UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 6-K
REPORT OF FOREIGN PRIVATE ISSUER PURSUANT TO RULE 13a-16 OR 15d-16 UNDER THE
SECURITIES EXCHANGE ACT OF 1934
For the month of
March, 2010
Commission File Number
001-04192
KHD Humboldt Wedag International Ltd.
(Translation of registrants name into English)
Suite 1620
400 Burrard Street, Vancouver, British Columbia, Canada V6C 3A6
(Address of principal executive office)
Indicate
by check mark whether the registrant files or will file annual
reports under cover of Form 20-F or Form
40-F.
Form 20‑F
þ
Form 40-F
o
Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by
Regulation S-T Rule 101(b)(1)
o
Note:
Regulation S-T Rule 101(b)(1) only permits the submission in paper of a Form 6-K if
submitted solely to provide an attached annual report to security holders.
Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by
Regulation S-T Rule 101(b)(7)
o
Note:
Regulation S-T Rule 101(b)(7) only permits the submission in paper of a Form 6-K if
submitted to furnish a report or other document that the registrant foreign private issuer must
furnish and make public under the laws of the jurisdiction in which the registrant is incorporated,
domiciled or legally organized (the registrants home country), or under the rules of the home
country exchange on which the registrants securities are traded, as long as the report or other
document is not a press release, is not required to be and has not been distributed to the
registrants security holders, and, if discussing a material event, has already been the subject of
a Form 6-K submission or other Commission filing on EDGAR.
Indicate by check mark whether by furnishing the information contained in this Form, the registrant
is also thereby furnishing the information to the Commission pursuant to Rule 12g3-2(b) under the
Securities Exchange Act of 1934. Yes
o
No
þ
If Yes is marked, indicate below the file number assigned to the registrant in connection with
Rule 12g3-2(b): 82-
KHD HUMBOLDT WEDAG INTERNATIONAL LTD.
NOTICE OF SPECIAL MEETING
OF THE HOLDERS OF COMMON SHARES
TO BE HELD ON MARCH 29, 2010
MANAGEMENT INFORMATION CIRCULAR
MARCH 1, 2010
Please carefully read this Management Information Circular, including its schedules and the
documents incorporated by reference herein, as they contain detailed information relating to, among
other things, the plan of arrangement that the shareholders of KHD Humboldt Wedag International
Ltd. (
KHD
) will be voting on at the special meeting.
If you are in doubt as to how to deal with these materials or the matters they describe, please
consult your professional advisor or KHD at Suite 1620, 400 Burrard Street, Vancouver, British
Columbia, Canada V6C 3A6.
This Management Information Circular and the transactions described herein, including the
distribution of securities related thereto have not been approved or disapproved by any securities
regulatory authority, nor has any securities regulatory authority passed upon or endorsed the
merits of the transactions described herein, confirmed the accuracy or truthfulness of the
disclosure herein, or confirmed whether the disclosure herein is complete. Any representation to
the contrary is a criminal offence. You should consult with your professional advisor and carefully
consider the various risk factors described beginning on page 59 before making an independent
decision as to whether to approve the matters described herein.
Suite 1620 400 Burrard Street
Vancouver, British Columbia
Canada V6C 3A6
March 1, 2010
To our shareholders:
You are cordially invited to attend the special meeting (the
Meeting
) of the holders (the
Shareholders
) of common shares (each, a
KHD Share
) of KHD Humboldt Wedag International Ltd.
(
KHD
) to be held at Suite 1620 400 Burrard Street, Vancouver, British Columbia, Canada on
Monday, March 29, 2010 at 9:00 a.m. (Pacific time). These materials outline in detail a proposed
plan of arrangement pursuant to which KHD will, among other things, distribute a portion of its
industrial plant technology, equipment and service business to the Shareholders.
Proposed Arrangement with KHD Humboldt Wedag International (Deutschland) AG
At the Meeting, management will seek your approval for a proposed transaction (the
Arrangement
),
to be effected by way of a plan of arrangement under the
British Columbia Business Corporations Act
(the
BCBCA
). Under the Arrangement, KHD will distribute to the Shareholders (other than to
registered Shareholders who properly exercise the right to dissent and Shareholders who are
subsidiaries of KHD), as a first tranche, approximately 4,322,844, or 26% of the issued shares (the
KID Shares
) of KHD Humboldt Wedag International (Deutschland) AG (
KID
). KHD intends to
distribute the balance of the KID Shares that it owns at such times in one or more tranches in the
future in a tax efficient manner. The intention is to divide KHD into two independent publicly
traded companies with one company focussed on the industrial plant technology, equipment and
service business and the other focussed on the mineral royalty business. Through a series of
transactions to be completed prior to the Arrangement, including the transfer of several of KHDs
subsidiaries to KID or one of its subsidiaries, KID will directly and indirectly hold all of KHDs
industrial plant technology, equipment and service business.
In connection with the Arrangement, Shareholders (other than registered Shareholders who properly
exercise the right to dissent and Shareholders that are subsidiaries of KHD) will receive seven new
common shares of KHD (each, a
New KHD Share
) and one KID Share (or two KID Shares in the event
that a proposed two-for-one forward split of the KID shares is effected prior to completion of the
Arrangement) in exchange for each seven KHD Shares currently held, provided that no fractional KID
Shares will be distributed and the number of KID Shares to which each such Shareholder is entitled
will be rounded down to the next whole number and no payment will be made in respect of such a
fractional KID Share.
Amendment to Articles in Connection with the Shareholders Agreement
In connection with the Arrangement, KHD proposes to enter into a shareholders agreement (the
Shareholders Agreement
) with another shareholder of KID (the
Custodian
) whereby KHD will engage
the Custodian to direct the voting of the KID Shares that KHD will continue to hold after
consummation of the Arrangement. Subject to satisfying all necessary requirements and taking the
other steps necessary to no longer control KID from an accounting perspective, the entering into of
the Shareholders Agreement may assist KHD with the objective of deconsolidating the assets and
liabilities of KID prior to the time that it is efficient, from a tax perspective, for KHD to
distribute the remainder of the KID Shares that it owns at such times to the Shareholders. The
deconsolidated financial presentation will more accurately reflect the ultimate objective of the
Arrangement on a going forward basis as KID would be deconsolidated from KHD in its entirety. As
the Arrangement only contemplates the first tranche of a distribution of the KID Shares and if KHD
takes the steps necessary to no longer control KID from an accounting perspective, the resulting
accounting presentation of KHD on a deconsolidated basis will enable Shareholders to achieve a more
accurate view of both KHD and KID. As a result, KHD and KID will be in a
position to achieve the full potential of the Arrangement prior to the time they would otherwise be
able to achieve such benefits if they were to delay taking the steps necessary to achieve the
deconsolidation until it is efficient, from a tax perspective, to distribute the remainder of the
KID Shares owned by KHD at such time.
In order for the Shareholders Agreement to be effective, at the Meeting, management will seek your
approval for an amendment to KHDs articles (the
Articles
) to authorize the board of directors of
KHD (the
Board
) to transfer, in accordance with Section 137(1.1) of the BCBCA, and subject to the
terms and conditions of the Shareholders Agreement, the power to direct the voting of the KID
Shares held by KHD.
Post-Arrangement Structure
Upon completion of the Arrangement, KID, through its subsidiary corporations, will operate KHDs
industrial plant technology, equipment and service business. Prior to the Meeting, KID will apply
for the admission of its shares for trading on the regulated market (General Standard) of the
Frankfurt Stock Exchange (the
FSE
) and the Vienna Stock Exchange (the
VSE
). Commencement of
trading on the regulated market of the FSE is expected to occur on or around March 31, 2010 and
will be announced by KHD and KID in a press release. Commencement of trading on the VSE will be
considered separately following the commencement of trading on the regulated market of the FSE.
Shareholders are cautioned that, under German law, holders of KID Shares will be required to
provide notification and report their total voting interest held to KID and the German Federal
Financial Supervisory Authority (BaFin) within four days of the distribution of the KID Shares if
they hold, directly or indirectly as set out in the
German Securities Trading Act
, more than 3% of
the issued shares of KID. If this notification requirement is not observed, Shareholders may be
subject to a fine and the suspension of their voting rights with respect to their KID Shares until
the correct notification is made and possibly for a period of six months thereafter.
Upon completion of the Arrangement, KHD will focus on developing its mineral royalty business while
continuing to own approximately 72% of the KID Shares. It will continue to receive royalty
payments from the Wabush iron ore mine and will also focus on, among other things, acquiring
additional mineral royalties. As discussed above, pursuant to the Shareholders Agreement KHD will
engage the Custodian to direct the voting rights of the KID Shares that KHD continues to hold after
the completion of the Arrangement, which will allow KHD to focus on its mineral royalty business.
The New KHD Shares will continue to be traded on the New York Stock Exchange (the
NYSE
). The
value of the New KHD Shares and the shares of KID will initially be set in the marketplace on the
NYSE and the FSE, respectively.
Fairness of the Arrangement
The Board retained Stephen W. Semeniuk, CFA, to provide a fairness opinion in connection with the
Arrangement. Mr. Semeniuks fairness opinion, dated February 26, 2010, concludes that the terms of
the Arrangement are fair, from a financial point of view, to KHD and the Shareholders.
Reasons for the Arrangement
The Board believes that the Arrangement will allow KHD to meet its stated goal of enhancing
long-term value for Shareholders by taking steps to create two independent, publicly traded
companies, each with an ability to pursue and achieve success by employing operational strategies
best suited to its assets and business plans, thereby maximizing market value. Details of the
proposed Arrangement are contained in the Management Information Circular that follows, which we
ask that you review prior to casting your vote in person or by proxy at the Meeting.
The Board has reviewed the terms and conditions of the Arrangement and has unanimously concluded
that the terms and conditions of the Arrangement are fair and reasonable to, and are in the best
interests of, KHD and the Shareholders.
In arriving at its recommendation with respect to the Arrangement, the Board considered, among
other matters:
ii
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(a)
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the belief that companies with a disciplined focus on establishing leadership
in their core business may capture competitive opportunities and be best positioned to
respond to changing markets;
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(b)
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the belief that the division of the industrial plant technology, equipment and
service business and the mineral royalty business into two independent public companies
may maximize market value and will allow each management team to focus more directly on
the critical success factors in its respective business;
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(c)
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the belief that the respective management teams of the new companies will be
better equipped to direct their strategies and operations towards building value for
Shareholders by tailoring practices and execution to fit the unique nature of their
assets and business; and
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(d)
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the fairness opinion delivered by Mr. Semeniuk, pursuant to which it was
concluded that the terms of the Arrangement are fair, from a financial point of view,
to KHD and the Shareholders.
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The Board believes that the terms of the Arrangement are fair, from a financial point of view, to
the Shareholders. Accordingly, the Board unanimously recommends that the Shareholders vote in
favour of the Arrangement. To be effective, the Arrangement must be approved by not less than
two-thirds of the votes cast by the holders of the KHD Shares present in person or represented by
proxy at the Meeting. Unless otherwise indicated, the persons designated as proxyholders in the
accompanying form of proxy will vote the KHD Shares represented by such form of proxy in favour of
the Arrangement.
The Arrangement is subject to the approval of the Amendment Resolution.
Reasons for the Amendment to the Articles in connection with the Shareholders Agreement
The Board believes that the amendment to the Articles will also further its stated goal of
enhancing long term value for Shareholders by taking steps to create two independent, publicly
traded companies and allowing KHD to focus on the mineral royalty business. Details of the
proposed amendment to the Articles and the Shareholders Agreement are contained in the Management
Information Circular that follows, which we ask that you review prior to casting your vote in
person or by proxy at the Meeting.
The Board has reviewed the proposed amendment to the Articles and the Shareholders Agreement and
has unanimously concluded that the proposed amendment to the Articles and the Shareholders
Agreement are in the best interests of KHD and the Shareholders.
In arriving at its recommendation with respect to the proposed amendment to the Articles and the
Shareholders Agreement, the Board considered, among other matters:
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(a)
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the belief that the ability to deconsolidate KIDs financial position and
results from those of KHD prior to the time that it would be efficient, from a tax
perspective, for KHD to distribute the remainder of the KID Shares owned by KHD at such
time to the Shareholders will more accurately reflect the ultimate objective of the
Arrangement on a going forward basis, as KID would be deconsolidated from KHD in its
entirety; and
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(b)
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the belief that the deconsolidated financial presentation will enable
Shareholders to achieve a more accurate view of both KHD and KID and, as a result, KHD
and KID will be in a position to achieve the full potential of the Arrangement prior to
the time that they would otherwise be able to achieve such benefits if they were to
delay taking the necessary steps to achieve the deconsolidation until it is efficient,
from a tax perspective, to distribute the remainder of the KID Shares owned by KHD at
such time.
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The Board believes that the proposed amendment to the Articles and the Shareholders Agreement are
in the best interest of the Shareholders. Accordingly, the Board unanimously recommends that the
Shareholders vote in favour of the proposed amendment to the Articles. To be effective, the
resolution to amend the Articles must be approved
iii
by not less than two-thirds of the votes cast by the holders of the KHD Shares present in person or
represented by proxy at the Meeting. Unless otherwise indicated, the persons designated as
proxyholders in the accompanying form of proxy will vote the KHD Shares represented by such form of
proxy in favour of the amendment to the Articles.
REGARDLESS OF THE NUMBER OF KHD SHARES YOU OWN, WE URGE YOU TO VOTE YOUR
PROXY.
Further Instructions to Shareholders
Whether or not you are able to attend in person, we urge you to complete the enclosed form of proxy
and return it in the envelope provided to the attention of either of: (i) BNY Mellon Shareowner
Services, PO Box 3862, S Hackensack, New Jersey, USA 07606-9562 (for Shareholders in the United
States) or BNY Mellon Shareowner Services, PO Box 3865, S Hackensack, New Jersey, USA 07606-3865
(for Shareholders outside of the United States), or by facsimile transmission to (201) 680-4604; or
(ii) the President of KHD, at Suite 1620, 400 Burrard Street, Vancouver, British Columbia, Canada
V6C 3A6 or by facsimile transmission to (604) 683-3205 (Attention: President), by any time up to
and including the last business day before the day of the Meeting.
The attached Notice of Special Meeting and Management Information Circular describe in detail the
Arrangement and the procedures to be followed at the Meeting. Please review the Management
Information Circular carefully, as it has been prepared to help you make an informed decision.
We thank you for your continued support of KHD and urge you to vote.
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Yours sincerely,
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Michael J. Smith
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Michael J. Smith
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Chairman of the Board
KHD Humboldt Wedag International Ltd.
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iv
Suite 1620 400 Burrard Street
Vancouver, British Columbia
Canada V6C 3A6
NOTICE OF SPECIAL MEETING OF SHAREHOLDERS
NOTICE IS HEREBY GIVEN that a special meeting (the
Meeting
) of the common shareholders (the
Shareholders
) of KHD Humboldt Wedag International Ltd. (
KHD
) will be held at Suite 1620 400
Burrard Street, Vancouver, British Columbia, Canada on Monday, March 29, 2010 at 9:00 a.m. (Pacific
time) for the following purposes:
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1.
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to consider, and if deemed appropriate, to pass a special resolution (the
Amendment Resolution
), the full text of which is reproduced as Schedule A to KHDs
management information circular (the
Information Circular
), authorizing an amendment
to KHDs articles (the
Articles
) to authorize the directors of the Company to
transfer, in accordance with Section 137(1.1) of the
British Columbia Business
Corporations Act
(the
BCBCA
) and subject to the terms and conditions of the
Shareholders Agreement, the power to direct the voting of the shares (the
KID Shares
)
of KHD Humboldt Wedag International (Deutschland) AG (
KID
) held by KHD to another
shareholder of KID or an independent party;
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2.
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subject to the approval of the Amendment Resolution, to consider, and if deemed
appropriate, to pass, with or without variation, a special resolution (the
Arrangement
Resolution
), the full text of which is reproduced as Schedule B to the Information
Circular, approving an arrangement (the
Arrangement
) under Section 288 of the BCBCA
involving KHD and its subsidiary, KID, pursuant to which, among other things,
Shareholders (other than registered Shareholders who properly exercise their right to
dissent and Shareholders who are subsidiaries of KHD) will receive seven new common
shares of KHD and one KID Share (or two KID Shares in the event that a proposed
two-for-one forward split of the shares of KID is effected prior to completion of the
Arrangement) in exchange for each seven common shares of KHD (each, a
KHD Share
)
currently held, provided that no fractional KID Shares will be distributed and the
number of KID Shares to which each such Shareholder is entitled will be rounded down to
the next whole number and no payment will be made in respect of such a fractional KID
Share. The Arrangement Resolution contemplates the approval of an amendment to KHDs
notice of articles (the
Notice of Articles
) and Articles to authorize the creation of
two new classes of common shares, each having special rights and restrictions the full
text of which are reproduced as Schedules J and K, respectively, to the Information
Circular; and
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3.
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to transact such further or other business as may properly come before the
Meeting or any adjournment or adjournments thereof.
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The Arrangement is subject to the approval by the Shareholders of the Amendment Resolution. If the
Amendment Resolution is approved, the Arrangement will be subject to the approval of the
Shareholders pursuant to an interim order (the
Interim Order
) of the Supreme Court of British
Columbia dated March 1, 2010. The Interim Order (attached as Schedule M to the Information
Circular) provides that, in order for the Arrangement to be implemented, the Arrangement Resolution
must be passed, with or without variation, by the affirmative vote of not less than two-thirds of
the votes cast in respect thereof by the Shareholders. Before the Arrangement can become
effective, it must be approved by a final order (the
Final Order
) of the Supreme Court of British
Columbia. A copy of the Interim Order and a draft of the Notice of Application for the Final Order
are attached as Schedules M and N, respectively, to the Information Circular. Any Shareholders may
participate, be represented and present evidence or arguments at the hearing for the Final Order.
The approvals required to approve the Amendment Resolution and the Arrangement Resolution are
described in the Information Circular under the headings Amendment to the Articles Votes
Required to Approve the Amendment and The Arrangement Court Approval and Completion of the
Arrangement.
Pursuant to the Interim Order and the provisions of Section 288 of the BCBCA, registered
Shareholders will have the right to dissent in respect of the Arrangement Resolution and, if the
Arrangement becomes effective and upon strict compliance with the dissent procedures described in
the Information Circular, to be paid the fair value of their KHD Shares. If a Shareholder fails to
strictly comply with the dissent procedures as set out in Section 288 of the BCBCA and as described
in the Information Circular, they may not be able to exercise their right of dissent.
Non-registered Shareholders of KHD Shares registered in the name of an intermediary such as a
broker, custodian, nominee, other intermediary, or in some other name, who wish to exercise the
right to dissent should be aware that only a registered Shareholder is entitled to exercise the
right to dissent. It is recommended that you seek independent legal advice if you wish to exercise
your right to dissent. The right of dissent is described in the Information Circular under the
heading Dissent Rights. The Arrangement will be completed pursuant to the Arrangement Agreement
between KHD and KID, a copy of which is attached as Schedule C to the Information Circular. A
description of the Arrangement is also included in the Information Circular.
Also accompanying this Notice is a form of proxy whereby registered Shareholders can vote on
matters at the Meeting. These documents provide additional information relating to the matters to
be dealt with at the Meeting and form part of this Notice.
The share transfer books of KHD will not be closed, but KHDs board of directors has fixed the
close of business on February 12, 2010 as the record date for the determination of Shareholders
entitled to notice of and to vote at the Meeting or at any adjournment or adjournments thereof.
Each registered Shareholder at the close of business on that date is entitled to such notice and to
vote at the Meeting in the circumstances set out in the Information Circular.
Shareholders of record who are unable to attend the Meeting in person are requested to complete,
sign and date the enclosed form of proxy and return the form of proxy in the enclosed return
envelope provided for that purpose. If you receive more than one form of proxy because you own KHD
Shares registered in different names or at different addresses, each form of proxy should be
completed and returned. A form of proxy will not be valid unless it is delivered to the attention
of either of: (i) BNY Mellon Shareowner Services, PO Box 3862, S Hackensack, New Jersey, USA
07606-9562 (for Shareholders in the United States) or BNY Mellon Shareowner Services, PO Box 3865,
S Hackensack, New Jersey, USA 07606-3865 (for Shareholders outside of the United States), or by
facsimile transmission to (201) 680-4604; or (ii) the President of KHD, at Suite 1620, 400 Burrard
Street, Vancouver, British Columbia, Canada V6C 3A6 or by facsimile transmission to (604) 683-3205
(Attention: President), by any time up to and including the last business day before the day of the
Meeting.
If you are a non-registered Shareholder and receive these materials through your broker or through
another intermediary, please complete and return the materials in accordance with the instructions
provided to you by your broker or by the other intermediary. Failure to do so may result in your
KHD Shares not being eligible to be voted at the Meeting.
DATED this 1st day of March, 2010
ON BEHALF OF THE BOARD OF DIRECTORS
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Michael J. Smith
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Michael J. Smith
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Chairman of the Board
KHD Humboldt Wedag International Ltd.
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YOUR VOTE IS IMPORTANT. PLEASE PROMPTLY SUBMIT YOUR PROXY.
ii
TABLE OF CONTENTS
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INFORMATION FOR ALL SHAREHOLDERS
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1
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FORWARD-LOOKING STATEMENTS
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1
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INFORMATION FOR UNITED STATES SHAREHOLDERS
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2
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GLOSSARY OF TERMS
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4
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SUMMARY
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9
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MANAGEMENT INFORMATION CIRCULAR
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21
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About KHD
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21
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VOTING INFORMATION
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22
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Solicitation of Proxies
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22
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Record Date
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22
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Appointment of Proxyholders
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22
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Voting of KHD Shares and Proxies and Exercise of Discretion by Designated Persons
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23
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Revocability of Proxy
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23
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Non-Registered Holders
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23
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SPECIAL BUSINESS OF THE MEETING
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24
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Approval of the Amendment to the Articles
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24
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Approval of the Arrangement
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25
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AMENDMENT TO THE ARTICLES
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25
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General
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25
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Reasons for the Amendment to the Articles
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26
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About the Shareholders Agreement
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26
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Recommendation of the Board
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28
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Amendment Resolution
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28
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THE ARRANGEMENT
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28
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Overview of the Arrangement
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28
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General
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28
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Background to the Arrangement
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29
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Reasons for the Arrangement
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30
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Recommendation of the Board
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30
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Fairness Opinion
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31
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Arrangement Resolution
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31
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Details of the Arrangement
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32
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Pre-Arrangement Reorganization
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34
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Arrangement Mechanics
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35
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Arrangement Steps
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35
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Amendment to Plan of Arrangement
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36
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Dissent Rights
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36
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Treatment of KHD Options
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37
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Arrangement Agreement
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37
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Court Approval and Completion of the Arrangement
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39
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Proposed Timetable for the Arrangement
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40
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Failure to Obtain Approval for the Arrangement
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40
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Organization of KHD and KID upon Completion of the Arrangement
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40
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Description of Shares of KID
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42
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Stock Exchange Listing
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42
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Method of Distribution of KID Shares
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42
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Disclosure of Ownership of KID Shares Upon Distribution
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43
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Method of Distribution of New KHD Shares
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45
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REGULATORY MATTERS
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45
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Distribution and Resale of KID Shares
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45
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DISSENT RIGHTS
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47
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INCOME TAX CONSIDERATIONS
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49
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Certain Canadian Federal Income Tax Considerations
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49
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Holders Not Resident in Canada
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52
|
|
|
|
|
|
|
Certain United States Federal Income Tax Consequences
|
|
|
54
|
|
Tax Consequences to KHD and KID
|
|
|
58
|
|
|
|
|
|
|
RISK FACTORS
|
|
|
58
|
|
Risk Factors Relating to the Shareholders Agreement and the Deconsolidation
|
|
|
59
|
|
Risk Factors Relating to the Arrangement
|
|
|
59
|
|
Risk Factors Relating to KHD and KID Post-Arrangement
|
|
|
60
|
|
|
|
|
|
|
FINANCIAL STATEMENTS
|
|
|
61
|
|
|
|
|
|
|
INFORMATION CONCERNING KHD PRE- AND POST-ARRANGEMENT
|
|
|
61
|
|
|
|
|
|
|
INFORMATION CONCERNING KID POST-ARRANGEMENT
|
|
|
61
|
|
|
|
|
|
|
INTERESTS OF EXPERTS
|
|
|
61
|
|
|
|
|
|
|
REGISTRAR AND TRANSFER AGENT
|
|
|
61
|
|
|
|
|
|
|
PARTICULARS OF MATTERS TO BE ACTED UPON
|
|
|
62
|
|
|
|
|
|
|
OTHER BUSINESS
|
|
|
62
|
|
|
|
|
|
|
ADDITIONAL INFORMATION
|
|
|
62
|
|
|
|
|
|
|
APPROVAL BY THE BOARD
|
|
|
62
|
|
|
|
|
|
|
SCHEDULES
|
|
|
|
|
|
|
|
|
|
Schedule A
|
|
|
|
|
Amendment Resolution
|
|
|
63
|
|
|
|
|
|
|
Schedule B
|
|
|
|
|
Arrangement Resolution
|
|
|
64
|
|
|
|
|
|
|
Schedule C
|
|
|
|
|
Arrangement Agreement
|
|
|
66
|
|
|
|
|
|
|
Schedule D
|
|
|
|
|
Information Concerning KHD Pre- and Post-Arrangement
|
|
|
90
|
|
|
|
|
|
|
Schedule E
|
|
|
|
|
KHD Pro Forma Financial Statements
|
|
|
110
|
|
|
|
|
|
|
Schedule F
|
|
|
|
|
Information Concerning KID Post-Arrangement
|
|
|
116
|
|
|
|
|
|
|
Schedule G
|
|
|
|
|
KHD Industrial Plant Technology, Equipment and Service Business
Audited Annual Combined Financial Statements
|
|
|
146
|
|
|
|
|
|
|
Schedule H
|
|
|
|
|
KHD Industrial Plant Technology, Equipment and Service Business Interim Combined Financial Statements
|
|
|
177
|
|
|
|
|
|
Schedule I
|
|
|
|
|
Fairness Opinion
|
|
|
186
|
|
|
|
|
|
|
Schedule J
|
|
|
|
|
Rights and Restrictions of Class A Shares
|
|
|
206
|
|
|
|
|
|
|
Schedule K
|
|
|
|
|
Rights and Restrictions of New KHD Shares
|
|
|
208
|
|
|
|
|
|
|
Schedule L
|
|
|
|
|
Rights and Restrictions of Preferred Shares
|
|
|
210
|
|
|
|
|
|
|
Schedule M
|
|
|
|
|
Interim Order
|
|
|
213
|
|
|
|
|
|
|
Schedule N
|
|
|
|
|
Application for Final Order
|
|
|
221
|
|
|
|
|
|
|
Schedule O
|
|
|
|
|
Part 8, Division 2 of the BCBCA
|
|
|
|
|
(Dissent Procedures)
|
|
|
225
|
|
|
|
|
|
|
Schedule P
|
|
|
|
|
Shareholders Agreement
|
|
|
234
|
|
|
|
|
|
|
Schedule Q
|
|
|
|
|
Auditors Consent
|
|
|
241
|
|
ii
INFORMATION FOR ALL SHAREHOLDERS
This Management Information Circular (the
Information Circular
) does not constitute an offer to
sell, or a solicitation of an offer to purchase, any securities, or the solicitation of a proxy, by
any person in any jurisdiction in which such an offer or solicitation is not authorized or in which
the person making such offer or solicitation is not qualified to do so or to any person to whom it
is unlawful to make such an offer or solicitation of an offer or proxy solicitation. Neither the
delivery of this Information Circular nor any distribution of the securities referred to in this
Information Circular will, under any circumstances, create an implication that there has been no
change in the information set forth herein since the date as of which such information is given in
this Information Circular.
No person has been authorized to give any information or make any representation in connection with
the matters proposed to be considered at the special meeting (the
Meeting
) of the shareholders
(the
Shareholders
) of KHD Humboldt Wedag International Ltd. (
KHD
) to be held on March 29, 2010,
other than those contained in or incorporated by reference into this Information Circular and, if
given or made, any such information or representation must not be relied upon as having been
authorized. In this Information Circular, references to we, us or our refer to KHD.
Unless otherwise noted, the information provided in this Information Circular is given as of March
1, 2010. Unless otherwise indicated, all dollar amounts referred to herein are in United States
dollars.
FORWARD-LOOKING STATEMENTS
This Information Circular contains forward-looking statements as that term is defined in the United
States
Private Securities Litigation Reform Act of 1995
and applicable Canadian securities
legislation which are made pursuant to the safe harbour provisions of such legislation. A
statement made is forward-looking when it uses what KHD knows and expects today to make a statement
about the future. Forward-looking statements are typically identified by words such as may,
should, expects, plans, anticipates, believes, estimates, predicts, potential or
continue or similar words suggesting future outcomes or statements regarding an outlook. These
statements relate to future events and KHDs future financial performance, objectives, plans,
strategies and businesses. Furthermore, certain statements made herein, including, but not limited
to, those related to the proposed Arrangement (as defined in this Information Circular); the
expected future attributes of each of KHD and KHD Humboldt Wedag International (Deutschland) AG
(
KID
) following completion of the Arrangement; the anticipated benefits of the Arrangement; the
future growth of each of KHD and KID; estimated capitalization and adequacy thereof for each of KHD
and KID; the financing plans and initiatives that may be undertaken by KID; the projected tax
consequences of the Arrangement; the tax impact on Shareholders; the satisfaction of the conditions
to consummate the Arrangement; the process for obtaining regulatory and other approvals; the
expected completion date of the Arrangement; the anticipated effect of the Arrangement, including
the consequences of non-completion of the same on KHD and KID; the expected terms of intercompany
arrangements; and other statements that are not historical facts, are forward-looking statements.
These statements are only predictions and involve known and unknown risks, uncertainties and other
factors that may cause KHD or its industries actual results, levels of activity, performance or
achievements to be materially different from any future results, levels of activity, performance or
achievements expressed or implied by these forward-looking statements. For a discussion regarding
such risks, see Risk Factors.
Readers are cautioned not to place undue reliance on forward-looking statements as there can be no
assurance that the future circumstances, outcomes or results anticipated in or implied by such
forward-looking statements will occur or that plans, intentions or expectations upon which the
forward-looking statements are based will occur. By their nature, forward-looking statements
involve various assumptions, known and unknown risks and uncertainties, both general and specific,
that contribute to the possibility that the circumstances, events or outcomes anticipated or
implied by forward-looking statements will not occur, which may cause the actual performance and
financial results in future periods to differ materially from the performance or results
anticipated or implied by any such forward-looking statements. These risks and uncertainties
include, among other things: risks associated with the ability to obtain any necessary approvals,
waivers, consents, court orders and other requirements necessary or desirable to permit or
facilitate the proposed Arrangement (including, regulatory and Shareholder approvals); the risk
that any applicable conditions of the proposed Arrangement may not be satisfied; fluctuations in
currency and interest rates;
1
the uncertainty of government regulation and politics in India and other emerging markets; the
inability to successfully expand in India and other emerging markets; continuing decreased demand
for KHDs products, including the renegotiation, delay and/or cancellation of projects by its
customers and the reduction in the number of project opportunities; a decrease in the demand for
cement, minerals and related products; the number of competitors with competitively priced products
and services; product development or other initiatives by KHDs competitors; shifts in industry
capacity; fluctuations in foreign exchange and interest rates; fluctuations in availability and
cost of raw materials or energy; delays in the start of projects; delays in the implementation of
projects and disputes regarding the performance of KHDs services; difficulties seeking out and
obtaining an interest in existing mineral royalties and other factors beyond KHDs control.
Although the management of KHD believes that the expectations reflected in the forward-looking
statements are reasonable, KHD cannot guarantee future results, levels of activity, performance or
achievements. Except as required by applicable law, including the securities laws of the United
States and Canada, KHD does not intend to update any of the forward-looking statements to conform
these statements to actual results.
INFORMATION FOR UNITED STATES SHAREHOLDERS
The solicitation of proxies in connection with the Meeting described in this Information Circular
involves securities of a Canadian corporation and is being effected in accordance with Canadian
corporate and securities laws.
The securities to be issued to Shareholders pursuant to the Arrangement have not been registered
under the
United States Securities Act of 1933
, as amended (the
1933 Act
) or any state securities
laws, and are being issued in reliance upon an exemption from the registration requirements of the
1933 Act set forth in Section 3(a)(10) of the 1933 Act.
The solicitation of proxies made pursuant to this Information Circular is not subject to the
requirements of Section 14(a) of the
United States Securities Exchange Act of 1934
, as amended (the
1934 Act
). Accordingly, the solicitations and transactions contemplated in this Information
Circular are made in the United States for securities of a Canadian issuer in accordance with
Canadian corporate and securities laws, and this Information Circular has been prepared in
accordance with disclosure requirements applicable in Canada.
Shareholders in the United States should be aware that such requirements are different from those
of the United States applicable to registration statements under the 1933 Act and to proxy
statements under the 1934 Act. The shares of KID (the
KID Shares
) to be distributed to
Shareholders in the United States pursuant to the Arrangement will not be listed for trading on any
United States stock exchange.
The financial statements and historical financial information included in this Information Circular
have been prepared in accordance with Canadian generally accepted accounting principles which
differ in certain respects from generally accepted accounting principles in the United States, and
thus are not comparable in all respects to financial statements and financial information prepared
in accordance with United States requirements.
See Income Tax Considerations Certain Canadian Federal Income Tax Considerations and
Certain United States Federal Income Tax Consequences in this Information Circular for certain
information concerning tax consequences of the Arrangement for United States Shareholders. United
States Shareholders who are United States tax payers are advised to consult their tax advisers to
determine the particular tax consequences to them of the Arrangement.
The enforcement by Shareholders of civil liabilities under United States securities laws may be
affected adversely by the fact that KHD and KID, and other parties involved in the Arrangement, are
organized under the laws of a jurisdiction other than the United States, that their respective
officers and directors are residents of countries other than the United States, that the experts
named in this Information Circular are residents of countries other than the United States, and
that the assets of KHD and KID and such persons are located outside of the United States.
2
The 1933 Act imposes restrictions on the resale of securities received pursuant to the Arrangement
by persons who were affiliates of KHD and KID immediately prior to the Arrangement and persons
who are affiliates of KHD and KID after the Arrangement. See Regulatory Matters Distribution
and Resale of KID Shares United States.
Neither the Arrangement nor this Information Circular have been approved or disapproved by the
United States Securities and Exchange Commission, any state securities commission, or other
regulatory authority, nor have any of the foregoing authorities or any Canadian securities
commission passed upon or endorsed the merits of the Arrangement. Any representation to the
contrary is a criminal offence.
THE KID SHARES TO BE DISTRIBUTED PURSUANT TO THE ARRANGEMENT HAVE NOT BEEN REGISTERED UNDER THE
1933 ACT, OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES IN WHICH SHAREHOLDERS RESIDE.
THE KID SHARES TO BE DISTRIBUTED PURSUANT TO THE ARRANGEMENT HAVE NOT BEEN APPROVED OR DISAPPROVED
BY THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION OR SECURITIES REGULATORY AUTHORITIES OF ANY
STATE OF THE UNITED STATES, NOR HAS THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION OR
SECURITIES REGULATORY AUTHORITY OF ANY STATE IN THE UNITED STATES PASSED ON THE ADEQUACY OR
ACCURACY OF THIS INFORMATION CIRCULAR. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENCE.
NOTICE TO NEW HAMPSHIRE RESIDENTS: NEITHER THE FACT THAT A REGISTRATION STATEMENT OR AN
APPLICATION FOR A LICENSE HAS BEEN FILED UNDER CHAPTER 421-B OF THE NEW HAMPSHIRE REVISED STATUTES
WITH THE STATE OF NEW HAMPSHIRE NOR THE FACT THAT A SECURITY IS EFFECTIVELY REGISTERED OR A PERSON
IS LICENSED IN THE STATE OF NEW HAMPSHIRE CONSTITUTES A FINDING BY THE SECRETARY OF STATE THAT ANY
DOCUMENT FILED UNDER RSA 421-B IS TRUE, COMPLETE AND NOT MISLEADING. NEITHER ANY SUCH FACT NOR THE
FACT THAT AN EXEMPTION OR EXCEPTION IS AVAILABLE FOR A SECURITY OR A TRANSACTION MEANS THAT THE
SECRETARY OF STATE HAS PASSED IN ANY WAY UPON THE MERITS OR QUALIFICATIONS OF, OR RECOMMENDED OR
GIVEN APPROVAL TO, ANY PERSON, SECURITY, OR TRANSACTION. IT IS UNLAWFUL TO MAKE, OR CAUSE TO BE
MADE, TO ANY PROSPECTIVE PURCHASER, CUSTOMER, OR CLIENT ANY REPRESENTATION INCONSISTENT WITH THE
PROVISIONS OF THIS PARAGRAPH.
3
GLOSSARY OF TERMS
1933 Act
means the
United States Securities Act of 1933
, as amended.
1934 Act
means the
United States Securities Exchange Act of 1934
, as amended.
AktG
means the
German Stock Corporation Act
(
Aktiengesetz
).
Amendment Resolution
means the special resolution, substantially in the form of Schedule A to
this Information Circular, approving the proposed amendment to the Articles to be approved at the
Meeting by the Shareholders.
Arrangement
means the proposed arrangement between KHD and KID pursuant to the provisions of
Section 288 of the BCBCA to be undertaken on the terms and conditions set forth in the Plan of
Arrangement and the Interim Order, subject to any amendment or supplement thereto made in
accordance with the Plan of Arrangement, the Arrangement Agreement or the Final Order, and subject
to approval of the Arrangement Resolution, the granting of the Final Order and the requisite
filings with the registrar under the BCBCA.
Arrangement Agreement
means the Arrangement Agreement between KHD and KID, substantially in the
form of Schedule C to this Information Circular, including the appendices attached thereto, as
supplemented or amended from time to time.
Arrangement Resolution
means the special resolution, substantially in the form of Schedule B to
this Information Circular, approving the Arrangement and the transactions contemplated thereunder
to be approved at the Meeting by the Shareholders.
Articles
means the articles (as such term is defined under the BCBCA) of KHD, as amended.
BaFin
means the German Federal Financial Supervisory Authority.
BCBCA
means the
British Columbia Business Corporations Act
, S.B.C. 2002, c. 57, and the
regulations made under that enactment, as amended.
Board
means the board of directors of KHD.
Canadian GAAP
means generally accepted accounting principles as in effect in Canada.
Class A Shares
means the Class A common shares of KHD to be created in connection with the
Arrangement, with such rights and restrictions as are set out in Schedule J to this Information
Circular.
Class B Shares
means the Class B common shares of KHD to be created in connection with the
Arrangement, with such rights and restrictions as are set out in Schedule K to this Information
Circular.
Clearstream
means Clearstream Banking AG and its subsidiaries, security depository and clearing
houses for transactions in the European market.
Code
means the
United States Internal Revenue Code of 1986
, as amended.
Computershare
means Computershare Limited, the distribution agent for the KID Shares.
Court
means the Supreme Court of British Columbia, Canada.
CRA
means the Canada Revenue Agency.
4
Custodian
means the yet to be determined independent third party corporate shareholder of KID
which is to be the counterparty to the Shareholders Agreement.
Deemed Election
means the deemed waiver of a Shareholders right to dissent in respect of the
Arrangement Resolution as a result of such Shareholder voting in favour of the Arrangement
Resolution.
Dissent Notice
means a written objection of a Registered Shareholder to the Arrangement
Resolution provided to KHD in accordance with the Dissent Procedures.
Dissent Procedures
means the procedures set forth in Section 238 of the BCBCA required to be
followed by a Dissenting Shareholder in accordance with the Interim Order and Article 4 of the Plan
of Arrangement to exercise the Dissent Right in respect of their KHD Shares in connection with the
Arrangement.
Dissent Right
means a Registered Shareholders right to dissent in respect of the Arrangement
Resolution in compliance with Part 8, Division 2 of the BCBCA, as modified by the Plan of
Arrangement, the Interim Order and any other order of the Court, and as described under the
heading, Dissent Rights.
Dissent Share
means a KHD Share in respect of which the Dissent Right has been validly exercised
and not withdrawn by a Dissenting Shareholder.
Dissenting Shareholder
means a Registered Shareholder who validly dissents from the Arrangement
Resolution in strict compliance with the Dissent Procedures and who has not withdrawn the exercise
of such Dissent Right and is ultimately determined to be paid fair value in respect of the KHD
Shares held by such Shareholder.
Distribution Record Date
means March 30, 2010, or such other date as KHD may select.
Effective Date
means the date on which the Final Order, together with the Plan of Arrangement and
such other documents as are required to be filed under the BCBCA to give effect to the Arrangement,
have been accepted for filing by the Registrar under the BCBCA or such later date as may be
determined by the Board or as specified by the Court.
EKOF
means EKOF Flotation GmbH, a corporation governed by the laws of Germany.
Facility
means the revolving letter of guarantee facility agreement dated November 30, 2006, as
amended June 10, 2008, October 27, 2008 and November 16, 2009, among KIA, as the borrower, KHD, as
the guarantor, and RZB as lender.
Fairness Opinion
means the fairness opinion in respect of the terms of the Arrangement, dated
February 26, 2010, delivered to the Board by Stephen W. Semeniuk, CFA, as set out in Schedule I to
this Information Circular.
Final Order
means the final order of the Court approving the Arrangement pursuant to the BCBCA.
Form of Proxy
means the form of proxy accompanying this Information Circular.
FSE
means the regulated market (
regulierter Markt
) (General Standard) of the Frankfurt Stock
Exchange.
HW Australia
means Humboldt Wedag Australia Pty Ltd., a corporation governed by the laws of
Australia.
HW Beijing
means KHD Humboldt Wedag Machinery Equipment (Beijing) Co. Ltd., a corporation
governed by the laws of China.
HW GmbH
means Humboldt Wedag GmbH, a corporation governed by the laws of Germany.
HWI
means Humboldt Wedag Inc., a corporation governed by the laws of Delaware.
5
HW India
means Humboldt Wedag India Private Ltd., a corporation governed by the laws of India.
Information Circular
means this Management Information Circular.
