AZS (ASX) Ann: Binding Transaction Implementation Deed with SQM

Originally posted by calmbeforestorm: ↑

Agree with most of your points except that it is my interpretation that SQM cannot buy on AZS shares under the Takeover Bid until there is FIRB approval - my explanation is set out below (happy if someone can explain why I am wrong) If I am correct then the SP may go below $3.50 once the big buyer is finished buying, well before February next year.

One other consideration - Gina or whoever the big buyer is may decide to stop buying once they achieve 18.99% or even 17.99% or even lower which does not stop Scheme or Arrangement - if they did stop at these levels they would have 23.75% of non-SQM AZS shares - that may just be enough to stop the scheme as they need 75% acceptance level and I am sure the big buyer could ask another friendly party eg Min Res, to buy 1% or even 2% (they may even have that before the SQM bid). That is the big individual entity buyer may have other friendly owners they can rely on.

It is a big game of chess with so many chess moves, permutations and options that may emerge. It's anyone's guess how this will eventually finish and who will be the winner/loser or winners/losers - my own view is we may be in for a very lengthy period of having AZS listed and under takeover offer and who knows AZS may be listed for many years to come. In the M&A world anything can transpire. And as for price, that will be dictated by ongoing assay results and what the big players are willing to offer.
Please donot take my interpretation below as being correct and seek your own legaladvice before making your own decision. I am happy if someone can explain whymy interpretation is incorrect.
Schedule 2 consider the Takeover Bid.
Clause 1.7 (a) requires FIRB approval for the Takeover Bid to become effective.
Clause 1.8 deals with the nature and waiver of Takeover Bid Conditions. Part (b) of this clause is key and states:
“The Takeover Bid Condition in clause 1.7(a) of this Schedule 2 is a condition precedent to the acquisition of any interest inAzure Shares and will prevent a contract to sell Azure Shares from arising until it is satisfied or waived in accordance with this deed and the Corporations Act. Notwithstanding the acceptance of the Offer by an Azure Shareholder, unless and until the condition in that clause is fulfilled:
(1) no contract for the sale of the Azure Shares willcome into force or be binding on the Azure Shareholder or on SQM; and
(2) SQM will have no rights (conditional or otherwise) inrelation to the Azure Shares.”
Quite legalistic wording but my interpretation is that FIRB approval is required before SQM can acquire any AZS shares and prevents any contract to sell AZS shares to SQM (see words highlighted). It goes onto to state in clause 1.8 (b) (1) that no contract for sale of Azure shares will come into force or be binding on the AZS shareholder or SQM and in (b) (2) that SQM has no rights to AZS shares until FIRB approval.

My (non-legal) interpretation of Schedule 2 clause 1.8 (b) is that even if an AZS shareholder wanted to sell their shares off or on-market to SQM or SQM offered to buy AZS shares off or on-market, before FIRB approval, no contract for a AZS shareholder to sell to SQM is valid until FIRB approval.

So it appears SQM cannot really buy any AZS shares on or off-market under the Takeover Bid until FIRB approval which is many weeks if not months away.

There are some other aspects of the contract which allow SQM to waiver the 19% clause to cease the scheme of arrangement but it’s sort of redundant unless the 19% buyer will support the scheme of arrangement.

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You're right @calmbeforestorm.

The FIRB condition cannot be waived by SQM under the Implementation Deed for the off-market takeover - I hadn't checked this to now. Technically, SQM should be able to waive but I can understand why Azure wouldn't have allowed in the negotiations because if SQM didn't get FIRB approval, they would have to sell shares on market which may depress share price (with price likely coming off significantly if the bid didn't proceed because no FIRB approval - which I think is unlikely).

That means SQM can't buy on-market (as part of the off-market takeover) until they got FIRB and declare the off-market takeover unconditional. Shareholders are free to accept before it goes unconditional (and SQM would show an increase in their relevant interest in shareholder notices) but there is no legally binding contract, and shareholders can withdraw in some circumstances before it becomes unconditional (e.g. takeover offer is extended for 1 month or more) and shareholders would still hold shares if ultimately takeover offer was terminated.

Azure share price could trade below $3.50 before February (although I don't think by much, unless material adverse change - think something like Australia goes to war). However, if Scheme doesn't get up, I expect SQM will have FIRB approval by then and off-market takeover kicks in and people can sell shares at $3.50.