarn under the RFP.
Yilgarn Arrangements
The Directors of Midwest are of the opinion that the most appropriate course of action, given the above circumstances, is for Midwest's nomination of Yilgarn and/or the entering into of a Foundation Infrastructure User Agreement with Yilgarn be subject to Midwest shareholder approval in accordance with Chapter 10.
Furthermore, given that Midwest is currently the subject of a hostile takeover offer by Sinosteel the Director's of Midwest intend to obtain shareholder approval as a matter of good corporate governance.
Midwest is of the opinion that it can effectively nominate Yilgarn and agree all related matters subject to Midwest shareholder approval.
This would be done in part by Midwest nominating a wholly owned subsidiary of Midwest which responds to the RFP with assistance from Yilgarn.
Assuming Midwest shareholder approval is obtained Yilgarn could acquire 100% of this subsidiary.
Midwest intends to discuss this and other matters with the DPI this week.
Midwest is confident that the DPI will understand that this process has been forced on Midwest by Sinosteel's shareholding in Midwest and will respect that it has to comply with the ASX Listing Rules.
Midwest and Yilgarn have been in negotiations for sometime with a view to agreeing the nomination of Yilgarn under the RFP process.
Midwest wants to continue the negotiations on the nomination and related matters all of which will now have to be subject to Midwest shareholder approval.
Midwest will appoint an independent expert to prepare a report on the possible transactions with Yilgarn that would be included in the notice convening a general meeting of Midwest shareholders.
Such an expert must state whether the transactions are fair and reasonable to Midwest shareholders other than Sinosteel and its associates.
The expert will also be asked to estimate the aggregate value of these transactions.
Yilgarn has by open letter to Midwest and the Midwest Directors dated 11 April 2008 alleged that Midwest is in breach of the Infrastructure Implementation Agreement and has reserved all of its rights in respect of the alleged breaches and as a shareholder of Midwest.
Midwest denies that it is in breach of the Infrastructure Implementation Agreement.
In the same open letter Yilgarn has threatened that in the event that Midwest persists in its refusal to nominate Yilgarn under the RFP process that it may initiate proceedings against Midwest and/or the Directors of Midwest.
There is no merit in Yilgarn's allegations.
Midwest will write to Yilgarn confirming its intention to continue to negotiate with a view to nominating Yilgarn under the RFP process.
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