Interim Order
means the interim order of the Court granted March 1, 2010, as the same may be
amended, providing for, among other things, the calling and holding of the Meeting under the BCBCA,
all as contemplated under Sections 2.1(a) and 4.3 of the Arrangement Agreement, as set out in
Schedule M to this Information Circular.
Intermediary
means an intermediary that a Non-Registered Holder deals with in respect of their
KHD Shares, such as, among others, banks, depositories, trust companies, securities dealers,
brokers and trustees or administrators of self-administered registered retirement savings plans,
registered education savings plans, registered retirement income funds and similar plans.
Inverness
means Inverness Enterprises Ltd., a corporation governed by the laws of British
Columbia, Canada.
IRS
means the United States Internal Revenue Service.
ITA
means the
Income Tax Act
(Canada), as amended.
KHD
or the
Company
means KHD Humboldt Wedag International Ltd., a corporation governed by the
laws of British Columbia, Canada.
KHD AG
means KHD Holding AG, a corporation governed by the laws of Switzerland.
KHDE
means KHD Engineering Holding GmbH.
KHDE Interest
means the 50% interest of KIA in KHDE.
KHD GmbH
means KHD Humboldt Wedag GmbH, a corporation governed by the laws of Germany.
KHD Industrial Plant Technology, Equipment and Service Business
means the companies that form the
industrial plant technology, equipment and service business of KHD.
KHD Options
means options to purchase KHD Shares.
KHD Shares
means the common shares of KHD.
KHD Subsidiaries
means Newco, New Image, KHD AG and Inverness.
KIA
means KHD Humboldt Wedag International GmbH, a corporation governed by the laws of Austria.
KID
means KHD Humboldt Wedag International (Deutschland) AG, a corporation governed by the laws
of Germany.
KID Meeting
means the meeting of the shareholders of KID to be held on or about March 23, 2010.
KID Shares
means the no par value bearer shares of KID.
KID Split
means the proposed two-for-one forward split of the shares of KID, for which approval
of the shareholders of KID will be sought at the KID Meeting.
Mass Financial
means Mass Financial Corp., a corporation governed by the laws of Barbados.
MD&A
means managements discussion and analysis.
6
Meeting
means the special meeting of the Shareholders to be held at 9:00 a.m. (Pacific time) on
March 29, 2010 at Suite 1620 400 Burrard Street, Vancouver, British Columbia, Canada, to
consider, among other matters, the Amendment Resolution and the Arrangement Resolution, and
includes any adjournment or postponement thereof.
Meeting Materials
means the Notice of Meeting, Information Circular and Form of Proxy relating to
the Meeting.
Mellon
means BNY Mellon Shareowner Services, the registrar and transfer agent for KHD.
MFCC
means MFC Commodities GmbH, a corporation governed by the laws of Germany.
Newco
means 0873013 B.C. Ltd., a corporation governed by the laws of British Columbia, Canada,
incorporated by KHD to facilitate the Pre-Arrangement Reorganization.
New Image
means New Image Investment Company Limited, a corporation governed by the laws of the
State of Washington.
New KHD Shares
means the Class B Shares to be issued to each Non-Subsidiary Shareholder pursuant
to the Arrangement in exchange for the existing KHD Shares.
Non-Registered Holder
means a Shareholder whose KHD Shares beneficially owned by them are
registered either in the name of an Intermediary or in the name of a clearing agency (such as the
Canadian Depository for Securities Limited) of which the Intermediary is a participant.
Non-Resident Holder
has the meaning ascribed under the section of this Information Circular
entitled Certain Canadian Income Tax Considerations.
Non-Subsidiary Shareholders
means all Shareholders other than the KHD Subsidiaries.
Notice of Meeting
means the notice of special meeting of Shareholders dated March 1, 2010,
accompanying this Information Circular.
NYSE
means the New York Stock Exchange.
OAMC
means Offshore Asset Management Company Limited, a company governed by the laws of the
Marshall Islands.
Pang Hau KG
means Pang Hau GmbH & Co. KG, a limited partnership governed by the laws of Germany.
PFIC
means a passive foreign investment company as defined in the Code.
Plan of Arrangement
means the plan of arrangement attached as Appendix I to the Arrangement
Agreement as amended, modified or supplemented from time to time in accordance with the provisions
of the Arrangement Agreement, the Plan of Arrangement or at the direction of the Court.
Pre-Arrangement Reorganization
means the reorganization mechanics to be effected prior to the
Arrangement becoming effective and described under the heading, The Arrangement Pre-Arrangement
Reorganization.
Preferred Shares
means the Class A, Series 2 preferred shares of KHD to be created in connection
with the Arrangement, with such rights and restrictions as are set out in Schedule L to this
Information Circular.
Record Date
means February 12, 2010.
Redas
means REDAS Tracking Corp., a company governed by the laws of the Marshall Islands.
7
Registered Shareholders
means the registered holders of the KHD Shares.
Registrar
means the Registrar of Companies appointed pursuant to Section 400 of the BCBCA.
RZB
means Raiffeisen Zentralbank Österreich AG.
Sasamat
means Sasamat Capital Corporation, a corporation governed by the laws of Canada.
SEC
means the United States Securities and Exchange Commission.
Shareholder
means a holder of KHD Shares at the applicable time.
Shareholders Agreement
means the Shareholders Agreement to be entered into between KHD and the
Custodian.
Tracking Agreement
means the tracking stock agreement dated November 27, 2006 among Redas, KHD
and Mass Financial.
US Holder
has the meaning ascribed under the section Certain United States Federal Income Tax
Consequences.
VEM
means VEM Aktienbank AG, a subsidiary of Computershare.
VSE
means the Vienna Stock Exchange.
8
SUMMARY
The following is a summary of certain information contained elsewhere in this Information Circular.
Reference is made to, and this summary is qualified in its entirety by, the more detailed
information contained in this Information Circular and in the attached schedules. Shareholders are
encouraged to read this Information Circular and the attached schedules carefully and in their
entirety. In this Information Circular, dollar amounts are expressed in United States dollars
unless otherwise stated. Unless the context otherwise requires, capitalized words and terms in
this summary have the same meanings as set forth in the glossary and elsewhere in this Information
Circular.
ABOUT KHD
KHD operates in two business segments consisting of: (i) an industrial plant technology, equipment
and service business; and (ii) a royalty interest in the Wabush iron ore mine. KHDs industrial
plant technology, equipment and service business focuses on the cement industry. Its head office
is located at Suite 1620, 400 Burrard Street, Vancouver, British Columbia, Canada V6C 3A6.
ABOUT THE MEETING
Time, Date and Place
The Meeting will be held at Suite 1620 400 Burrard Street, Vancouver, British Columbia, Canada
on Monday, the 29th day of March, 2010 at 9:00 a.m. (Pacific time).
Record Date and Who Can Vote
The Board has fixed the close of business on February 12, 2010 as the record date for determining
Shareholders entitled to receive notice of and to vote at the Meeting or at any adjournment or
adjournments thereof. On the Record Date, 30,259,911 KHD Shares were outstanding (not including
5,317,244 KHD Shares held by the KHD Subsidiaries). Shareholders are entitled to one vote for each
KHD Share they own on the Record Date.
What the Meeting is About
Shareholders are being asked to approve a plan of arrangement under the BCBCA whereby, among other
things, each Shareholder (other than a Dissenting Shareholder and Shareholders who are KHD
Subsidiaries) will receive seven New KHD Shares and one KID Share (or two KID Shares in the event
that the KID Split is completed prior to the completion of the Arrangement) in exchange for each
seven KHD Shares held.
ABOUT THE AMENDMENT TO THE ARTICLES
As part of KHDs stated goal of enhancing long term value for Shareholders by taking steps to
create two independent, publicly traded companies and allowing KHD to focus on the mineral royalty
business, KHD proposes to enter into the Shareholders Agreement with the Custodian whereby KHD will
engage the Custodian to direct the voting of the KID Shares that KHD will continue to hold after
consummation of the Arrangement. Subject to satisfying all necessary requirements and taking the
other steps necessary to no longer control KID from an accounting perspective, the entering into of
the Shareholders Agreement may assist KHD with its objective of deconsolidating the assets and
liabilities of KID prior to the time that it is tax efficient for KHD to distribute the remainder
of the KID Shares owned by KHD at such time to the Shareholders. The deconsolidated financial
presentation will more accurately reflect the ultimate objective of the Arrangement on a going
forward basis as KID would be deconsolidated from KHD in its entirety. As the Arrangement only
contemplates the first tranche of a distribution of the KID Shares and if KHD takes the steps
necessary to no longer control KID from an accounting perspective, the accounting presentation of
KHD on a deconsolidated basis will enable Shareholders to achieve a more accurate view of both KHD
and KID. As a result, KHD and KID will be in a position to achieve the full potential of the
Arrangement prior to the time they would otherwise be able to achieve such benefits if they were to
delay taking the necessary steps to achieve the deconsolidation until it is efficient, from a tax
perspective, to
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distribute the remainder of the KID Shares owned by KHD at such time. See Amendment to the
Articles General and Amendment to the Articles About the Shareholders Agreement.
In order for the Shareholders Agreement to be effective, at the Meeting, management will seek your
approval for an amendment to the Articles to authorize the Board to transfer, in accordance with
Section 137(1.1) of the BCBCA and subject to the terms and conditions of the Shareholders
Agreement, the power to direct the voting of the KID Shares to the Custodian. See Amendment to
the Articles Amendment Resolution.
KHD will retain all other rights attached to the KID Shares and will be entitled to all economic
benefits associated with the KID Shares.
As a result of entering into the Shareholders Agreement and taking the other steps necessary to no
longer control KID from an accounting perspective, KHD may no longer be deemed to control the KID
Shares, despite its ownership interest in such shares and, as a result, may deconsolidate KIDs
financial results.
ABOUT THE SHAREHOLDERS AGREEMENT
In connection with the Arrangement, KHD proposes to enter into the Shareholders Agreement with the
Custodian whereby KHD will engage the Custodian to direct the voting of the KID Shares that KHD
will continue to hold after consummation of the Arrangement. Subject to satisfying all necessary
requirements and taking the other steps necessary to no longer control KID from an accounting
perspective, the entering into of the Shareholders Agreement may assist KHD with the objective of
deconsolidating KIDs financial position and results from those of KHD prior to the time that it is
efficient, from a tax perspective, for KHD to distribute the remainder of the KID Shares owned by
KHD at such time to the Shareholders. The deconsolidated financial presentation will more
accurately reflect the ultimate objective of the Arrangement on a going forward basis, as KID would
be deconsolidated from KHD in its entirety.
The Custodian under the Shareholders Agreement will be identified prior to the Effective Date. In
order to achieve the goal of no longer controlling KID from an accounting perspective and the
resulting accounting presentation of KID on a deconsolidated basis, the Custodian has to be a party
which is not related to or affiliated with KHD and KID, or any of their respective directors or
officers, and includes any party that would be expected to result in KHD having to consolidate its
holding in KID. KHD has yet to identify a party that will act as the Custodian. If KHD is unable
to indentify a party who is willing to act as the Custodian on or before the Effective Date, then
KHD may not be able to achieve its goal of taking all steps necessary to deconsolidate KIDs
financial position and results from those of KHD and will not proceed with the Arrangement. See
Amendment to the Articles About the Shareholders Agreement.
RECOMMENDATION OF THE BOARD
The Board has unanimously determined that the proposed amendment to the Articles and the
Shareholders Agreement are in the best interests of KHD and its Shareholders. The Board
unanimously recommends that the Shareholders vote FOR the Amendment Resolution. See Amendment to
the Articles Recommendation of the Board.
Unless otherwise indicated, the persons designated as proxyholders in the accompanying Form of
Proxy will vote the KHD Shares represented by such Form of Proxy in favour of the Amendment
Resolution.
WHY THE BOARD RECOMMENDS THE AMENDMENT TO THE ARTICLES
The Board believes that the amendment to the Articles will further its stated goal of enhancing
long-term value for Shareholders as a step in creating two independent, publicly traded companies
and allowing KHD to focus on the mineral royalty business.
In arriving at its recommendation with respect to the proposed amendment to the Articles and the
Shareholders Agreement, the Board considered, among other matters:
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(a)
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the belief that the ability to deconsolidate KIDs financial position and
results from those of KHD prior to the time that it would be efficient, from a tax
perspective, for KHD to distribute the remainder of the KID Shares owned by KHD at such
time to the Shareholders will more accurately reflect the ultimate objective of the
Arrangement on a going forward basis as KID would be deconsolidated from KHD in its
entirety; and
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(b)
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the belief that the deconsolidated financial presentation will enable
Shareholders to achieve a more accurate view of both KHD and KID and as a result, KHD
and KID will be in a position to achieve the full potential of the Arrangement prior to
the time they would otherwise be able to achieve such benefits if they were to delay
taking the necessary steps to achieve the deconsolidation until it is efficient, from a
tax perspective, to distribute the remainder of the KID Shares owned by KHD at such
time.
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The Board believes that the proposed amendment to the Articles and the Shareholders Agreement are
in the best interest of the Shareholders. Accordingly, the Board unanimously recommends that the
Shareholders vote in favour of the Amendment Resolution. To be effective, the Amendment Resolution
must be approved by not less than two-thirds of the votes cast by the Shareholders present in
person or represented by proxy at the Meeting. Unless otherwise indicated, the persons designated
as proxyholders in the accompanying Form of Proxy will vote the KHD Shares represented by the Form
of Proxy in favour of the Amendment Resolution.
The foregoing are the material factors considered by the Board in its consideration of the
Amendment Resolution, but this discussion is not intended to be exhaustive. In view of the wide
variety of factors considered by the Board, and the complexity of these matters, the Board did not
find it practicable to, and did not, quantify or otherwise assign relative weights to the foregoing
factors. In addition, individual members of the Board may have assigned different weights to
various factors. The Board, by a unanimous vote, approved the amendment to the Articles and
recommends that Shareholders vote FOR the Amendment Resolution based upon all of the information
presented to and considered by it. See Amendment to the Articles Recommendation of the Board.
ABOUT THE ARRANGEMENT
KHD has entered into the Arrangement Agreement with KID pursuant to which and subject to certain
conditions, including Shareholder approval, KHD will distribute, as a first tranche, one KID Share
(or two KID Shares in the event that the KID Split is completed prior to the completion of the
Arrangement) to each Non-Subsidiary Shareholder (other than Dissenting Shareholders) for each seven
KHD Shares held. KHD intends to distribute the balance of the KID Shares that it owns in one or
more tranches in the future in a tax efficient manner. The intention is to divide KHD into two
independent, publicly traded companies, with one company focussed on the industrial plant
technology, equipment and service business and the other focussed on the mineral royalty business.
Through a series of transactions to be completed prior to the Arrangement, including the transfer
of several of KHDs subsidiaries to KID or one of its subsidiaries, KID will directly and
indirectly hold all of KHDs industrial plant technology, equipment and service business.
Approximately 4,322,844 of the KID Shares [representing approximately 26% of the issued shares of
KID] will be subsequently distributed,
pro rata
, to the Non-Subsidiary Shareholders (other than
Dissenting Shareholders). The Board has obtained a valuation of KID, which implies that the value
of the KID Shares to be distributed by KHD is between approximately CDN$41.02 million and CDN$46.99
million. KHD intends to adopt the midpoint of CDN$44.01 million as the value of the KID Shares to
be distributed by KHD. See Certain Canadian Federal Income Tax Considerations and Certain
United States Federal Income Tax Consequences.
Upon completion of the Arrangement, KHD will operate as a mineral royalty business. See The
Arrangement Details of the Arrangement.
At the Meeting, Shareholders will be asked to consider the Arrangement and, if deemed advisable,
pass (with or without variation) the Arrangement Resolution, substantially in the form of Schedule
B to this Information Circular, approving the Arrangement Agreement and authorizing the
Arrangement.
In the event that the Arrangement is not approved, then KHD will not proceed with the Arrangement
and may retain its interest in KID through its ownership of the KID Shares. The Arrangement
Agreement also provides that,
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notwithstanding approval of the Arrangement by the Shareholders, if the Arrangement cannot be
consummated on commercially reasonable terms, or would otherwise not be in the interest of the
Shareholders, the Board will have sole discretion to determine not to proceed with the Arrangement,
without seeking further approval of the Shareholders. See The Arrangement Description of the
Arrangement Agreement.
RECOMMENDATION OF THE BOARD
The Board has unanimously determined that the Arrangement is fair to the Shareholders and is in the
best interests of KHD and its Shareholders. The Board unanimously recommends that the Shareholders
vote FOR the Arrangement Resolution. See The Arrangement Background to the Arrangement and
The Arrangement Recommendation of the Board.
Unless otherwise indicated, the persons designated as proxyholders in the accompanying Form of
Proxy will vote the KHD Shares represented by such Form of Proxy in favour of the Arrangement
Resolution.
WHY THE BOARD RECOMMENDS THE ARRANGEMENT
The Board has carefully evaluated the proposed corporate reorganization and the terms and
conditions of the Arrangement and has unanimously: (i) determined that the Arrangement is fair to
Shareholders; (ii) determined that the Arrangement is in the best interests of KHD and the
Shareholders; and (iii) recommended that Shareholders vote FOR the Arrangement Resolution. In
reaching these determinations, the Board considered, among other things, the following factors:
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Sharper Business Focus
the Arrangement will provide each of KHD and KID with a clear
mandate to pursue its independent short and long-term objectives and strategies best suited
to its assets, expertise and business opportunities, allowing each management team to focus
more directly on the critical success factors in its respective business. The Board
believes that companies with a disciplined focus on establishing leadership in their core
business may capture competitive opportunities and be best positioned to respond to
changing markets;
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Strategic Positioning and Growth
the Arrangement will improve and expand the
strategic positions and growth opportunities of each of KHD and KID. KHD will have a
stable revenue stream from its royalty interest in the Wabush iron ore mine which will
allow it to seek out additional royalty interests and implement a dividend policy. KID will
focus on its worldwide industrial plant technology, equipment and service business;
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Focused Investment Decision
the Arrangement will provide Shareholders with an
independent investment opportunity in respect of a mineral royalty company and an
industrial plant technology, equipment and service business, allowing Shareholders to
retain ownership in both companies;
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Experienced Leadership
each company will be led by experienced directors and
executives who have demonstrated success and who have the requisite experience and ability
to grow their respective companies. The respective management teams of the independent
companies will be better equipped to direct their strategies and operations towards
building value for Shareholders by tailoring practices and execution to fit the unique
nature of their respective assets and business;
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Independent Access to Capital
each company will have independent access to capital
(equity and debt) which management believes will result in more focused capital allocation
practices including an appropriately focused alignment of debt capacity with the individual
cash generation profile of each company; and
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Fairness of Consideration
Stephen W. Semeniuk, CFA, provided the Fairness Opinion
which concluded that the terms of the Arrangement are fair, from a financial point of view,
to KHD and the Shareholders.
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The foregoing are the material factors considered by the Board in its consideration of the
Arrangement, but this discussion is not intended to be exhaustive. In view of the wide variety of
factors considered by the Board, and the complexity of these matters, the Board did not find it
practicable to, and did not, quantify or otherwise assign relative weights to the foregoing
factors. In addition, individual members of the Board may have assigned different weights to
various factors. The Board by a unanimous vote approved the Arrangement and recommended that
Shareholders vote FOR the Arrangement Resolution based upon all of the information presented to and
considered by it. See The Arrangement Background to the Arrangement and The Arrangement
Recommendation of the Board.
FAIRNESS OPINION
In connection with the evaluation by the Board of the Arrangement, the Board retained Stephen W.
Semeniuk, CFA, to provide the Fairness Opinion with respect to the terms of the Arrangement. The
Fairness Opinion concludes that the terms of the Arrangement are fair, from a financial point of
view, to KHD and its Shareholders. The Fairness Opinion is summarized under The Arrangement
Fairness Opinion and a copy of the Fairness Opinion, which sets forth the assumptions made,
information reviewed, matters considered and limitations on the scope of the review undertaken, is
attached as Schedule I to this Information Circular. Shareholders are urged to, and should, read
the Fairness Opinion in its entirety. The Fairness Opinion is not a recommendation as to how
Shareholders should vote in respect of the Arrangement Resolution.
CONDITIONS TO THE ARRANGEMENT BECOMING EFFECTIVE
The respective obligations of KHD and KID to complete the Arrangement are subject to the
satisfaction or waiver, on or before the Effective Date, of certain mutual conditions, including
conditions relating to Shareholder approval, court proceedings, consents, orders, regulations,
approvals and exemptions of the distribution of the KID Shares from applicable securities laws.
KHDs obligation to proceed with the Arrangement is further subject to the condition that the
aggregate number of KHD Shares held by Shareholders who properly exercise their right to dissent
not exceed 5% of the outstanding KHD Shares on the date of the Meeting.
If the Shareholders do not vote in favour of the Amendment Resolution, then KHD will not proceed
with the Arrangement. See The Arrangement Arrangement Agreement.
COMPLETION OF THE ARRANGEMENT
Votes Required to Approve the Arrangement
Under the BCBCA, and in accordance with the provisions of the Interim Order, in order for the
Arrangement to be approved, the Arrangement Resolution must be approved by at least two-thirds of
the votes of those Shareholders voting in person or represented by proxy and entitled to vote at
the Meeting. In the event that the Arrangement is not approved, KHD will not proceed with the
Arrangement and will retain its interest in KID through its ownership of the KID Shares.
Court Approval and Completion of the Arrangement
An arrangement under the BCBCA requires approval of the Court. Prior to the mailing of this
Information Circular, KHD obtained the Interim Order which, among other things, provides for the
calling and holding of the Meeting, the provision of Dissent Rights and other procedural matters,
and directs that Shareholders be asked to consider and vote upon the Arrangement Resolution. The
Notice of Application for the Final Order is attached as Schedule N to this Information Circular.
As set out in the Notice of Application, it is expected that, subject to the approval of the
Arrangement Resolution by Shareholders at the Meeting, an application will be made to the Court for
the hearing on the Final Order on March 29, 2010, at 10:00 a.m., Pacific time. At that hearing,
the Court will determine whether to approve the Arrangement in accordance with the legal
requirements and the evidence before the Court. All Shareholders and other interested
13
parties who wish to participate or to be represented or to present evidence or arguments may do so
by complying with the requirements described in the Notice of Application and Interim Order.
The authority of the Court under the BCBCA is very broad. The Court may make any inquiry it
considers appropriate with respect to the Arrangement. The Court will consider, among other
things, the fairness of the Arrangement to the Shareholders. The Court may approve the Arrangement
as proposed or as amended in any manner the Court may direct, subject to compliance with such terms
and conditions, if any, as the Court specifies. The Arrangement will not proceed if it is not
approved by the required votes of the Shareholders at the Meeting, or if it is not approved by the
Court.
Assuming that the Final Order is granted and the other conditions for the completion of the
Arrangement as set out in the Arrangement Agreement are satisfied or waived, it is anticipated that
the Final Order and other required documentation will be filed with the registrar under the BCBCA
in order for the Arrangement to be effected. The Effective Date is expected to occur shortly after
the date on which the Final Order is obtained and the events and transactions listed in the Plan of
Arrangement are completed. See The Arrangement Court Approval and Completion of the
Arrangement.
Description of KID Shares to be Distributed
The KID Shares that will be distributed to the Shareholders are in book entry form. KHD and KID
believe that it is beneficial for the Shareholders if the KID Shares are traded on an organized and
regulated market. Since substantially all of KIDs assets and businesses are and most likely will
continue to be located in Europe and in emerging markets such as India, KHD and KID believe that a
listing on a European stock exchange is preferable. KHD and KID have identified the FSE and the
VSE as the primary choices for listing in Europe. The FSE maintains or is connected to clearing
and settlement procedures of the highest international standards and has provided an excellent
listing environment for numerous stock corporations. Prior to the Meeting, KID will apply for the
admission of its shares for trading on the FSE and the VSE. Listing of the shares of KID on the
FSE and the VSE is subject to KID fulfilling all of the respective original listing requirements of
each of the FSE and the VSE. The trading price of the shares of KID will be determined by the
market. Commencement of trading on the FSE is expected to occur on or around March 31, 2010 and
will be announced by KHD and KID in a press release. The trading symbol for the shares of KID on
the FSE will be KWG. Commencement of trading on the VSE will be considered separately following
the commencement of trading on the FSE. See below under the heading Stock Exchange Listings.
Holders of the KID Shares are entitled to receive notice of and vote at all meetings of
shareholders of KID and, subject to the rights, privileges, restrictions and conditions attaching
to any other class of shares, receive any dividend declared by KID and the remaining property of
KID upon dissolution. There are no restrictions on transfer of the KID Shares contained in the
articles of association of KID. See The Arrangement Description of Shares of KID.
DESCRIPTION OF KHD PRE AND POST-ARRANGEMENT
See Information Concerning KHD Pre- and Post-Arrangement at Schedule D to this Information
Circular for information concerning KHD pre- and post-Arrangement.
DESCRIPTION OF KID POST-ARRANGEMENT
See Information Concerning KID Post-Arrangement at Schedule F to this Information Circular for
more information concerning KID post-Arrangement.
PRE-ARRANGEMENT REORGANIZATION
Prior to the Effective Date, a number of preliminary transactions will be undertaken by KHD to
facilitate the Arrangement. The effect of the Pre-Arrangement Reorganization will be, among other
things, to consolidate into KHD the KID Shares currently held by subsidiaries of KHD and to
transfer certain subsidiaries of KHD to KID. See The Arrangement Pre-Arrangement
Reorganization.
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ARRANGEMENT MECHANICS
Once all conditions precedent to completion of the Arrangement have been satisfied or waived, all
necessary documents will be filed with the Registrar at such time as KHD deems appropriate, in its
sole discretion, and the Arrangement will take effect as of the date shown on the Certificate of
Arrangement.
Subject to the ability of KHD and KID to amend the Arrangement Agreement, the steps set forth in
the Plan of Arrangement will be deemed to occur in the order set out in the Plan of Arrangement on
the Effective Date. As a result of the Arrangement, a Non-Subsidiary Shareholder (other than a
Dissenting Shareholder) will be entitled to receive, in respect of each seven outstanding KHD
Shares, seven New KHD Shares and one KID Share (or two KID Shares in the event that the KID Split
is effected prior to completion of the Arrangement), provided that no fractional KID Shares will be
distributed and the number of KID Shares to which each Non-Subsidiary Shareholder is entitled will
be rounded down to the next whole number and no payment will be made in respect of such a
fractional KID Share. Such Non-Subsidiary Shareholders name will be added to the register of the
New KHD Shares and the shares of KID maintained by or on behalf of KHD and KID, respectively.
Shares of Dissenting Shareholders
If you are a Dissenting Shareholder and have followed the proper Dissent Procedures for exercising
your Dissent Right, upon completion of certain transactions in the Arrangement, you will only have
the right to be paid fair value for your KHD Shares. See The Arrangement Dissent Rights.
Method of Distribution
If the proposed Arrangement is approved, Shareholders will be required to have a Clearstream
eligible account in order to receive the distribution of their
pro rata
portion of the KID Shares.
Clearstream is a security depository and the principal clearing house for Euromarket transactions.
Computershare will be the distribution agent to distribute the KID Shares to Shareholders. If,
prior to the Effective Date, Registered Shareholders provide instructions to Computershare to
deposit their KID Shares into a specific Clearstream eligible account, Computershare will forward
such instructions to KHD, which will arrange for the deposit of such KID Shares into such account
on or as soon as practicable after the Effective Date.
Distribution to U.S. Registered Shareholders
Computershare has agreed to provide access to a Clearstream eligible custodian account for
Registered Shareholders who are U.S. persons and who do not have access to a Clearstream eligible
account. If such Registered Shareholders do not provide Computershare with instructions as to the
deposit of their KID Shares into a specific Clearstream eligible account prior to the Effective
Date, KHD will deliver the KID Shares to which such Registered Shareholders are entitled to
Computershare, who will deposit such KID Shares into a custodian account with VEM on or as soon as
practicable after the Effective Date. Registered Shareholders who are U.S. persons whose KID
Shares have been deposited into this account can provide instructions to Computershare in the event
that they wish to transfer their KID Shares and Computershare will carry out such instructions.
Registered Shareholders who are U.S. persons will need to provide a W-9 tax withholding form to
Computershare to record any dividend/sales proceeds. They will also be required to provide
Computershare with such further data as may be required by Computershare.
Distribution to U.S. Non-Registered Holders
The KID Shares of Non-Registered Holders who are U.S. persons and who own KHD Shares through a
broker or other nominee, will either be: (i) deposited into such Clearstream eligible account as
their broker or nominee has instructed Computershare prior to the Effective Date; or (ii) if no
such instructions have been provided by the broker or nominee, delivered by KHD to Computershare
for deposit into Computershares custodian account at VEM. In such event, such Non-Registered
Holder will have to have their broker or nominee contact Computershare in the event that such
Non-Registered Holder wishes to transfer their KID Shares. Non-Registered Holders who are U.S.
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persons and whose KID Shares are deposited into Computershares VEM account will be entitled to
receive a statement of holding indicating their ownership of their respective KID Shares.
Distribution to Non-U.S. Registered Shareholders
KHD will provide access to a Clearstream eligible account to Registered Shareholders who are not
U.S. persons and who do not have access to a Clearstream eligible account. If such Registered
Shareholders do not provide instructions to Computershare as to the deposit of their KID Shares
into a specific Clearstream eligible account prior to the Effective Date, KHD will retain such KID
Shares in its own custodians Clearstream eligible account.
Distribution to Non-U.S. Non-Registered Holders
The KID Shares of Non-Registered Holders who are not U.S. persons and who own KHD Shares through a
broker or other nominee, will either be: (i) deposited into such Clearstream eligible account as
their broker or nominee has instructed Computershare prior to the Effective Date; or (ii) if no
such instructions have been provided by the broker or nominee, retained by KHD for deposit into its
custodians Clearstream eligible account. In such event, such Non-Registered Holder will have to
have their broker or nominee contact KHD in the event that such Non-Registered Holder wishes to
transfer their KID Shares. Non-Registered Holders who are not U.S. persons and whose KID Shares
are deposited into KHDs custodians Clearstream eligible account will be entitled to receive a
statement of holding indicating their ownership of their respective KID Shares.
Stock Exchange Listings
The shares of KID are currently quoted on the over-the-counter market of the Frankfurt Stock
Exchange and the Berlin Stock Exchange. Prior to the Meeting, KID will apply for the admission of
its shares for trading on the FSE and the VSE. KHD expects that trading in the New KHD Shares and
the KID Shares will commence on an if, as and when issued basis on the NYSE and the FSE,
respectively, on or around March 31, 2010 and will be announced by KHD and KID in a press release.
Commencement of trading of the KID Shares on the VSE will be considered separately following the
commencement of trading on the FSE. Since KHD is a reporting issuer, under applicable Canadian
securities laws, the acquisition and beneficial ownership reporting rules under such laws will
apply to all purchases of New KHD Shares from the commencement of if, as and when issued trading
in such shares. Shareholders will also be required to provide a notification of ownership of KID
Shares under German law upon the distribution of the KID Shares to the Shareholders. See The
Arrangement Disclosure of Ownership of KID Shares Upon Distribution.
Disclosure of Ownership of KID Shares Upon Distribution
Shareholders are cautioned that, under German law, holders of KID Shares will be required to
provide notification and report their total voting interest held to KID and BaFin within four days
of the distribution of the KID Shares if they hold, directly or indirectly as set out in the
German
Securities Trading Act
, more than 3% of the issued shares of KID. If this notification requirement
is not observed, Shareholders may be subject to a fine and the suspension of their voting rights
with respect to their KID Shares until the correct notification is made and possibly for a period
of six months thereafter. See The Arrangement Disclosure of Ownership of KID Shares Upon
Distribution.
DISSENT RIGHT
If you are a Registered Shareholder, you are entitled to exercise a Dissent Right. You are a
Registered Shareholder if your name is set out in KHDs shareholder register maintained with the
Transfer Agent. Your proxy form tells you whether you are a Registered Shareholder.
Non-Registered Holders of KHD Shares registered in the name of an Intermediary such as a broker,
custodian, nominee, other Intermediary, or in some other name, who wish to exercise the Dissent
Right should be aware that only a Registered Shareholder is entitled to exercise the Dissent Right.
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If the Arrangement is completed, Dissenting Shareholders are entitled to be paid the fair value of
their Dissent Shares and will not be entitled to any other payment or consideration. KHDs
obligation to proceed with the Arrangement is further subject to the condition that the aggregate
number of Dissent Shares not exceed 5% of the outstanding KHD Shares on the date of the Meeting.
The Dissent Right is required to be exercised in accordance with Part 8, Division 2 of the BCBCA,
the Interim Order and the Plan of Arrangement. See The Arrangement Dissent Rights if you
would like to exercise the Dissent Right. It is recommended that if you wish to exercise the
Dissent Right, you seek independent legal advice.
In order to exercise the Dissent Right, you must ensure that a Dissent Notice is received at KHDs
head office, located at Suite 1620 400 Burrard Street, Vancouver, British Columbia, Canada V6C
3A6 (Attention: President) or by facsimile transmission to (604) 683-3205 (Attention: President),
on or before 4:30 p.m. (Pacific time) on the second business day immediately preceding the date of
the Meeting and as described under The Arrangement Dissent Rights.
INCOME TAX CONSIDERATIONS
The Arrangement may result in adverse tax consequences for Shareholders. Shareholders are urged to
consider carefully the information under the headings Certain Canadian Federal Income Tax
Considerations and Certain United States Federal Income Tax Consequences and to discuss such
potential consequences with their tax advisors.
Canadian Federal Income Tax Considerations
Shareholders should consult their own tax advisors about the applicable Canadian federal and
provincial tax consequences of the Arrangement. A summary of the principal Canadian federal income
tax consequences of the proposed Arrangement is included under Certain Canadian Federal Income Tax
Considerations.
United States Federal Income Tax Considerations
In general, subject to the detailed comments set out below under Certain United States Federal
Income Tax Consequences, the Arrangement may qualify as a tax-free transaction under the Code.
There can be no assurance that the IRS will not challenge the US federal income tax treatment of
the Arrangement. If the distribution were not to qualify as a tax-fee transaction under the Code,
each Shareholder subject to US tax who receives KID Shares in the Arrangement would be treated as
if such Shareholder received a distribution equal to the value of the KID Shares received in the
Arrangement. The distribution then would be taxed to such KHD Shareholder as follows: first, as a
taxable dividend to the extent of the Shareholders
pro rata
share of KHDs current or accumulated
earnings and profits; second, to the extent the distribution exceeds the Shareholders
pro rata
share of current or accumulated earnings and profits, as a return of capital and reduction of the
Shareholders basis in the KHD Shares; and third, as capital gain to the extent the distribution
exceeds both the Shareholders
pro rata
share of current or accumulated earnings and profits and
such Shareholders cost basis in KHD Shares.
RISK FACTORS
Shareholders should consider a number of risk factors in evaluating whether to vote in favour of
the Amendment Resolution and the Arrangement Resolution. These risk factors include certain risks
related to the Arrangement and the Shareholders Agreement and risks relating to KHD (and to KHD and
KID, as applicable, upon completion of the Arrangement) which are described under the heading Risk
Factors in this Information Circular.
FINANCIAL STATEMENTS
The following financial statements are incorporated by reference into this Information Circular:
|
|
|
KHD audited consolidated annual financial statements as at December 31, 2008 and 2007
and for the years ended December 31, 2008, 2007 and 2006, as filed on SEDAR at
www.sedar.com on March 27, 2009; and
|
17
|
|
|
KHD unaudited consolidated interim financial statements for the nine months ended
September 30, 2009 and 2008, as filed on SEDAR at www.sedar.com on November 16, 2009.
|
The following financial statements are included in this Information Circular:
|
|
|
KHD unaudited pro forma financial statements reflecting the disposition of the
industrial plant technology, equipment and service business comprising a balance sheet as
at September 30, 2009 and a statement of income for the nine months ended September 30,
2009 and year ended December 31, 2008, located at Schedule E to this Information Circular;
|
|
|
|
|
audited combined annual financial statements of the KHD Industrial Plant Technology,
Equipment and Service Business as at December 31, 2008 and 2007 and for the three years
ended December 31, 2008, located at Schedule G to this Information Circular; and
|
|
|
|
|
unaudited combined interim financial statements of the KHD Industrial Plant Technology,
Equipment and Service Business as at and for the nine months ended September 30, 2009 and
2008, located at Schedule H to this Information Circular.
|
SUMMARY FINANCIAL INFORMATION
KHD Summary Financial Information
The following table summarizes selected consolidated financial data for KHD prepared in accordance
with Canadian generally accepted accounting principles for the three fiscal years ended December
31, 2008 and for the nine months ended September 30, 2009. The selected financial information
should be read in conjunction with: (i) KHDs annual report on Form 20-F for the year ended
December 31, 2008 filed on EDGAR on March 27, 2009; (ii) KHDs audited consolidated annual
financial statements for the financial year ended December 31, 2008, together with the auditors
reports thereon and the MD&A for the same period filed on SEDAR on March 27, 2009; and (iii) KHDs
unaudited consolidated interim financial statements for the nine months ended September 30, 2009,
together with the MD&A for the same period filed on SEDAR on November 16, 2009, all of which have
been incorporated by reference into, and form an integral part of, this Information Circular.
KHDs audited annual financial statements for the fiscal year ended December 31, 2009 are not yet
available. KHD expects to announce its financial results for the fiscal year ended December 31,
2009 on or about March 31, 2010.
Selected Financial Data
(Stated in United States dollars in accordance with Canadian GAAP)
(
in thousands, other than per share amounts)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Nine Months Ended
|
|
|
Fiscal Years Ended December 31
|
|
|
|
September 30, 2009
|
|
|
2008
|
|
|
2007
|
|
|
2006
|
|
Revenues
|
|
$
|
366,208
|
|
|
$
|
638,354
|
|
|
$
|
580,391
|
|
|
$
|
404,324
|
|
Operating income
|
|
|
12,583
|
|
|
|
56,385
|
|
|
|
53,010
|
|
|
|
40,555
|
|
Income (loss) from continuing operations
|
|
|
1,226
|
|
|
|
(6,952
|
)
|
|
|
50,980
|
|
|
|
34,152
|
|
Income (loss) from discontinued operations
|
|
|
|
|
|
|
|
|
|
|
(9,351
|
)
|
|
|
(2,874
|
)
|
Extraordinary gain
|
|
|
|
|
|
|
|
|
|
|
513
|
|
|
|
|
|
Income (loss) from continuing operations
per share
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic
|
|
|
0.04
|
|
|
|
(0.23
|
)
|
|
|
1.71
|
|
|
|
1.13
|
|
Diluted
|
|
|
0.04
|
|
|
|
(0.23
|
)
|
|
|
1.68
|
|
|
|
1.12
|
|
Income (loss) from discontinued operations
per share
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic
|
|
|
|
|
|
|
|
|
|
|
(0.31
|
)
|
|
|
(0.10
|
)
|
Diluted
|
|
|
|
|
|
|
|
|
|
|
(0.31
|
)
|
|
|
(0.09
|
)
|
18
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Nine Months Ended
|
|
|
Fiscal Years Ended December 31
|
|
|
|
September 30, 2009
|
|
|
2008
|
|
|
2007
|
|
|
2006
|
|
Extraordinary gain per share
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic
|
|
|
|
|
|
|
|
|
|
|
0.02
|
|
|
|
|
|
Diluted
|
|
|
|
|
|
|
|
|
|
|
0.02
|
|
|
|
|
|
Net income (loss)
|
|
|
1,226
|
|
|
|
(6,952
|
)
|
|
|
42,142
|
|
|
|
31,278
|
|
Net income (loss) per share
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic
|
|
|
0.04
|
|
|
|
(0.23
|
)
|
|
|
1.42
|
|
|
|
1.03
|
|
Diluted
|
|
|
0.04
|
|
|
|
(0.23
|
)
|
|
|
1.39
|
|
|
|
1.03
|
|
Total assets
|
|
|
764,163
|
|
|
|
765,658
|
|
|
|
789,311
|
|
|
|
641,920
|
|
Net assets
|
|
|
284,953
|
|
|
|
265,623
|
|
|
|
313,120
|
|
|
|
295,754
|
|
Long-term debt, less current portion
|
|
|
11,891
|
|
|
|
11,313
|
|
|
|
13,920
|
|
|
|
10,725
|
|
Shareholders equity
|
|
|
279,776
|
|
|
|
261,914
|
|
|
|
307,194
|
|
|
|
273,288
|
|
Capital stock, net of treasury stock
|
|
|
47,669
|
|
|
|
50,033
|
|
|
|
44,566
|
|
|
|
44,212
|
|
Weighted average common stock
outstanding, diluted
|
|
|
30,386
|
|
|
|
30,401
|
|
|
|
30,402
|
|
|
|
30,415
|
|
KHD Summary Pro Forma Financial Information
The following is a summary of selected pro forma financial information for KHD after giving effect
to (i) the distribution of 26% of the KID Shares by KHD in connection with the Arrangement; and
(ii) the Shareholders Agreement and assuming KHD has taken all other steps necessary to no longer
control KID from an accounting perspective. The pro forma statement of earnings is for the year
ended December 31, 2008 and for the nine months ended September 30, 2009 and assumes completion of
the events as if they had taken place on January 1, 2008 and 2009, respectively. The pro forma
consolidated balance sheet information is as at September 30, 2009 and assumes completion of the
events as if they had taken place on September 30, 2009.
The following selected pro forma financial information of KHD should be read in conjunction with
the audited comparative consolidated financial statements of KHD for the year ended December 31,
2008, along with the corresponding MD&A, and the unaudited comparative interim consolidated
financial statements of KHD for the nine months ended September 30, 2009, along with the
corresponding MD&A, all as specifically incorporated by reference in this Information Circular, and
the unaudited pro forma financial statements of KHD set out in Schedule E to this Information
Circular Pro Forma Financial Statements of KHD. Please refer to the notes to the pro forma
financial statements which disclose the pro forma assumptions and adjustments.
Selected Pro Forma Financial Data
(
in thousands, other than per share amounts)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Nine Months Ended
|
|
|
|
|
|
|
September 30, 2009
|
|
|
Fiscal Year Ended December 31, 2008
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Pro Forma
|
|
|
|
|
|
|
|
|
|
|
Pro Forma
|
|
|
|
|
|
Pro Forma Giving
|
|
Giving Effect to
|
|
|
|
|
|
|
Pro Forma
|
|
Giving Effect
|
|
|
|
|
|
Effect to
|
|
Shareholders
|
|
|
|
|
|
|
Giving Effect
|
|
to Shareholders
|
|
|
|
|
|
Distribution
|
|
Agreement
|
|
|
|
|
|
|
to Distribution of
|
|
Agreement and Plan
|
|
|
|
|
|
of 26% of KID
|
|
and Plan of
|
|
|
Historical
|
|
|
26% of KID Shares
|
|
of Arrangement
|
|
Historical
|
|
|
Shares
|
|
Arrangement
|
Revenues
|
|
$
|
366,208
|
|
|
|
366,208
|
|
|
|
|
|
|
|
638,354
|
|
|
|
638,354
|
|
|
|
|
|
Operating income
|
|
|
12,583
|
|
|
|
12,583
|
|
|
|
(1,826)
|
|
|
|
54,545
|
|
|
|
54,545
|
|
|
|
5,453
|
|
Income (loss) from continuing operations
|
|
|
1,226
|
|
|
|
4,611
|
|
|
|
(12,370)
|
|
|
|
(6,952
|
)
|
|
|
2,523
|
|
|
|
(42,177
|
)
|
Income (loss) from continuing operations,
per share
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic
|
|
|
0.04
|
|
|
|
0.15
|
|
|
|
(0.41)
|
|
|
|
(0.23
|
)
|
|
|
0.08
|
|
|
|
(1.39
|
)
|
Diluted
|
|
|
0.04
|
|
|
|
0.15
|
|
|
|
(0.41)
|
|
|
|
(0.23
|
)
|
|
|
0.08
|
|
|
|
(1.39
|
)
|
Net Income (loss)
|
|
|
1,226
|
|
|
|
4,611
|
|
|
|
(12,370)
|
|
|
|
(6,952
|
)
|
|
|
2,523
|
|
|
|
(42,177
|
)
|
Net Income (loss), per share
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic
|
|
|
0.04
|
|
|
|
0.15
|
|
|
|
(0.41)
|
|
|
|
(0.23
|
)
|
|
|
0.08
|
|
|
|
(1.39
|
)
|
19
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Nine Months Ended
|
|
|
|
|
|
|
September 30, 2009
|
|
|
Fiscal Year Ended December 31, 2008
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Pro Forma
|
|
|
|
|
|
|
|
|
|
|
Pro Forma
|
|
|
|
|
|
Pro Forma Giving
|
|
Giving Effect to
|
|
|
|
|
|
|
Pro Forma
|
|
Giving Effect
|
|
|
|
|
|
Effect to
|
|
Shareholders
|
|
|
|
|
|
|
Giving Effect
|
|
to Shareholders
|
|
|
|
|
|
Distribution
|
|
Agreement
|
|
|
|
|
|
|
to Distribution of
|
|
Agreement and Plan
|
|
|
|
|
|
of 26% of KID
|
|
and Plan of
|
|
|
Historical
|
|
|
26% of KID Shares
|
|
of Arrangement
|
|
Historical
|
|
|
Shares
|
|
Arrangement
|
Diluted
|
|
|
0.04
|
|
|
|
0.15
|
|
|
|
(0.41)
|
|
|
|
(0.23
|
)
|
|
|
0.08
|
|
|
|
(1.39)
|
|
Total assets
|
|
|
764,163
|
|
|
|
762,952
|
|
|
|
277,689
|
|
|
|
N/A
|
|
|
|
N/A
|
|
|
|
N/A
|
|
Net assets
|
|
|
284,953
|
|
|
|
283,742
|
|
|
|
246,999
|
|
|
|
N/A
|
|
|
|
N/A
|
|
|
|
N/A
|
|
Long term debt, less current portion
|
|
|
11,891
|
|
|
|
11,891
|
|
|
|
11,891
|
|
|
|
N/A
|
|
|
|
N/A
|
|
|
|
N/A
|
|
Shareholders equity
|
|
|
279,776
|
|
|
|
246,498
|
|
|
|
246,999
|
|
|
|
N/A
|
|
|
|
N/A
|
|
|
|
N/A
|
|
Working capital
|
|
|
312,155
|
|
|
|
310,944
|
|
|
|
119,049
|
|
|
|
N/A
|
|
|
|
N/A
|
|
|
|
N/A
|
|
Weighted average common stock,
outstanding diluted
|
|
|
30,386
|
|
|
|
30,386
|
|
|
|
30,386
|
|
|
|
30,401
|
|
|
|
30,603
|
|
|
|
30,401
|
|
KID Combined Summary Financial Information
The following table summarizes selected combined financial data for the KHD Industrial Plant
Technology, Equipment and Service Business prepared in accordance with Canadian GAAP for the three
fiscal years ended December 31, 2008 and for the nine months ended September 30, 2009. The
selected financial information should be read in conjunction with the KHD Industrial Plant
Technology, Equipment and Service Businesss audited combined annual financial statements as at
December 31, 2008 and 2007 and for the three years ended December 31, 2008, and unaudited combined
interim financial statements as at and for the nine months ended September 30, 2009 and 2008,
included at Schedules G and H, respectively, to this Information Circular.
Selected Financial Data
(Stated in United States dollars in accordance with Canadian GAAP)
(
in thousands, other than per share amounts)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Nine Months Ended
|
|
|
Fiscal Years Ended December 31
|
|
|
|
September 30, 2009
|
|
|
2008
|
|
|
2007
|
|
|
2006
|
|
Revenues
|
|
$
|
366,208
|
|
|
$
|
638,354
|
|
|
$
|
580,391
|
|
|
$
|
404,324
|
|
Operating income
|
|
|
13,580
|
|
|
|
45,225
|
|
|
|
48,480
|
|
|
|
41,441
|
|
Income from continuing operations
|
|
$
|
15,519
|
|
|
$
|
36,443
|
|
|
$
|
48,635
|
|
|
$
|
35,888
|
|
Loss from discontinued operation
|
|
|
|
|
|
|
|
|
|
|
(7,334
|
)
|
|
|
(1,611
|
)
|
Extraordinary gain
|
|
|
|
|
|
|
|
|
|
|
525
|
|
|
|
|
|
Net income
|
|
|
15,519
|
|
|
|
36,443
|
|
|
|
41,826
|
|
|
|
34,277
|
|
Total assets
|
|
|
706,913
|
|
|
|
697,170
|
|
|
|
648,619
|
|
|
|
N/A
|
|
Net assets
|
|
|
229,790
|
|
|
|
206,917
|
|
|
|
188,582
|
|
|
|
N/A
|
|
Long-term debt, less current portion
|
|
|
11,891
|
|
|
|
11,313
|
|
|
|
13,920
|
|
|
|
N/A
|
|
Shareholders equity
|
|
|
228,655
|
|
|
|
205,895
|
|
|
|
186,285
|
|
|
|
N/A
|
|
20
Suite 1620 400 Burrard Street
Vancouver, British Columbia
Canada V6C 3A6
MANAGEMENT INFORMATION CIRCULAR
March 1, 2010
This Information Circular is being furnished to Shareholders in connection with the solicitation of
proxies by the Board and management of KHD for use at the Meeting to be held on Monday, March 29,
2010 at 9:00 a.m. (Pacific time), and at any adjournment or adjournments thereof, at Suite 1620
400 Burrard Street, Vancouver, British Columbia V6C 3A6, for the purposes set forth in the Notice
of Meeting, which accompanies and is part of this Information Circular.
The Meeting Materials will be mailed to Shareholders commencing on or about March 3, 2010. The
information contained herein is given as of March 1, 2010, except as otherwise stated. All dollar
amounts set forth in this Information Circular are expressed in United States dollars, unless
otherwise indicated.
About KHD
KHD is a corporation existing under the BCBCA, is a reporting issuer in British Columbia, Alberta
and Quebec, has a class of securities registered under the 1934 Act, and is therefore subject to
the informational reporting requirements under the applicable Canadian and United States securities
laws. The KHD Shares are currently listed and posted for trading on the NYSE under the trading
symbol KHD.
KHD currently operates in two business segments consisting of (i) an industrial plant technology,
equipment and service business and (ii) a royalty interest in the Wabush iron ore mine. KHDs head
office is located at Suite 1620, 400 Burrard Street, Vancouver, British Columbia, Canada V6C 3A6.
For a more detailed description of KHD, refer to the following documents, which are incorporated
herein by reference:
|
(i)
|
|
KHDs annual report on Form 20-F for the year ended December 31, 2008, as filed
on EDGAR on March 27, 2009;
|
|
|
(ii)
|
|
KHDs audited consolidated annual financial statements as at December 31, 2008
and 2007 and for the years ended December 31, 2008, 2007 and 2006, as filed on SEDAR at
www.sedar.com on March 27, 2009;
|
|
|
(iii)
|
|
KHDs MD&A for the year ended December 31, 2008, as filed on SEDAR at
www.sedar.com on March 27, 2009;
|
|
|
(iv)
|
|
KHDs unaudited consolidated interim financial statements for the nine months
ended September 30, 2009 and 2008, as filed on SEDAR at www.sedar.com on November 16,
2009;
|
|
|
(v)
|
|
KHDs MD&A for the nine months ended September 30, 2009, as filed on SEDAR at
www.sedar.com on November 16, 2009; and
|
|
|
(vi)
|
|
KHDs management information circular for its annual meeting of shareholders
held on October 24, 2009, as filed on SEDAR at www.sedar.com on October 2, 2009.
|
KHD will promptly provide a copy of any of these documents, free of charge. Requests should be
made to Rene Randall, Suite 1620 400 Burrard Street, Vancouver, British Columbia, Canada V6C
3A6.
21
VOTING INFORMATION
Solicitation of Proxies
The solicitation of proxies by management of KHD will be conducted by mail and may be supplemented
by telephone or other personal contact and such solicitation will be made without special
compensation granted to the directors, officers and employees of KHD. KHD does not reimburse
Shareholders, nominees or agents for costs incurred in obtaining, from the principals of such
persons, authorization to execute forms of proxy, except that KHD has requested brokers and
nominees who hold stock in their respective names to furnish this Information Circular and related
proxy materials to their customers, and KHD will reimburse such brokers and nominees for their
related out of pocket expenses. No solicitation will be made by specifically engaged employees or
soliciting agents. The cost of solicitation will be borne by KHD.
No person has been authorized to give any information or to make any representation other than as
contained in this Information Circular in connection with the solicitation of proxies. If given or
made, such information or representations must not be relied upon as having been authorized by KHD.
The delivery of this Information Circular shall not create, under any circumstances, any
implication that there has been no change in the information set forth herein since the date of
this Information Circular. This Information Circular does not constitute the solicitation of a
proxy by anyone in any jurisdiction in which such solicitation is not authorized, or in which the
person making such solicitation is not qualified to do so, or to anyone to whom it is unlawful to
make such an offer of solicitation.
Record Date
The Board has set the close of business on February 12, 2010 as the Record Date for determining
which Shareholders shall be entitled to receive notice of and to vote at the Meeting. Only
Shareholders of record (i.e. Registered Shareholders) as of the Record Date are entitled to receive
notice of and to vote at the Meeting unless, after the Record Date, a Shareholder of record
transfers its KHD Shares and the transferee, upon establishing that such transferee owns such KHD
Shares, requests in writing, at least ten (10) days prior to the Meeting or any adjournment or
adjournments thereof, that such transferee may have its name included on the list of Shareholders
entitled to vote at the Meeting, in which case such transferee is entitled to vote such KHD Shares
at the Meeting. Such written request by a transferee shall be filed with the President of KHD at
Suite 1620, 400 Burrard Street, Vancouver, British Columbia, Canada V6C 3A6 or by facsimile
transmission to (604) 683-3205 (Attention: President).
Each Shareholder has one vote for each KHD Share held.
Appointment of Proxyholders
The persons named in the accompanying Form of Proxy as proxyholders are managements
representatives. Shareholders that seek to appoint some other person (who need not be a
Shareholder) to represent them at the Meeting may do so, either by striking out the printed names
and inserting the desired persons name in the blank space provided in the Form of Proxy or by
completing another proper proxy and, in either case, delivering the completed Form of Proxy to the
address set out on the Form of Proxy at any time up to and including the last business day before
the day of the Meeting or any adjournment or adjournments thereof.
In order to be voted, the completed Form of Proxy must be received by KHD, by mail or by hand, to
the attention of either of: (i) BNY Mellon Shareowner Services, PO Box 3862, S Hackensack, New
Jersey, USA 07606-9562 (for Shareholders in the United States) or BNY Mellon Shareowner Services,
PO Box 3865, S Hackensack, New Jersey, USA 07606-3865 (for Shareholders outside of the United
States), or by facsimile transmission to (201) 680-4604, or (ii) the President of KHD, at Suite
1620, 400 Burrard Street, Vancouver, British Columbia, Canada V6C 3A6 or by facsimile transmission
to (604) 683-3205 (Attention: President), by March 26, 2010.
A proxy may not be valid unless it is dated and signed by the Registered Shareholder who is giving
it or by that Shareholders attorney-in-fact duly authorized by that Registered Shareholder in
writing or, in the case of a
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corporation, dated and executed by a duly authorized officer, or attorney-in-fact, for the
corporation. If a Form of Proxy is executed by an attorney-in-fact for an individual Registered
Shareholder or joint Registered Shareholders, or by an officer or attorney-in-fact for a corporate
Registered Shareholder, the instrument so empowering the officer or attorney-in-fact, as the case
may be, or a notarially certified copy thereof, should accompany the Form of Proxy.
Voting of KHD Shares and Proxies and Exercise of Discretion by Designated Persons
If the Form of Proxy is completed, signed and delivered to KHD, the persons named as proxyholders
therein shall vote or withhold from voting the KHD Shares in respect of which they are appointed as
proxyholders at the Meeting, in accordance with the instructions of the Shareholders appointing
them, on any ballot that may be called for and, if the Shareholders specify a choice with respect
to any matter to be acted upon at the Meeting, the persons appointed as proxyholders shall vote
accordingly. The Form of Proxy confers discretionary authority upon the persons named therein with
respect to all matters which may properly come before the Meeting or any adjournment or
adjournments thereof. As of the date of this Information Circular, the Board knows of no such
amendments, variations or other matters to come before the Meeting, other than matters referred to
in the Notice of Meeting. However, if other matters should properly come before the Meeting, the
Form of Proxy will be voted on such matters in accordance with the best judgment of the person or
persons voting the Form of Proxy.
If no choice is specified by a Shareholder with respect to any matter identified in the Form of
Proxy or any amendment or variation to such matter, it is intended that the person designated by
management in the Form of Proxy will vote the KHD Shares represented thereby IN FAVOUR of such
matter.
In the case of abstentions from, or withholding of, the voting of the KHD Shares on any matter, the
KHD Shares that are the subject of the abstention or withholding will be counted for the
determination of a quorum, but will not be counted as affirmative or negative on the matter to be
voted upon.
Revocability of Proxy
Any Registered Shareholder who has returned a Form of Proxy may revoke it at any time before it has
been exercised. In addition to revocation in any other manner permitted by law, a Form of Proxy
may be revoked by instrument in writing, including a Form of Proxy bearing a later date, executed
by the Registered Shareholder or by his or her attorney duly authorized in writing or, if the
Registered Shareholder is a corporation, under its corporate seal or by an officer or attorney
thereof duly authorized. The instrument revoking the Form of Proxy must be deposited at the same
address where the original Form of Proxy was delivered at any time up to and including the last
business day preceding the date of the Meeting, or any adjournment or adjournments thereof, or with
the Chairman of the Meeting on the date but prior to the commencement of the Meeting. A Registered
Shareholder who has submitted a Form of Proxy may also revoke it by attending the Meeting in person
(or if the Registered Shareholder is a corporation, by an authorized representative of the
corporation attending the Meeting) and registering with the scrutineer thereat as a Registered
Shareholder present in person, whereupon such Form of Proxy shall be deemed to have been revoked.
Only Registered Shareholders have the right to revoke a Form of Proxy. Non-Registered Holders who
wish to change their vote must, at least seven days before their Meeting, or such earlier date as
may be required by the policies of the Non-Registered Holders respective Intermediary, arrange for
their respective Intermediaries to change their vote and if necessary to revoke their proxy.
Non-Registered Holders
Only Registered Shareholders or duly appointed proxyholders are permitted to vote at the Meeting.
Most Shareholders are Non-Registered Holders because the KHD Shares they own are not registered in
their names but are instead registered in the name of the brokerage firm, bank or trust company
through which they purchased the KHD Shares. More particularly, a person is not a Registered
Shareholder in respect of KHD Shares which are held on behalf of that Non-Registered Holder but
which are registered either: (a) in the name of an Intermediary that the Non-Registered Holder
deals with in respect of the KHD Shares; or (b) in the name of a clearing agency (such as CDS
Clearing and Depositary Services Inc.) of which the Intermediary is a participant. In accordance
with the
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requirements set out in National Instrument 54-101 of the Canadian Securities Administrators, KHD
has distributed copies of the Meeting Materials to the clearing agencies and Intermediaries for
onward distribution to Non-Registered Holders.
Intermediaries are required to forward the Meeting Materials to Non-Registered Holders unless a
Non-Registered Holder has waived the right to receive them. Very often, Intermediaries will use
service companies to forward the Meeting Materials to Non-Registered Holders. Generally,
Non-Registered Holders who have not waived the right to receive Meeting Materials will either:
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(a)
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be given a Form of Proxy which has already been signed by the Intermediary
(typically by a facsimile, stamped signature), which is restricted as to the number of
KHD Shares beneficially owned by the Non-Registered Holder but which is otherwise not
completed. Because the Intermediary has already signed the Form of Proxy, this Form of
Proxy is not required to be signed by the Non-Registered Holder when submitting the
proxy. In this case, the Non-Registered Holder who wishes to submit a proxy should
otherwise properly complete the Form of Proxy and deposit it with KHD as provided
above; or
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(b)
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more typically, be given a voting instruction form which is not signed by the
Intermediary, and which, when properly completed and signed by the Non-Registered
Holder and returned to the Intermediary or its service company, will constitute voting
instructions (often called a proxy authorization form) which the Intermediary must
follow. Typically, the proxy authorization form will consist of a one page pre-printed
form. Sometimes, instead of a one page pre-printed form, the proxy authorization will
consist of a regular printed proxy form accompanied by a page of instructions, which
contains a removable label containing a bar-code and other information. In order for
the Form of Proxy to validly constitute a proxy authorization form, the Non-Registered
Holder must remove the label from the instructions and affix it to the Form of Proxy,
properly complete and sign the Form of Proxy and return it to the Intermediary or its
service company in accordance with the instructions of the Intermediary or its service
company.
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In either case, the purpose of this procedure is to permit a Non-Registered Holder to direct the
voting of the KHD Shares which they beneficially own. Should a Non-Registered Holder who receives
one of the above forms wish to vote at the Meeting in person, the Non-Registered Holder should
strike out the names of the management proxyholders named in the Form of Proxy and insert the
Non-Registered Holders name in the blank space provided. In either case, Non-Registered Holders
should carefully follow the instructions of their Intermediary, including those regarding when and
where the proxy or proxy authorization form is to be delivered.
There are two kinds of beneficial owners those who object to their name being made known to the
issuers of securities which they own (called OBOs for Objecting Beneficial Owners) and those who do
not object to the issuers of the securities they own knowing who they are (called NOBOs for
Non-Objecting Beneficial Owners). Pursuant to National Instrument 54-101, issuers can obtain a
list of their NOBOs from Intermediaries for distribution of proxy-related materials directly to
NOBOs.
These security holder materials are being sent to both Registered Shareholders and Non-Registered
Holders. If you are a Non-Registered Holder, and KHD or its agent has sent these materials
directly to you, your name and address and information about your holdings of securities have been
obtained in accordance with applicable securities regulatory requirements from the Intermediary
holding on your behalf.
SPECIAL BUSINESS OF THE MEETING
Approval of the Amendment to the Articles
At the Meeting, Shareholders will be asked to consider and, if deemed appropriate, to pass, the
Amendment Resolution, the full text of which is reproduced in Schedule A to this Information
Circular.
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The Board unanimously recommends that Shareholders vote IN FAVOUR of the Amendment Resolution at
the Meeting
. See Amendment to the Articles Recommendation of the Board. To be effective, the
Amendment Resolution must be approved by not less than two-thirds of the votes properly cast
thereon by the Shareholders present in person or represented by proxy at the Meeting.
Proxies
received in favour of management will be voted IN FAVOUR of the Amendment Resolution.
Approval of the Arrangement
At the Meeting, Shareholders will be asked to consider and, if deemed appropriate, to pass, with or
without variation, the Arrangement Resolution, the full text of which is reproduced in Schedule B
to this Information Circular.
The Board unanimously recommends that Shareholders vote IN FAVOUR of the Arrangement Resolution at
the Meeting
. See The Arrangement Background to the Arrangement and The Arrangement
Recommendation of the Board. To be effective, the Arrangement Resolution must be approved by not
less than two-thirds of the votes properly cast thereon by the Shareholders present in person or
represented by proxy at the Meeting.
Proxies received in favour of management will be voted IN
FAVOUR of the Arrangement Resolution.
AMENDMENT TO THE ARTICLES
General
As part of KHDs stated goal of enhancing long-term value for Shareholders by taking steps to
create two independent, publicly traded companies and allowing KHD to focus on the mineral royalty
business, KHD proposes to enter into the Shareholders Agreement with the Custodian whereby KHD will
engage the Custodian to direct the voting of the KID Shares that KHD will continue to hold after
consummation of the Arrangement. Subject to satisfying all necessary requirements and taking the
steps necessary to no longer control KID from an accounting perspective, the entering into of the
Shareholders Agreement may assist KHD with its objective of deconsolidating the assets and
liabilities of KID prior to the time that it is tax efficient for KHD to distribute the remainder
of the KID Shares owned by KHD at such time to the Shareholders. The deconsolidated financial
presentation will more accurately reflect the ultimate objective of the Arrangement on a going
forward basis as KID would be deconsolidated from KHD in its entirety. As the Arrangement only
contemplates the first tranche of a distribution of the KID Shares and if KHD takes the steps
necessary to no longer control KID, the resulting accounting presentation of KHD on a
deconsolidated basis will enable Shareholders to achieve a more accurate view of both KHD and KID.
As a result, KHD and KID will be in a position to achieve the full potential of the Arrangement
prior to the time they would otherwise be able to achieve such benefits if they were to delay
taking the necessary steps to achieve the deconsolidation until it is efficient, from a tax
perspective, to distribute the remainder of the KID Shares owned by KHD at such time.
In order for the Shareholders Agreement to be effective, at the Meeting, management will seek your
approval for an amendment to the Articles to authorize the Board to transfer, in accordance with
Section 137(1.1) of the BCBCA and subject to the terms and conditions of the Shareholders
Agreement, the power to direct the voting of the KID Shares to the Custodian. See Amendment to
the Articles Amendment Resolution.
KHD will retain all other rights attached to the KID Shares and will be entitled to all economic
benefits associated with the KID Shares.
As a result of entering into the Shareholders Agreement and if KHD takes the steps necessary to no
longer control KID, KHD may no longer be deemed to control the KID Shares, despite its ownership
interest in such shares and, as a result, may deconsolidate KIDs financial results.
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Reasons for the Amendment to the Articles
The Board believes that the amendment to the Articles will also further its stated goal of
enhancing long-term value for Shareholders by taking steps to create two independent, publicly
traded companies and allowing KHD to focus on the mineral royalty business. The Board has
carefully evaluate the proposed amendment to the Articles and the terms and conditions of the
Shareholders Agreement and has unanimously: (i) determined that the amendment to the Articles is in
the best interests of KHD and the Shareholders; and (ii) recommended that Shareholders vote IN
FAVOUR of the Amendment Resolution. In reaching these determinations, the Board considered, among
other matters:
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(a)
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the belief that the ability to deconsolidate KIDs financial position and
results from those of KHD prior to the time that it would be efficient, from a tax
perspective, for KHD to distribute the remainder of the KID Shares owned by KHD at such
time to the Shareholders will more accurately reflect the ultimate objective of the
Arrangement on a going forward basis as KID would be deconsolidated from KHD in its
entirety; and
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(b)
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the belief that the deconsolidated financial presentation will enable
Shareholders to achieve a more accurate view of both KHD and KID and as a result, KHD
and KID will be in a position to achieve the full potential of the Arrangement prior to
the time they would otherwise be able to achieve such benefits if they were to delay
taking the necessary steps to achieve the deconsolidation until it is efficient, from a
tax perspective, to distribute the remainder of the KID Shares owned by KHD at such
time.
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The foregoing are the material factors considered by the Board in its consideration of the
Amendment Resolution, but this discussion is not intended to be exhaustive. In view of the wide
variety of factors considered by the Board, and the complexity of these matters, the Board did not
find it practicable to, and did not, quantify or otherwise assign relative weights to the foregoing
factors. In addition, individual members of the Board may have assigned different weights to
various factors. The Board, by a unanimous vote, approved the amendment to the Articles and
recommends that Shareholders vote FOR the Amendment Resolution based upon all of the information
presented to and considered by it.
About the Shareholders Agreement
In connection with the Arrangement, KHD proposes to enter into the Shareholders Agreement with the
Custodian whereby KHD will engage the Custodian to direct the voting of the KID Shares that KHD
will continue to hold after consummation of the Arrangement. Subject to satisfying all necessary
requirements and taking the other steps necessary to no longer control KID from an accounting
perspective, the entering into of the Shareholders Agreement may assist KHD with its objective of
deconsolidating KIDs financial position and results from those of KHD prior to the time that it
would be efficient, from a tax perspective, for KHD to distribute the remainder of the KID Shares
owned by KHD at such time to the Shareholders. The deconsolidated financial presentation will more
accurately reflect the ultimate objective of the Arrangement on a going forward basis, as KID would
be deconsolidated from KHD in its entirety. As the Arrangement only contemplates the first tranche
of a distribution of the KID Shares and taking the other steps necessary to no longer control KID
from an accounting perspective, the resulting accounting presentation of KHD on a deconsolidated
basis will enable Shareholders to achieve a more accurate view of both KHD and KID. As a result,
KHD and KID will be in a position to achieve the full potential of the Arrangement prior to the
time they would otherwise be able to achieve such benefits if they were to delay taking the
necessary steps to achieve the deconsolidation until it is efficient, from a tax perspective, to
distribute the remainder of the KID Shares owned by KHD at such time.
The Shareholder Agreement is to become effective immediately on the Effective Date and provides,
among other things, that:
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(a)
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KHD will provide 10 days notice to the Custodian of any shareholder meeting of
KID;
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(b)
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KHD will take all necessary steps to ensure that it can vote the KID Shares at
any shareholder meeting of KID;
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(c)
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the Custodian will determine, in its sole discretion, acting in a responsible
manner as a prudent shareholder or investor would do, always having regard to the best
interests of the shareholders of KID, how to vote the KID Shares and will notify KHD no
later than five calendar days prior to any shareholder meeting of KID as to how to vote
the KID Shares;
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(d)
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KHD undertakes and covenants that it will vote the KID Shares, or such portion
thereof as determined by the Custodian, in accordance with the instructions of the
Custodian, except as set out in the Shareholders Agreement;
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(e)
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KHD will not be obligated to vote the KID Shares as determined by the Custodian
if the Shareholders Agreement is effective or illegal under any prevailing law;
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(f)
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KHD will pay an annual fee to the Custodian and indemnify and save harmless the
Custodian for all costs and expenses incurred in the performance of its obligations
under the Shareholders Agreement;
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(g)
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in the event that KHD fails to comply with the voting instructions, or
otherwise breaches the Shareholders Agreement, and such breach remains un-remedied
after receipt of notice from the Custodian, then KHD is obliged to immediately
distribute all of the KID Shares then owned to the Shareholders;
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(h)
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the Shareholders Agreement will terminate once KHD has distributed all of the
KID Shares that it owns from time to time;
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(i)
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immediately upon the completion of any transfer, sale or other disposition of
any of the KID Shares, the obligation to vote any such KID Shares as directed by the
Custodian will terminate; and
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(j)
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each of KHD and the Custodian may terminate the Shareholders Agreement for
cause, as such term is defined under German high court rulings, including, without
limitation, for serious and persistent misconduct, breach of the Shareholders Agreement
or persistent failure to comply with the terms of the Shareholders Agreement.
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The Custodian under the Shareholders Agreement will be identified prior to the Effective Date. In
order to achieve the goal of no longer controlling KID from an accounting perspective and the
resulting accounting presentation of KHD on a deconsolidated basis, the Custodian has to be a party
which is not related to or affiliated with KHD and KID, or any of their respective directors or
officers, and includes any party that would be expected to result in KHD having to consolidate its
holding in KID.
KHD has yet to identify a party that will act as the Custodian. If KHD is unable to indentify a
party who is willing to act as the Custodian on or before the Effective Date, then KHD may not be
able to achieve its goal of taking all steps necessary to deconsolidate the financial position and
results of KID from those of KHD and will not proceed with the Arrangement.
The preceding description of the material terms and conditions of the Shareholders Agreement is
qualified in its entirety by the full text of the Shareholders Agreement which is attached as
Schedule P to this Information Circular. Shareholders are encouraged to read the Shareholders
Agreement in its entirety.
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Recommendation of the Board
The Board believes that the amendment to the Articles is in the best interests of KHD and the
Shareholders. The Board unanimously recommends that Shareholders vote IN FAVOUR of the Amendment
Resolution at the Meeting.
Unless otherwise indicated, the persons designated as proxyholders in the Form of Proxy will vote
the KHD Shares represented by the Form of Proxy in favour of the Amendment Resolution.
Amendment Resolution
At the Meeting, Shareholders will be asked to consider and, if deemed appropriate, to approve the
Amendment Resolution, the full text of which is attached as Schedule A to this Information
Circular.
In order for the Amendment Resolution, which is a special resolution of the Shareholders, to be
passed, it must be approved by at least two-thirds of the votes cast by Shareholders who vote in
person or by proxy at the Meeting.
The persons named in the enclosed Form of Proxy, if named as
proxyholder, intend to vote FOR the Amendment Resolution.
If the Shareholders do not vote in favour of the Amendment Resolution, then KHD will not proceed
with the Arrangement.
THE BOARD RECOMMENDS THAT YOU VOTE IN FAVOUR OF THE AMENDMENT RESOLUTION.
THE ARRANGEMENT
Overview of the Arrangement
The following description of the Arrangement is qualified in its entirety by reference to the full
text of the Arrangement Agreement and the Plan of Arrangement, which is included as Appendix I to
the Arrangement Agreement, a copy of which is attached as Schedule C to this Information Circular.
General
The Arrangement will be the first step towards the division of KHD into two independent, publicly
traded companies, with one focused on the industrial plant technology, equipment and service
business and the other focused on the mineral royalty business. Upon completion of the
Pre-Arrangement Reorganization, as described below, all of KHDs industrial plant technology,
equipment and service business will be held, directly and indirectly, by KID. Subject to the
conditions in the Arrangement Agreement being satisfied or waived, KHD will apply to the Court for
the Final Order approving the Plan of Arrangement under the provisions of Section 288 of the BCBCA.
The completion of the Arrangement is subject to KHD obtaining the approval of the Shareholders for
the Amendment Resolution. If the Shareholders approve the Amendment Resolution, and if the
Arrangement is approved by the Shareholders and the Court and the other conditions precedent to the
Arrangement are satisfied or waived, each Non-Subsidiary Shareholder (other than a Dissenting
Shareholder) will receive seven New KHD Shares and one KID Share (or two KID Shares in the event
that the KID Split is effected prior to completion of the Arrangement) for every seven KHD Shares
held on the Distribution Record Date. No fractional KHD Shares will be issued and all fractional
KID Shares will be rounded down to the next whole number.
Prior to the Meeting, KID will apply for the admission of its shares for trading on the FSE and the
VSE. Commencement of trading on the FSE is expected to occur on or around March 31, 2010, and will
be announced by
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KHD and KID in a press release. Commencement of trading on the VSE will be considered separately
following the commencement of trading on the FSE.
Upon completion of the Arrangement, it is expected that KHD will operate as a mineral royalty
company. However, the Board will reserve the right, in its sole discretion, to change the name of
KHD to a different name without obtaining the further approval of Shareholders. KHD will continue
to indirectly receive royalty payments from the Wabush iron ore mine and will also focus on, among
other things, acquiring additional mineral royalties. The New KHD Shares will be traded on the
NYSE after the completion of the Arrangement. KID will continue to build KHDs former industrial
plant technology, equipment and service business.
The value of the New KHD Shares and the KID Shares will initially be set in the marketplace on the
NYSE and the FSE, respectively.
KHD and KID have entered into the Arrangement Agreement providing for the completion of the
Arrangement under Section 288 of the BCBCA, pursuant to the Interim Order of the Court dated March
1, 2010 and subject to approval by two-thirds of the Shareholders entitled to vote and voting in
person or by proxy at the Meeting on the Arrangement Resolution. The full text of the Arrangement
Resolution is reproduced on Schedule B to this Information Circular. Before the Arrangement can
become effective, it must be approved by the Final Order of the Court. A copy of the Arrangement
Agreement, the Interim Order and the draft Notice of Application for the Final Order are attached
as Schedules C, M and N, respectively, to this Information Circular.
Background to the Arrangement
KHDs management continually reviews available options to optimize its portfolio of assets and its
capital structure and to pursue transactions that enhance Shareholder value. Periodically, since
2005, the Board, in conjunction with KHDs management and various advisors, has analyzed various
strategic alternatives to focus KHD along major business units. In the past, the Board has
determined to proceed with certain of these alternatives, as, for example, in 2007, when the Board
determined to spin out certain real estate interests and other assets held by KHD.
In late 2009, the Board considered whether, given developments in the fourth quarter of 2009 with
respect to the operation of the Wabush iron ore mine, the separation of KHDs industrial plant
technology, equipment and service business from its mineral royalty business into separate publicly
traded companies would be beneficial to Shareholders. The Board considered the feasibility,
benefits and considerations of dividing KHD, along the lines proposed in the Arrangement. It
reviewed, in detail, the anticipated benefits, risks and other matters in connection with the
proposed transaction, including implications for employees, impact on Shareholders and other
stakeholders, potential market reaction and the financial viability of each entity after giving
effect to the proposed transaction.
The Board met on a number of occasions with members of its management and legal advisors to
consider the alternatives to effect the reorganization and to review certain accounting, tax and
legal issues which arose in connection with their deliberations. After a review of the financial,
tax and legal issues the Board concluded that the separation of the industrial plant technology,
equipment and service business from KHDs mineral royalty business would be beneficial to
Shareholders. On January 6, 2010, KHD issued a news release announcing the proposed Arrangement.
In January, 2010, Stephen W. Semeniuk, CFA, an independent third party, was retained by KHD to
provide the Fairness Opinion. Mr. Semeniuk delivered a written report, dated February 26, 2010,
containing the Fairness Opinion, a copy of which is attached as Schedule I to this Information
Circular. The conclusion reached by Mr. Semeniuk in the Fairness Opinion is that the terms of the
Arrangement are fair, from a financial point of view, to KHD and its Shareholders.
Management of KHD together with its legal advisors were given the mandate to settle the terms of
the Arrangement Agreement and the Plan of Arrangement attached thereto. On February 26, 2010, the
Board concluded that the Pre-Arrangement Reorganization and the Arrangement were fair and
reasonable to, and in the best interests of, KHD and the Shareholders and that the
pro rata
distribution of KID Shares to the Non-Subsidiary Shareholders was appropriate in the circumstances.
The Board and management of KHD reviewed and considered alternative
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reorganization proposals and the views of legal counsel with respect to the tax consequences and in
respect of the terms of the Arrangement Agreement and other documents. The Board and management of
KHD also received advice from legal counsel as to the structure of the Arrangement.
Reasons for the Arrangement
The Board has carefully evaluated the proposed corporate reorganization and the terms and
conditions of the Arrangement and has unanimously: (i) determined that the Arrangement is fair to
Shareholders; (ii) determined that the Arrangement is in the best interests of KHD and the
Shareholders; and (iii) recommended that Shareholders vote IN FAVOUR of the Arrangement Resolution.
In reaching these determinations, the Board considered, among other things, the following factors:
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Sharper Business Focus
the Arrangement will provide each of KHD and KID with a clear
mandate to pursue their independent short and long-term objectives and strategies best
suited to their assets, expertise and business opportunities, allowing each management team
to focus more directly on the critical success factors in its respective business. The
Board believes that companies with a disciplined focus on establishing leadership in their
core business may capture competitive opportunities and be best positioned to respond to
changing markets;
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Strategic Positioning and Growth
the Arrangement will improve and expand the
strategic positions and growth opportunities of each of KHD and KID. KHD will have a
stable revenue stream from its royalty interest in the Wabush iron ore mine which will
allow it to seek out additional royalty interests and implement a dividend policy. KID will
focus on expanding its international industrial plant technology, equipment and service
business;
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Focused Investment Decision
the Arrangement will provide Shareholders with an
independent investment opportunity in respect of a mineral royalty company and an
industrial plant technology, equipment and service business, allowing Shareholders to
retain ownership in both companies;
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Experienced Leadership
each company will be led by experienced directors and
executives who have demonstrated success building KHD and who have the requisite experience
and ability to grow their respective companies. The respective management teams of the new
companies will be better equipped to direct their strategies and operations towards
building value for Shareholders by tailoring practices and execution to fit the unique
nature of their assets and business;
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Independent Access to Capital
each company will have independent access to capital
(equity and debt) which management believes will result in more focused capital allocation
practices including an appropriately focused alignment of debt capacity with the individual
cash generation profile of each company;
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Fairness of Consideration
Stephen W. Semeniuk, CFA, provided the Fairness Opinion
which concluded that the terms of the Arrangement are fair, from a financial point of view,
to KHD and the Shareholders.
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The foregoing are the material factors considered by the Board in its consideration of the
Arrangement, but this discussion is not intended to be exhaustive. In view of the wide variety of
factors considered by the Board, and the complexity of these matters, the Board did not find it
practicable to, and did not, quantify or otherwise assign relative weights to the foregoing
factors. In addition, individual members of the Board may have assigned different weights to
various factors.
Recommendation of the Board
The Board believes that the terms of the Arrangement are fair, from a financial point of view, to
the Shareholders. The Board unanimously recommends that Shareholders vote IN FAVOUR of the
Arrangement Resolution at the Meeting.
30
Fairness Opinion
In January, 2010, Stephen W. Semeniuk, CFA, was retained by KHD to provide the Fairness Opinion.
KHD will pay Mr. Semeniuk a commercially reasonable fee for his services provided in connection
with the preparation of the Fairness Opinion. No portion of the compensation payable to Mr.
Semeniuk in connection with his engagement is contingent, in whole or in part, on the approval of
the Arrangement or on the conclusions reached in the Fairness Opinion.
Mr. Semeniuk is a Chartered Financial Analyst charterholder and holds an MBA degree in finance from
Michigan State University. He is experienced in the valuation of listed and unlisted companies and
their assets, having held Director of Research and Vice-President, Research positions with several
Canadian based investment dealers. He is also a past director of the Canadian Council of Financial
Analysts and since 1991 has been providing financial research and consulting services to members of
the legal profession, investment dealers and industry. The Board believes that Mr. Semeniuk is
qualified to prepare the Fairness Opinion in a satisfactory manner.
Scope of Review
During the months of January and February, 2010, Mr. Semeniuk carried out the work necessary to
complete the Fairness Opinion. During that period, he relied on information provided by KHDs
management and its legal advisors and referred to publicly available information on KHD and KID.
Other information on KHD and the KHD Shares was accessed through EDGAR at www.sec.gov and other
sources. In the course of Mr. Semeniuks engagement, he held a number of discussions with KHDs
management and legal advisors. He had access to all information requested from KHD and KID and no
suggestions were requested of or offered by KHD as to the approach or methodology used in the
preparation of the Fairness Opinion.
Approach and Methodology Used in Opinion
The Fairness Opinion was prepared based upon techniques and assumptions that Mr. Semeniuk
considered appropriate in the circumstances for the purposes of arriving at an opinion as to
fairness of the Arrangement.
Fairness Opinion Summary
Mr. Semeniuk submitted the Fairness Opinion, dated February 26, 2010, to the Board, a copy of which
is attached as Schedule I to this Information Circular. Mr. Semeniuk concludes that the proposed
distribution of KID Shares under the Arrangement is fair, from a financial point of view, to the
Shareholders. Shareholders are urged to, and should, read the Fairness Opinion in its entirety.
The Fairness Opinion describes the proposed Arrangement and the separation of KHDs industrial
plant technology, equipment and service business from its mineral royalty business, as intended to
increase market interest and enhance shareholder value. The Fairness Opinion states that by
appealing to different groups of investors with different investment objectives, the Arrangement
should facilitate increased investment interest to be generated in the activities of KHD and KID
that will potentially enhance the interests of current Shareholders. Mr. Semeniuk further states
in his Fairness Opinion that Shareholders will continue to participate in KHDs industrial plant
technology, equipment and service business directly through their ownership of the KID Shares and
indirectly through their ownership of the New KHD Shares. Through their ownership of the New KHD
Shares, they will also continue to participate directly in KHDs mineral royalty business.
The Fairness Opinion addresses only the consideration to be received by Shareholders, is for the
information of the Board in connection with its consideration of the proposed Arrangement and does
not constitute a recommendation as to how Shareholders should vote at the Meeting.
Arrangement Resolution
At the Meeting, Shareholders will be asked to consider and, if deemed appropriate, to approve the
Arrangement Resolution, the full text of which is attached as Schedule B to this Information
Circular.
31
In order for the Arrangement Resolution, which is a special resolution of the Shareholders, to be
passed, it must be approved by at least two-thirds of the votes cast by Shareholders who vote in
person or by proxy at the Meeting.
The persons named in the enclosed Form of Proxy, if named as
proxyholder, intend to vote FOR the Arrangement Resolution.
THE BOARD RECOMMENDS THAT YOU VOTE IN FAVOUR OF THE ARRANGEMENT RESOLUTION.
Details of the Arrangement
The Arrangement will result in the division of KHD into two independent, publicly traded companies,
with one company focused on the industrial plant technology, equipment and service business and the
other focused on the mineral royalty business. Upon completion of the Pre-Arrangement
Reorganization, as described below, all of KHDs industrial plant technology, equipment and service
business will be held, directly and indirectly, by KID. If the Arrangement is approved by the
Shareholders and the Court, and the other conditions precedent to the Arrangement are satisfied or
waived, each Non-Subsidiary Shareholder (other than a Dissenting Shareholder) will receive seven
New KHD Shares and one KID Share (or two KID Shares in the event that the KID Split is effected
prior to completion of the Arrangement) for every seven KHD Shares held on the Distribution Record
Date.
As of March 1, 2010, the direct and indirect subsidiaries of KHD are as follows:
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Jurisdiction of
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KHDs
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Incorporation
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Beneficial
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Name of Subsidiary
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or Organization
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Shareholding
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KHD Holding AG
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Switzerland
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100%
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KHD Humboldt Wedag International Holding GmbH
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Austria
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100%
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KHD Humboldt Wedag International (Deutschland) AG
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Germany
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98.2%
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KHD Humboldt Wedag International GmbH
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Austria
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100%
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KHD Investments Ltd.
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Marshall Islands
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100%
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New Image Investment Company Limited
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Washington
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100%
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Inverness Enterprises Ltd.
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British Columbia
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100%
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KHD Humboldt Wedag (Cyprus) Limited
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Cyprus
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100%
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MFC & KHD International Industries Limited
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Samoa
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100%
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KHD Humboldt Wedag (Shanghai) International Industries
Limited
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China
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100%
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KHD Sales and Marketing Ltd.
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Hong Kong
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100%
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KHD Humboldt Wedag International, FZE
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United Arab Emirates
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100%
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0764509 B.C. Ltd.
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British Columbia
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35%
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KHD Humboldt Wedag AG
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Germany
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100%
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Humboldt Wedag India Private Ltd.
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India
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100%
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Humboldt Wedag Australia Pty Ltd.
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Australia
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100%
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Humboldt Wedag Inc.
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Delaware
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100%
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EKOF Flotation GmbH
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Germany
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100%
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32
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Jurisdiction of
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KHDs
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Incorporation
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Beneficial
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Name of Subsidiary
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or Organization
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Shareholding
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KHD Humboldt Wedag Machinery Equipment (Beijing) Co. Ltd.
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China
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100%
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ZAB Zementanlagenbau GmbH Dessau
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Germany
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98.2%
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Humboldt Wedag GmbH
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Germany
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98.4%
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KHD Engineering Holding GmbH
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Austria
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50%
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KHD Humboldt Engineering OOO
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Russia
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50%
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OAO Sibgiprozoloto
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Russia
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50%
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Blake International Limited
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British Virgin Islands
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100%
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KHD Humboldt Wedag Industrial Services AG
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Germany
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88%
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HIT Paper Trading GmbH
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Austria
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88%
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Paper Space GmbH
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Germany
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88%
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Upon completion of the Arrangement, it is expected that the material direct and indirect
subsidiaries of KID will be as follows:
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Jurisdiction of
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KIDs
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Incorporation
|
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Beneficial
|
Name of Subsidiary
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or Organization
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Shareholding
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KHD Humboldt Wedag AG
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Germany
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100%
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Humboldt Wedag GmbH
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Germany
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100%
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Humboldt Wedag India Private Ltd.
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India
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100%
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Humboldt Wedag Australia Pty Ltd.
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Australia
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100%
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Humboldt Wedag Inc.
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Delaware
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100%
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EKOF Flotation GmbH
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Germany
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100%
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KHD Humboldt Wedag Machinery Equipment (Beijing) Co. Ltd.
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China
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100%
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ZAB Zementanlagenbau GmbH Dessau
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Germany
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100%
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KHD Engineering Holding GmbH
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Austria
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50%
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KHD Humboldt Engineering OOO
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Russia
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50%
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OAO Sibgiprozoloto
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Russia
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50%
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Blake International Limited
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British Virgin Islands
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100%
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KHD Humboldt Wedag Industrial Services AG
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Germany
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88%
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HIT Paper Trading GmbH
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Austria
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88%
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Paper Space GmbH
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Germany
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88%
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33
Upon completion of the Arrangement, it is expected that the material direct and indirect
subsidiaries of KHD will be as follows:
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Jurisdiction of
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KHDs
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Incorporation
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Beneficial
|
Name of Subsidiary
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or Organization
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Shareholding
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KHD Holding AG
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Switzerland
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100%
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KHD Humboldt Wedag International Holding GmbH
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Austria
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100%
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KHD Humboldt Wedag International GmbH
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Austria
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100%
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KHD Investments Ltd.
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Marshall Islands
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100%
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New Image Investment Company Limited
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Washington
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100%
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Inverness Enterprises Ltd.
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British Columbia
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100%
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KHD Humboldt Wedag (Cyprus) Limited
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Cyprus
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100%
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MFC & KHD International Industries Limited
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Samoa
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100%
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KHD Humboldt Wedag (Shanghai) International
Industries Limited
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China
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100%
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REDAS Tracking Corp.
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Marshall Islands
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100%
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KHD Sales and Marketing Ltd.
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Hong Kong
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100%
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KHD Humboldt Wedag International, FZE
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United Arab Emirates
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100%
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0764509 B.C. Ltd.
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British Columbia
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35%
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In addition, KHD will continue to hold 72% of the KID Shares upon completion of the Arrangement,
however, pursuant to the terms of the Shareholders Agreement, the power to direct the voting of
such shares will be transferred to the Custodian. Subject to satisfying all necessary requirements
and taking the other steps necessary to no longer control KID from an accounting perspective, KHD
will not consolidate KID.
Each of KHD and KID may reorganize or rename their operating divisions after the Effective Date to
reflect and account for the operations of their respective companies.
Pre-Arrangement Reorganization
Prior to the Effective Date, a number of preliminary transactions to reorganize the business of KHD
have been, and will be, undertaken by KHD to facilitate the Arrangement. The effect of the
Pre-Arrangement Reorganization will be, among other things, to indirectly transfer to KID the
assets and liabilities related to KHDs industrial plant technology, equipment and service business
and to consolidate the KID Shares into KHD. The Pre-Arrangement Reorganization will include the
following events and transactions:
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(a)
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Sasamat will reduce its stated capital to $1 without any payment made on the
reduction;
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(b)
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KHD will cause the liquidation of Sasamat;
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(c)
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KIDs shareholders will vote on the payment of a dividend in an amount to be
determined but, in any event, no greater than 49,785,000, to be paid to its
shareholders, of which KHD will receive 74.62%, MFCC will receive 20.1% and Pang Hau KG
will receive 2.92%;
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(d)
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after KID has paid the dividend described in (c) above, Pang Hau KG will be
dissolved by operation of law. Consequently, KHD will acquire all assets of Pang Hau
KG;
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34
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(e)
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after KID has paid the dividend described in (c) above, KHD will purchase the
KID Shares held by MFCC by delivering to MFCC Canadian dollars equal to the fair market
value of such KID Shares;
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(f)
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Mass Financial will meet its obligations under the Tracking Agreement by
subscribing for Redas common shares. This subscription will be paid for by delivering
Canadian dollars equal to the sum of the dividend proceeds received by MFCC under (c)
above and the sales proceeds received by MFCC under (e) above;
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(g)
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KHD will purchase all Redas common shares held by Mass Financial for $100;
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(h)
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Redas will lend KHD the Canadian-dollar subscription proceeds received from
Mass Financial;
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(i)
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after settlement of intercompany accounts, KIA will transfer HW India, EKOF, HW
Beijing, HWI, the KHDE Interest and HW Australia to KID;
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(j)
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KHD will incorporate Newco;
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(k)
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KHD will subscribe for Newco shares by delivering Canadian dollars equal in
value to the value of the KHD Shares held by KID; and
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(l)
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Newco will purchase the KHD Shares held by KID using cash from (k) above.
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Arrangement Mechanics
The Arrangement Agreement provides for the implementation of the Plan of Arrangement pursuant to
Section 288 of the BCBCA. The Arrangement will become effective on the Effective Date.
Provided that the Arrangement Resolution is passed, the Final Order is granted by the Court and the
other conditions precedent to the Arrangement set forth in the Arrangement Agreement are satisfied
or waived, the documents required to effect the Arrangement, in the form prescribed by the BCBCA,
will be filed with the Registrar, at such time as KHD deems appropriate, in its sole discretion,
and the steps to effect the Arrangement will occur by operation of law without any further action
by the Shareholders.
The following summary of the principal provisions of the Plan of Arrangement is qualified in its
entirety by reference to the Arrangement Agreement, a copy of which is attached as Schedule C to
this Information Circular, and the Plan of Arrangement, which is attached as Appendix I to the
Arrangement Agreement.
Arrangement Steps
The Plan of Arrangement contemplates that on the Effective Date (or on such other date as may be
determined by the Board), the following events and transactions, as set out in Section 3.1 of the
Plan of Arrangement, will occur and be deemed to be occur in the following sequence:
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(a)
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the authorized share structure of KHD will be changed to create an unlimited
number of Class A Shares, an unlimited number of Class B Shares, being the New KHD
Shares, and an unlimited number of Preferred Shares, and the Notice of Articles and
Articles of KHD will be amended accordingly;
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(b)
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New Image and Inverness will exchange their KHD Shares for the Preferred
Shares;
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(c)
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KHD will add to the stated capital of the KHD Shares an amount equal to the
aggregate stated capital of the KHD Shares exchanged by New Image and Inverness and no
amount will be added to the stated capital of the Preferred Shares;
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(d)
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KHD AG and Newco will exchange their respective KHD Shares for Class A Shares
on a one for one basis;
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(e)
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KHD will add to the stated capital of the KHD Shares an amount equal to the
aggregate stated capital of the KHD Shares exchanged by KHD AG and Newco and no amount
will be added to the stated capital of the Class A Shares;
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(f)
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the Non-Subsidiary Shareholders, other than Dissenting Shareholders, will
exchange each KHD Share for:
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(i)
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one New KHD Share, and
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(ii)
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0.143 KID Shares (or one (1) KID Share for every seven (7) KHD
Shares (calculated prior to the KID Split being effected)),
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provided that no fractional KID Shares will be distributed to the Non-Subsidiary
Shareholders and the number of KID Shares to which each Non-Subsidiary Shareholder
is entitled will be rounded down to the next whole number and no payment will be
made in respect of such fractional KID Share;
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(g)
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KHD will add to the stated capital of the New KHD Shares an amount equal to the
stated capital of the KHD Shares held by the Non-Subsidiary Shareholders described in
(f), less the fair market value of the KID Shares distributed to such Non-Subsidiary
Shareholders;
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(h)
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each issued and outstanding KHD Share held by Dissenting Shareholders will be
acquired by KHD for the amount to be determined in accordance with the Dissent
Procedures;
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(i)
|
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the KHD Shares will be eliminated from the authorized capital of KHD and the
New KHD Shares will be altered by changing their identifying name to Common Shares;
and
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(j)
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the New KHD Shares will be listed for trading on the NYSE.
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The Plan of Arrangement also provides that KHD can elect not to proceed with the consummation of
the Arrangement if the Arrangement cannot be consummated on commercially reasonable terms, or would
otherwise not be in the best interests of the Shareholders. In the event that the Arrangement is
not approved, then KHD will not proceed with the Arrangement and may retain its interest in KID
through its ownership of the KID Shares.
The Board believes the Arrangement will allow KHD to meet its stated goal of enhancing long-term
value for Shareholders by taking steps to create two publicly traded companies, each with an
ability to pursue and achieve success by employing operational strategies best suited to its assets
and business plans, thereby maximizing market value. For a full description of the factors
considered by the Board, see The Arrangement Reasons for the Arrangement.
Amendment to Plan of Arrangement
The Plan of Arrangement may be amended by KHD and KID at any time before or after the holding of
the Meeting, but not later than the Effective Date, provided that such amendment is filed with the
Court.
Dissent Rights
The Plan of Arrangement provides for Dissent Rights in respect of the Arrangement Resolution. See
Dissent Rights.
36
Treatment of KHD Options
After completion of the Arrangement, each holder of KHD Options will, upon the exercise thereof, be
entitled to receive New KHD Shares only and will not be entitled to receive any of the KID Shares
distributed pursuant to the Arrangement. The exercise price of any KHD Options not exercised prior
to the Effective Date will be as determined by the Board in accordance with the terms of the KHD
stock option plan, but, in any event, will be adjusted to reflect the reduction in fair market
value of the KHD Shares as a result of the distribution of the KID Shares.
Arrangement Agreement
The following is a description of the material terms and conditions of the Arrangement Agreement
and is qualified in its entirety by the full text of the Arrangement Agreement. The full text of
the Arrangement Agreement, including the Plan of Arrangement attached as Appendix I thereto, is
attached as Schedule C to this Information Circular. Shareholders are encouraged to read the
Arrangement Agreement in its entirety.
General
The Arrangement Agreement is between KHD and KID.
The Arrangement Agreement contains covenants, conditions and termination provisions by which the
parties to the Arrangement Agreement are bound. The parties to the Arrangement Agreement have also
made certain representations and warranties to each other and have agreed to certain other terms
and conditions which are standard in a transaction of the nature of the Arrangement. In addition,
the Arrangement Agreement provides that, subject to any applicable restrictions under the BCBCA or
the Final Order, it may be amended by written agreement of the parties before or after the Meeting,
but not later than the Effective Date, without further notice to, or the approval of, the
Shareholders.
Conditions to the Arrangement Becoming Effective
The respective obligations of KHD and KID to complete the Arrangement are subject to the
satisfaction or waiver, on or before the Effective Date, of certain mutual conditions, including,
among others, the following:
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(a)
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the Arrangement Resolution, with or without amendment, having been approved by
the Shareholders in accordance with the Interim Order;
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(b)
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the Interim Order and the Final Order having been obtained in form and
substance satisfactory to KHD and KID, acting reasonably, and shall not have been set
aside or modified in a manner unacceptable to such parties, acting reasonably, on
appeal or otherwise;
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(c)
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all consents, orders, regulations and approvals, including regulatory and
judicial approvals and orders required, necessary or desirable for the completion of
the transactions provided for in the Arrangement Agreement and contemplated by the
Arrangement having been obtained or received;
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(d)
|
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the distribution of the KID Shares held by KHD, as contemplated in the Plan of
Arrangement, in the United States pursuant to the Arrangement being exempt from
registration requirements under the 1933 Act and (except with respect to persons deemed
affiliates) the KID Shares to be distributed in the United States not being subject
to resale restrictions in the United States;
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(e)
|
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the distribution of the KID Shares held by KHD, as contemplated in the Plan of
Arrangement, in Canada pursuant to the Arrangement being exempt from registration and
prospectus requirements of applicable Canadian securities legislation;
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37
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(f)
|
|
there not being in force any law, ruling, order or decree that makes it illegal
or restrains, or enjoins or prohibits the consummation of the transactions contemplated
by the Arrangement Agreement and the Arrangement;
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|
|
(g)
|
|
none of the consents, orders, regulations or approvals contemplated in the
Arrangement Agreement containing terms or conditions or requiring undertakings or
security deemed unsatisfactory or unacceptable to KHD or KID, acting reasonably;
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(h)
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there shall not have occurred, developed or come into effect or existence any
event, action, state, condition or financial occurrence of national or international
consequence or any law, regulation, action, government regulation, inquiry or other
occurrence of any nature whatsoever that has had or could reasonably be expected to
have a material adverse effect in connection with KHD or KID;
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|
(i)
|
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no judgement or order shall have been issued by any agency, no actions, suits
or proceedings shall have been threatened or taken by any agency, and no law,
regulation or policy shall have been proposed, enacted, or promulgated or applied:
|
|
(i)
|
|
to cease trade, enjoin, prohibit or impose material limitations
or conditions on the completion of the Arrangement; or
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|
(ii)
|
|
that, if the Arrangement were completed, could reasonably be
expected to have a material adverse effect on KHD or KID; and
|
|
(j)
|
|
the Arrangement Agreement not having been terminated in accordance with the
provisions thereof.
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In addition, unless otherwise waived by KHD, it is a condition of KHDs obligation to proceed with
the Arrangement that the aggregate number of Dissent Shares not exceed 5% of the outstanding KHD
Shares on the date of the Meeting.
The Arrangement Agreement also provides that, notwithstanding approval of the Arrangement by the
Shareholders and the Court, KHD can elect not to proceed with the consummation of the Arrangement
if the Arrangement cannot be consummated on commercially reasonable terms, or would otherwise not
be in the best interests of the Shareholders.
Notwithstanding the fulfillment or waiver of the foregoing and other certain conditions, at any
time before or after the holding of the Meeting, but prior to the Effective Date, the Arrangement
Agreement may be terminated by KHD and KID for any reason by agreement in writing, or unilaterally
by either KHD or KID, without further notice to, or action on the part of, the Shareholders, in the
event that the Effective Date has not occurred by on or before May 31, 2010. In the event that the
Arrangement is not approved at the Meeting, then KHD will not proceed with the Arrangement and may
retain its interest in KID through its ownership of the KID Shares.
The Board considers it appropriate to retain the flexibility to not proceed with the Arrangement
should some event occur prior to the Arrangement becoming effective which, in the opinion of the
Board, makes it inappropriate to complete the Arrangement. The Arrangement Resolution to be
considered and approved by the Shareholders at the Meeting authorizes such action by the Board.
In the event that the Arrangement is not completed for any reason, certain of the Pre-Arrangement
Reorganization items will not be reversible, including the KID Split, if approved by the
shareholders of KID at the KID Meeting, and the consolidation of the KID Shares held by
subsidiaries of KHD into KHD.
Management of KHD believes that all material consents, orders, rulings, approvals and assurances
required for the Arrangement to become effective will be obtained prior to the Effective Date in
the normal course upon application therefore. There can, however, be no assurance that all of the
conditions to the Arrangement will be fulfilled prior to the Effective Date.
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Indemnification
Each of KHD and KID undertakes to indemnify and hold harmless the other from and against all
losses, claims, damages, liabilities, actions or demands including, but not limited to, legal fees
and amounts paid in any settlement approved by the indemnifying party of any action, suit,
proceeding or claim, but excluding lost profits and consequential damages of the indemnified party,
to which the indemnified party may become subject insofar as such losses, claims, damages,
liabilities, actions or demands arise out of or are based upon any breach of a representation,
warranty, covenant or obligation of the indemnifying party set out in the Arrangement Agreement.
Amendment and Waiver
The Arrangement may be amended by KHD and KID acting together, at any time and from time to time
before and after the Meeting, but not later than the Effective Date and subject to applicable law,
without further notice to or authorization on the part of the Shareholders, provided that such
amendment is filed with the Court. The amendments may include: (a) changing the time for the
performance of any of the obligations or acts of the parties thereto; (b) waiving any inaccuracies
or modifying any representation or warranty contained therein or in any document to be delivered
pursuant thereto; or (c) waiving compliance with or modifying any of the covenants contained
therein or waiving or modifying the performance of any of the obligations of the parties thereto
contained therein.
Termination
The Arrangement Agreement may be terminated without further action by the Shareholders: (a) by
mutual written consent of KHD and KID at any time before or after the holding of the Meeting, but
no later than the Effective Date; (b) by either KHD or KID, in each case on or before the Effective
Date, if the other party is in breach of a condition of the Arrangement Agreement; or (c)
unilaterally by either party, without further action on the part of the Shareholders, if the
Effective Date has not occurred by on or before May 31, 2010, which termination shall be effective
upon notice thereof being given to the other party to the Arrangement Agreement. Upon termination
of the Arrangement Agreement, neither KHD nor KID will have any liability or further obligation to
the other party.
Notwithstanding the foregoing, if the Board determines, in its sole discretion, that the
Arrangement cannot be consummated on commercially reasonable terms or would otherwise not be in the
best interests of the Shareholders, KHD may elect to abandon and not proceed with the Plan of
Arrangement at any point in time prior to the consummation of the Arrangement.
Court Approval and Completion of the Arrangement
The Arrangement requires the approval of the Shareholders at the Meeting and approval by the Court.
Prior to the mailing of this Information Circular, KHD obtained the Interim Order providing for
the calling and holding of the Meeting and certain procedural matters. A copy of the Interim Order
and the Notice of Application for the Final Order are attached as Schedules M and N, respectively,
to this Information Circular.
Subject to the approval of the Arrangement Resolution by Shareholders at the Meeting, the hearing
in respect of the Final Order is scheduled to take place on March 29, 2010 at 10:00 a.m. (British
Columbia time) or as soon as possible thereafter in the Court at 800 Smithe Street, Vancouver,
British Columbia, Canada. All Shareholders who wish to participate or be represented or to present
evidence or arguments at that hearing must serve and file a notice of appearance as set out in the
Interim Order and satisfy all other applicable requirements. At the hearing in respect of the
Final Order, the Court will consider, among other things, the fairness and reasonableness of the
Arrangement. The Court may approve the Arrangement as proposed or as amended in any manner as the
Court may direct, subject to compliance with such terms and conditions, if any, as the Court deems
fit.
Assuming that the Final Order is granted and the other conditions for the completion of the
Arrangement as set out in the Arrangement Agreement are satisfied or waived, it is anticipated that
the Final Order together with any other required documentation will be filed with the registrar
under the BCBCA to give effect to the Plan of Arrangement
39
and the various other documents necessary to complete the Arrangement as contemplated under the
Arrangement Agreement will be executed and delivered.
The Effective Date is expected to occur shortly after the date on which the Final Order is obtained
and the events and transactions listed in the Plan of Arrangement are completed to the satisfaction
of KHD and KID. KHD and KID will determine the Effective Date, based on their determination of
when all conditions to the completion of the Arrangement are satisfied or waived by the party
entitled to the benefit thereof. Notice of the actual Effective Date will be given to the
Shareholders through a press release when all conditions to the Arrangement have been met or waived
and the Board is of the view that all elements of the Arrangement have been completed.
Proposed Timetable for the Arrangement
The anticipated timetable for the completion of the Arrangement and the key dates as proposed are
as follows:
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Meeting:
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March 29, 2010
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Final Court Approval:
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March 29, 2010
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Distribution Record Date
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March 30, 2010
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Closing and Effective Date:
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March 31, 2010
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The Effective Date is expected to occur shortly after the date on which the Final Order is obtained
and the events and transactions listed in the Plan of Arrangement are completed to the satisfaction
of KHD and KID. KHD and KID will determine the Effective Date, based on their determination of
when all conditions to the completion of the Arrangement are satisfied or waived by the party
entitled to the benefit thereof. Notice of the actual Effective Date will be given to Shareholders
through a press release when all conditions to the Arrangement have been met or waived and the
Board is of the view that all elements of the Arrangement have been completed.
In addition, the foregoing dates may be amended by KHD and KID in accordance with the terms of the
Arrangement Agreement.
Failure to Obtain Approval for the Arrangement
In the event that the Arrangement is not approved, then KHD will not proceed with the Arrangement
and KHD will retain its interest in its industrial plant technology, equipment and service business
through its ownership interest in KID and the other KHD Subsidiaries.
Organization of KHD and KID upon Completion of the Arrangement
KID will be seeking the approval of the shareholders of KID for a change of name of KID to KHD
Humboldt Wedag International AG at the KID Meeting. Upon completion of the Arrangement, KID will
focus on KHDs current industrial plant technology, equipment and service business.
Upon completion of the Arrangement, KHD will operate predominantly as a mineral royalty company.
KHD will maintain the listing of the New KHD Shares on the NYSE. It will continue to receive
royalty payments from the Wabush iron ore mine in the Province of Newfoundland and Labrador under a
master lease that terminates in 2055. In addition, it will focus on:
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the acquisition of additional royalty streams;
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providing capital for the exploration, development and construction of iron ore and
other metals mines in exchange for royalties;
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monetizing metal by-product streams from either operating mines or projects under
development; and
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providing acquisition financing to established operating companies in return for a
royalty on acquired properties.
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In order to be able to pursue its industrial plant technology, equipment and service business, KID
will depend on the availability of adequate means of bonding (i.e. providing advance payment,
performance or warranty bonds to customers).
On November 30, 2006, as amended June 10, 2008, October 27, 2008 and November 16, 2009, KIA, as the
borrower, KHD, as the guarantor, and RZB entered into the Facility. The Facility provides for a
loan capacity of up to 195 million and will expire on November 25, 2010, unless extended for
another one year term. Under the Facility, security instruments such as sureties, stand-by letters
of credit and guarantees may be granted to the customers of KHD and its subsidiaries. Utilization
requests are made solely by KIA for the entire KHD group of companies. Individual subsidiaries of
KHD have also each issued deficiency guarantees in favour of RZB as collateral for security
instruments that may be granted to them under the Facility. These deficiency guarantees are
independent payment guarantees in favour of RZB for the payment of the monies owed by KIA under the
Facility. Each is paired with an assignment of all receivables and all present and future claims
relating to the relevant underlying security instruments against customers of the KHD group of
companies in whose favour a security instrument (such as a stand-by letter of credit) is issued by
RZB.
Subsequent to the completion of the Arrangement, KID will require access to the Facility to provide
advance and performance or warranty bonds in relation to any equipment to be supplied by KID to its
customers under irrevocable letters of credit provided by customers as payment security for the
project. As a result, given that upon completion of the Arrangement both KIA and KHD will cease
to be part of the same group with KHD as the parent company, KIA, KHD and KID are in the process of
negotiating the transfer to KID of the Facility prior to the expiration of its current term. RZB
has advised that KHD and KID are required to obtain the consent of RZB to the distribution of the
KID Shares prior to such distribution and prior to the transfer of the bonding line to KID. RZB
has indicated that it will approve the distribution of the KID Shares subject to the following
terms:
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the terms of the bonding line will remain unchanged and in effect until the end of its
term in November 2010;
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KHD will remain the guarantor, including with respect to all existing restrictive
covenants which will remain in place until at least November, 2010, at which time KHD may
cease to be the guarantor of new bonds;
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KID shall accede to the bonding line as an additional guarantor effective as of the date
of the distribution of the KID Shares but without providing any of its own representations,
warranties or covenants; and
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immediately upon the distribution of the KID Shares, all parties will undertake best
efforts to transfer the bonding line to KID, either with KHD as guarantor until at least
November 2010, or as the parties will then commercially agree.
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Assuming that the consent of RZB to the distribution of the KID Shares is obtained, upon completion
of the Arrangement KHD will continue to guarantee the obligations of KIA and, following the
proposed transfer, KID, under the Facility until at least November, 2010. As of the date of this
Information Circular, the consent of RZB has not been obtained, however RZB has advised that it
will notify KHD and KID as to whether it approves of the distribution of the KID Shares by March
20, 2010.
Additional information regarding KHD following the completion of the Arrangement is set forth in
Schedule D to this Information Circular.
Additional information regarding KID following the completion of the Arrangement is set forth in
Schedule F to this Information Circular.
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Description of Shares of KID
Shares of KID are made out in book-entry form. Holders of shares of KID are entitled to receive
notice of and vote at all meetings of shareholders of KID and, subject to the rights, privileges,
restrictions and conditions attached to any other class of shares, to receive any dividend declared
by KID and receive the remaining property of KID upon its dissolution. There are no restrictions
on transfer of the shares of KID contained in the articles of association of KID.
Stock Exchange Listing
Shares of KID are currently quoted on the over-the-counter market of the FSE and the Berlin Stock
Exchange. KHD and KID believe that it is beneficial for the Shareholders if the shares of KID are
traded on an organized and regulated market. Since substantially all of KIDs assets and
businesses are and most likely will continue to be located in Europe and in emerging markets such
as India, KHD and KID believe that a listing on a European stock exchange is preferable. KHD and
KID have identified the FSE and the VSE as the primary choices for listing in Europe.
Concurrently with the preparation of this Information Circular, KID has been pursuing the listing
of the shares of KID on the FSE and the VSE, which listings are expected to be completed shortly
after the date on which the Final Order is obtained. KHD expects that trading in the New KHD
Shares and the KID Shares will commence on an if, as and when issued basis on both the NYSE and
the FSE, respectively, on a date on or around March 31, 2010, which will be announced by KHD and
KID in a press release. Commencement of trading on the VSE will be considered separately following
the commencement of trading on the FSE. Since KHD is a reporting issuer, under applicable Canadian
securities laws, the acquisition and beneficial ownership reporting rules under such laws will
apply to all purchases of New KHD Shares from the commencement of if, as and when issued trading
in such shares.
Method of Distribution of KID Shares
If the proposed Arrangement is approved, Shareholders will be required to have a Clearstream
eligible account in order to receive the distribution of their
pro rata
portion of the KID Shares.
Clearstream is a security depository and the principal clearing house for Euromarket transactions.
Computershare will be the distribution agent to distribute the KID Shares to Shareholders. If,
prior to the Effective Date, Registered Shareholders provide instructions to Computershare to
deposit their KID Shares into a specific Clearstream eligible account, Computershare will forward
such instructions to KHD, which will arrange for the deposit of such KID Shares into such account
on or as soon as practicable after the Effective Date.
Distribution to U.S. Registered Shareholders
Computershare has agreed to provide access to a Clearstream eligible custodian account for
Registered Shareholders who are U.S. persons and who do not have access to a Clearstream eligible
account. If such Registered Shareholders do not provide Computershare with instructions as to the
deposit of their KID Shares into a specific Clearstream eligible account prior to the Effective
Date, KHD will deliver the KID Shares to which such Registered Shareholders are entitled to
Computershare, who will deposit such KID Shares into a custodian account with VEM on or as soon as
practicable after the Effective Date. Registered Shareholders who are U.S. persons whose KID
Shares have been deposited into this account can provide instructions to Computershare in the event
that they wish to transfer their KID Shares and Computershare will carry out such instructions.
Registered Shareholders who are U.S. persons will need to provide a W-9 tax withholding form to
Computershare to record any dividend/sales proceeds. They will also be required to provide
Computershare with such further data as may be required by Computershare.
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Distribution to U.S. Non-Registered Holders
The KID Shares of Non-Registered Holders who are U.S. persons and who own KHD Shares through a
broker or other nominee, will either be (i) deposited into such Clearstream eligible account as
their broker or nominee has instructed Computershare prior to the Effective Date, or (ii) if no
such instructions have been provided by the broker or nominee, delivered by KHD to Computershare
for deposit into Computershares custodian account at VEM. In such event, such Non-Registered
Holder will have to have their broker or nominee contact Computershare in the event that such
Non-Registered Holder wishes to transfer their KID Shares. Non-Registered Holders who are U.S.
persons and whose KID Shares are deposited into Computershares VEM account will be entitled to
receive a statement of holding indicating their ownership of their respective KID Shares.
Distribution to Non-U.S. Registered Shareholders
KHD will provide access to a Clearstream eligible account to Registered Shareholders who are not
U.S. persons and who do not have access to a Clearstream eligible account. If such Registered
Shareholders do not provide instructions to Computershare as to the deposit of their KID Shares
into a specific Clearstream eligible account prior to the Effective Date, KHD will retain such KID
Shares in its own custodians Clearstream eligible account.
Distribution to Non-U.S. Non-Registered Holders
The KID Shares of Non-Registered Holders who are not U.S. persons and who own KHD Shares through a
broker or other nominee, will either be (i) deposited into such Clearstream eligible account as
their broker or nominee has instructed Computershare prior to the Effective Date, or (ii) if no
such instructions have been provided by the broker or nominee, retained by KHD for deposit into its
custodian Clearstream eligible account. In such event, such Non-Registered Holder will have to
have their broker or nominee contact KHD in the event that such Non-Registered Holder wishes to
transfer their KID Shares. Non-Registered Holders who are not U.S. persons and whose KID Shares
are deposited into KHDs custodians Clearstream eligible account will be entitled to receive a
statement of holding indicating their ownership of their respective KID Shares.
Disclosure of Ownership of KID Shares Upon Distribution
THE FOLLOWING SUMMARY IS OF A GENERAL NATURE ONLY AND IS NOT INTENDED TO BE, NOR SHOULD IT BE
CONSTRUED TO BE, LEGAL ADVICE TO ANY PARTICULAR SHAREHOLDER. ACCORDINGLY, SHAREHOLDERS SHOULD
CONSULT THEIR OWN LEGAL ADVISERS WITH RESPECT TO THEIR PARTICULAR CIRCUMSTANCES.
Upon admission of the shares of KID to trading on the regulated market of the FSE, KID will become
subject to shareholder disclosure obligations under the
German Securities Trading Act
.
Under the
German Securities Trading Act
, any Shareholder whose ownership of KID Shares reaches,
exceeds or falls below 3%, 5%, 10%, 15%, 20%, 25%, 30%, 50% or 75% of the total issued shares of
KID through acquisition, disposal or by other means, including as a result of the distribution of
the KID Shares to the Shareholders, must promptly notify KID and BaFin, in writing or by fax in
German or English and no later than within four trading days, of the fact that any of the
aforementioned thresholds have been reached, exceeded or are no longer met, and report the total
voting interest now held. The notification must include the notifying Shareholders name, address
and the date on which the relevant threshold was reached, exceeded or no longer met. The four day
notification period will commence on the day following the receipt by a Shareholder of KID Shares
in its securities account as a result of the distribution by KHD of the KID Shares.
In addition to the above notifications, Shareholders reaching or exceeding the 10% threshold have
to inform KID, within 20 trading days, of their goals in connection with the acquisition of such
10% stake and the source (whether equity or debt) of their financing of the acquisition. With
respect to such goals, Shareholder must disclose whether the acquisition was for strategic purposes
or with a view to making trading profits; whether the Shareholder intends, within the next twelve
months, to acquire further voting rights; whether the Shareholder intends to exert influence
43
on KIDs corporate bodies; and whether the Shareholder intends to materially change KIDs capital
structure or dividend policy.
Shareholder notifications to KID should be directed to the following address:
KHD Humboldt Wedag International (Deutschland) AG
Colonia-Allee 3
51067 Cologne Germany
Fax: +49 (0)221 6504 1109
The notifications to BaFin should be made to:
Bundesanstalt für Finanzdienstleistungsaufsicht
Referat WA 12
Lurgiallee 12
60439 Frankfurt am Main
Fax: +49 (0)228 4108 3119
BaFin provides a standard form for the notifications which can be found at the website below,
however, use of this form is not mandatory.
http://www.bafin.de/cln_116/nn_724100/SharedDocs/Downloads/EN/Unternehmen/Boersennotier
teUnternehmen/Standardform_21wphgenglisch.html
KID will, in turn, forward such Shareholder notifications (including extended notifications of
material Shareholders) promptly, however not later than three trading days following receipt, to
the media for publication throughout the entire European Union and the other Member States of the
European Economic Area. It will also send the notification to BaFin and the German electronic
companies register for purposes of storing in the necessary database.
Exemptions from the notification obligation exist for trading activities by EU/EEA registered
investment services companies and purchases and sales in the context of market making, in both
cases up to a voting interest of 5%, shares held on a short-term basis exclusively for purposes of
billing and settlement or shares held by depositaries if the depositary exercises the voting rights
only upon written or electronic instructions of the beneficial owner.
The
German Securities Trading Act
contains various provisions pursuant to which voting rights
attached to shares held by third parties are attributed to the voting threshold of a notifying
person. This is in particular the case for shares held (i) by a subsidiary (or subsidiary of a
subsidiary and so on) of the notifying Shareholder, (ii) by a third party in its own name, but for
the account of the notifying person, (iii) by a third party as security granted by the notifying
Shareholder, unless the third party exercises the voting rights, (iv) if the notifying Shareholder
has an usufruct, (v) if the notifying Shareholder has an option
in rem
to acquire the shares, i.e.
the shares have already been transferred by the seller and the notifying Shareholder has only to
accept transfer, and (vi) if shares are entrusted (e.g. management company of a fund) to the
notifying Shareholder or if the notifying Shareholder acts as voting proxy without instructions by
the beneficial owner. An attribution of voting rights held by another party also applies if two
Shareholders act in concert. As a result, depending on the particular arrangement between them,
both the legal owner (subject to the above mentioned exemptions) and the beneficial owner have to
make a notification.
With the exception of the 3% threshold, a separate reporting obligation applies to those persons
who directly or indirectly hold financial instruments, which grant them the unilateral right under
a legally binding agreement to purchase already outstanding shares carrying voting rights of KID.
In addition, under the
German Takeover Act
, any party whose voting interest reaches or exceeds 30%
of the voting shares of an issuer is obliged to publish this fact promptly and not later than
within seven calendar days, including the percentage of voting rights held, in at least one
national journal for stock market publications or on an electronic
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information system for financial information and thereafter, unless an exemption from this
obligation was granted, to submit a mandatory public offer directed to all shareholders of the
issuer.
The discussion above is only an excerpt of the disclosure of share ownership that is required under
German law. Shareholders are urged to seek their own legal advice as holders of shares of KID.
Shareholders who fail to comply strictly with the applicable provisions will be prohibited from
exercising the rights associated with their KID Shares (including the voting rights and
subscription rights) for the duration of their non-compliance and, under certain circumstances, for
a further six months. In addition, failure to comply with the disclosure duty may result in the
imposition of a fine.
Method of Distribution of New KHD Shares
Certain Shareholders own KHD Shares in book-entry form. These Shareholders will not have share
certificates evidencing their ownership of such KHD Shares. Shareholders owning KHD Shares in
book-entry form do not need to take any additional actions to exchange their KHD Shares for New KHD
Shares in the event that the proposed Arrangement is approved. Upon the Effective Date, each then
existing book-entry account will be adjusted to reflect the number of New KHD Shares to which the
Shareholder is entitled on the basis of one New KHD Share for each KHD Share held.
If the proposed Arrangement is approved by Shareholders and implemented by the Board, Registered
Shareholders holding their KHD Shares in certificated form will be required to exchange their share
certificates representing KHD Shares for new share certificates representing New KHD Shares.
Following the announcement by KHD of the approval of the Arrangement, Registered Shareholders will
be sent a letter of transmittal by KHDs transfer agent, Mellon, as soon as practicable after the
Effective Date. The letter of transmittal will contain instructions on how to surrender
certificate(s) representing such Registered Shareholders KHD Shares to Mellon. Mellon will
forward to each Registered Shareholder who has sent Mellon the required documents, a new share
certificate representing the number of New KHD Shares to which each Registered Shareholder is
entitled. Until surrendered, each share certificate representing KHD Shares will be deemed for all
purposes to represent the number of whole New KHD Shares to which the Registered Shareholder is
entitled as a result of the Arrangement.
REGULATORY MATTERS
Distribution and Resale of KID Shares
THE FOLLOWING SUMMARY IS OF A GENERAL NATURE ONLY AND IS NOT INTENDED TO BE, NOR SHOULD IT BE
CONSTRUED TO BE, LEGAL ADVICE TO ANY PARTICULAR SHAREHOLDER. ACCORDINGLY, SHAREHOLDERS SHOULD
CONSULT THEIR OWN LEGAL ADVISERS WITH RESPECT TO THEIR PARTICULAR CIRCUMSTANCES.
Canada
The distribution and subsequent resale of the KID Shares in connection with the Arrangement will be
exempt from the registration and prospectus requirements of the securities legislation of the
provinces and territories of Canada. There will not be any secondary market for the shares of KID
in Canada.
United States
The KID Shares to be distributed to the Shareholders are not required to be, and will not be,
registered under the 1933 Act. Such securities will be issued in reliance upon the exemption
provided by Section 3(a)(10) of the 1933 Act. Section 3(a)(10) exempts from the general
registration requirement under the 1933 Act securities that are issued in exchange for one or more
bona fide outstanding securities, claims or property interests where the terms and conditions of
the issue and exchange have been approved by any court of competent jurisdiction, after a hearing
upon the fairness of the terms and conditions of the issue and exchange at which all persons to
whom such securities will be issued have the right to appear. The Court is authorized to conduct a
hearing to determine the fairness of the terms and conditions of the Arrangement, including the
proposed distribution of KID Shares in exchange for the
45
reduction of capital in respect of the New KHD Shares. See The Arrangement Court Approval and
Completion of the Arrangement.
Upon completion of the Arrangement, the resulting distribution of KID Shares will not be registered
under the 1933 Act or the securities laws of any state of the United States, but will instead be
effected in reliance on the registration exemption provided by Section 3(a)(10) of the 1933 Act and
exemptions provided under applicable state securities laws. The KID Shares received by
Shareholders in the Arrangement will generally be resaleable without any federal securities laws
restriction except with respect to certain Shareholders.
With respect to KID Shares distributed to Shareholders upon the closing of the Arrangement, persons
who are not affiliates of either KHD or KID prior to the Arrangement and who are not affiliates of
KID after the Arrangement, may resell their KID Shares without restriction under the 1933 Act.
Rule 144 under the 1933 Act defines an affiliate of an issuer as a person that directly, or
indirectly through one or more intermediaries, controls, is controlled by, or is under common
control with, such issuer. Typically, persons who are executive officers, directors or major
shareholders of an issuer are considered to be its affiliates.
Persons who are affiliates of either KHD or KID prior to the Arrangement may not resell their KID
Shares in the absence of registration under the 1933 Act, unless, as discussed below, an exemption
from registration is available.
Persons who are affiliates of either KHD or KID prior to the Arrangement, and are affiliates of KID
after the Arrangement, will be entitled to resell, during any three-month period, that number of
KID Shares that does not exceed one percent of the then outstanding shares of KID, all subject to
certain restrictions on the manner of sale, notice requirements, aggregation rules and the
availability of public information about KID.
Persons who are affiliates of either KHD or KID prior to the Arrangement, but are not affiliates of
KID after the Arrangement, may resell their KID Shares without regard to the volume and manner of
sale limitations set out in the preceding paragraph, so long as they hold their KID Shares for a
period of six months from the date of the Arrangement, subject to the availability of certain
public information about KID.
Finally, persons who are affiliates of either KHD or KID prior to the Arrangement and are not, and
have not been during the three-month period preceding the resale, an affiliate of KID after the
Arrangement, may resell their KID Shares without regard to the restrictions set out in the
preceding two paragraphs, so long as they hold their KID Shares for a period of one year from the
date of the Arrangement.
The foregoing discussion is only a general overview of certain requirements of United States
federal securities laws applicable to the KID Shares received as a result of the Arrangement and
does not constitute legal advice. Shareholders who receive KID Shares may be subject to additional
restrictions including, but not limited to, restrictions under written contracts, agreements or
instruments to which they are parties or are otherwise subject, and restrictions under applicable
securities laws of all US states. Shareholders who may receive KID Shares are urged to consult
with counsel to ensure that any resale of their KID Shares complies with applicable Canadian and US
securities legislation.
The solicitation of proxies under the Arrangement is not subject to the requirements of Section
14(a) of the 1934 Act. Accordingly, this Information Circular has been prepared in accordance with
the disclosure requirements of Canadian law. Such requirements are different than those of the
United States applicable to proxy statements under the 1934 Act.
The financial statements included
herein have been prepared in accordance with Canadian GAAP and may not be comparable in all
respects to financial statements of United States companies.
The securities to be issued in connection with the Arrangement have not been approved or
disapproved by the SEC or securities regulatory authorities of any state of the United States, nor
has the SEC or securities regulatory authority of any state in the United States passed on the
adequacy or accuracy of this Information Circular. Any representation to the contrary is a
criminal offence
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46
DISSENT RIGHTS
THE FOLLOWING SUMMARY IS OF A GENERAL NATURE ONLY AND IS NOT INTENDED TO BE, NOR SHOULD IT BE
CONSTRUED TO BE, LEGAL ADVICE TO ANY PARTICULAR SHAREHOLDER. ACCORDINGLY, SHAREHOLDERS SHOULD
CONSULT THEIR OWN LEGAL ADVISERS WITH RESPECT TO THEIR PARTICULAR CIRCUMSTANCES.
The following description of the Dissent Procedures as laid out in the Interim Order is not a
comprehensive statement of the procedures to be followed by a Dissenting Shareholder in strict
compliance with the Dissent Procedures and is qualified entirely by reference to the full text of
the Interim Order and Article 5 of the Plan of Arrangement and the applicable provisions of the
BCBCA which are reproduced, respectively, in Schedules M, C and O to this Information Circular.
The Interim Order, which is attached as Schedule K to this Information Circular, expressly provides
Registered Shareholders with the right to dissent on substantially the same terms and conditions as
set out in Part 8, Division 2 of the BCBCA, the text of which is reproduced as Schedule O to this
Information Circular, with modifications to the provisions of Part 8, Division 2 of the BCBCA as
provided in the Plan of Arrangement and the Interim Order.
In general, any Registered Shareholder who exercises Dissent Rights in compliance with Part 8,
Division 2 of the BCBCA (as modified by the Plan of Arrangement and the Interim Order) will be
entitled, in the event that the Arrangement becomes effective, to be paid by KHD the fair value of
the Dissent Shares held by that Dissenting Shareholder determined as at the point in time
immediately before the Arrangement Resolution is approved by the Shareholders.
A Dissenting Shareholder will, on the Effective Date, and notwithstanding any provision of Part 8,
Division 2 of the BCBCA, be deemed to have transferred their Dissent Shares to KHD for cancellation
and will cease to have any rights as a Shareholder except for the entitlement to be paid fair value
for such Dissent Shares in accordance with the Dissent Procedures. In no event will KHD, KID or
any other person be required to recognize a Dissenting Shareholder as a Shareholder after the
deemed transfer of the Dissent Shares of that holder. In addition, in accordance with the
restrictions set out in Part 8, Division 2 of the BCBCA, and the provisions of Article 5 of the
Plan of Arrangement, a Shareholder who has voted in favour of the Arrangement Resolution will be
deemed to have waived the right to dissent in respect of the Arrangement Resolution and will not be
entitled to exercise their Dissent Right.
A Registered Shareholder wishing to exercise the Dissent Right who, for any reason, does not
properly fulfil each of the Dissent Procedures, acts inconsistently with such dissent or who for
any other reason is not entitled to be paid the fair value of the holders KHD Shares will be
treated as if such Shareholder had participated in the Arrangement on the same basis as a
non-dissenting Shareholder who had made the Deemed Election.
The filing of a Dissent Notice deprives a Dissenting Shareholder of the right to vote at the
Meeting, except if such Dissenting Shareholder ceases to be a Dissenting Shareholder in accordance
with the Dissent Procedures. For greater certainty, a Registered Shareholder who wishes to
exercise the Dissent Right may not vote in favour of the Arrangement.
A Registered Shareholder who wishes to exercise the Dissent Right must deliver a written Dissent
Notice to KHD no later than 5:00 p.m. (Pacific time) on Friday, March 26, 2010 or on the day that
is at least two (2) days prior to the date of any adjourned or postponed Meeting).
The written Dissent Notice must be received by KHD at Suite 1620 400 Burrard Street, Vancouver,
British Columbia, Canada V6C 3A6 or by facsimile transmission to (604) 683-3205 (Attention:
President). A Dissenting Shareholder must dissent with respect to all KHD Shares in which the
holder owns a beneficial interest. The written Dissent Notice must set out the number of KHD
Shares in respect of which the Dissent Notice is being sent and:
|
(a)
|
|
if the KHD Shares constitute all of the KHD Shares of which the Dissenting
Shareholder is the registered and beneficial owner, a statement to that effect;
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47
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(b)
|
|
if the KHD Shares constitute all of the KHD Shares of which the Dissenting
Shareholder is the registered and beneficial owner but if the Dissenting Shareholder
owns additional KHD Shares beneficially, a statement to that effect and the names of
the Registered Shareholders, the number of KHD Shares held by the Registered
Shareholders and a statement that written notices of dissent have or will be sent with
respect to such KHD Shares; or
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(c)
|
|
if the Dissent Right is being exercised by a Registered Shareholder who is not
the beneficial owner of the KHD Shares, a statement to that effect and the name of the
beneficial owner and a statement that the Registered Shareholder is exercising the
Dissent Right with respect to all of the KHD Shares of the beneficial owner registered
in such Registered Shareholders name.
|
KHD is required promptly after the later of:
|
(a)
|
|
the date on which KHD forms the intention to proceed with the Arrangement; and
|
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(b)
|
|
the date on which the written Dissent Notice was received,
|
to notify each Dissenting Shareholder of its intention to proceed with the Arrangement. KHD will
be in a position to deliver such notification on or before the Effective Date. Upon receipt of the
notification, each Dissenting Shareholder is then required, if the Dissenting Shareholder wishes to
proceed with exercising the Dissent Right, within one (1) month after the date of the notification
to send to KHD:
|
(a)
|
|
a written statement that the Dissenting Shareholder requires KHD to purchase
all of its Dissent Shares;
|
|
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(b)
|
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the certificate(s) representing such Dissent Shares; and
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(c)
|
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if the Dissent Right is being exercised by the Dissenting Shareholder on behalf
of a beneficial owner who is not the Dissenting Shareholder, a statement signed by the
beneficial owner which sets out whether the beneficial owner is the beneficial owner of
other Dissent Shares, and if so: (i) the names of the registered owners of those
Dissent Shares; (ii) the number of those Dissent Shares; and (iii) that the Dissent
Right is being exercised in respect of all of those Dissent Shares.
|
A Dissenting Shareholder who fails to send KHD, within the required time frame, the written
statements described above and the certificate(s) representing the KHD Shares in respect of which
the Dissenting Shareholder dissents, forfeits the Dissent Right.
KHD will send to each Dissenting Shareholder who has timely delivered the required documentation, a
written offer to pay for the Dissent Shares (an
Offer to Pay
) in an amount considered by the
Board to be fair value thereof, accompanied by a statement showing the manner in which the fair
value was determined. Every Offer to Pay will be on the same terms. KHD is required to pay for
the Dissent Shares of a Dissenting Shareholder within ten (10) calendar days after an Offer to Pay
has been accepted by a Dissenting Shareholder, but any such Offer to Pay lapses if KHD does not
receive an acceptance thereof within thirty (30) calendar days after the Offer to Pay has been
made.
If KHD fails to make an Offer to Pay for the Dissent Shares of a Dissenting Shareholder, or if a
Dissenting Shareholder fails to accept an offer that has been made, KHD may, within fifty (50)
calendar days after the Effective Date or within such further period as the Court may allow, apply
to the Court to fix a fair value for the Dissent Shares of Dissenting Shareholders. If KHD fails
to apply to the Court, a Dissenting Shareholder may apply to the Court for the same purpose within
a further period of twenty (20) calendar days or within such further period as the Court may allow.
A Dissenting Shareholder is not required to give security for costs in such an application.
Upon an application to the Court, all Dissenting Shareholders whose Dissent Shares have not been
purchased by KHD will be joined as parties and bound by the decision of the Court, and KHD will be
required to notify each affected Dissenting Shareholder of the date, place and consequences of the
application and of the right of such Dissenting Shareholder to appear and be heard in person or by
counsel. Upon any such application to the Court, the
48
Court may determine whether any person is a Dissenting Shareholder who should be joined as a party,
and the Court will then fix a fair value for the Dissent Shares of all Dissenting Shareholders.
The final order of the Court will be rendered against KHD in favour of each Dissenting Shareholder
and for the amount of the fair value of each Dissenting Shareholders Dissent Shares as fixed by
the Court. The Court may, in its discretion, allow a reasonable rate of interest on the amount
payable to each Dissenting Shareholder from the Effective Date until the date of payment.
Under the BCBCA, KHD will be lawfully unable to pay the Dissenting Shareholders the fair value of
their Dissent Shares if KHD is insolvent or would be rendered insolvent by making the payment to
the Dissenting Shareholder.
In such event, Dissenting Shareholders will have thirty (30) calendar days to elect to either: (i)
withdraw their dissent and receive the consideration applicable to Shareholders under the
Arrangement; or (ii) retain their status as a claimant and be paid as soon as KHD is lawfully able
to do so, or in a liquidation, be ranked subordinate to its creditors but in priority to the
Shareholders.
If the Arrangement is not implemented for any reason, Dissenting Shareholders will not be entitled
to be paid the fair value for their Dissent Shares, and their Dissent Shares will not be deemed to
be transferred to KHD.
The discussion above is only a summary of the Dissent Procedures which are technical procedures and
complex. A Registered Shareholder who intends to exercise the Dissent Right should carefully
consider and comply with the provisions of Part 8, Division 2 of the BCBCA, as modified by the Plan
of Arrangement and the Interim Order. Non-Registered Holders of KHD Shares registered in the name
of an Intermediary such as a broker, custodian, nominee, other Intermediary, or in some other name,
who wish to exercise the Dissent Right should be aware that only a Registered Shareholder is
entitled to exercise the Dissent Right. It is suggested that any Shareholder wishing to avail
himself or herself of the Dissent Right seek his or her own legal advice as failure to comply
strictly with the applicable provisions of the BCBCA, the Plan of Arrangement and the Interim Order
may prejudice the availability of the Dissent Right. Dissenting Shareholders should note that the
exercise of the Dissent Right can be a complex, time consuming and expensive process.
INCOME
TAX CONSIDERATIONS
Certain Canadian Federal Income Tax Considerations
THE TAX CONSEQUENCES OF THE ARRANGEMENT MAY VARY DEPENDING UPON THE PARTICULAR CIRCUMSTANCES OF
EACH SHAREHOLDER AND OTHER FACTORS. ACCORDINGLY, SHAREHOLDERS ARE URGED TO CONSULT THEIR OWN TAX
ADVISORS TO DETERMINE THE PARTICULAR TAX CONSEQUENCES TO THEM OF THE ARRANGEMENT.
In the opinion of Thorsteinssons LLP, Canadian tax counsel to KHD, the following is a summary, as
of the date hereof, of the principal Canadian federal income tax considerations relating to the
Arrangement generally applicable to a beneficial owner of KHD Shares who, for the purposes of the
ITA: (i) holds KHD Shares as capital property; (ii) deals at arms length with KHD; and (iii) is
not affiliated with KHD for the purposes of the ITA (a
Holder
).
Generally, KHD Shares will be considered to be capital property to a Holder, unless the Holder
holds the shares in the course of carrying on a business or acquired the shares in a transaction
considered to be an adventure in the nature of trade. Certain Holders who are resident in Canada
for the purposes of the ITA and whose KHD Shares might not otherwise be capital property may, in
certain circumstances, be entitled to make an irrevocable election under subsection 39(4) of the
ITA to have such shares, and every other Canadian security as defined in the ITA owned by such
Holder in the taxation year in which the election is made and in all subsequent taxation years,
deemed to be capital property.
Any Holder contemplating making a subsection 39(4) election should
consult their tax adviser for advice as to whether the election is available or advisable in their
particular circumstances.
49
This summary is not applicable to a Holder: (i) that is a financial institution for the purposes
of the mark-to-market rules contained in the ITA; (ii) that is a specified financial institution
or restricted financial institution as defined in the ITA; (iii) who has acquired KHD Shares upon
the exercise of an employee stock option; (iv) who holds options to acquire shares of KHD; (v) an
interest in which is a tax shelter investment as defined under the ITA; or (vi) to whom the
functional currency reporting rules contained in section 261 of the ITA apply.
Such Holders should
consult their own tax advisors.
This summary is based upon the current provisions of the ITA, the regulations thereunder (the
Regulations
) and counsels understanding of the current administrative practices and assessing
policies of the Canada Revenue Agency (the
CRA
). This summary also takes into account all
specific proposals to amend the ITA and the Regulations (the
Proposed Amendments
) announced by or
on behalf of the Minister of Finance (Canada) prior to the date hereof and assumes that all
Proposed Amendments will be enacted in the form proposed. However, there can be no assurance that
the Proposed Amendments will be enacted in the form proposed or at all. Except for the Proposed
Amendments, this summary does not take into account or anticipate any changes in law, whether by
legislative, governmental or judicial action or decision, nor does it take into account provincial,
territorial or foreign income tax considerations, which may differ from the Canadian federal income
tax considerations discussed below. An advance income tax ruling will not be sought from the CRA in
respect of the Arrangement.
THIS SUMMARY IS OF A GENERAL NATURE ONLY AND IS NOT EXHAUSTIVE OF ALL POSSIBLE CANADIAN FEDERAL
INCOME TAX CONSIDERATIONS. THIS SUMMARY IS NOT INTENDED TO BE, NOR SHOULD IT BE CONSTRUED TO BE,
LEGAL OR TAX ADVICE TO ANY SHAREHOLDER. SHAREHOLDERS SHOULD ALSO REVIEW THE RISK FACTORS OF THE
ARRANGEMENT TO KHD AS SUCH CONSEQUENCES WILL INDIRECTLY AFFECT THEM AS SHAREHOLDERS OF KHD.
SHAREHOLDERS SHOULD CONSULT THEIR OWN TAX ADVISERS FOR ADVICE AS TO THE DIRECT AND INDIRECT INCOME
TAX CONSEQUENCES TO THEM OF THE ARRANGEMENT HAVING REGARD TO THEIR OWN PARTICULAR CIRCUMSTANCES.
Holders Resident in Canada
The following portion of this summary applies to a Holder who, at all relevant times is or is
deemed to be resident in Canada for purposes of the ITA (a
Resident Holder
).
Exchange of KHD Shares for New KHD Shares and KID Shares
As part of the Arrangement, Shareholders (other than KHD Subsidiaries) will exchange (the
Exchange
) each KHD Share for one New KHD Share and 0.143 KID Shares on the Effective Date.
Deemed Dividend
KHD has obtained and is relying on a valuation of the KID Shares that was prepared by a qualified
independent valuator. Relying on such valuation, KHD has informed counsel that KHD has determined
that the aggregate fair market value of the KID Shares to be distributed by KHD on the Exchange,
determined immediately before the Exchange, is expected to be lower than the paid-up capital, as
defined in the ITA, of all KHD Shares held immediately before the Exchange by Holders who do not
dissent in respect of the Arrangement. Accordingly, KHD is not expected to be deemed to pay a
dividend on the KHD Shares as a result of the Exchange. In the event that the fair market value of
the KID Shares to be distributed by KHD on the Exchange, determined immediately before the
Exchange, exceeds the paid-up capital of all KHD Shares held immediately before the Exchange by
Holders who do not dissent in respect of the Arrangement (the Excess), KHD would be deemed to pay
a dividend on the KHD Shares in an amount equal to the amount of the Excess, and each Holder of KHD
Shares who does not dissent in respect of the Arrangement will be deemed to have received a
pro-rata portion of the dividend, based on the proportion of KHD Shares held.
KHD HAS RECEIVED A VALUATION OF THE KID SHARES WHICH WILL BE USED FOR THE PURPOSE OF DETERMINING
THE CANADIAN FEDERAL INCOME TAX CONSEQUENCES OF THE EXCHANGE. COUNSEL IS NOT QUALIFIED TO COMMENT
ON THE ACCURACY OR REASONABLENESS OF THE VALUATION.
50
A Resident Holder who is an individual and who receives KID Shares on the Exchange as a dividend on
a KHD Share held by it will be required to include the amount of the dividend in income in
accordance with the gross-up and dividend tax credit provisions of the ITA, including the enhanced
dividend tax credit, which normally apply to dividends received by individuals from taxable
Canadian corporations. Where the Resident Holder is a corporation the amount of such dividend will
generally be required to be included in the income of such holder but such amount will generally be
deductible in computing the taxable income of such Holder. In certain circumstances, subsection
55(2) of the ITA will treat a taxable dividend received by a Canadian resident corporation as
proceeds of disposition or a capital gain.
Corporate Resident Holders that receive a dividend from
KHD should consult their own tax advisors with respect to the potential application of subsection
55(2) of the ITA to such dividend.
Private corporations and certain other corporations controlled by or for the benefit of an
individual or a related group of individuals generally will be liable for a refundable tax under
Part IV of the ITA in an amount equal to 33 1/3% of all taxable dividends received by each such
corporation to the extent that the amount of such dividends is deductible, by virtue of specific
provisions of the ITA, in computing the taxable income of each such corporation for the year of the
receipt of such taxable dividends.
Capital Gain
Generally, a Resident Holder whose KHD Shares are exchanged for New KHD Shares and KID Shares will
be considered to have disposed of the KHD Shares for proceeds of disposition equal to the greater
of the adjusted cost base to the Holder of the KHD Shares immediately before the Exchange and the
fair market value of the KID Shares at the time of the Exchange. In the event that the fair market
value of all KID Shares received by the Holder on the Exchange were to exceed the paid-up capital
of all KHD Shares held by the Holder immediately before the Exchange, the proceeds of disposition
of the Holders KHD Shares would be reduced by the amount of the dividend referred to in the
previous paragraphs that the Holder is deemed to have received. The Holder will realize a capital
gain to the extent that the adjusted proceeds of disposition of the Holders KHD Shares exceeds the
adjusted cost base to the Holder of the KHD Shares. See
Taxation of Capital Gains and Losses
below for a general description of the treatment of capital gains and losses under the ITA.
The cost to a Resident Holder of New KHD Shares acquired on the Exchange will be equal to the
amount, if any, by which the adjusted cost base to the Holder of the Holders KHD Shares
immediately before the Exchange exceeds the fair market value of the KID Shares at the time of the
Exchange. The cost to a Holder of KID Shares acquired on the Exchange will be equal to the fair
market value of the KID Shares at the time of the Exchange.
Taxation of Capital Gains and Capital Losses
Generally, a Resident Holder will be required to include in computing its income for a taxation
year one-half of the amount of any capital gain (a
taxable capital gain
) realized by it in that
year. A Resident Holder will generally be entitled to deduct one-half of the amount of any capital
loss (an
allowable capital loss
) realized in a taxation year from taxable capital gains realized
by the Resident Holder in that year. Allowable capital losses in excess of taxable capital gains
for a taxation year may be carried back to any of the three preceding taxation years or carried
forward to any subsequent taxation year and deducted against net taxable capital gains realized in
such years, to the extent and under the circumstances specified in the ITA.
A capital loss realized on the disposition of a share by a Resident Holder that is a corporation
may, to the extent and under circumstances specified by the ITA, be reduced by the amount of
certain dividends received or deemed to have been received by the corporation on such share (or on
a share for which such share is substituted or exchanged). Similar rules may apply where shares
are owned by a partnership or trust of which a corporation, trust or partnership is a member or
beneficiary.
Alternative Minimum Tax on Resident Holders who are Individuals
A capital gain realized, or a dividend received, by a Resident Holder who is an individual
(including certain trusts and estates) may give rise to liability for alternative minimum tax under
the ITA.
51
Additional Refundable Tax on Canadian-Controlled Private Corporations
A Resident Holder that is a Canadian-controlled private corporation (as defined in the ITA) may
be required to pay an additional
6⅔% refundable tax on certain investment income, including certain
amounts in respect of net taxable capital gains, dividends or deemed dividends and interest.
Eligibility for Investment of New KHD Shares and KID Shares
The New KHD Shares and KID Shares will be qualified investments under the ITA for trusts governed
by registered retirement savings plans, registered retirement income funds, deferred profit sharing
plans, registered education savings plans, registered disability savings plans and tax free savings
accounts (TFSA), as defined in the ITA, at any particular time provided that, at that time, the
New KHD Shares or the KID Shares, as the case may be, are listed on a designated stock exchange
within the meaning of the ITA (which currently includes the NYSE, FSE and VSE) or, in the case of
the KHD Shares, KHD is a public corporation as defined in the ITA at the relevant time.
Notwithstanding that New KHD Shares or the KID Shares, as the case may be, may be a qualified
investment for a trust governed by a TFSA, the holder of a TFSA will be subject to a penalty tax
with respect to shares held in a TFSA if such shares are a prohibited investment for the TFSA
within the meaning of the ITA. Provided that the holder of a TFSA does not hold a significant
interest (as defined in the ITA) in KHD (or KID, as the case may be) or any corporation,
partnership or trust that does not deal at arms length, for the purposes of the ITA, with KHD (or
KID, as the case may be), the New KHD Shares (and the KID Shares, as the case may be) will not be a
prohibited investment for a trust governed by the TFSA. Prospective holders that intend to hold
New KHD Shares or KID Shares in a TFSA are urged to consult their own tax advisor.
Dissenting Resident Holders
A Resident Holder who dissents in respect of the Arrangement (a
Resident Dissenter
) and who is
entitled to receive payment from KHD equal to the fair value of the Resident Dissenters KHD Shares
will be considered to have disposed of the KHD Shares for proceeds of disposition equal to the
amount received by the Resident Dissenter, less the amount of any interest awarded by a court, as
the case may be. A Resident Dissenter generally will be deemed to have received a dividend equal to
the amount by which such proceeds exceed the paid-up capital of such shares, and such deemed
dividend will reduce the proceeds of disposition for purposes of computing a capital gain (or a
capital loss) on the disposition of such KHD Shares. The tax treatment accorded to any deemed
dividend is discussed above under the heading,
Exchange of KHD Shares for New KHD Shares and KID
SharesDeemed Dividend
.
A Resident Dissenter will also realize a capital gain (or a capital loss) to the extent that the
proceeds of disposition of such KHD Shares for purposes of the ITA, as reduced by the amount of any
deemed dividend as discussed above and net of any reasonable costs of disposition, exceed (or are
less than) the adjusted cost base of such shares immediately before the disposition. The tax
treatment of capital gains and capital losses (including the potential reduction of a capital loss
due to the receipt of a deemed dividend) is discussed above under the heading,
Taxation of
Capital Gains and Capital Losses
.
Interest awarded by a court to a Resident Dissenter will be included in the Resident Dissenters
income for a particular taxation year to the extent the amount is received or receivable in that
year, depending upon the method regularly followed by the Resident Dissenter in computing income.
Where the Resident Dissenter is a corporation, partnership or, subject to certain exceptions, a
trust, the Resident Dissenter must include in income for a taxation year the amount of interest
that accrues to it before the end of the taxation year, or becomes receivable or is received before
the end of the year (to the extent not included in income for a preceding taxation year).
Resident
Dissenters who are contemplating exercising their dissent rights should consult their own tax
advisors
.
Holders Not Resident in Canada
The following portion of the summary applies to a Holder who, for the purposes of the ITA, (i) has
not been, is not, and will not be or be deemed to be, resident in Canada, and (ii) does not and
will not use or hold, and is not and will
52
not be deemed to use or hold, KHD Shares in connection with carrying on a business in Canada, (in
this portion of this summary, a
Non-resident Holder
).
Special rules, which are not discussed in
this summary, may apply to a Non-resident Holder that is an insurer carrying on business in Canada
and elsewhere.
Exchange of KHD Shares for New KHD Shares and KID Shares
A Non-resident Holder who exchanges KHD Shares in consideration for New KHD Shares and KID Shares
will receive a deemed dividend and realize a capital gain or capital loss in the same manner as
discussed above under Holders Resident in Canada Exchange of KHD Shares for New KHD Shares and
KID Shares.
Deemed Dividend
Dividends paid, deemed to be paid, or credited to a Non-resident Holder will be subject to
non-resident withholding tax under the ITA at a rate of 25% of the gross amount of the dividend
unless the rate is reduced by an applicable income tax treaty. In the case of a beneficial owner of
dividends who is a resident of the United States for purposes of the Canada-United States Income
Tax Convention and who is entitled to the benefits of that treaty, the rate of withholding tax on
dividends will generally be reduced to 15%.
Capital Gain
A Non-resident Holder will not be subject to tax under the ITA on any capital gain realized on a
disposition of KHD Shares on the Exchange unless the KHD Shares constitute taxable Canadian
property to the Non-resident Holder at the Effective Time and such gain is not otherwise exempt
from tax under the ITA pursuant to the provisions of an applicable income tax convention.
Similarly, any capital gain realized by a Non-resident Holder on a subsequent disposition or deemed
disposition of New KHD Shares acquired on the Exchange will not be subject to tax under the ITA
unless the New KHD Shares are taxable Canadian property to the Non-resident Holder at the time of
the disposition and such gain is not otherwise exempt from tax under the ITA pursuant to the
provisions of an applicable income tax convention.
Generally, KHD Shares and New KHD Shares, as the case may be, will not constitute taxable
Canadian property to a Non-resident Holder at a particular time provided that (i) such KHD Shares
or New KHD Shares, as the case may be, are listed on a designated stock exchange (which currently
includes the NYSE) at that time, and (ii) the Non-resident Holder, persons with whom the
Non-resident Holder does not deal at arms length, or the Non-resident Holder together with persons
with whom the Non-resident Holder does not deal at arms length, have not owned 25% or more of the
issued shares of any class of KHD at any time during the 60-month period that ends at that time.
KHD Shares and New KHD Shares may also be taxable Canadian property in certain other circumstances
specified in the ITA.
Even if a KHD Share or a New KHD Share is taxable Canadian property to a Non-resident Holder, any
gain realized on a disposition of such share may be exempt from tax under the ITA pursuant to the
provisions of an applicable income tax convention between Canada and the country in which such
Non-resident Holder is resident
. Non-resident Holders should consult their own tax advisors in this
regard.
In the event a KHD Share or a New KHD Share is taxable Canadian property to a Non-resident
Holder at the time of disposition and the capital gain realized on the disposition of such share is
not exempt from tax under the ITA pursuant to the provisions of an applicable income tax convention
then the tax consequences described above under
Residents of Canada Exchange of KHD Shares for
New KHD Shares and KID Shares
and
Resident of Canada Taxation of Capital Gains and Capital
Losses
will generally apply.
Dissenting Non-Resident Holders
A Non-resident Holder who dissents in respect of the Arrangement (a
Non-resident Dissenter
) will
be entitled to receive a payment from KHD equal the fair value of such Non-resident Dissenters KHD
Shares and will be considered to have disposed of such shares for proceeds of disposition equal to
the amount received by the Non-resident Dissenter, less the amount of any interest awarded by a
court (if applicable). A Non-resident Dissenter generally will be deemed to have received a
dividend equal to the amount by which such proceeds exceed the paid-
53
up capital of such shares and such deemed dividend will reduce the proceeds of disposition for
purposes of computing a capital gain (or a capital loss) on the disposition of such KHD Shares. The
deemed dividend will be subject to Canadian withholding tax as described under the subheading
Non-Residents of Canada Exchange of KHD Shares for New KHD Shares and KID SharesDeemed
Dividend
.
A Non-resident Dissenter will also realize a capital gain to the extent that the proceeds of
disposition for such shares, as reduced by the amount of any deemed dividend as discussed above and
net of any reasonable costs of disposition, exceed the adjusted cost base of such KHD Shares
immediately before the disposition. A Non-resident Dissenter generally will not be subject to
income tax under the ITA in respect of any such capital gain provided such shares do not constitute
taxable Canadian property of the Non-resident Dissenter (see the discussion above under the
heading
Non-Residents of Canada Exchange of KHD Shares for New KHD Shares and KID Shares
).
Any interest paid to a Non-resident Dissenter upon the exercise of dissent rights will not be
subject to Canadian withholding tax.
Certain United States Federal Income Tax Consequences
THE SUMMARY SET OUT IN THIS SECTION WAS NOT WRITTEN AND IS NOT INTENDED TO BE USED, AND CANNOT BE
USED, BY ANY PERSON FOR THE AVOIDANCE OF ANY PENALTIES WITH RESPECT TO TAXES THAT MAY BE IMPOSED ON
SUCH PERSON. THIS SUMMARY WAS WRITTEN TO SUPPORT THE MARKETING OF THE ARRANGEMENT. EACH
SHAREHOLDER SHOULD SEEK ADVICE FROM AN INDEPENDENT TAX ADVISOR REGARDING THE TAX CONSEQUENCES OF
THE ACQUISITION PURSUANT TO THE ARRANGEMENT, OWNERSHIP AND DISPOSITION OF KHD SHARES IN LIGHT OF
THEIR PARTICULAR CIRCUMSTANCES, AS WELL AS THE TAX CONSEQUENCES UNDER STATE, LOCAL AND NON-UNITED
STATES TAX LAW AND THE POSSIBLE EFFECTS OF CHANGES IN TAX LAW
.
The following is a summary of the anticipated material US federal income tax consequences to US
Holders (as defined below) arising from and relating to the Arrangement.
This summary is for general information purposes only and does not purport to be a complete
analysis or listing of all potential US federal income tax consequences that may apply to a US
Holder as a result of the Arrangement. In addition, this summary does not take into account the
individual facts and circumstances of any particular US Holder that may affect the US federal
income tax consequences of the Arrangement to such US Holder. Accordingly, this summary is not
intended to be, and should not be construed as, legal or US federal income tax advice with respect
to any Shareholder. Each US Holder should consult its own tax advisor regarding the US federal
income, US state and local, and foreign tax consequences of the Arrangement.
No legal opinion from US legal counsel or ruling from the IRS has been requested, or will be
obtained, regarding the US federal income tax consequences of the Arrangement to US Holders. This
summary is not binding on the IRS, and the IRS is not precluded from taking a position that is
different from, and contrary to, the positions taken in this summary. In addition, because the
authorities on which this summary is based are subject to various interpretations, the IRS and the
US courts could disagree with one or more of the positions taken in this summary.
Notice Pursuant to IRS Circular 230
: Anything contained in this summary concerning any US federal
tax issue is not intended or written to be used, and it cannot be used by a US Holder, for the
purpose of avoiding US federal tax penalties under the Code (as defined below). This summary was
written to support the promotion or marketing of the transactions or matters addressed by this
Information Circular (including the Arrangement).
Each US Holder should seek US federal tax advice, based on such US Holders particular
circumstances, from an independent tax advisor.
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Scope of this Disclosure
Authorities
This summary is based on the Code, treasury regulations, published rulings of the IRS, published
administrative positions of the IRS, and US court decisions that are applicable and, in each case,
as in effect and available, as of the date of this Information Circular. Any of the authorities on
which this summary is based could be changed in a material and adverse manner at any time, and any
such change could be applied on a retroactive basis. This summary does not discuss the potential
effects, whether adverse or beneficial, of any proposed legislation that, if enacted, could be
applied on a retroactive basis.
US Holders
For purposes of this summary, a US Holder is a beneficial owner of KHD Shares that, for US
federal income tax purposes, is (a) an individual who is a citizen or resident of the US, (b) a
corporation, or any other entity classified as a corporation for US federal income tax purposes,
that is created or organized in or under the laws of the US, any state in the US, or the District
of Columbia, (c) an estate if the income of such estate is subject to US federal income tax
regardless of the source of such income, or (d) a trust if (i) such trust has validly elected to be
treated as a US person for US federal income tax purposes, or (ii) a US court is able to exercise
primary supervision over the administration of such trust and one or more US persons have the
authority to control all substantial decisions of such trust.
Non-US Holders
A non-US Holder is a beneficial owner of KHD Shares other than a US Holder. This summary does not
address the US federal income tax consequences of the Arrangement to non-US Holders. Accordingly,
non-US Holders should consult their own tax advisors regarding the US federal income, US state and
local, and foreign tax consequences (including the potential application and operation of any
income tax treaties) of the Arrangement.
US Holders Subject to Special US Federal Income Tax Rules Not Addressed
This summary does not address the US federal income tax consequences of the Arrangement to US
Holders that are subject to special provisions under the Code, including the following US Holders:
(a) US Holders that are tax-exempt organizations, qualified retirement plans, individual retirement
accounts, or other tax deferred accounts; (b) US Holders that are financial institutions, insurance
companies, real estate investment trusts, or regulated investment companies; (c) US Holders that
are dealers in securities or currencies or US Holders that are traders in securities that elect to
apply a mark-to-market accounting method; (d) US Holders that have a functional currency other
than the US dollar; (e) US Holders that are liable for the alternative minimum tax under the Code;
(f) US Holders that own KHD Shares as part of a straddle, hedging transaction, conversion
transaction, constructive sale, or other arrangement involving more than one position; (g) US
Holders that acquired KHD Shares in connection with the exercise of employee stock options or
otherwise as compensation for services; (h) US Holders that hold KHD Shares other than as a capital
asset within the meaning of Section 1221 of the Code; or (i) US Holders that own (directly,
indirectly, or constructively) 10 per cent or more of the total combined voting power of all
classes of shares of KHD entitled to vote. US Holders that are subject to special provisions under
the Code, including US Holders described immediately above, should consult their own tax advisors
regarding the US federal income tax consequences of the Arrangement.
If an entity that is classified as a partnership for US federal income tax purposes holds KHD
Shares, the US federal income tax consequences of the Arrangement to such partnership and the
partners of such partnership generally will depend on the activities of the partnership and the
status of such partners. Partners of entities that are classified as partnerships for US federal
income tax purposes should consult their own tax advisors regarding the US federal income tax
consequences of the Arrangement.
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Tax Consequences in Other Jurisdictions Not Addressed
This summary does not address the US state or local tax consequences, or the tax consequences in
jurisdictions other than the US, of the Arrangement to US Holders. Each US Holder should consult
its own tax advisor regarding the US state and local and foreign tax consequences of the
Arrangement.
Transactions Not Addressed
This summary does not address the US federal income tax consequences to US Holders of transactions
entered into prior to, concurrently with, or subsequent to the Arrangement (regardless of whether
any such transaction is undertaken in connection with the Arrangement), including, but not limited
to, the following transactions: (a) any exercise of any warrant, or other right to acquire KHD
Shares; (b) any conversion of any note, debenture, or other debt instrument of KHD; and (c) any
conversion of any warrant, or other right to acquire KHD Shares into a warrant, or other right to
acquire shares of KID.
US Federal Income Tax Consequences of the Arrangement
The Arrangement will be effected under applicable provisions of Canadian corporate law, which are
technically different from analogous provisions of US corporate law. Therefore, the US federal
income tax consequences of certain aspects of the Arrangement are not certain.
In the event that the Arrangement qualifies as a tax-free transaction under the Internal Revenue
Code:
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No income gain or loss will be recognized by a US Holder as a result of the
Arrangement.
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2.
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The aggregate basis of a US Holders New KHD Shares and KID Shares immediately after
the Arrangement will be the same as the basis of the US Holders KHD Shares immediately
before the Arrangement, allocated between the New KHD Shares and KID Shares in proportion
to their relative fair market values.
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3.
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The holding period of New KHD Shares and KID Shares received by a US Holder, will
include the holding period of the US Holders KHD Shares held before the Arrangement.
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United States Treasury regulations would require each US Holder that receives KID Shares in the
Arrangement to attach to the Shareholders United States federal income tax return for the year in
which the Arrangement occurs, a detailed statement setting forth information as may be appropriate
to show the applicability of tax-free provisions of the Internal Revenue Code.
There can be no assurance that the IRS will not challenge the US federal income tax treatment of
the Arrangement or that, if challenged, a US court would not agree with the IRS. Each US Holder
should consult its own tax advisor regarding the proper treatment of the Arrangement for US federal
income tax purposes.
If the Arrangement were not to qualify as a tax-free transaction under the Internal Revenue Code,
subject to the discussion under Passive Foreign Investment Company Rules below, each US Holder
who receives KID shares in the Arrangement would be treated as if such US Holder received a
distribution equal to the value of the KID shares received in the Arrangement. The distribution
then would be taxed to each US Holder as follows: first, as a taxable dividend to the extent of the
US Holders
pro rata
share of KHDs current or accumulated earnings and profits; second, to the
extent the distribution exceeds the US Holders
pro rata
share of current or accumulated earnings
and profits, as a return of capital and reduction of the US Holders basis in the KHD Shares; and
third, as capital gain to the extent the distribution exceeds both the US Holders
pro rata
share
of current or accumulated earnings and profits and such US Holders cost basis in KHD Shares.
KHD will not calculate its earnings and profits under US federal income tax rules. Therefore, KHD
will not provide US Holders with such information. US Holders should consult their own tax
advisors regarding the amount of the distribution that will be treated as a dividend for US federal
income tax purposes.
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The amount of the dividend would be treated as foreign source dividend income to US Holders
and would not be eligible for the dividends received deduction generally allowed to US corporations
under the Code. Generally, such dividends would constitute passive income for foreign tax credit
purposes.
Dividends received by non corporate US Holders may be subject to US federal income tax at lower
rates than other types of ordinary income (generally 15%) in taxable years beginning on or before
December 31, 2010 if certain conditions are met. These conditions include KHD not being classified
as a PFIC, being eligible for benefits under the Treaty, the US Holders satisfaction of a holding
period requirement and the US Holder not treating the dividend as investment income for purposes
of the investment interest deduction rules. Furthermore, if the dividend is an extraordinary
dividend, certain losses that would otherwise be characterized as short term capital loss will be
treated as long term capital loss. A US Holder should consult its own tax advisor regarding the
application of these rules.
Dividends paid in Canadian dollars would be included in a US Holders income in a US dollar amount
calculated by reference to the exchange rate in effect on the date of receipt of the dividend.
If the dividend is converted into US dollars on the date of receipt, US Holders generally should
not be required to recognize foreign currency gain or loss in respect of the dividend income.
However, a conversion into US dollars at a later date may have US federal income tax consequences.
Any Canadian taxes withheld from dividends on New KHD Shares generally would be creditable against
a US Holders US federal income tax liability, subject to applicable limitations that vary
depending upon the US Holders particular circumstances. Instead of claiming a credit, a US Holder
may, at its election, deduct such otherwise creditable Canadian taxes in computing its taxable
income, subject to generally applicable limitations under US law. The rules governing the foreign
tax credit are complex and US Holders are urged to consult their tax advisors regarding the
availability of the foreign tax credit under their particular circumstances.
Passive Foreign Investment Company Rules
KHD does not believe that it is currently, or is likely to become, a PFIC for US federal income tax
purposes. A corporation organized outside the United States generally will be classified as a PFIC
for US federal income tax purposes in any taxable year in which either: (a) at least 75% of its
gross income is passive income; or (b) on average at least 50% of the gross value of its assets
is attributable to assets (such as cash) that produce passive income or are held for the
production of passive income. Passive income for this purpose generally includes dividends,
interest, royalties, rents and gains from commodities and securities transactions. In determining
whether it is a PFIC, a foreign corporation is required to take into account a pro rata portion of
the income and assets of each corporation in which it owns, directly or indirectly, at least a 25%
interest.
Since KHDs PFIC status during a taxable year that includes a US Holders holding period depends
upon the composition of its income and assets and the market value of its assets from time to time
(including the remainder of the taxable year after the distribution of the KID Shares), there can
be no assurance that KHD will not be considered a PFIC for any taxable year.
If KHD is treated as a PFIC for any taxable year during which a US Holder holds KHD Shares, certain
adverse consequences, including not being eligible for the reduced rate of tax on certain dividends
described above, could apply to the US Holder.
Shareholders are urged to consult their tax advisors concerning KHDs status as a PFIC and the tax
considerations relevant to the proposed distribution of the KID Shares.
Information Reporting and Backup Withholding
Payment of dividends that are made within the United States or through certain US related financial
intermediaries generally are subject to information reporting to the Internal Revenue Service and
to backup withholding unless the
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US Holder (i) is a corporation or other exempt recipient or (ii) in the case of backup withholding,
provides a correct taxpayer identification number and certifies that no loss of exemption from
backup withholding has occurred.
The amount of any backup withholding from a payment to a US Holder will be allowed as a credit
against the US federal income tax liability of the US Holder and may entitle the US Holder to a
refund, provided that the required information is furnished to the Internal Revenue Service.
US Holders Exercising the Dissent Right
A US Holder that exercises the Dissent Right in connection with the Arrangement and is paid cash
for all of such US Holders KHD Shares generally will recognize a gain or loss in an amount equal
to the difference, if any, between (a) the amount of cash received by such US Holder in exchange
for the KHD Shares (other than amounts, if any, that are or are deemed to be interest for US
federal income tax purposes, which amounts will be taxed as ordinary income) and (b) the tax basis
of such US Holder in the KHD Shares surrendered.
Subject to the passive foreign investment company rules discussed above, such gain or loss
generally will be a capital gain or loss, which will be a long-term capital gain or loss if the KHD
Shares are held for more than one year. Preferential tax rates apply to long-term capital gains of
a US Holder that is an individual, estate, or trust. There are currently no preferential tax rates
for long-term capital gains of a US Holder that is a corporation. Deductions for capital losses
are subject to complex limitations under the Code.
Withholding
KHD, KID and their respective agents shall be entitled to withhold such number of KID Shares from
the KID Shares distributed to any holder of KHD Shares as part of the Arrangement, as KHD, KID or
their respective agents are required or permitted to deduct and withhold with respect to any
withholding payments that are required under the ITA and the regulations thereunder, the United
States Internal Revenue Code of 1986 or any provision of any applicable federal, provincial, state,
local or foreign tax law, in each case, as amended. Subject to receipt of the approval of the CRA,
KHD intends to deliver such withheld KID Shares to the CRA in satisfaction of the payment of any
withholding tax that is payable. To the extent that this is acceptable to the CRA, Shareholders
not resident in countries with which Canada has a treaty will suffer a dilution of their ownership
in KID as compared to Shareholders resident in countries with which Canada has a treaty.
Each of the holders of KHD Shares who receive KID Shares as part of the Arrangement authorize KHD,
KID and their respective agents, pursuant to the Arrangement Agreement, to deliver to the CRA or to
sell such number of KID Shares as is required in order to satisfy any such withholding payments.
Neither KHD, KID nor any of their respective agents will be under any duty to ensure the best price
for the KID Shares is obtained in connection with such sale.
Tax Consequences to KHD and KID
In the event that the Arrangement qualifies as tax-free under the Internal Revenue Code, no
material amount of gain or loss will be recognized by either KHD or KID as a result of the
Arrangement.
RISK FACTORS
In addition to the risk factors set forth below, additional risk factors relating to KHDs business
are discussed in its annual report on Form 20-F for the year ended December 31, 2008 and in its
interim report for the three and nine months ended September 30, 2009, which risk factors are
incorporated herein by reference. Additional risk factors relating to the post-Arrangement
business of KHD and KID are discussed in Schedules D and F, respectively, attached to this
Information Circular.
Shareholders should carefully consider the risk factors set forth below as
well as the other information contained in and incorporated by reference into this Information
Circular in evaluating whether to approve the Arrangement Resolution.
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Risk Factors Relating to the Shareholders Agreement and the Deconsolidation
As part of KHDs stated goal of enhancing long-term value for Shareholders by taking steps to
create two independent, publicly traded companies and allowing KHD to focus on the mineral royalty
business, KHD intends to enter into the Shareholders Agreement whereby it appoints the Custodian to
direct the voting of the KID Shares that will be held by KHD after completion of the distribution
of the KID Shares. It is anticipated that, subject to satisfying all of the necessary requirements
and taking all other necessary steps to no longer control KID from an accounting perspective, the
entering into of the Shareholders Agreement may assist KHD in achieving its goal of transferring
control of KID and deconsolidating the assets and liabilities of KID from those of KHD prior to the
time that it would be efficient, from a tax perspective, for KHD to distribute the remainder of the
KID Shares owned by KHD at such time to the Shareholders. A number of factors could, however,
impair KHDs ability to effectively no longer control KID from an accounting perspective and
deconsolidate its assets and liabilities, including the following:
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the existence of any common directors or officers among KHD and KID;
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the existence of any cross-guarantees between KHD and KID;
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if the Custodian is an affiliate or related party of KID and/or KHD;
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if the Custodian, through the direction of the voting of the KID Shares, fails to act in
accordance with the terms of the Shareholders Agreement; and
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if KHD is required to continue to guarantee the obligations of KIA and KID under the
Facility subsequent to the completion of the Arrangement.
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If KHD deconsolidates KIDs financial position and then is required to re-consolidate KIDs
financial results, this could result in inconsistency in the reporting of financial results for
KHD, or the lack of comparability over several financial periods, any of which could have material
adverse consequences on the market price of the shares of KHD.
Risk Factors Relating to the Arrangement
The Arrangement is complicated and involves a substantial number of steps and transactions,
including obtaining various court, regulatory and stock exchange approvals and the approval of
Shareholders for the Amendment Resolution. In addition, future financial conditions, superior
alternatives or other factors may arise that make it inadvisable to proceed with part or all of the
Arrangement. Any or all of the elements of the Arrangement may not occur as currently expected or
within the time frames that are currently contemplated, or at all.
KHD continues to seek and obtain certain necessary consents and approvals in order to implement the
Arrangement and related transactions as currently structured. KHD believes that it will obtain
such consents and approvals prior to the Effective Date. However, if certain approvals and
consents are not received prior to the Effective Date, or if such approvals and consents are on
terms other than expected by KHD, KHD may decide to proceed nonetheless, or it may either delay or
amend the implementation of all or part of the Arrangement, including possibly delaying the
completion of the Arrangement in order to allow sufficient time to complete such matters.
Alternatively, KHD may decide to abandon the Arrangement.
If, for any reason, the Arrangement is not completed or its completion is materially delayed and/or
the Arrangement Agreement is terminated, the market price of the KHD Shares may be materially
adversely affected. KHDs business, financial condition or results of operations could also be
subject to various material adverse consequences, including that KHD would remain liable for
significant costs relating to the Arrangement including, among others, legal, accounting and
printing expenses. See The Arrangement Reasons for the Arrangement.
The trading price of New KHD Shares may be lower following the Arrangement than the trading price
of KHD Shares prior thereto, reflecting the distribution of the KID Shares, and such price may
fluctuate significantly for a period of time following the Arrangement. The combined trading
prices of New KHD Shares and KID Shares
received pursuant to the Arrangement may be less than, equal to or greater than the trading price
of KHD Shares prior to the Arrangement.
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KHD and KID may not realize the benefits that KHD anticipates from the Arrangement for a number of
reasons, including, but not limited to, if any of the matters identified as risks in this Risk
Factors section and elsewhere in this Information Circular were to occur. If KHD and KID do not
realize the anticipated benefits from the Arrangement for any reason, their respective businesses
may be materially adversely affected.
In evaluating whether to vote in favour of the Arrangement, Shareholders should carefully consider
the following risks and uncertainties in addition to other information in this Information Circular
which apply to KHD and will apply to KHD and KID, as appropriate, after the completion of the
Arrangement. KHDs or KID business, operating and financial condition could be harmed due to any
of the following risks. Additional risks not presently known to KHD or KID may also impair
business operations.
KHD has not applied for, nor obtained, an advance income tax ruling from the Canada Revenue Agency
in relation to the Arrangement. The Arrangement has been structured in a manner which is designed
to minimize the tax consequences to both KHD and the Shareholders. These consequences depend in
large part on the value of the KID Shares that are to be distributed by KHD pursuant to the
Arrangement. KHD has obtained and is relying on a valuation of the KID Shares that was prepared by
a qualified independent valuator. Relying on such valuation, KHD has determined that the fair
market value of the KID Shares to be distributed under the Arrangement is approximately CDN$44.01
million. No assurance can be given that the Canada Revenue Agency will accept the value ascribed
by KHD to the KID Shares that are distributed. If it is subsequently determined that the fair
market value of the KID Shares distributed by KHD exceeds the value ascribed to them by KHD,
adverse tax consequences could arise for KHD and its Shareholders.
Risk Factors Relating to KHD and KID Post-Arrangement
Whether or not the Arrangement is completed, KHD and KID will continue to face many of the risks
that they currently face with respect to their business and affairs. Certain of these risk factors
have been disclosed in KHDs annual report on Form 20-F and MD&A for the year ended December 31,
2008 under the heading Risk Factors, as updated in KHDs interim MD&A for the nine-month period
ended September 30, 2009 under the heading Risk Factors. The above referenced documents have
been filed on SEDAR at www.sedar.com and on EDGAR at www.sec.gov and, upon request to KHDs
Secretary, a Shareholder will be provided with a copy of these documents free of charge.
In addition, as discussed above, on November 30, 2006, as amended June 10, 2008, October 27, 2008
and November 16, 2009, KIA, as the borrower, KHD, as the guarantor, and RZB entered into the
Facility. The Facility is critical to KHDs industrial plant technology, equipment and service
business and, upon completion of the Arrangement, will be critical to KIDs ongoing business. In
order to be able to pursue its industrial plant technology, equipment and service business, KID
will depend on the availability of adequate means of bonding (i.e. providing advance payment,
performance or warranty bonds to customers). KID will require access to the Facility to provide
advance and performance or warranty bonds in relation to any equipment to be supplied by KID to its
customers under irrevocable letters of credit provided by customers as payment security for the
project. As a result, given that upon completion of the Arrangement both KIA and KHD will cease
to be part of the same group with KHD as the parent company, KIA, KHD and KID are in the process of
negotiating the transfer to KID of the Facility prior to the expiration of its current term. RZB
has advised that KHD and KID are required to obtain the consent of RZB to the distribution of the
KID Shares prior to such distribution and prior to the transfer of the bonding line to KID.
Assuming that the consent of RZB to the distribution of the KID Shares is obtained, upon completion
of the Arrangement KHD will continue to guarantee the obligations of KIA and, following the
proposed transfer, KID, under the Facility until November 2010 and potentially beyond. As of the
date of this Information Circular, the consent of RZB has not been obtained, however RZB has
advised that it will notify KHD and KID as to whether it approves of the distribution of the KID
Shares by March 20, 2010. If KHD and KID fail to secure RZBs agreement to continue making the
bonding facility available to KIA and, following the proposed transfer, KID, subsequent to
completion of the Arrangement, or unless an alternative agreement is able to be entered into with
another lender, the operations of KID and its subsidiaries, and KIDs ability to carry out same,
will be materially adversely affected. In addition, should KHD be required to continue to
guarantee the obligations of KIA and KID
under the Facility subsequent to the completion of the Arrangement then KHDs interest in KID may
be deemed under the applicable accounting standards as a controlling interest in a variable
interest entity requiring KHD to consolidate its interest in KID, see Risk Factors Relating to the
Deconsolidation, below.
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Shareholders should understand that if the Arrangement Resolution is approved at the Meeting,
Non-Subsidiary Shareholders will receive New KHD Shares and KID Shares. Accordingly, a
Non-Subsidiary Shareholder will become a shareholder of KID and will remain a Shareholder of KHD
and will be subject to all of the risks associated with the operations of KHD and KID and the
industries in which such corporations operate. Those risks include the factors affecting
forward-looking statements described in this Information Circular. For a full description of the
risk factors relating to the business of KHD and KID following completion of the Arrangement, see
Schedule D Information Concerning KHD Pre- and Post-Arrangement and Schedule F Information
Concerning KID Post-Arrangement.
FINANCIAL STATEMENTS
The following financial statements are incorporated by reference into this Information Circular:
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KHD audited consolidated annual financial statements as at December 31, 2008 and 2007
and for the years ended December 31, 2008, 2007 and 2006, as filed on SEDAR at
www.sedar.com on March 27, 2009; and
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KHD unaudited consolidated interim financial statements for the nine months ended
September 30, 2009 and 2008, as filed on SEDAR at www.sedar.com on November 16, 2009.
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The following financial statements are included in this Information Circular:
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KHD unaudited pro forma financial statements reflecting the disposition of the
industrial plant technology, equipment and service business comprising a balance sheet as
at September 30, 2009 and a statement of income for the nine months ended September 30,
2009 and year ended December 31, 2008, located at Schedule E to this Information Circular;
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audited combined annual financial statements of the KHD Industrial Plant Technology,
Equipment and Service Business as at December 31, 2008 and 2007 and for the three years
ended December 31, 2008, located at Schedule G to this Information Circular; and
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unaudited combined interim financial statements of the KHD Industrial Plant Technology,
Equipment and Service Business as at and for the nine months ended September 30, 2009 and
2008, located at Schedule H to this Information Circular.
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INFORMATION CONCERNING KHD PRE- AND POST-ARRANGEMENT
For information concerning KHD prior to and following the completion of the Arrangement, see
Schedule D Information Concerning KHD Pre- and Post-Arrangement.
INFORMATION CONCERNING KID POST-ARRANGEMENT
For information concerning KID following completion of the Arrangement, see Schedule F
Information Concerning KID Post-Arrangement.
INTERESTS OF EXPERTS
Except as otherwise disclosed herein, none of the experts hired by KHD have any material interest,
direct or indirect, by way of beneficial ownership in KHD.
REGISTRAR AND TRANSFER AGENT
The registrar and transfer agent for KHD is Mellon Investor Services LLC at 480 Washington
Boulevard, Jersey City, New Jersey 07310, USA, telephone 201-680-6578, toll-free 800-851-9677 and
website address www.melloninvestor.com/isd.
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Computershare will serve as KHDs agent for the distribution of the KID Shares upon the
effectiveness of the Arrangement. Computershares office is located at 199 Water Street, New
York, New York USA 10038.
PARTICULARS OF MATTERS TO BE ACTED UPON
At the Meeting, Shareholders are being asked to approve the Arrangement which is described in more
detail under the Sections titled Special Business of the Meeting and The Arrangement.
OTHER BUSINESS
Management of KHD knows of no other matters to come before the Meeting other than as referred to in
the Notice of Meeting and this Information Circular. However, if any other matters which are not
known to the management of KHD, shall properly come before the Meeting, the Form of Proxy given
pursuant to the solicitation by management of KHD will be voted on such matters in accordance with
the best judgment of the persons voting the Form of Proxy.
ADDITIONAL INFORMATION
KHD files annual and other reports, proxy statements and other information with certain Canadian
securities regulatory authorities and with the SEC in the United States. The documents filed with
the SEC are available to the public from the SECs website at http://www.sec.gov. The documents
filed with the Canadian securities regulatory authorities are available at http://www.sedar.com.
Shareholders of KHD may contact KHD by writing to KHDs Secretary to request copies of KHDs
financial statements and MD&A free of charge. Financial Information is provided in KHDs
comparative financial statements and MD&A for the financial year ended December 31, 2008 and the
three and nine month period ended September 30, 2009.
APPROVAL BY THE BOARD
The contents and mailing to Shareholders of this Information Circular have been approved by the
Board.
No person is authorized to give any information or to make any representations in respect of the
matters addressed herein other than those contained in this Information Circular and, if given or
made, such information must not be relied upon as having been authorized.
The foregoing contains no untrue statement of a material fact and does not omit to state a material
fact that is required to be stated or that is necessary to make a statement not misleading in the
light of the circumstances in which it was made.
DATED at Vancouver, British Columbia, Canada, effective the 1st day of March, 2010.
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BY ORDER OF THE BOARD
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Michael J. Smith
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Michael J. Smith
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Chairman of the Board
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Jouni Salo
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Jouni Salo
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President and Chief Executive Officer
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SCHEDULE A
AMENDMENT RESOLUTION
BE IT RESOLVED AS A SPECIAL RESOLUTION THAT:
1.
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The articles (the
Articles
) of KHD Humboldt Wedag International Ltd. (
KHD
) be hereby
altered by inserting the following text into Part 24 of the Articles:
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ARTICLE 24 SECTION 137 OF
BUSINESS CORPORATIONS ACT
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For the purposes of this Article 24, the following words shall have the following meanings:
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KID
means KHD Humboldt Wedag International (Deutschland) AG;
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KID Shares
means that number of no par value bearer shares of KID held by the Company from
time to time; and
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Shareholders Agreement
means the shareholders agreement to be entered into by the Company
in connection with the ownership of the KID Shares.
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24.2
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Voting Rights of the KID Shares
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In accordance with section 137(1.1) of the
Business Corporations Act
and subject to the
terms and conditions of the Shareholders Agreement, the directors by this Article 24.2 are
granted the power to transfer the power to direct the voting of the KID Shares at any
meeting of the shareholders of KID in which the Company is entitled to vote, or written
consent in lieu of such meeting, to that party named in the Shareholders Agreement, or such
other party as may be determined by the board from time to time and named in the
Shareholders Agreement.; and
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2.
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Any one officer or director of KHD is hereby authorized and directed for and on behalf of
KHD, under its corporate seal, if required, to execute or cause to be executed and to deliver
or cause to be delivered, all such other documents, agreements and instruments and to perform
or cause to be performed all such other acts and things as he or she may determine to be
necessary or desirable to implement these resolutions and the matters authorized hereby,
including the transactions contemplated or required by the Plan of Arrangement, such
determination to be conclusively evidenced by the execution and delivery of such document,
agreement or instrument or the doing of any such act or thing.
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63
SCHEDULE B
ARRANGEMENT RESOLUTION
BE IT RESOLVED AS A SPECIAL RESOLUTION THAT:
1.
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Subject to the approval of an amendment to the articles (the
Articles
) of KHD Humboldt
Wedag International Ltd. (
KHD
), which adds Part 24 to such Articles, the arrangement (the
Arrangement
) under Section 288 of the
British Columbia Business Corporations Act
(the
BCBCA
), pursuant to an arrangement agreement (the
Arrangement Agreement
) between KHD and
KHD Humboldt Wedag International (Deutschland) AG (
KID
), involving, among others, KHD, KID
and the holders of common shares of KHD (the
Shareholders
), pursuant to which:
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(a)
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KHD will alter its authorized capital by amending its notice of articles (the
Notice of Articles
) and the Articles to create Class A common shares (the
Class A
Shares
) and Class B common shares (the
New KHD Shares
) and an unlimited number of
Class A, Series 2 preferred shares, each having special rights and restrictions (the
Preferred Shares
), the full text of each of which are reproduced as Schedules J, K
and L, respectively, to the management information circular (the
Information
Circular
) of KHD dated March 1, 2010;
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(b)
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New Image Investment Company Limited (
New Image
) and Inverness Enterprises
Ltd. (
Inverness
) will exchange their respective common shares in the capital of KHD
(each, a
KHD Share
) for the Preferred Shares;
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(c)
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KHD will add to the stated capital of the KHD Shares outstanding after the
exchange by New Image and Inverness an amount equal to the aggregate stated capital of
the KHD Shares exchanged by New Image and Inverness and no amount will be added to the
stated capital of the Preferred Shares;
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(d)
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0873013 B.C. Ltd. (
Newco
) and KHD Holding AG (
KHD AG
and collectively with
New Image, Inverness and Newco, the
KHD Subsidiaries
) will exchange their respective
KHD Shares for Class A Shares on a one for one basis;
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(e)
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KHD will add to the stated capital of the KHD Shares outstanding after the
exchange by Newco and KHD AG an amount equal to the aggregate stated capital of the KHD
Shares exchanged by Newco and KHD AG and no amount will be added to the stated capital
of the Class A Shares;
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(f)
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Shareholders who do not exercise their rights of dissent in connection with the
Arrangement, other than the KHD Subsidiaries, will exchange each KHD Share for: (a) one
(1) New KHD Share; and (b) 0.143 shares of KID (each, a
KID Share
) (or one (1) KID
Share for every seven (7) KHD Shares (calculated prior to a proposed 2-for-1 forward
split of the KID Shares being effected)), provided that no fractional KID Shares will
be distributed to such Shareholders and the number of KID Shares to which each such
Shareholder is entitled will be rounded down to the next whole number and no payment
will be made in respect of such a fractional KID Share;
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(g)
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KHD will add to the stated capital of the New KHD Shares an amount equal to the
stated capital of the KHD Shares held by the Shareholders described in (f), less the
fair market value of the KID Shares distributed to such Shareholders;
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(h)
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each issued and outstanding KHD Share held by Shareholders who validly dissent
in strict compliance with the procedures set forth in Section 238 of the BCBCA (the
Dissent Procedures
) will be acquired by KHD for an amount to be determined in
accordance with the Dissent Procedures;
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(i)
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the KHD Shares will be eliminated from the authorized capital of KHD and the
New KHD Shares will be altered by changing their identifying name to Common Shares;
and
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(j)
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the New KHD Shares will be listed for trading on the NYSE,
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all as more particularly described and set out in the Information Circular, as the same may
be, or may have been, amended, modified or supplemented in accordance with the terms of the
Arrangement Agreement, is hereby authorized, approved and adopted;
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2.
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The plan of arrangement (the
Plan of Arrangement
), involving, among others, KHD, KID and
the Shareholders, the full text of which is set out as Appendix I to the Arrangement
Agreement, as the same may be, or may have been, amended, modified or supplemented in
accordance with the Arrangement Agreement and the Plan of Arrangement, is hereby authorized,
approved and adopted;
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3.
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The (i) Arrangement Agreement (the full text of which is included as Schedule C to the
Information Circular) and related transactions, (ii) actions of the board directors of KHD
(the
Board
) in approving the Arrangement and the Arrangement Agreement, and (iii) actions of
the directors and officers of KHD in executing and delivering the Arrangement Agreement, and
any amendments, modifications or supplements thereto, and causing the performance by KHD of
its obligations thereunder, are hereby confirmed, ratified, authorized and approved;
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4.
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KHD be and is hereby authorized to apply for a final order from the Supreme Court of British
Columbia (the
Court
) to approve the Arrangement on the terms set forth in the Arrangement
Agreement and the Plan of Arrangement, as they may be amended, modified or supplemented in
accordance with the Arrangement Agreement and the Plan of Arrangement;
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5.
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Notwithstanding the approval of this special resolution by the Shareholders or that the
Arrangement has been approved by the Court, the Board is hereby authorized and empowered
without further notice to, or approval of, the Shareholders (but subject to the terms of the
Arrangement Agreement and any order of the Court) to (i) amend, modify or supplement the
Arrangement Agreement and the Plan of Arrangement in accordance with their terms and (ii) not
proceed with the Arrangement and related transactions at any time prior to filing articles of
arrangement and any other documents necessary to effect the Arrangement with the Registrar
under the BCBCA;
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6.
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Any one officer or director of KHD is hereby authorized and directed for and on behalf of
KHD, and under its corporate seal if required, to execute and to deliver for filing with the
Registrar under the BCBCA in accordance with the Arrangement Agreement, articles of
arrangement and such other documents as are necessary to give effect to the Arrangement, such
determination to be conclusively evidenced by his or her execution and delivery of such
articles of arrangement and any such other documents; and
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7.
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Any one officer or director of KHD is hereby authorized and directed for and on behalf of
KHD, under its corporate seal, if required, to execute or cause to be executed and to deliver
or cause to be delivered, all such other documents, agreements and instruments and to perform
or cause to be performed all such other acts and things as he or she may determine to be
necessary or desirable to implement these resolutions and the matters authorized hereby,
including the transactions contemplated or required by the Plan of Arrangement, such
determination to be conclusively evidenced by the execution and delivery of such document,
agreement or instrument or the doing of any such act or thing.
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65
SCHEDULE C
ARRANGEMENT AGREEMENT
BETWEEN
KHD HUMBOLDT WEDAG INTERNATIONAL LTD.
AND
KHD HUMBOLDT WEDAG INTERNATIONAL (DEUTSCHLAND) AG
66
ARRANGEMENT AGREEMENT
THIS
AGREEMENT made as of the 26 day of February, 2010.
BETWEEN:
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KHD HUMBOLDT WEDAG INTERNATIONAL LTD.
, a corporation existing under
the British Columbia
Business Corporations Act
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(
KHD
)
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AND:
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KHD HUMBOLDT WEDAG INTERNATIONAL (DEUTSCHLAND) AG
, a corporation
organized and registered under the rules and regulations of Germany
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(
KID
)
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WHEREAS:
A. KHD and KID have agreed to proceed with a proposed transaction by way of Plan of Arrangement (as
hereinafter defined) whereby, among other things, KHD will reorganize its share capital and
distribute a certain number of KID Shares (as hereinafter defined) held by KHD to KHDs
shareholders; and
B. KHD proposes to have the shareholders of KHD consider the Arrangement on the terms set forth in
the Plan of Arrangement;
NOW THEREFORE THIS AGREEMENT WITNESSES
that, in consideration of the premises and the respective
covenants and agreements herein contained, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged by each of the parties hereto, the parties
hereto hereby covenant and agree as follows:
ARTICLE 1
DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this Agreement, including the recitals and the schedules hereto, unless there is something in
the subject matter or context inconsistent therewith, the following capitalized words and terms
shall have the following meanings:
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(a)
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Agreement
means this arrangement agreement, including the
appendices attached hereto, as supplemented or amended from time to time;
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(b)
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Arrangement
means the arrangement pursuant to the provisions of Section 288
of the BCBCA to be undertaken on the terms set forth in the Plan of Arrangement,
subject to any amendment or supplement thereto made in accordance with this Agreement,
the Plan of Arrangement or at the direction of the Court;
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(c)
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Arrangement Resolution
means the special resolution approving the Arrangement
and the transactions contemplated thereunder, to be approved at the Meeting by the
Shareholders;
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(d)
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BCBCA
means the British Columbia
Business Corporations Act
, S.B.C. 2002, c.
57, and the regulations made under that enactment, as amended;
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(e)
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Business Day
means any day other than a Saturday, Sunday, a federal holiday
in Canada or a day on which banks are not open for business in Vancouver, British
Columbia;
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(f)
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Charter Documents
means the notice of articles, the articles, the by-laws or
other constating documents of a corporation;
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(g)
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Circular
means the management information circular of KHD to be prepared and
sent to the Shareholders in connection with the Meeting;
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(h)
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Court
means the Supreme Court of British Columbia;
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(i)
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EDGAR
means Electronic Data Gathering, Analysis, and Retrieval system,
established by the U.S. Securities and Exchange Commission;
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(j)
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Effective Date
means the date on which the Final Order together with this
Plan of Arrangement, and such other documents as are required to be filed under the
BCBCA to give effect to the Arrangement, have been accepted for filing by the Registrar
under the BCBCA giving effect to the Arrangement or such later date as determined by
the board of directors of KHD or as specified by the Court;
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(k)
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Final Order
means the final order of the Court approving the Arrangement
pursuant to the BCBCA;
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(l)
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GAAP
means generally accepted accounting principles in effect in Canada,
including the accounting recommendations published in the Handbook of the Canadian
Institute of Chartered Accountants;
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(m)
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Interim Order
means the interim order of the Court made pursuant to the
application therefor contemplated by Sections 2.1(a) and 4.3 hereof, as amended;
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(n)
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KHD
means KHD Humboldt Wedag International Ltd., a corporation existing under
the BCBCA;
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(o)
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KHD Common Shares
means all of the common shares of KHD;
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(p)
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KHD Disclosure Documents
means all documents filed by KHD on SEDAR and EDGAR
from January 1, 2009 up to the date of this Agreement;
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(q)
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KID
means KHD Humboldt Wedag International (Deutschland) AG, a corporation
organized and registered under the rules and regulations of Germany;
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(r)
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KID Shares
means those shares of KID held directly or indirectly by KHD;
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(s)
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Material Adverse Change
or
Material Adverse Effect
means, when used in
connection with KID or KHD, any change (including a decision to implement a change made
by the directors or senior management of KID or KHD or any of KHDs subsidiaries),
effect, event, occurrence or change in state of facts that is, or would reasonably be
expected to be, material and adverse to the business, operations, financial condition
or results, assets, rights, liabilities or prospects of KID or KHD and their respective
subsidiaries taken as a whole, on a consolidated basis, other than any change, effect,
event, occurrence or change in state of facts arising from the Arrangement and all
transactions related to the Arrangement or contemplated by the Arrangement Agreement or
relating to: (1) the economies of British Columbia, Canada or the United States or
securities markets in general; or (2) GAAP;
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68
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(t)
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Meeting
means the special meeting of the Shareholders to be held to consider,
among other matters, the Arrangement, and any adjournment or postponement thereof;
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(u)
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Notice of Dissent
means a notice given in respect of the dissent rights of
the Shareholders as contemplated in the Interim Order and as described in the Plan;
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(v)
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NYSE
means the New York Sock Exchange;
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(w)
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Party
means either of KHD and KID;
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(x)
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Parties
means KHD and KID;
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(y)
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Person
means and includes an individual, sole proprietorship, partnership,
unincorporated association, unincorporated syndicate, unincorporated organization,
trust, body corporate, trustee, executor, administrator or other legal representative
and the Crown or any agency or instrumentality thereof;
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(z)
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Plan of Arrangement
means the plan of arrangement attached as Appendix I
hereto as amended, modified or supplemented from time to time in accordance with the
provisions of this Agreement, the Plan of Arrangement or at the direction of the Court;
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(aa)
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Registrar
means the Registrar of Companies appointed pursuant to Section 400
of the BCBCA;
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(bb)
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SEC
means the United States Securities and Exchange Commission;
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(cc)
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SEDAR
means the System for Electronic Document Analysis and Retrieval,
established by the Canadian Securities Administrators;
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(dd)
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Shareholders
means the holders of KHD Common Shares at the applicable time;
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(ee)
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Special Resolution
means a resolution passed by a majority of not less than
two-thirds of the votes cast by the Shareholders in respect of such resolution at the
Meeting;
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(ff)
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Subsidiary
means, with respect to a specified body corporate, a body
corporate of which more than 50% of the outstanding shares ordinarily entitled to elect
a majority of directors thereof, whether or not shares of any other class or classes
shall or might be entitled to vote upon the happening of any event or contingency, are
at the time owned, directly or indirectly, by such specified body corporate, and
includes a body corporate in like relation to a subsidiary; and
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(gg)
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Termination Date
means May 31, 2010.
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1.2 HEADINGS
The division of this Agreement into articles, sections, paragraphs and other portions and the
insertion of headings are for convenience of reference only and shall not affect the construction
or interpretation of this Agreement. The terms this Agreement, hereof, hereunder and similar
expressions refer to this Agreement (including the appendices hereto) as a whole and not to any
particular article, section, paragraph or other portion hereof and include any agreement, document
or instrument supplementary or ancillary hereto. Unless something in the subject matter or context
is inconsistent therewith, all references herein to articles, sections, paragraphs and other
portions are to articles, sections, paragraphs and other portions of this Agreement.
1.3 CONSTRUCTION
In this Agreement, unless something in the context is inconsistent therewith:
69
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(a)
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the words include or including when following any general term or statement
are not to be construed as limiting the general term or statement to the specific items
or matters set forth or to similar items or matters, but rather as permitting it to
refer to all other items or matters that could reasonably fall within its broadest
possible scope;
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(b)
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a reference to time or date is to the time or date in Vancouver, British
Columbia, unless specifically indicated otherwise;
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(c)
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a word importing the masculine gender includes the feminine gender or neuter
and a word importing the singular includes the plural and vice versa; and
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(d)
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a reference to approval, authorization, consent, designation or
notice means written approval, authorization, consent, designation or notice unless
specifically indicated otherwise.
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1.4 DATE FOR ANY ACTION
In the event that any date on which any action is required to be taken hereunder by either of the
Parties is not a Business Day in the place where the action is required to be taken, such action
shall be required to be taken on the next succeeding day which is a Business Day at such place,
unless otherwise agreed to by the Parties.
1.5 CURRENCY
All amounts of money which are referred to in this Agreement are expressed in lawful money of
Canada unless otherwise specified.
1.6 ACCOUNTING PRINCIPLES
Whenever in this Agreement reference is made to generally accepted accounting principles, such
reference shall be deemed to be to the GAAP applicable as at the date on which a calculation is
made or required to be made.
1.7 APPENDIX
The attached Appendix I, titled Plan of Arrangement, shall be deemed to be incorporated into, and
form part of, this Agreement.
1.8 ENTIRE AGREEMENT
This Agreement, together with the appendices, agreements and other documents herein or therein
referred to, constitute the entire agreement between the Parties pertaining to the subject manner
hereof and supersedes all prior agreements, understandings, negotiations and discussions, whether
oral or written, between the Parties with respect to the subject matter hereof.
ARTICLE 2
THE ARRANGEMENT
2.1 ARRANGEMENT
Subject to the terms and conditions of this Agreement:
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(a)
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prior to the mailing of the Circular, KHD shall have:
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(i)
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prepared jointly with KID an application to the Court pursuant
to Section 291 of the BCBCA for an Interim Order on terms acceptable to KHD
providing for, among other things, the calling and holding of the Meeting; and
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(ii)
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applied to the Court pursuant to Section 291 of the BCBCA for
the Interim Order;
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(b)
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KHD shall call and hold the Meeting as soon as practicable after obtaining the
Interim Order;
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(c)
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in connection with the Meeting, KHD shall:
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(i)
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in consultation with KID, prepare the Circular and such other
documents as may be necessary or desirable to permit the Shareholders to vote
on whether to approve the Arrangement Resolution;
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(ii)
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jointly prepare with KID such other documents as may be
necessary or desirable to give effect to the Arrangement; and
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(iii)
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cause the Circular and such other documents as may be
necessary or desirable to give effect to the Arrangement to be sent to each of
the Shareholders as soon as reasonably practicable following receipt of the
Interim Order and filed as required by the Interim Order and applicable law;
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(d)
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if the Arrangement Resolution is approved at the Meeting as set out in the
Interim Order (or any variation thereof), as soon as reasonably practicable thereafter,
KHD shall take the necessary steps to submit the Arrangement to the Court and apply for
the Final Order in such manner as the Court may direct and KHD and KID may agree; and
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(e)
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if the Final Order is obtained, as soon as reasonably practicable thereafter
and subject to the fulfilment or the waiver of each of the conditions set out herein,
and completion of all steps required by the Plan of Arrangement to be completed prior
to the Effective Date, KHD shall file a certified copy of the Final Order with the Plan
of Arrangement, and such other documents as are required to be filed under the BCBCA,
with the Registrar to give effect to the Arrangement pursuant to Section 292 of the
BCBCA.
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As part of its application for the Interim Order and the Final Order, KHD shall, prior to the
hearing in relation to the Final Order, advise the Court that KHD intends to rely on the exemption
from the registration requirements of the United States
Securities Act of 1933
provided by Section
3(a)(10) of that enactment based on the Courts approval of the fairness of the Arrangement.
2.2 CIRCULAR
Each of the Parties shall, in a timely and expeditious manner, furnish to KHD all such information
regarding itself as may be reasonably required to be included in the Circular. Each Party shall
ensure that the information relating to it contained in the Circular does not contain any material
misrepresentation.
2.3 PUBLIC ANNOUNCEMENT
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(a)
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Each Party shall consult with the other Party before issuing any news releases
or otherwise making public statements with respect to this Agreement or the Arrangement
and before making any filing with any governmental or regulatory agency or with any
stock exchange relating to this Agreement or the Arrangement.
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(b)
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Before releasing a news release, making any other public statement, making a
public filing or making a filing with any governmental entity, stock exchange or
securities quotation system with respect to this Agreement or the Arrangement, each
Party shall use all reasonable commercial efforts to allow the other Party to review
and comment on, and shall adopt the other Partys reasonable comments on, the news
release, other public statement or filing.
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71
2.4 EFFECTIVE DATE OF ARRANGEMENT
Subject to the terms and conditions of this Agreement and the Plan of Arrangement, the Arrangement
shall become effective on the Effective Date.
2.5 FILING UNDER THE BCBCA
Subject to the rights of termination contained in Article 6 hereof, upon the Shareholders approving
the Arrangement by Special Resolution in accordance with the provisions of the Interim Order and
the BCBCA, KHD obtaining the Final Order and the other conditions contained in Article 5 hereof
being complied with or waived, KHD and KID shall file the Final Order with the Registrar in
accordance with Section 292 of the BCBCA together with such other documents as may be required in
order to effect the Arrangement. On, or as soon as practical after, the Effective Date, KHD and KID
shall exchange (to the extent not previously exchanged) such other documents as may be necessary or
desirable in connection with the completion of the transactions contemplated by the Plan of
Arrangement and this Agreement.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
3.1 REPRESENTATIONS AND WARRANTIES OF KID
KID hereby represents and warrants to and in favour of KHD that:
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(a)
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KID was duly organized and registered and is a valid and subsisting corporation
under the rules and regulations of Germany. KID has all requisite corporate power and
authority to carry on its business as now being carried on by it and to own or lease
and operate its properties and assets and is duly licensed or otherwise qualified to
carry on business in each jurisdiction in which a material amount of its business is
conducted or wherein the character of the properties and assets now owned by it makes
such qualification necessary, except where such failure to be duly licensed or
otherwise qualified would not have a Material Adverse Effect;
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(b)
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KID has the requisite corporate power and authority to enter into this
Agreement and to perform its obligations hereunder. The execution, delivery and
performance of this Agreement and the agreements, documents and transactions
contemplated herein are within the corporate power and authority of KID and have been
duly authorized by all necessary corporate action by KID and this Agreement constitutes
a valid and binding obligation of KID, enforceable in accordance with its terms,
subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization or
similar laws affecting the rights of creditors generally and subject to the general
principles of equity;
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(c)
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there are no actions, suits, proceedings, investigations or outstanding claims
or demands, whether or not purportedly on behalf of KID, instituted, pending, or to the
knowledge of KID, threatened against or affecting KID at law or in equity or before or
by any governmental department, commission, board, bureau, agency or institution,
domestic or foreign, or before any arbitrator, nor is there any judgment, order, decree
or award of any court or other governmental authority having jurisdiction, obtained,
pending, or to the knowledge of KID, threatened against KID, which could prevent or
materially hinder the consummation of the Arrangement or the other transactions
contemplated by this Agreement or which could result in a Material Adverse Change in
respect of KID;
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(d)
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the KID Shares to be distributed pursuant to the terms of the Plan of
Arrangement shall be duly and validly issued and constitute fully paid and
non-assessable shares of KID; and
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(e)
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the execution and delivery of this Agreement, the consummation of the
transactions contemplated hereby and the fulfilment of or compliance with the terms and
provisions hereof do not or will not, nor will they with the giving of notice or the
lapse of time or both:
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(i)
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violate any provision of any law or provisions of the Charter
Documents of KID;
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(ii)
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conflict with, result in a breach of, constitute default under,
or accelerate or permit the acceleration of the performance required by any
material agreement, covenant, undertaking, commitment, instrument, judgment,
order, decree or award to which KID is a party or by which KID is bound or to
which the property of KID is subject, all as of the Effective Date; or
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(iii)
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result in the cancellation, suspension or material alteration
in the terms of any material licence, permit or authority held by KID or in the
creation of any lien, charge, security interest or encumbrance upon any of the
material assets of KID under such material agreement, covenant, undertaking,
commitment, instrument, judgment, order, decree or award or give to any other
person any material interest or rights, including rights of purchase,
termination, cancellation or acceleration under any such material agreement,
covenant, undertaking, commitment, instrument, judgment, order, decree or
award.
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3.2 REPRESENTATIONS AND WARRANTIES OF KHD
KHD hereby represents and warrants to and in favour of KID that:
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(a)
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KHD was duly continued and is a valid and subsisting corporation under the
BCBCA. KHD has all the requisite corporate power and authority to carry on its
business as now being carried on by it and to own or lease and operate its properties
and assets and is duly licensed or otherwise qualified to carry on business in each
jurisdiction in which a material amount of its business is conducted or wherein the
character of the properties and assets now owned by it makes such qualification
necessary, except where such failure to be duly licensed or otherwise qualified would
not have a Material Adverse Effect;
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(b)
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KHD has the requisite corporate power and authority to enter into this
Agreement and perform its obligations hereunder. The execution, delivery and
performance of this Agreement and the agreements, documents and transactions
contemplated herein are within the corporate power and authority of KHD and have been
duly authorized by all necessary corporate action, and this Agreement constitutes a
valid and binding obligation of KHD, enforceable in accordance with its terms, subject
to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization or similar
laws affecting the rights of creditors generally and subject to the general principles
of equity;
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(c)
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except as otherwise disclosed in the KHD Disclosure Documents or to KID, there
are no actions, suits, proceedings, investigations or outstanding claims or demands,
whether or not purportedly on behalf of KHD or its subsidiaries, instituted, pending,
or to the knowledge of KHD, threatened against or affecting KHD or its subsidiaries at
law or in equity or before or by any governmental department, commission, board,
bureau, agency or institution, domestic or foreign, or before any arbitrator, nor is
there any judgment, order, decree or award of any court or other governmental authority
having jurisdiction, obtained, pending, or to the knowledge of KHD, threatened against
KHD or its subsidiaries which could prevent or materially hinder the consummation of
the Arrangement or the other transactions contemplated by this Agreement or which could
result in a Material Adverse Change in respect of KHD; and
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(d)
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the execution and delivery of this Arrangement Agreement, the consummation of
the transactions contemplated hereby and the fulfilment of or compliance with the terms
and provisions hereof do not or will not, nor will they with the giving of notice or
the lapse of time or both:
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(i)
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violate any provision of any law or provisions of the Charter
Documents of KHD;
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(ii)
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conflict with, result in a breach of, constitute default under,
or accelerate or permit the acceleration of the performance required by any
material agreement, covenant, undertaking, commitment, instrument, judgment,
order, decree or award to which KHD or any subsidiaries of KHD is a party or by
which any of them is bound or to which the property of any of them is subject,
all as of the Effective Date; or
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(iii)
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result in the cancellation, suspension or material alteration
in the terms of any material licence, permit or authority held by KHD or any
subsidiaries of KHD or in the creation of any lien, charge, security interest
or encumbrance upon any of the material assets of KHD or any subsidiaries of
KHD under such material agreement, covenant, undertaking, commitment,
instrument, judgment, order, decree or award or give to any other person any
material interest or rights, including rights of purchase, termination,
cancellation or acceleration under any such material agreement, covenant,
undertaking, commitment, instrument, judgment, order, decree or award.
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ARTICLE 4
COVENANTS
4.1 COVENANTS OF KHD
KHD hereby covenants and agrees with KID as follows:
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(a)
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other than as disclosed to KID, KHD will not merge into or with or amalgamate
or consolidate with or enter into any other corporate reorganization with any other
person or perform any act or enter into any transaction or negotiation which interferes
or is inconsistent with the completion of the transactions contemplated hereby or would
render inaccurate in any material way any of the representations and warranties set
forth in Section 3.2 hereof if such representations and warranties were made at a date
subsequent to such act, negotiation or transaction and all references to the date of
this Agreement were deemed to be such later date, except as contemplated in this
Agreement or as otherwise approved by KID;
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(b)
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subject to obtaining the Interim Order, KHD will convene the Meeting for the
approval of the Arrangement and other matters incidental to the Arrangement;
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(c)
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KHD will perform all such other acts and do such things as may be necessary or
desirable in order to give effect to the Arrangement and, without limiting the
generality of the foregoing, KHD will use its best efforts to apply for and obtain:
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(i)
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the Interim Order;
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(ii)
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the Final Order; and
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(iii)
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such other consents, orders and approvals as counsel may
advise are necessary or desirable for the implementation of the Arrangement;
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(d)
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KHD will use all reasonable efforts to cause each of the conditions precedent
set forth in Article 5 hereof to be complied with, on or before the Effective Date; and
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(e)
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KHD will ensure that the Circular will not contain an untrue statement of a
material fact concerning KHD and will not omit to state a material fact concerning KHD
that is required to be stated or that is necessary in order to render a statement
contained therein not misleading in the light of the circumstances in which it was
made.
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4.2 COVENANTS OF KID
KID hereby covenants and agrees with KHD as follows:
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(a)
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KID will not, and will not permit any of its subsidiaries to, perform any act
or enter into any transaction or negotiation which interferes or is inconsistent with
the completion of the transactions contemplated hereby or would render inaccurate in
any material way any of the representations and warranties set forth in Section 3.1
hereof if such representations and warranties were made at a date subsequent to such
act, negotiation or transaction and all references to the date of this Agreement were
deemed to be such later date, except as contemplated in this Agreement or otherwise
approved by KHD;
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(b)
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KID will perform all such other acts and things as may be necessary or
desirable in order to give effect to the Arrangement;
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(c)
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KID will use all reasonable efforts to cause each of the conditions precedent
set forth in Article 5 hereof to be complied with, on or before the Effective Date; and
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(d)
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KID will ensure that the Circular will not contain an untrue statement of a
material fact concerning KID and will not omit to state a material fact concerning KID
that is required to be stated or that is necessary in order to render a statement
contained therein not misleading in the light of the circumstances in which it is made.
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4.3 INTERIM ORDER AND FINAL ORDER
KHD covenants and agrees that it will, as soon as reasonably practicable, apply to the Court
pursuant to Section 291 of the BCBCA for the Interim Order providing for, among other things, the
calling and holding of the Meeting for the purpose of, among other matters, the Shareholders
considering and, if deemed advisable, approving the Arrangement and that, if the approval of the
Shareholders of the Arrangement as set forth in the Interim Order is obtained by KHD, as soon as
practicable thereafter KHD will take the necessary steps to submit the Arrangement to the Court and
apply for the Final Order in such fashion as the Court may direct. As soon as practicable
thereafter, and subject to compliance with the other conditions provided in Article 5 hereof, KHD
shall send to the Registrar, in accordance with Section 292 of the BCBCA, the necessary documents
to give effect to the Arrangement.
ARTICLE 5
CONDITIONS
5.1 MUTUAL CONDITIONS PRECEDENT
The respective obligation of KHD and KID to complete the transactions contemplated by this
Agreement, including the Arrangement and the obligation of each of KHD and KID to file the
documents required by Section 292 of the BCBCA with the Registrar to give effect to the
Arrangement, shall be subject to the satisfaction, on or before the Effective Date, of the
following conditions:
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(a)
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at the Meeting, the Arrangement Resolution, with or without amendment, shall
have been approved by the Shareholders entitled to vote thereon, in accordance with the
Interim Order and in accordance with the BCBCA;
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(b)
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the Interim Order and the Final Order shall have been obtained in form and
substance satisfactory to KID and KHD, acting reasonably, and shall not have been set
aside or modified in a manner unacceptable to such Parties, acting reasonably, on
appeal or otherwise;
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(c)
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all consents, orders, regulations and approvals, including regulatory and
judicial approvals and orders required, necessary or desirable for the completion of
the transactions provided for in this
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Agreement and contemplated by the Arrangement shall have been obtained or received
from the persons, authorities or bodies having jurisdiction in the circumstances;
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(d)
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the distribution of the KID Shares, as contemplated in the Plan of Arrangement,
in the United States pursuant to the Arrangement shall be exempt from registration
requirements under the United States
Securities Act of 1933
and except with respect to
persons deemed affiliates under such enactment, the KID Shares, as contemplated in
the Plan of Arrangement, to be distributed in the United States pursuant to the
Arrangement shall not be subject to resale restrictions in the United States under such
enactment;
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(e)
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the distribution of the KID Shares, as contemplated in the Plan of Arrangement,
in Canada pursuant to the Arrangement shall be exempt from registration and prospectus
requirements of applicable Canadian securities legislation;
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(f)
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there shall not be in force any law, ruling, order or decree that makes it
illegal or restrains, or enjoins or prohibits the consummation of the transactions
contemplated by this Agreement and the Arrangement;
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(g)
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none of the consents, orders, regulations or approvals contemplated herein
shall contain terms or conditions or require undertakings or security deemed
unsatisfactory or unacceptable by any of the Parties, acting reasonably;
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(h)
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there shall not have occurred, developed or come into effect or existence any
event, action, state, condition or financial occurrence of national or international
consequence or any law, regulation, action, government regulation, inquiry or other
occurrence of any nature whatsoever that has had or could reasonably be expected to
have a Material Adverse Effect in connection with any of the Parties;
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(i)
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no judgment or order shall have been issued by any agency, no actions, suits or
proceedings shall have been threatened or taken by any agency, and no law, regulation
or policy shall have been proposed, enacted, or promulgated or applied:
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(i)
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to cease trade, enjoin, prohibit or impose material limitations
or conditions on the completion of the Arrangement; or
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(ii)
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that, if the Arrangement were completed, could reasonably be
expected to have a Material Adverse Effect on any of the Parties to this
Agreement;
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(j)
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KHD and KID shall be satisfied that the Arrangement can be consummated on
commercially reasonable terms; and
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(k)
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this Agreement shall not have been terminated under Article 6.
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5.2 CONDITIONS IN FAVOUR OF KHD
The obligations of KHD to complete the transactions contemplated by this Agreement pursuant to
Section 288 of the BCBCA to give effect to the Arrangement shall be subject to the satisfaction of
the following conditions, unless otherwise waived by KHD:
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(a)
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the representations and warranties of KID contained in this Agreement shall be
true as of the Effective Date (except to the extent that the representations and
warranties speak as of an earlier date, in which event they shall be true as of such
earlier date) as if made on and as of that date except for any failures or breaches of
representations and warranties that have not had, or would not have, individually or in
the aggregate, a Material Adverse Effect on KID or prevent or delay
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the completion of the Arrangement or the transactions contemplated by this Agreement
to be completed on the Effective Date;
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(b)
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KID shall have complied with its obligations under this Agreement, except to
the extent the failure to comply with those obligations has not had, or would not have,
individually or in the aggregate, a Material Adverse Effect on KID or prevent or delay
the completion of the Arrangement or the transactions contemplated by this Agreement to
be completed on the Effective Date;
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(c)
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KHD shall be satisfied that the Arrangement is in the best interests of the
Shareholders; and
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(d)
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the aggregate number of KHD Common Shares in respect of which the Shareholders
shall have exercised, and not withdrawn the exercise of, rights of dissent provided
pursuant to the terms of the Plan of Arrangement and the Interim Order shall not be in
excess of 5% of the KHD Common Shares issued and outstanding on the date of the
Meeting.
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5.3 CONDITIONS IN FAVOUR OF KID
The obligations of KID to complete the transactions contemplated by this Agreement pursuant to
Section 288 of the BCBCA to give effect to the Arrangement shall be subject to the satisfaction of
the following conditions:
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(a)
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the representations and warranties of KHD contained in this Agreement shall be
true as of the Effective Date (except to the extent that the representations and
warranties speak as of an earlier date, in which event they shall be true as of such
earlier date) as if made on and as of that date except for any failures or breaches of
representations and warranties that have not had, or would not have, individually or in
the aggregate, a Material Adverse Effect on KHD or prevent or delay the completion of
the Arrangement or the transactions contemplated by this Agreement to be completed on
the Effective Date; and
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(b)
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KHD shall have complied with its obligations under this Agreement, except to
the extent the failure to comply with those obligations has not had, or would not have,
individually or in the aggregate, a Material Adverse Effect on KHD or prevent or delay
the completion of the Arrangement or the transactions contemplated by this Agreement to
be completed on the Effective Date.
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ARTICLE 6
AMENDMENT AND TERMINATION
6.1 AMENDMENT AND VARIATION
Subject to Sections 6.2 and 6.5 hereof, this Agreement may, at any time and from time to time,
before and after the holding of the Meeting, but not later than the Effective Date, be amended or
varied by written agreement of KID and KHD, subject to applicable law, without further notice to or
authorization on the part of the Shareholders. Without limiting the generality of the foregoing,
any such amendment may:
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(a)
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change the time for the performance of any of the obligations or acts of the
Parties;
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(b)
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waive any inaccuracies or modify any representation or warranty contained
herein or in any document to be delivered pursuant hereto; or
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(c)
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waive compliance with or modify any of the covenants contained herein or waive
or modify the performance of any of the obligations of the Parties contained herein.
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6.2 AMENDMENT OF PLAN
The Plan of Arrangement may be amended, modified or supplemented in accordance with Section 6 of
the Plan of Arrangement.
6.3 RIGHTS OF TERMINATION
If any of the conditions contained in Sections 5.1, 5.2 or 5.3 shall not be fulfilled or performed
on or before the Effective Date, the Party not responsible hereunder to fulfill or perform any such
condition may terminate this Agreement by notice to the other Party, as the case may be, in
writing, and in such event, KID or KHD, as the case may be, shall be released from all obligations
under this Agreement, all rights of specific performance by the Parties shall terminate and the
other Party shall also be released from all obligations hereunder.
6.4 NOTICE OF UNFULFILLED CONDITIONS
If any Party shall determine at any time prior to the Effective Date that it intends to refuse to
consummate the Arrangement or any of the transactions contemplated thereby because of any
unfulfilled or unperformed condition precedent contained in this Arrangement Agreement on the part
of the other Party to be fulfilled or performed, such Party, as the case may be, shall so notify
the other Party forthwith upon making such determination in order that the other Party shall have
the right and opportunity to take such steps, at its own expense, as may be necessary for the
purpose of fulfilling or performing such condition precedent within a reasonable period of time.
6.5 MUTUAL TERMINATION
This Agreement may, at any time before or after the holding of the Meeting, but no later than the
Effective Date, be terminated by agreement in writing executed by KID and KHD without further
action on the part of the Shareholders, and if the Effective Date does not occur on or before the
Termination Date, each Party may unilaterally terminate this Agreement without further action on
the part of the Shareholders, which termination shall be effective upon notice thereof being given
to the other Party to this Agreement.
6.6 EFFECT OF TERMINATION
Upon the termination of this Agreement pursuant to Article 6 hereof, neither Party shall have any
liability or further obligation to the other Party.
ARTICLE 7
MERGER
7.1 MERGER OF CONDITIONS
The conditions set out in Sections 5.1, 5.2 and 5.3 hereof shall be conclusively deemed to have
been satisfied or waived upon the later of (i) the Effective Date of (ii) the date upon which the
Registrar accepts for filing the documents required to be filed pursuant to Section 292 of the
BCBCA giving effect to the Arrangement.
7.2 MERGER OF COVENANTS
The provisions of Sections 4.1 and 4.2 hereof shall be conclusively deemed to have been satisfied
in all respects upon the Registrar accepts for filing the documents required to be filed pursuant
to Section 292 of the BCBCA giving effect to the Arrangement.
7.3 INDEMNIFICATION
Each of the parties hereto (the Indemnifying Party) hereby undertakes with the other Party to
this Arrangement Agreement (the Indemnified Party) to indemnify and hold harmless the Indemnified
Party from and against all losses, claims, damages, liabilities, actions or demands including,
without limiting the generality of the foregoing,
78
amounts paid in any settlement approved by the Indemnifying Party of any action, suit, proceeding
or claim but excluding lost profits and consequential damages of the Indemnified Party, to which
the Indemnified Party may become subject insofar as such losses, claims, damages, liabilities,
actions or demands arise out of or are based upon any breach of a representation, warranty,
covenant or obligation of the Indemnifying Party contained in this Agreement or any certificate or
notice delivered by it in connection herewith, and will reimburse the Indemnified Party for any
legal or other expenses reasonably incurred by the Indemnified Party in connection with
investigating or defending any such loss, claim, damage, liability, action or demand.
7.4 DEFENCE
Promptly after receipt by the Indemnified Party of notice of a possible action, suit, proceeding or
claim referred to in Section 7.3 hereof, the Indemnified Party, if a claim in respect thereof is to
be made against the Indemnifying Party under such section, shall provide the Indemnifying Party
with written particulars thereof; provided that the failure to so provide the Indemnifying Party
with such particulars shall not relieve such Indemnifying Party from any liability which it might
have on account of the indemnity provided for in this Article 7, except insofar as such failure
shall prejudice such Indemnifying Party. The Indemnified Party shall also provide the Indemnifying
Party with copies of all relevant documentation, and unless the Indemnifying Party assumes the
defence thereof, shall keep such Indemnifying Party advised of the progress thereof and shall keep
such Indemnifying Party advised of all significant actions proposed. An Indemnifying Party shall
be entitled, at its own expense, to participate in and, to the extent that it may wish, to assume
the defence of any such action, suit, proceeding or claim but such defence shall be conducted by
counsel of good standing approved by the Indemnified Party, such approval not to be unreasonably
withheld. Upon the Indemnifying Party notifying the Indemnified Party of its election so to assume
the defence and retaining such counsel, the Indemnifying Party shall not be liable to the
Indemnified Party for any legal or other expenses subsequently incurred by it in connection with
such defence other than for reasonable costs of investigation. If such defence is assumed by the
Indemnifying Party, it shall, throughout the course thereof, provide copies of all relevant
documentation to the Indemnified Party, keep such Indemnified Party advised of the progress thereof
and shall discuss with the Indemnified Party all significant actions proposed. No Indemnifying
Party shall enter into any settlement without the consent of the Indemnified Party, but such
consent shall not be unreasonably withheld. Notwithstanding the foregoing, the Indemnified Party
shall have the right, at the Indemnifying Partys expense, to employ counsel of their own choice in
respect of the defence of any such action, suit, proceeding or claim if:
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(a)
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the employment of such counsel has been authorized by the Indemnifying Party in
connection with such defence;
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(b)
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counsel retained by the Indemnifying Party or the Indemnified Party shall have
advised the Indemnified Party that there may be legal defences available to it which
are different from or in addition to those available to the Indemnifying Party (in
which event, and to that extent, the Indemnifying Party shall not have the right to
assume or direct the defence on behalf of the Indemnified Party) or that there may be a
conflict of interest between the Indemnifying Party and the Indemnified Party; or
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(c)
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the Indemnifying Party shall not have assumed such defence and employed counsel
therefor within a reasonable time after receiving notice of such action, suit,
proceeding or claim.
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7.5 TERM
The obligations of the parties under this Article 7 shall terminate when the Arrangement is
consummated, failing which they shall survive and continue with respect to all losses, claims,
damages, liabilities, actions or demands, notice of which is given to the Indemnifying Party by the
Indemnified Party, on or before 12 months from the date hereof in compliance with Section 7.4
hereof.
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ARTICLE 8
GENERAL
8.1 NOTICES
All notices which may or are required to be given pursuant to any provision of this Agreement shall
be given or made in writing and shall be deemed to be validly given if served personally or by
facsimile, in each case to the attention of the senior officer at the following addresses or at
such other address as shall be specified by a Party by like notice:
1620-400 Burrard Street
Vancouver, BC V6C 3A6
Canada
Attention: The President
Facsimile: 011.43.1.58814.99
with a copy to:
Clark Wilson LLP
800 885 West Georgia Street
Vancouver, BC V6C 3H1
Attention: Virgil Z. Hlus
Facsimile: 604.687.6314
Colonia-Allee 3
Cologne 51067,
Germany
Attention: The President
Facsimile: 011.49.221.6504.1109
with a copy to:
Clark Wilson LLP
800 885 West Georgia Street
Vancouver, BC V6C 3H1
Attention: Virgil Z. Hlus
Facsimile: 604.687.6314
Heyne Schweizer
HERZOG, Paul-Ehrlich-Strasse 37-39, 60596
Frankfurt am Main, Germany
Attention: Christoph Heyne
Facsimile: +49-69-630090-90
Any notice that is delivered to such address shall be deemed to be delivered on the date of
delivery if delivered on a Business Day prior to 5:00 p.m. (local time at the place of receipt) or
on the next Business Day if delivered after
80
5:00 p.m. or on a non-Business Day. Any notice delivered by facsimile transmission shall be deemed
to be delivered on the date of transmission if delivered on a Business Day prior to 5:00 p.m.
(local time at the place of receipt) or on the next Business Day if delivered after 5:00 p.m. or on
a non-Business Day.
8.2 TIME OF THE ESSENCE
Time shall be of the essence in this Agreement.
8.3 ASSIGNMENT
Neither KHD nor KID may assign its rights or obligations under this Agreement or the Arrangement
without the prior written consent of the other of them.
8.4 BINDING EFFECT
This Agreement and the Plan of Arrangement shall be binding upon and shall enure to the benefit of
each of KHD and KID and the respective successors and permitted assigns thereof.
8.5 WAIVER
Any waiver or release of any of the provisions of this Agreement, to be effective, must be in
writing executed by the Party granting such waiver or release.
8.6 FURTHER ASSURANCES
Each Party shall, from time to time, and at all times hereafter, at the request of the other of
them, but without further consideration, do, or cause to be done, all such other acts, and execute
and deliver, or cause to be executed and delivered, all such further agreements, transfers,
assurances, instruments or documents as may be reasonably required in order to fully perform and
carry out the terms and intent hereof including, without limitation, the Arrangement.
8.7 GOVERNING LAW
This Agreement shall be governed by, and be construed in accordance with, the laws of the Province
of British Columbia and the laws of Canada applicable therein but the reference to such laws shall
not, by conflict of laws rules or otherwise, require the application of the law of any jurisdiction
other than the Province of British Columbia. Each Party hereby irrevocably attorns to the
jurisdiction of the courts of the Province of British Columbia in respect of all matters arising
under or in relation to this Agreement.
8.8 EXPENSES
All expenses incurred in connection with this Agreement, the Arrangement and the transactions
contemplated hereby and thereby shall be borne entirely by KHD.
8.9 SEVERABILITY
If any provision of this Agreement is determined by a court of competent jurisdiction to be
invalid, illegal or unenforceable, then:
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(a)
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that provision shall (to the extent of the invalidity, illegality or
unenforceability) be given no effect and shall be deemed not to be part of this
Agreement; and
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(b)
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the parties hereto shall use all reasonable commercial efforts to replace each
invalid, illegal or unenforceable provision with a valid, legal and enforceable
substitute provision, the effect of
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which is as close as possible to the intended effect of the invalid, illegal or unenforceable provision.
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8.10 PARTIES IN INTEREST
This Agreement will be binding upon and inure solely to the benefit of each Party, and, other than
pursuant to Article 7 hereof, nothing in this Agreement, express or implied, is intended to or will
confer upon any other person any right, benefit or remedy of any nature whatsoever under or by
reason of this Agreement.
8.11 COUNTERPARTS
This Agreement may be executed in one or more counterparts, each of which shall be deemed an
original but all of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF
the parties hereto have executed this Agreement as of the date and year first
above written.
KHD HUMBOLDT WEDAG INTERNATIONAL LTD.
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Per:
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Michael J. Smith
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Michael J. Smith
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Title:
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Chairman
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KHD HUMBOLDT WEDAG INTERNATIONAL (DEUTSCHLAND) AG
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Per:
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Jouni Salo
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Jouni Salo
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Title:
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Managing Director
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Per:
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Alan
Hartslief
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Name:
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Alan Hartslief
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Title:
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Director
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APPENDIX I
TO THE ARRANGEMENT AGREEMENT
BETWEEN KHD HUMBOLDT WEDAG INTERNATIONAL LTD.
AND KHD HUMBOLDT WEDAG INTERNATIONAL (DEUTSCHLAND) AG
PLAN OF ARRANGEMENT UNDER
SECTION 291 OF THE BRITISH COLUMBIA
BUSINESS CORPORATIONS ACT
ARTICLE 1
INTERPRETATION
1.1 Definitions
Certain capitalized terms used in this Plan of Arrangement which are not defined herein are
defined in the Arrangement Agreement. In this Plan of Arrangement, unless there is something in the
subject matter or context inconsistent therewith, the following capitalized words and terms shall
have the following meanings:
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(a)
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Arrangement
means the arrangement pursuant to the provisions of Section 288
of the BCBCA to be undertaken on the terms set out in this Plan of Arrangement, subject
to any amendment or supplement thereto made in accordance with the Arrangement
Agreement, this Plan of Arrangement or at the discretion of the Court;
|
|
|
(b)
|
|
Arrangement Agreement
means the
arrangement agreement dated February 26, 2010
between KHD and KID, in the form attached as Schedule C to this Information Circular,
including the appendices attached thereto, as supplemented or amended from time to
time;
|
|
|
(c)
|
|
Arrangement Resolution
means the special resolution approving the Arrangement
and the transactions contemplated thereunder, to be approved at the Meeting by the
Shareholders;
|
|
|
(d)
|
|
BCBCA
means the British Columbia
Business Corporations Act
, S.B.C. 2002, c.
57, and the regulations made under that enactment, as amended;
|
|
|
(e)
|
|
Board
means the board of directors of KHD;
|
|
|
(f)
|
|
Business Day
means any day other than a Saturday, Sunday, a federal holiday
in Canada or a day on which banks are not open for business in Vancouver, British
Columbia;
|
|
|
(g)
|
|
Circular
means the management information circular of KHD to be prepared and
sent to the Shareholders in connection with the Meeting;
|
|
|
(h)
|
|
Class A common shares
means the Class A common shares of KHD to be created in
connection with the Arrangement, with such rights and restrictions as shall be
specified by the Board and set out in the Circular;
|
|
|
(i)
|
|
Class B common shares
means the Class B common shares of KHD to be created in
connection with the Arrangement, with such rights and restrictions as shall be
specified by the Board and set out in the Circular;
|
|
|
(j)
|
|
Clearstream
means Clearstream Banking S.A. (CB), a security depository and
clearing house for transactions in the European market;
|
|
|
(k)
|
|
Court
means the Supreme Court of British Columbia;
|
83
|
(l)
|
|
Dissent Procedures
means the procedures set forth in Section 238 of the BCBCA
required to be taken by a registered holder of KHD Common Shares to exercise the right
of dissent in respect of such KHD Common Shares in connection with the Arrangement;
|
|
|
(m)
|
|
Dissenting Shareholder
means a registered holder of KHD Common Shares who
dissents in respect of the Arrangement in strict compliance with the Dissent
Procedures;
|
|
|
(n)
|
|
Effective Date
means the date on which the Final Order together with this
Plan of Arrangement, and such other documents as are required to be filed under the
BCBCA to give effect to the Arrangement, have been accepted for filing by the Registrar
under the BCBCA giving effect to the Arrangement or such later date as determined by
the board of directors of KHD or as specified by the Court;
|
|
|
(o)
|
|
Effective Time
means the time on the Effective Date that the Arrangement
becomes effective in accordance with its terms;
|
|
|
(p)
|
|
Final Order
means the final order of the Court approving the Arrangement
pursuant to the BCBCA;
|
|
|
(q)
|
|
Interim Order
means the interim order of the Court, as the same may be
amended, providing for, among other things, the calling and holding of the Meeting
under the BCBCA, all as contemplated under Sections 2.1(a) and 4.3 of the Arrangement
Agreement;
|
|
|
(r)
|
|
Inverness
means Inverness Enterprises Ltd.;
|
|
|
(s)
|
|
KHD
means KHD Humboldt Wedag International Ltd., a corporation existing under
the BCBCA;
|
|
|
(t)
|
|
KHD AG
means KHD Holding AG;
|
|
|
(u)
|
|
KHD Common Shares
means the common shares of KHD;
|
|
|
(v)
|
|
KID
means KHD Humboldt Wedag International (Deutschland) AG, a corporation
organized and registered under the rules and regulations of Germany;
|
|
|
(w)
|
|
KID Shares
means those shares of KID held directly or indirectly by KHD;
|
|
|
(x)
|
|
KID Split
means the two (2) for one (1) forward split to be effected by KID;
|
|
|
(y)
|
|
holder
means, when not qualified by the adjective registered, the person
entitled to a share hereunder whether or not registered or entitled to be registered in
respect thereof in a register of holders of shares of KHD or KID, as the case may be;
|
|
|
(z)
|
|
ITA
means the
Income Tax Act
(Canada), as amended;
|
|
|
(aa)
|
|
Meeting
means the annual and special meeting of the Shareholders held to
consider, among other matters, the Arrangement, and any adjournment or postponement
thereof;
|
|
|
(bb)
|
|
New Image
means New Image Investment Company Limited;
|
|
|
(cc)
|
|
Newco
means 0873013 B.C. Ltd.;
|
|
|
(dd)
|
|
Non-Dissenting Shareholder
means a Shareholder that is not a Dissenting Shareholder;
|
|
|
(ee)
|
|
Party
means either of KHD and KID;
|
84
|
(ff)
|
|
Parties
means KHD and KID;
|
|
|
(gg)
|
|
Person
means and includes an individual, sole proprietorship, partnership,
unincorporated association, unincorporated syndicate, unincorporated organization,
trust, body corporate, trustee, executor, administrator or other legal representative
and the Crown or any agency or instrumentality thereof;
|
|
|
(hh)
|
|
Plan of Arrangement
means this plan of arrangement;
|
|
|
(ii)
|
|
Preferred Shares
means a new series of preferred shares in the capital of KHD
to be created in connection with the Arrangement, with such rights and restrictions as
shall be specified by the Board and set out in the Circular;
|
|
|
(jj)
|
|
Registered Shareholder
means the registered holders of KHD Common Shares;
|
|
|
(kk)
|
|
Registrar
means the Registrar of Companies appointed pursuant to Section 400
of the BCBCA;
|
|
|
(ll)
|
|
Shareholders
means the holders of KHD Common Shares at the applicable time;
and
|
|
|
(mm)
|
|
Transfer Agent
means Mellon Investor Services LLC, the registrar and transfer
agent for the KHD Common Shares.
|
1.2
Interpretation Not Affected By Headings
The division of this Plan of Arrangement into articles, sections, paragraphs and other
portions and the insertion of headings are for the convenience of reference only and shall not
affect the construction or interpretation of this Plan of Arrangement. The terms this Plan of
Arrangement, hereof, herein, hereunder and similar expressions refer to this Plan of
Arrangement as a whole and not to any particular article, section, paragraph or part hereof. Unless
something in the subject matter or context is inconsistent therewith, all references herein to
articles, sections, paragraphs and other portions are to articles, sections, paragraphs and other
portions of this Plan of Arrangement.
1.3 Number and Gender
In this Plan of Arrangement, words importing the singular number only shall include the plural
and vice versa, words importing the masculine gender shall include the feminine gender and neuter
and words importing persons shall include individuals, partnerships, associations, forms, trusts,
unincorporated organizations and corporations.
1.4 Statutes
A reference to a statute shall be deemed to include every regulation made pursuant thereto,
all amendments to the statute or to any such regulation enforced from time to time, and any statute
or regulation that supplements or supersedes such statute or any such regulation.
1.5 Currency
All references to currency herein are to lawful money of Canada unless otherwise specified herein.
1.6 Time and Date for Action
Time shall be of the essence in each matter or thing herein provided. Unless otherwise
indicated, all times expressed herein are local time, Vancouver, British Columbia. In the event
that the date on or by which any action is required to be taken hereunder is not a Business Day in
the place where the action is required to be taken, such action shall be required to be taken on or
by the next succeeding day which is a Business Day in such place.
85
1.7 Deeming Provisions
In this Plan of Arrangement, the deeming provisions are not rebutable and are conclusive and
irrevocable.
1.8 Successors, Assigns, Etc.
At the Effective Time, this Plan of Arrangement will be binding upon KHD, KID and the
Shareholders and their respective heirs, executors, administrators, legal representatives,
successors and assigns.
1.9 Legislation
References in this Plan of Arrangement to any statute or sections thereof shall include any
statute as amended or substituted, and any regulations promulgated thereunder, from time to time in
effect.
1.10 Governing Law
This Plan of Arrangement shall be governed by and construed in accordance with the laws of the
Province of British Columbia and the federal laws of Canada applicable therein.
ARTICLE 2
ARRANGEMENT AGREEMENT
2.1 Arrangement Agreement
This Plan of Arrangement is made pursuant and subject to the provisions of the Arrangement
Agreement.
ARTICLE 3
THE ARRANGEMENT
3.1 The Arrangement
|
(a)
|
|
On the Effective Date (or on such other date as may be determined by the board
of directors of KHD) the events and transactions set out in Section 3.1(b) below shall
occur and be deemed to occur on the Effective Date (or on such other date as may be
determined by the board of directors of KHD).
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|
|
(b)
|
|
The following events and transactions shall occur and be deemed to occur in the
order in which they are listed and without further act or formality and with each
transaction or event being deemed to occur immediately after the occurrence of the
transaction or event immediately preceding it:
|
|
(i)
|
|
KHD changes its authorized capital by creating Class A common
shares, Class B common shares and the Preferred Shares;
|
|
|
(ii)
|
|
New Image and Inverness exchange their KHD Common Shares for
Preferred Shares on a one for one basis;
|
|
|
(iii)
|
|
KHD adds to the stated capital of the KHD Common Shares
outstanding after the exchange by New Image and Inverness an amount equal to
the aggregate stated capital of the KHD Common Shares exchanged by New Image
and Inverness and no amount will be added to the stated capital of the
Preferred Shares;
|
|
|
(iv)
|
|
Newco and KHD AG exchange their KHD Common Shares for Class A
common shares on a one for one basis;
|
86
|
(v)
|
|
KHD adds to the stated capital of the KHD Common Shares
outstanding after the exchange by Newco and KHD AG an amount equal to the
aggregate stated capital of the KHD Common Shares exchanged by Newco and KHD AG
and no amount will be added to the stated capital of the Class A common shares;
|
|
|
(vi)
|
|
Shareholders (other than New Image, Inverness, Newco, KHD AG
and the Dissenting Shareholders) exchange each KHD Common Share for: (a) one
Class B common share; and (b) 0.143 KID Shares (or one (1) KID Share for every
seven (7) KHD Common Shares) (calculated prior to the KID Split being
effected), provided that no fractional KID Shares will be distributed to
Shareholders and the number of KID Shares to which each Shareholder is entitled
will be rounded down to the next whole number and no payment will be made in
respect of such a fractional share;
|
|
|
(vii)
|
|
KHD will add to the stated capital of the Class B common
shares the amount, if any, by which the stated capital of the KHD Common Shares
held by the Shareholders described in Section 3.1(b)(vi) immediately before the
exchange described in Section 3.1(b)(vi) exceeds the fair market value of the
KID Shares distributed to such Shareholders;
|
|
|
(viii)
|
|
each issued and outstanding KHD Common Share held by Dissenting Shareholders
will be acquired by KHD for the amount to be determined in accordance with the
Dissent Procedures; and
|
|
|
(ix)
|
|
the KHD Common Shares are eliminated from the authorized
capital of KHD and the Class B common shares are altered by changing their
identifying name to Common Shares.
|
3.2 Arrangement Effectiveness
The Arrangement shall be deemed effective as of the Effective Time.
3.3 Deemed Fully Paid and Non-Assessable Securities
All KID Shares distributed pursuant hereto shall be deemed to be validly issued and
outstanding as fully paid and non-assessable shares for all purposes of the laws of Germany.
3.4 Supplementary Actions
Notwithstanding that the transaction and events set out in Section 3.1 hereof shall occur, and
shall be deemed to occur, in the order therein set out without any other act or formality, each of
KHD and KID shall make, do and execute, or cause to be made, done and executed, all such further
acts, deeds, agreements, transfers, assurances, instruments or documents as may be required to
further document or evidence any of the transactions or events set out in Section 3.1 hereof,
including without limitation, any resolution of directors authorizing the issue, transfer or
purchase for cancellation of securities, any security transfer powers evidencing the transfer of
securities and any receipt therefor, any promissory notes and receipts therefor and any necessary
additions to, or deletions from, share registers.
ARTICLE 4
DISSENT PROCEDURES
4.1 Dissent Procedures
Holders of KHD Common Shares may exercise a right of dissent in connection with the
Arrangement in accordance with the Dissent Procedures provided that, notwithstanding the provisions
of subsection 238 of the BCBCA, the written objection to the special resolution to approve the
Arrangement contemplated by subsection 242
87
of the BCBCA is received by KHD not later than 5:00 p.m. (Vancouver time) two Business Days prior
to the date of the Meeting and provided further that holders who exercise such right of dissent and
who:
|
(a)
|
|
are ultimately entitled to be paid fair value for their KHD Common Shares,
shall be deemed to have transferred such KHD Common Shares to KHD for cancellation at
the Effective Time; or
|
|
|
(b)
|
|
are ultimately not entitled, for any reason, to be paid fair value for their
KHD Common Shares shall be deemed to have participated in the Arrangement on the basis
set forth in Section 3.1 hereof,
|
but further provided that in no case shall KHD, KID or any other person be required to recognize
Dissenting Shareholders as holders of KHD Common Shares after the Effective Time and the names of
such Dissenting Shareholders shall be deleted from the register of holders of KHD Common Shares at
the Effective Time.
ARTICLE 5
DISTRIBUTION OF KID SHARES
5.1 Delivery of KID Shares to Shareholders
|
(a)
|
|
For Shareholders with a Clearsteam eligible account, who deliver complete
information regarding such Clearsteam eligible account to KHD at least two (2) business
days prior to the Effective Date, KHD shall deliver or arrange to be delivered the KID
Shares directly through such accounts on or as soon as practicable after the Effective
Date.
|
|
|
(b)
|
|
For Shareholders without a Clearsteam eligible account, KHD shall deliver or
arrange to be delivered the KID Shares to an agent appointed by KHD, to be held in
trust by such agent until such time as the Shareholder delivers complete information
regarding a Clearsteam eligible account to KHD, and then, on or as soon as practicable
after receipt by KHD of such information, KHD shall arrange to be delivered the KID
Shares directly through such accounts.
|
|
|
(c)
|
|
Shareholders must deliver complete information regarding a Clearsteam eligible
account to KHD via the Letter of Transmittal.
|
5.2 Withholding Rights
KHD, KID and their agents shall be entitled to deduct and withhold from all dividends or other
distributions otherwise payable to any holder of KID Shares such amounts as KHD, KID or their
agents are required or permitted to deduct and withhold with respect to such payment under the ITA
and the regulations thereunder, the United States Internal Revenue Code of 1986 or any provision of
any applicable federal, provincial, state, local or foreign tax law, in each case, as amended. To
the extent that amounts are so withheld, such withheld amounts shall be treated for all purposes
hereof as having been paid to the holder in respect of which such deduction and withholding was
made, provided that such withheld amounts are actually remitted to the appropriate taxing
authority.
5.3 Limitation and Proscription
To the extent that KHD (or its designated agent) is unable to deliver the KID Shares to which
a Shareholder is entitled on or before the date which is six years after the Effective Date (the
Final Proscription Date), then the KID Shares which such Shareholder was entitled to receive
shall be automatically cancelled without any repayment of capital in respect thereof and the
certificate representing any KID Shares shall be delivered to KID by KHD (or its designated agent)
for cancellation and shall be cancelled by KID and the interest of the Shareholder in such KID
Shares shall be terminated as of the Final Proscription Date.
88
5.4 No Fractional Shares
No fractional KID Shares will be distributed to Shareholders and the number of KID Shares to
which each Shareholder is entitled will be rounded down to the next whole number and no payment
will be made in respect of such a fractional share.
5.5 Illegality of Delivery of KID Shares
Notwithstanding the foregoing, if it appears to KHD, acting reasonably, that it would be
contrary to applicable law to deliver the KID Shares pursuant to the Arrangement to a person that
is not a resident of Canada or the United States, the KID Shares that otherwise would be delivered
to that person shall be held by KHD or its designated agent for sale by KHD or such other person as
appointed by KHD on behalf of that person.
ARTICLE 6
AMENDMENT
6.1 Amendment
This Plan of Arrangement may at any time and from time to time before or after the holding of
the Meeting, but not later than the Effective Date, be amended provided that such amendment is
filed with the Court.
89
SCHEDULE D
INFORMATION CONCERNING KHD PRE- AND POST-ARRANGEMENT
Unless the context otherwise requires, capitalized terms used in this Schedule D that are not
defined herein have the meanings ascribed to such terms in the Information Circular to which this
Schedule D is attached. All references to dollar amounts in this Schedule D are to United States
dollars unless expressly stated otherwise.
TABLE OF CONTENTS
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|
|
|
|
INFORMATION CONCERNING KHD PRE-ARRANGEMENT
|
|
|
91
|
|
INFORMATION CONCERNING KHD POST-ARRANGEMENT
|
|
|
91
|
|
NAME AND INCORPORATION
|
|
|
91
|
|
INTERCORPORATE RELATIONSHIPS
|
|
|
92
|
|
DESCRIPTION OF KHDS BUSINESS
|
|
|
92
|
|
PROPERTY, PLANT AND EQUIPMENT
|
|
|
94
|
|
SELECTED FINANCIAL INFORMATION
|
|
|
95
|
|
DESCRIPTION OF SHARE CAPITAL
|
|
|
96
|
|
OPTIONS TO PURCHASE NEW KHD SHARES
|
|
|
99
|
|
ESCROWED SECURITIES
|
|
|
99
|
|
PRINCIPAL SHAREHOLDERS
|
|
|
99
|
|
DIRECTORS AND OFFICERS
|
|
|
100
|
|
CORPORATE CEASE TRADE ORDERS OR BANKRUPTCIES
|
|
|
101
|
|
CONFLICTS OF INTEREST
|
|
|
102
|
|
INDEBTEDNESS OF DIRECTORS AND EXECUTIVE OFFICERS
|
|
|
102
|
|
RISK FACTORS
|
|
|
102
|
|
LEGAL PROCEEDINGS
|
|
|
106
|
|
MATERIAL CONTRACTS
|
|
|
106
|
|
TAX CONSEQUENCES
|
|
|
108
|
|
INTEREST OF EXPERTS
|
|
|
108
|
|
AUDITORS AND AUDIT COMMITTEE
|
|
|
108
|
|
FINANCIAL STATEMENT DISCLOSURE FOR KHD
|
|
|
108
|
|
ADDITIONAL INFORMATION
|
|
|
108
|
|
90
INFORMATION CONCERNING KHD PRE-ARRANGEMENT
Information concerning KHDs current, pre-Arrangement business can be found in the following
documents, which have been filed with Canadian securities regulatory authorities in British
Columbia, Alberta and Québec and with the SEC, and are specifically incorporated by reference into,
and form an integral part of, this Information Circular:
|
(i)
|
|
KHDs annual report on Form 20-F for the year ended December 31, 2008, as filed
on EDGAR on March 27, 2009;
|
|
|
(ii)
|
|
KHDs audited consolidated annual financial statements as at December 31, 2008
and 2007 and for the years ended December 31, 2008, 2007 and 2006, as filed on SEDAR at
www.sedar.com on March 27, 2009;
|
|
|
(iii)
|
|
KHDs MD&A for the year ended December 31, 2008, as filed on SEDAR at
www.sedar.com on March 27, 2009;
|
|
|
(iv)
|
|
KHDs unaudited consolidated interim financial statements for the nine months
ended September 30, 2009 and 2008, as filed on SEDAR at www.sedar.com on November 16,
2009;
|
|
|
(v)
|
|
KHDs MD&A for the nine months ended September 30, 2009, as filed on SEDAR at
www.sedar.com on November 16, 2009; and
|
|
|
(vi)
|
|
KHDs management information circular for its annual meeting of shareholders
held on October 24, 2009, as filed on SEDAR at www.sedar.com on October 2, 2009.
|
Any statement contained in this Information Circular or in a document incorporated or deemed to be
incorporated by reference into this Information Circular shall be deemed to be modified or
superseded for purposes of this Information Circular to the extent that a statement contained
herein or in any other subsequently filed document that also is, or is deemed to be, incorporated
by reference into this Information Circular modifies, replaces or supersedes such statement. Any
statement so modified or superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Information Circular. The modifying or superseding statement need not
state that it has modified or superseded a prior statement or include any other information set
forth in the document that it modifies or supersedes.
The making of a modifying or superseding statement shall not be deemed an admission for any
purposes that the modified or superseded statement, when made, constituted a misrepresentation, an
untrue statement of a material fact or an omission to state a material fact that is required to be
stated or that is necessary to make a statement not misleading in light of the circumstances in
which it was made.
Copies of the documents incorporated by reference into this Information Circular are available on
SEDAR at www.sedar.com, on EDGAR at www.sec.gov or upon request and without charge from KHD at our
head office located at Suite 1620, 400 Burrard Street, Vancouver, British Columbia, Canada V6C 3A6
(Attention: Rene Randall).
INFORMATION CONCERNING KHD POST-ARRANGEMENT
The following is a description of KHD following the completion of the Arrangement.
NAME AND INCORPORATION
KHD is a corporation organized under the laws of the Province of British Columbia, Canada under the
name KHD Humboldt Wedag International Ltd.. KHD was originally incorporated in June 1951 by
letters patent issued pursuant to the
Companies Act of 1934
(Canada). KHD was continued under the
Canada Business Corporation Act
in March 1980, under the
Business Corporations Act
(Yukon) in
August 1996 and under the BCBCA in November 2004. KHDs name was changed to MFC Bancorp Ltd. in
February 1997. KHD changed its name from MFC Bancorp Ltd. to KHD Humboldt Wedag International
Ltd. on October 28, 2005.
91
It is expected that, upon completion of the Arrangement, KHDs head office will continue to be
located at Suite 1620, 400 Burrard Street, Vancouver, British Columbia, Canada V6C 3A6. KHDs
registered and records office is expected to continue to be located at Suite 800, 885 West Georgia
Street, Vancouver, British Columbia, Canada V6C 3H1.
INTERCORPORATE RELATIONSHIPS
Upon completion of the Arrangement, it is expected that the material direct and indirect
subsidiaries of KHD will be as follows:
|
|
|
|
|
|
|
|
|
|
|
Jurisdiction of
|
|
|
|
|
Incorporation
|
|
KHDs Beneficial
|
Name of Subsidiary
|
|
or Organization
|
|
Shareholding
|
KHD Holding AG
|
|
Switzerland
|
|
|
100
|
%
|
KHD Humboldt Wedag International Holding GmbH
|
|
Austria
|
|
|
100
|
%
|
KHD Humboldt Wedag International GmbH
|
|
Austria
|
|
|
100
|
%
|
KHD Investments Ltd.
|
|
Marshall Islands
|
|
|
100
|
%
|
New Image Investment Company Limited
|
|
USA
|
|
|
100
|
%
|
Inverness Enterprises Ltd.
|
|
Canada
|
|
|
100
|
%
|
KHD Humboldt Wedag (Cyprus) Limited
|
|
Cyprus
|
|
|
100
|
%
|
MFC & KHD International Industries Limited
|
|
Samoa
|
|
|
100
|
%
|
KHD Humboldt Wedag (Shanghai) International
Industries Limited
|
|
China
|
|
|
100
|
%
|
REDAS Tracking Corp.
|
|
Marshall Islands
|
|
|
100
|
%
|
KHD Sales and Marketing Ltd.
|
|
Hong Kong
|
|
|
100
|
%
|
KHD Humboldt Wedag International, FZE
|
|
United Arab Emirates
|
|
|
100
|
%
|
0764509 B.C. Ltd.
|
|
British Columbia
|
|
|
35
|
%
|
In addition, KHD will continue to hold 72% of the KID Shares upon completion of the Arrangement,
however, pursuant to the terms of the Shareholders Agreement, KHD will have engaged the Custodian
to direct the voting of such KID Shares. If all necessary steps are taken to no longer control KID
from an accounting perspective, KHD will not consolidate KID.
DESCRIPTION OF KHDS BUSINESS
Upon completion of the Arrangement, KHD will continue to retain its interest in approximately 72%
of the shares of KID. Upon completion of the Arrangement, KHD will primarily focus on the mineral
royalty business and the acquisition and management of mineral royalties. Royalties are passive
(non-operating) interests in mining projects that provide the right to revenue or production from
the project after deducting specified costs, if any. KHD currently indirectly participates in a
royalty interest in the Wabush iron ore mine in the Province of Newfoundland and Labrador. It is
expected that KHD will engage in a continual review of opportunities to acquire existing royalties,
to create new royalties through the financing of mining projects or to acquire companies that hold
royalties. It will use both cash and its common stock in its acquisitions and may issue substantial
additional amounts of common stock as consideration for acquisitions in the future. There can be no
assurance that it will be successful in acquiring any mineral royalties in addition to its royalty
interest in the Wabush iron ore mine.
It is expected that KHD will seek to acquire existing royalties and to create new royalties through
the financing of mining, development, or exploration projects in exchange for royalty interests. It
is not expected to conduct mining
92
operations nor is it expected to be required to contribute to capital costs, exploration costs,
environmental costs or other operating costs on the properties in which it will hold royalty
interests. The key elements of KHDs business model and growth strategy upon completion of the
Arrangement will be as follows:
|
|
|
Focus on Metals through Royalty Ownership.
KHD has based its future business model on
the premise that an attractive means to gain exposure to metal prices is to acquire and
hold royalty interests in metal properties, rather than to engage directly in mining
operations. By holding royalties, KHD will benefit from (i) increases in commodity prices,
(ii) production increases from properties subject to KHDs royalty interests, and (iii)
reserve increases on properties subject to KHD royalty interests, potentially extending
KHDs revenue stream from such properties. KHD does not expect to be required to contribute
to capital costs, exploration costs, environmental costs or other operating costs on the
properties on which it holds royalties, and, as a result, hopes that its royalty interests
will achieve high margins and low overhead.
|
|
|
|
|
Industry Experience and Relationships.
KHD will rely on its experienced management team
to identify opportunities and to structure creative approaches to acquire royalty
interests, as well as to manage royalty streams once acquired. KHDs management team is
expected to include executives with many years of industry experience in geology, mine
operations, mining law and mine financing. The management team is expected to maintain
personal relationships throughout the industry, from major mining companies to exploration
companies, landowners and prospectors, giving KHD an excellent platform from which to
identify, target and obtain or create royalty interests.
|
|
|
|
|
Acquisition of Royalties on Producing Mines or Development Projects
. KHD will actively
seek to acquire royalties on both producing mines and development projects. Producing
royalties, such as KHDs royalty interest in the Wabush iron ore mine, will generate
revenue, while development stage properties will contribute to KHDs growth strategy. It is
hoped that development stage properties will not only provide a pipeline of reserves that
will be subject to KHDs royalty interests, but will also provide potential future revenue
should they begin production over the next several years. KHD considers evaluation and
exploration stage properties to be an important component in maintaining a balanced royalty
portfolio with potential for future growth. It will also attempt to acquire portfolios of
royalties that include exploration and evaluation stage properties that KHD believes have
potential.
|
|
|
|
|
Utilize Flexible Acquisition Approaches
. KHD will pursue a growth strategy using a
variety of acquisition structures to grow its royalty portfolio, including the following:
(i) the acquisition of existing royalties or portfolios of existing royalties, (ii) the
creation of new royalties by providing financing or capital, including for exploration
activities, in exchange for royalties, and (iii) the acquisition of companies holding
royalty assets. It is hoped that KHDs intention to utilize various acquisition structures
will allow it to adapt to changing market conditions and to capitalize on the changing
needs of mining companies. KHD intends to take a flexible approach to each royalty
acquisition it examines, with consideration given to industry conditions as well as the
various goals and capabilities of each operator or potential business partner.
|
|
|
|
|
Royalty Evaluation Criteria.
KHD believes there are substantial benefits to holding
royalties on properties with significant reserves that represent long-lived assets. KHD
will utilize a series of technical, business and legal criteria to evaluate potential
royalty acquisitions. Among the factors considered will be: (i) the quality of the asset,
(ii) the reputation of the operator, (iii) country risks, (iv) environmental risks, (v)
timing of anticipated production, (vi) potential for reserve growth, (vii) overall size and
likely duration of the project, and (viii) strategic, financial and operating impact of the
acquisition on KHD. KHD will rely on both its own management expertise, and on that of
consultants, to evaluate mining properties and reserves in order to evaluate royalties for
acquisition. KHD believes its systematic evaluation of royalties combined with its
experience will provide it with a competitive advantage in acquiring royalties.
|
|
|
|
|
Organic Growth through Reserve Replacement.
In addition to acquiring royalties with
existing or anticipated near-term production, KHD will seek to acquire and manage royalties
with substantial potential for further reserve growth. It is expected that this will
provide a cost-free upside from the exploration efforts of the operator because additional
reserves, if mined, could extend KHDs revenue stream from the property with no additional
cost to KHD.
|
93
Description of Our Royalty Interest
Subsequent to the completion of the Arrangement, KHD will continue to indirectly participate in a
royalty interest in the Wabush iron ore mine. For a description of this royalty interest, see
Property, Plant and Equipment Royalty Interest Wabush Iron Ore Mine.
PROPERTY, PLANT AND EQUIPMENT
Office Space
After completion of the Arrangement, KHD will continue to lease office space for its head office at
Suite 1620, 400 Burrard Street, Vancouver, British Columbia, Canada V6C 3A6.
Royalty Interest Wabush Iron Ore Mine
KHD participates in a royalty interest which consists of a mining sub-lease of the lands upon which
the Wabush iron ore mine is situated, which sub-lease commenced in 1956 and expires in 2055. The
Wabush mines operation includes the Scully iron ore mine near Wabush in the Province of
Newfoundland and Labrador, a pellet plant and port facilities at Point Noire, Quebec and integrated
rail facilities. The lessor of the land is Knoll Lake Minerals Ltd., which holds a mining lease
from the Province of Newfoundland and Labrador. The lease requires the payment of royalties to
Knoll Lake Minerals of Cdn$0.22 per ton on shipments of iron ore from the Wabush iron ore mine.
Iron ore is shipped from the Wabush iron ore mine to Pointe Noire, Quebec, Canada, where it is
pelletized. In 2008, 2007 and 2006, 3.9 million, 4.8 million and 4.1 million tons of pellets of
iron ore, respectively, were shipped from the Wabush iron ore mine.
The Wabush iron ore mine was historically operated by an unincorporated joint venture consisting of
Dofasco Inc. (now ArcelorMittal Canada), U.S. Steel Canada Inc. and Cliffs Natural Resources, Inc.
(
Cliffs
), which paid royalties to the holder of the royalty interest based upon the amount of
iron ore shipped from the Wabush iron ore mine. Pursuant to the terms of the mining sub-lease,
this royalty payment is not to be less than Cdn$3.25 million per annum until the expiry of the
mining sub-lease in 2055. In 1987, the royalty rate specified in the base price was amended to
require a base royalty rate of Cdn$1.685 per ton with escalations as defined by agreement.
On October 12, 2009, Cliffs announced that it planned to exercise its right of first refusal to
acquire the interests of ArcelorMittal and U.S. Steel Canada Inc. in the joint venture. On February
1, 2010, Cliffs announced that it had completed the acquisition of its former partners interests
in the Wabush joint venture for approximately $88 million. With the closing of the acquisition,
Cliffs now owns 100% of the operation that it has managed since 1965. KHDs participation in the
royalty interest is not expected to be affected as a result of the change in ownership of the mine.
Iron ore is typically sold either as a concentrate, whereby the iron ore is in granular form, or as
a pellet, whereby iron ore concentrate has been mixed with a binding agent, formed into a pellet
and then fired in a furnace. Iron ore pellets can be charged directly into blast furnaces without
further processing and are primarily used to produce pig iron which is subsequently transformed
into steel. As such, the demand and consequently the pricing of iron ore is dependent upon the raw
material requirements of integrated steel producers. Demand for blast furnace steel is in turn
cyclical in nature and is influenced by, among other things, the level of general economic
activity.
Although no assurance as to the future production levels can be provided, since the operator of the
Wabush iron ore mine is now the sole owner of the Wabush iron ore mine, production from the mine is
expected to be maintained at relatively consistent levels.
In December, 2005, KHD commenced a lawsuit against Wabush Iron Co. Limited, Dofasco Inc., Stelco
Inc. and Cliffs Mining Company Inc. claiming that such parties breached their contractual and
fiduciary duties by inaccurately reporting and substantially underpaying the royalties properly due
under the lease. It is also claiming reimbursement for the substantial costs that it has incurred
in connection with its investigation into such matters. The parties have proceeded to arbitration
in connection with the outstanding issues in connection with the substantial underpayment of
royalties. The arbitration hearing concluded in early August, 2009 and KHD anticipates a decision
from the arbitration panel in the near future.
94
We hold the indirect royalty interest in the Wabush iron ore mine through our ownership of
preferred shares of Cade Struktur Corporation. On October 27, 2006, Cade Struktur completed the
transactions contemplated by a purchase and sale agreement entered into with 0764509 B.C. Ltd. and
another party. Cade Struktur sold to 0764509 B.C. Ltd. all of its beneficial interest in connection
with the Wabush iron ore mine, including certain mining leases, the royalty interest payable by the
Wabush Iron Ore Co. Limited, the equity interest in Knoll Lake Minerals Ltd. and certain amounts
that may become payable in connection with the lawsuit brought for underpayment of royalties in
connection with past and future shipments from the Wabush mine for an aggregate purchase price of
Cdn$59.8 million. 0764509 B.C. Ltd. paid the purchase price by allotting and issuing 2,023,566
common shares, 59,800 cumulative, retractable non-voting Series A preferred shares and one
cumulative, retractable non-voting Series B preferred share. The Series A preferred shares pay an
annual dividend at a dividend rate (which is adjusted annually based on the aggregate annual net
royalties received by 0764509 B.C. Ltd. and was 34% in 2008, 21% in 2007 and 18% in 2006) on the
redemption amount of the Series A preferred shares and are retractable by the holder at the initial
issue price of Cdn$1,000 per share. The Series B preferred shares carry an annual dividend of 6%
and are retractable by the holder at the then current redemption price, which is initially set at
one dollar and will be increased by the amount of any reward that becomes payable in connection
with the legal proceedings discussed above. In addition, 0764509 B.C. Ltd. granted to Cade
Struktur a licence to market and sell certain blood pressure intellectual property for China,
India, Russia and Korea. On September 11, 2006, we entered into an arrangement agreement with Cade
Struktur pursuant to which, effective October 23, 2006, we acquired all of the issued and
outstanding common shares of Cade Struktur through the amalgamation of Cade Struktur and 39858
Yukon Inc. As a result, Cade Struktur became a wholly-owned subsidiary. We consolidated 0764509
B.C. Ltd. as a variable interest entity and Cade Struktur as its primary beneficiary. Effective
December 28, 2006, we amalgamated with 39858 Yukon, with our company as the continuing corporation.
As a result, we continue to indirectly participate in a royalty interest in the Wabush iron ore
mine.
SELECTED FINANCIAL INFORMATION
KHD Summary Pro Forma Financial Information
The following is a summary of selected pro forma financial information for KHD after giving effect
to (i) the distribution of 26% of the KID Shares by KHD in connection with the Arrangement; and
(ii) the Shareholders Agreement and assuming KHD has taken all other steps necessary to no longer
control KID from an accounting perspective. The pro forma statement of earnings is for the year
ended December 31, 2008 and for the nine months ended September 30, 2009 and assumes completion of
the events as if they had taken place on January 1, 2008 and 2009, respectively. The pro forma
consolidated balance sheet information is as at September 30, 2009 and assumes completion of the
events as if they had taken place on September 30, 2009.
The following selected pro forma financial information of KHD should be read in conjunction with
the audited comparative consolidated financial statements of KHD for the year ended December 31,
2008, along with the corresponding MD&A, and the unaudited comparative interim consolidated
financial statements of KHD for the nine months ended September 30, 2009, along with the
corresponding MD&A, all as specifically incorporated by reference in this Information Circular, and
the unaudited pro forma financial statements of KHD set out in Schedule E to this Information
Circular Pro Forma Financial Statements of KHD. Please refer to the notes to the pro forma
financial statements which disclose the pro forma assumptions and adjustments.
Selected Pro Forma Financial Data
(
in thousands, other than per share amounts)
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|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Nine Months Ended
|
|
|
|
|
September 30, 2009
|
|
Fiscal Year Ended December 31, 2008
|
|
|
|
|
|
|
|
|
|
|
Pro Forma
|
|
|
|
|
|
|
|
|
|
Pro Forma
|
|
|
|
|
|
|
Pro Forma
|
|
Giving Effect
|
|
|
|
|
|
Pro Forma
|
|
Giving Effect
|
|
|
|
|
|
|
Giving
|
|
to
|
|
|
|
|
|
Giving
|
|
to
|
|
|
|
|
|
|
Effect to
|
|
Shareholders
|
|
|
|
|
|
Effect to
|
|
Shareholders
|
|
|
|
|
|
|
Distribution
|
|
Agreement
|
|
|
|
|
|
Distribution
|
|
Agreement
|
|
|
|
|
|
|
of 26% of
|
|
and Plan of
|
|
|
|
|
|
of 26% of
|
|
and Plan of
|
|
|
Historical
|
|
KID Shares
|
|
Arrangement
|
|
Historical
|
|
KID Shares
|
|
Arrangement
|
|
|
|
Revenues
|
|
$
|
366,208
|
|
|
|
366,208
|
|
|
|
|
|
|
|
638,354
|
|
|
|
638,354
|
|
|
|
|
|
Operating income
|
|
|
12,583
|
|
|
|
12,583
|
|
|
|
(1,826
|
)
|
|
|
54,545
|
|
|
|
54,545
|
|
|
|
5,453
|
|
Income (loss) from continuing operations
|
|
|
1,226
|
|
|
|
4,611
|
|
|
|
(12,370
|
)
|
|
|
(6,952
|
)
|
|
|
2,523
|
|
|
|
(42,177
|
)
|
Income (loss) from continuing operations, per share
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic
|
|
|
0.04
|
|
|
|
0.15
|
|
|
|
(0.41
|
)
|
|
|
(0.23
|
)
|
|
|
0.08
|
|
|
|
(1.39
|
)
|
95
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Nine Months Ended
|
|
|
|
|
September 30, 2009
|
|
Fiscal Year Ended December 31, 2008
|
|
|
|
|
|
|
|
|
|
|
Pro Forma
|
|
|
|
|
|
|
|
|
|
Pro Forma
|
|
|
|
|
|
|
Pro Forma
|
|
Giving Effect
|
|
|
|
|
|
Pro Forma
|
|
Giving Effect
|
|
|
|
|
|
|
Giving
|
|
to
|
|
|
|
|
|
Giving
|
|
to
|
|
|
|
|
|
|
Effect to
|
|
Shareholders
|
|
|
|
|
|
Effect to
|
|
Shareholders
|
|
|
|
|
|
|
Distribution
|
|
Agreement
|
|
|
|
|
|
Distribution
|
|
Agreement
|
|
|
|
|
|
|
of 26% of
|
|
and Plan of
|
|
|
|
|
|
of 26% of
|
|
and Plan of
|
|
|
Historical
|
|
KID Shares
|
|
Arrangement
|
|
Historical
|
|
KID Shares
|
|
Arrangement
|
|
|
|
Diluted
|
|
|
0.04
|
|
|
|
0.15
|
|
|
|
(0.41
|
)
|
|
|
(0.23
|
)
|
|
|
0.08
|
|
|
|
(1.39
|
)
|
Net Income (loss)
|
|
|
1,226
|
|
|
|
4,611
|
|
|
|
(12,370
|
)
|
|
|
(6,952
|
)
|
|
|
2,523
|
|
|
|
(42,177
|
)
|
Net Income (loss), per share
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic
|
|
|
0.04
|
|
|
|
0.15
|
|
|
|
(0.41
|
)
|
|
|
(0.23
|
)
|
|
|
0.08
|
|
|
|
(1.39
|
)
|
Diluted
|
|
|
0.04
|
|
|
|
0.15
|
|
|
|
(0.41
|
)
|
|
|
(0.23
|
)
|
|
|
0.08
|
|
|
|
(1.39
|
)
|
|
Total assets
|
|
|
764,163
|
|
|
|
762,952
|
|
|
|
277,689
|
|
|
|
N/A
|
|
|
|
N/A
|
|
|
|
N/A
|
|
Net assets
|
|
|
284,953
|
|
|
|
283,742
|
|
|
|
246,999
|
|
|
|
N/A
|
|
|
|
N/A
|
|
|
|
N/A
|
|
Long term debt, less current portion
|
|
|
11,891
|
|
|
|
11,891
|
|
|
|
11,891
|
|
|
|
N/A
|
|
|
|
N/A
|
|
|
|
N/A
|
|
Shareholders equity
|
|
|
279,776
|
|
|
|
246,498
|
|
|
|
246,999
|
|
|
|
N/A
|
|
|
|
N/A
|
|
|
|
N/A
|
|
Working capital
|
|
|
312,155
|
|
|
|
310,944
|
|
|
|
119,049
|
|
|
|
N/A
|
|
|
|
N/A
|
|
|
|
N/A
|
|
Weighted average common stock,
outstanding diluted
|
|
|
30,385,985
|
|
|
|
30,385,985
|
|
|
|
30,385,985
|
|
|
|
30,401,018
|
|
|
|
30,602,626
|
|
|
|
30,401,018
|
|
Dividends
The actual timing, payment and amount of dividends paid on the KHD Shares is determined by the
Board, based upon things such as its cash flow, results of operations and financial condition, the
need for funds to finance ongoing operations and such other business considerations as it considers
relevant.
Managements Discussion and Analysis
KHDs Managements Discussion and Analysis with respect to KHDs financial statements for the
fiscal year ended December 31, 2008 and the interim period ended September 30, 2009 are
specifically incorporated by reference herein. Copies of such documents are available on SEDAR at
www.sedar.com, on EDGAR at www.sec.gov, or upon request and without charge from KHD at our head
office located at Suite 1620 400 Burrard Street, Vancouver, British Columbia, Canada V6C 3A6
(Attention: Rene Randall).
DESCRIPTION OF SHARE CAPITAL
Upon completion of the Arrangement, KHDs authorized capital will consist of an unlimited number of
Class A Shares, Class B Shares (being the New KHD Shares) and an unlimited number of class A
preferred shares without par value.
Common Shares
Subject to the approval of the Shareholders at the Meeting and the completion of the Arrangement,
KHD will amend its notice of articles and articles to create three new classes of common shares,
being the Class A Shares, the Class B Shares and the New KHD Shares. Upon completion of the
Arrangement, Shareholders, other than KHD Subsidiaries and those who exercise their Dissent Right,
will receive New KHD Shares in addition to the KID Shares they are entitled to receive in
connection with the closing of the Arrangement.
Upon completion of the Arrangement, KHDs authorized capital will consist of an unlimited number of
Class A Shares and Class B Shares, and an unlimited number of Class A preferred shares without par
value.
Class A Shares
Holders of Class A Shares may receive dividends when, as and if declared by the Board, subject to
the preferential dividend rights of any other classes or series of preferred shares issued and
outstanding. In no event may a dividend be declared or paid on the Class A Shares if payment of
the dividend would cause the realizable value of the assets of KHD to be less than the aggregate of
its liabilities.
96
Holders of Class A Shares will be entitled to one vote per share at any meeting of shareholders of
any class of common shares, and in general and subject to applicable law, all matters will be
determined by a majority of votes cast other than fundamental changes with respect to KHD.
In the event of any distribution of the assets of KHD on the liquidation, dissolution or winding-up
of KHD, whether voluntary or involuntary, or in the event of any other distribution of assets of
KHD among its shareholders for the purpose of winding-up its affairs (the
Liquidation
Distribution
), the Class A Shareholders shall be entitled to receive such Liquidation Distribution
only after any prior rights of the preferred shares and Class B Shares or any other share ranking
prior in right to the Class A Shares.
Class B Shares
Holders of Class B Shares may receive dividends when, as and if declared by the Board, subject to
the preferential dividend rights of any other classes or series of preferred shares issued and
outstanding. In no event may a dividend be declared or paid on the Class B Shares if payment of
the dividend would cause the realizable value of the assets of KHD to be less than the aggregate of
its liabilities.
Holders of Class B Shares will be entitled to one vote per share at any meeting of shareholders of
any class of common shares, and in general and subject to applicable law, all matters will be
determined by a majority of votes cast other than fundamental changes with respect to KHD.
The Class B Shareholders shall be entitled, in the event of a Liquidation Distribution, to receive,
before any Liquidation Distribution is made to the holders of KHD Shares, the Class A Shareholders
or any other shares of KHD ranking junior to the Class B Shares but after any prior rights of any
preferred shares, the stated capital with respect to each Class B Share held by them, together with
all declared and unpaid dividends (if any and if preferential) thereon, up to the date of such
Liquidation Distribution, and thereafter the Class B Shareholders shall rank pari passu with all
other classes of common shares in connection with the Liquidation Distribution.
The KHD Shares are currently listed, and it is expected that the Class B Shares will continue to be
listed, on the NYSE. KHD expects that trading in the Class B Shares will commence on an if, as
and when issued basis on the NYSE on or about March 31, 2010, and will be announced by KHD in a
news release. Since KHD is a reporting issuer under applicable Canadian securities laws, the
acquisition and beneficial ownership reporting rules under such laws will apply to all purchases of
the Class B Shares from the commencement of if, as and when issued trading in such shares. U.S.
beneficial ownership reporting rules will also apply. If the Arrangement becomes effective on or
about March 30, 2010, it is expected that the KHD Shares will cease trading on the NYSE after the
close of trading on or about March 30, 2010 and that the Class B Shares will being trading on the
NYSE for regular settlement at the opening of trading on or about March 31, 2010. KHD expects that
the if, as and when issued trades will settle on or about March 31, 2010 on the NYSE.
Preferred Shares
KHD is authorized to issue an unlimited number of Class A preferred shares without par value. As
of March 1, 2010, there were no class A preferred shares issued and outstanding. The Board is
authorized to approve the issuance of one or more series of class A preferred shares without
further authorization of the Shareholders and to fix the number of shares, the designations,
rights, privileges, restrictions and conditions of any such series, including the following:
|
(a)
|
|
determine the maximum number of shares of that series that KHD is authorized to
issue, determine that there is no such maximum number, or alter any such determination;
|
|
|
(b)
|
|
create an identifying name for the shares of that series, or alter any such
identifying name; and
|
|
|
(c)
|
|
attach special rights or restrictions to the shares of that series, or alter
any such special rights or restrictions.
|
Except as may be set out in the rights and restrictions of any series of the class A preferred
shares as determined by the Board, holders of the class A preferred shares are not entitled to
receive notice of, or to attend or vote at, any general meeting of Shareholders.
97
The holders of class A preferred shares are entitled, upon the liquidation or dissolution of KHD,
whether voluntary or involuntary, or on any other distribution of the assets of KHD among its
shareholders for the purpose of winding up its affairs, to receive, before any distribution is made
to the holders of KHD Shares or any other shares of KHD ranking junior to the class A preferred
shares with respect to the repayment of capital, the amount paid up with respect to each class A
preferred share held by them, together with the fixed premium (if any) thereon, which for such
purpose shall be calculated as if such dividends were accruing on a day-to-day basis up to the date
of distribution, whether or not earned or declared, and all declared and unpaid non-cumulative
dividends thereon. After payment to the holders of the class A preferred shares of the amounts so
payable to them, such holders are not entitled to share in any further distribution of the property
or assets of KHD, except as specifically provided in the special rights and restrictions attached
to any particular series.
Class A Preferred Shares, Series 2
In connection with the Arrangement, KHD will amend its notice of articles and articles to create an
unlimited number of Preferred Shares (being the Class A Preferred Shares, Series 2). Subject to
applicable law and the conditions attaching to the Preferred Shares as a series, the holders of the
Preferred Shares (the
Preferred Shareholders
) shall not be entitled to receive notice of or to
attend or to vote at any meetings of the holders of any class of common shares of KHD.
The issue price for each of the Preferred Shares shall be the fair market value of one KHD Share at
the date of issue of the Preferred Shares (the
Redemption Amount
). The Preferred Shareholders
shall be entitled to receive and KHD shall pay to them always in preference and in priority to any
payment of dividends on any class of common shares and any other shares of KHD ranking junior to
the Preferred Shares as and when declared by the Board out of moneys of KHD properly applicable to
the payment of dividends, preferential, cumulative, cash dividends, accruing and cumulative from
the date of issue, at the annual rate per Preferred Share equal to the prevailing commercial rate
on the date the dividend is declared by the Board.
In the event of any Liquidation Distribution, the Preferred Shareholders shall be entitled to
receive per Preferred Share the Redemption Amount, together with all accrued and unpaid dividends
thereon, before any amount shall be paid by KHD or any assets of KHD shall be distributed to
holders of any class of common shares with respect to the Liquidation Distribution. After payment
to the Preferred Shareholders of the amounts so payable to them, the Preferred Shareholders shall
not be entitled to share in any further distribution of assets of KHD.
KHD shall not at anytime without, but may at anytime with, the approval of the Preferred
Shareholders, authorize or issue any shares, other than additional series of preferred shares,
ranking prior to or on parity with the Preferred Shares, as to the payment of dividends or the
distribution of assets in the event of any Liquidation Distribution. Furthermore, so long as any
of the Preferred Shares are outstanding, KHD shall not at anytime without, but may at anytime with,
the approval of the Preferred Shareholders:
|
(a)
|
|
declare, pay or set apart for payment any dividends on any class of common shares; or
|
|
|
(b)
|
|
issue any Preferred Shares;
|
unless, in each such case, all dividends then payable on the Preferred Shares and on all other
shares of KHD ranking on parity with the Preferred Shares with respect to the payment of dividends,
accrued to the most recently preceding payment date or dates, have been declared and paid or set
aside for payment.
Any approval required to be given by the Preferred Shareholders shall, except as otherwise required
by the BCBCA, be given by an instrument or instruments in writing signed by the Preferred
Shareholders holding not less than two-thirds of the then outstanding Preferred Shares or by
resolution passed by at least two-thirds of the votes cast at a meeting or adjourned meeting of the
Preferred Shareholders duly called and at which a quorum was present. In the event that such
approval is to be given at a meeting of the Preferred Shareholders, a quorum for the meeting shall
consist of the Preferred Shareholders, present in person or represented by proxy, of not less than
a majority of the Preferred Shares outstanding at the time of the meeting. If, however, Preferred
Shareholders holding a majority of the outstanding Preferred Shares are not present in person or
represented by proxy at such meeting within 30 minutes after the time for which the meeting was
called and the meeting is adjourned to a subsequent date, a quorum for the adjourned meeting shall
consist of the Preferred Shareholders present in person or represented by proxy at such adjourned
meeting.
98
Subject to provisions of the BCBCA and upon the occurrence of any of the following events or
circumstances:
|
(i)
|
|
a change in the control of KHD (due to any person acquiring greater than 50% of
the voting shares in the capital of KHD, the commencement of a tender offer for control
of KHD by a third party other than a holder of the Preferred Shares, or proxy
solicitation by a third party);
|
|
|
(ii)
|
|
KHD becoming insolvent or being unable to meet its liabilities as they come
due; or
|
|
|
(iii)
|
|
any action taken by KHD whereby it seeks protection from its creditors,
|
KHD will redeem the Preferred Shares registered in the name of the holder at the direction of the
holder by paying the Redemption Amount, together with all accrued and unpaid dividends thereon up
to but not including the date of redemption and no more.
No Preferred Shares may be sold, transferred or otherwise disposed of without the consent of the
Board and the Board is not required to give any reason for refusing to consent to any such sale,
transfer or other disposition.
OPTIONS TO PURCHASE NEW KHD SHARES
The following table sets forth, as of March 1, 2010, certain information as to options to purchase
New KHD Shares that will be outstanding upon completion of the Arrangement:
|
|
|
|
|
|
|
|
|
|
|
|
|
Type
|
|
Number
(1)
|
|
Exercise Price
|
|
Expiry Date
|
|
Options
|
|
|
55,004
|
(2)
|
|
$
|
13.06
|
|
|
May 17, 2016
|
Options
|
|
|
116,668
|
|
|
$
|
26.85
|
|
|
May 17, 2017
|
Options
|
|
|
66,664
|
|
|
$
|
29.25
|
|
|
June 28, 2017
|
Options
|
|
|
116,664
|
|
|
$
|
31.81
|
|
|
May 19, 2018
|
Options
|
|
|
66,664
|
|
|
$
|
31.53
|
|
|
June 30, 2018
|
|
|
|
(1)
|
|
Options to purchase New KHD Shares will be forfeited without consideration in
the event that employees cease employment with KHD or its subsidiaries.
|
|
(2)
|
|
It is expected that 5,000 of these options will continue to be outstanding after the
completion of the Arrangement as a result of an employee continuing his employment with KHD.
|
ESCROWED SECURITIES
As of March 1, 2010, no outstanding securities of KHD were being held in escrow.
PRINCIPAL SHAREHOLDERS
As at March 1, 2010, to the knowledge of the directors and officers of KHD, the only persons or
corporation that would beneficially own, directly or indirectly, or exercise control or direction
over, voting securities of KHD carrying more than ten per cent of the voting rights attaching to
any class of voting securities of KHD upon the completion of the Arrangement would be as follows:
|
|
|
|
|
|
|
|
|
Name
|
|
Amount Owned
|
|
Percent of Class
(1)
|
Peter Kellogg
|
|
|
6,283,100
|
(2)
|
|
|
20.8
|
%
|
|
|
|
(1)
|
|
Based on 30,259,911 New KHD Shares expected to be issued
and outstanding upon completion of the Arrangement.
|
|
(2)
|
|
In his public filings, Mr. Kellogg disclaims beneficial
ownership of 5,643,100 KHD Shares, or approximately 18.6% of the
issued and outstanding New KHD Shares expected to be outstanding
upon completion of the Arrangement.
|
99
DIRECTORS AND OFFICERS
Following the completion of the Arrangement, the directors and executive officers of KHD will be as
follows:
Directors
Michael J. Smith
Silke Stenger
Gerhard Rolf
Indrajit Chatterjee
Shuming Zhao
Executive Officers
Michael Smith Interim President
Alan Hartslief Chief Financial Officer and Secretary
It is intended that the composition of the Board and the executive officers of KHD will change to
align KHD within its industry in connection with the completion of the Arrangement.
Occupations and Security Holdings of Directors and Executive Officers
The following table sets forth the information regarding each of the persons who are expected to be
directors and executive officers of KHD upon completion of the Arrangement:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Approximate
|
|
|
|
|
|
|
|
|
number of New KHD
|
|
|
|
|
|
|
|
|
Shares expected to be
|
|
|
|
|
|
|
|
|
beneficially owned,
|
|
|
|
|
|
|
|
|
directly or indirectly,
|
Name, Place of Residence and
|
|
Principal Occupation,
|
|
Director
|
|
upon completion of
|
Present Position with KHD
|
|
Business or Employment
|
|
Since
|
|
the Arrangement
|
Indrajit Chatterjee
Gurgaon, India
Director
(1)(2)(3)
|
|
Mr. Chatterjee is a
retired businessman
and formerly
responsible for
marketing with the
Transportation
Systems Division of
General Electric for
India.
|
|
|
2005
|
|
|
Nil
|
|
|
|
|
|
|
|
|
|
Michael J. Smith
Hong Kong SAR, China
Chairman of the Board, Director and
Interim President
|
|
Chairman of the
Board, Chief
Financial Officer of
the Company from 2003
until October 16,
2007 and Secretary of
the Company from 2003
until March 1, 2008.
Mr. Smith was the
President and Chief
Executive Officer of
the Company between
1996 and 2006. Mr.
Smith is the
President, Secretary
and a director of
Blue Earth Refineries
Inc.
|
|
|
1986
|
|
|
Nil
|
|
|
|
|
|
|
|
|
|
Silke Stenger
(1)(2)(3)
Seligenstadt, Germany
Director
|
|
Independent
Management Consultant
and Director and
Chief Financial
Officer of Management
One Human Capital
Consultants Ltd.
|
|
|
2003
|
|
|
Nil
|
|
|
|
|
|
|
|
|
|
Dr. Shuming Zhao
(1)(2)(3)
Nanjing, China
Director
|
|
Dr. Zhao is a
professor and the
Dean of the School of
Business, Nanjing
University and the
Dean of the School of
Graduate Studies,
Macau University of
Science and
Technology. Dr. Zhao
is President of
Jiangsu Provincial
Association of Human
Resource Management
and Vice President of
Jiangsu Provincial
Association of
Business Management
and Entrepreneurs.
|
|
|
2004
|
|
|
Nil
|
100
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Approximate
|
|
|
|
|
|
|
|
|
number of New KHD
|
|
|
|
|
|
|
|
|
Shares expected to be
|
|
|
|
|
|
|
|
|
beneficially owned,
|
|
|
|
|
|
|
|
|
directly or indirectly,
|
Name, Place of Residence and
|
|
Principal Occupation,
|
|
Director
|
|
upon completion of
|
Present Position with KHD
|
|
Business or Employment
|
|
Since
|
|
the Arrangement
|
Gerhard Rolf
Frankfurt, Germany
Director
|
|
Mr. Rolf is retired.
Formerly, Mr. Rolf
was the European Vice
President of Haworth
Inc. from 1999 to
2003. Prior to that,
he held several
positions with Black
and Decker from 1987
to 1993, including
Managing Director for
Germany and Vice
President Total
Quality Europe, and
was a member of its
European board of
directors. He later
became European
President of Security
Hardware in Bruehl,
Germany.
|
|
|
2009
|
|
|
Nil
|
|
|
|
|
|
|
|
|
|
Alan Hartslief
Vienna, Austria
Chief Financial Officer and
Secretary
|
|
Mr. Hartslief has
been the Chief
Financial Officer of
KHD since October 16,
2007 and its
Secretary since March
1, 2008. Mr.
Hartslief is an
international member
of the New York
Society of CPAs and a
Chartered Accountant
in Canada and South
Africa. Mr. Hartslief
has more than 20
years experience in
the finance and
accounting areas. He
has served in a
variety of senior
finance positions
with Ciba-Geigy (now
Novartis) and Ciba
Specialty Chemicals.
He has worked in
South Africa, Canada,
Switzerland and the
United States. In his
previous roles, he
led programs for an
initial public
offering on the New
York Stock Exchange
and the establishment
of global shared
financial services
centers. He also
successfully managed
the financial
integration and
separation of major
acquisitions and
divestments.
|
|
|
N/A
|
|
|
Nil
|
|
|
|
(1)
|
|
Member of the Audit Committee.
|
|
(2)
|
|
Member of the Compensation Committee.
|
|
(3)
|
|
Member of the Nominating and Corporate Governance Committee.
|
CORPORATE CEASE TRADE ORDERS OR BANKRUPTCIES
Except as disclosed herein, no director, officer or 10% shareholder of KHD:
(a)
|
|
is, as at the date of this Information Circular, or has been within 10 years before the date
of this Information Circular, a director or officer of any issuer (including KHD) that, while
that person was acting in that capacity:
|
|
(i)
|
|
was the subject of a cease trade or similar order, or an order that denied the
issuer access to any exemption under securities legislation, for a period of more than
30 consecutive days;
|
|
|
(ii)
|
|
was subject to an event that resulted, after the director or officer ceased to
be a director or officer, in KHD being the subject of a cease trade or similar order or
an order that denied the relevant company access to any exemption under securities
legislation, for a period of more than 30 consecutive days; or
|
|
|
(iii)
|
|
or within a year of that person ceasing to act in that capacity, became
bankrupt, made a proposal under any legislation relating to bankruptcy or insolvency or
was subject to or instituted any proceedings, arrangement or compromise with creditors
or had a receiver, receiver manager or trustee appointed to hold its assets;
|
101
(b)
|
|
has been subject to any penalties or sanctions imposed by a court relating to Canadian
permits legislation or by a Canadian securities regulatory authority (other than penalties
imposed as a result of late filings of insider reports) or has entered into a settlement
agreement with a Canadian securities regulatory authority, or been subject to any other
penalties or sanctions imposed by a court or regulatory body that would likely to be
considered important to a reasonable investor making an investment decision; or
|
|
(c)
|
|
has, within the 10 years before the date of this Information Circular, become bankrupt, made
a proposal under any legislation relating to bankruptcy or insolvency, or become subject to or
instituted any proceedings, arrangement or compromise with creditors, or had a receiver,
receiver manager or trustee appointed to hold its assets.
|
On June 11, 2003, the British Columbia Securities Commission issued a cease trade order with
respect to the shares of Banff Resources Ltd., a company for which Michael Smith served as director
at the time the cease trade order was issued.
CONFLICTS OF INTEREST
Except as disclosed herein or in the Information Circular, there are no existing or potential
material conflicts of interest between KHD or a subsidiary of KHD and a director or officer of KHD
or a subsidiary of KHD. Reference is made to the information disclosed in the Information Circular
to which this Schedule is attached under the heading Interest of Informed Persons in Material
Transactions.
INDEBTEDNESS OF DIRECTORS AND EXECUTIVE OFFICERS
Except as otherwise disclosed herein, no individual who is or was a director or executive officer
of KHD, any proposed nominee for election as a director of KHD or any associate of such director,
officer or proposed nominee, was indebted to KHD or any of its subsidiaries or was indebted to
another entity that was the subject of a guarantee, support agreement, letter of credit or other
similar arrangement or understanding provided by KHD or any of its subsidiaries.
No current or former director, executive officer or employee is indebted to KHD as at the date of
this Information Circular.
RISK FACTORS
Risk Factors Relating to KHDs business after completion of the Arrangement
The worldwide economic downturn has reduced and could continue to reduce the amount of royalty KHD
receives from the Wabush iron ore mine and the value of its financial assets, and therefore may
have a continuing material adverse effect on its financial results.
In periods of recession or periods of minimal economic growth, the demand for steel and iron ore
usually decreases significantly and results in a drop in the price for iron ore. Such decreases in
the demand for iron ore and the resulting decrease in price for iron ore will lead to a decrease in
the royalty we receive from the Wabush iron ore mine and could have a material adverse effect on
our financial results. KHD cannot predict the timing or duration of the current economic slowdown
or the timing or strength of a subsequent economic recovery, worldwide or in the industrial plant
technology, equipment and service industry, and cannot predict the extent to which the current
economic slowdown and economic events will impact our business. However, the uncertainty regarding
the financial markets and worldwide political and economic climates are expected to continue to
affect the demand for KHDs products and services during the coming months. The market price of
the KHD Shares may decrease if investors have concerns that our business, financial condition and
results of operations will continue to be negatively impacted by the worldwide economic downturn.
Any significant deflation may negatively affect KHDs business, results of operations and financial condition.
Deflation is the risk that prices throughout the economy may decline, which may reduce the amount
of royalty we receive from our interest in Wabush. Deflation may also result in the decrease of
the price of cement which may result in our customers delaying or cancelling projects. Any such
delays or cancellations could result in reduced
102
demand for our products and services, which may adversely affect our business, results of
operations and financial condition.
Changes in the market price of the commodities that underlie royalty, working and other interests
will affect the profitability of KHD and the revenue generated therefrom.
The revenue derived by KHD from its interest in the Wabush iron ore mine will be significantly
affected by changes in the market price of the commodities underlying the royalties, working
interests and investments. KHDs revenue will be particularly sensitive to changes in the price of
iron ore. Commodity prices, including the price of iron ore, fluctuate on a daily basis and are
affected by numerous factors beyond the control of KHD, including levels of supply and demand,
industrial development levels, inflation and the level of interest rates, the strength of the U.S.
dollar and geopolitical events. Such external economic factors are in turn influenced by changes in
international investment patterns, monetary systems and political developments.
All commodities, by their nature, are subject to wide price fluctuations and future material price
declines will result in a decrease in revenue or, in the case of severe declines that cause a
suspension or termination of production by relevant operators, a complete cessation of revenue from
royalties or working interests applicable to one or more relevant commodities. The broader
commodity market tends to be cyclical, and a general downturn in overall commodity prices could
result in a significant decrease in overall revenue. Any such price decline may result in a
material and adverse effect on KHDs profitability, results of operation and financial condition.
The operation of the Wabush iron ore mine is determined by generally determined by a third party
operator and KHD has limited decision making power as to how these properties are operated. The
operators failure to perform could affect the revenues generated by KHD.
The revenue derived from the Wabush iron ore mine is based on production generated its third party
operator. The operator will generally have the power to determine the manner in which the iron ore
is exploited, including decisions to expand, continue or reduce production from the mine and
decisions about the marketing of products extracted from the mine. The interests of the third
party operator and those of KHD may not always be aligned. As an example, it will, in almost all
cases, be in the interest of KHD to advance production as rapidly as possible in order to maximize
near-term cash flow, while the third party operator may, in many cases, take a more cautious
approach to development as they are at risk on the cost of development and operations. The
inability of KHD to control the operations of the Wabush iron ore mine may result in a material and
adverse effect on KHDs profitability, results of operation and financial condition. Similar
adverse effects may result from any other royalty interests KHD may acquire pertaining to other
parties that are primarily operated by a third party operator.
KHD may be unable to successfully acquire additional royalty interests.
KHD currently only has an indirect royalty interest in the Wabush iron ore mine. Its future
success depends upon its ability to acquire royalty interests at appropriate valuations, including
through corporate acquisitions, to diversify its royalty portfolio. KHD anticipates that most of
its revenues will be derived from royalty interests that it acquires or finances, rather than
through exploration and development of properties. There can be no assurance that KHD will be able
to identify and complete the acquisition of such royalty interests, or businesses that own desired
royalty interests, at reasonable prices or on favorable terms. In addition, KHD faces competition
in the acquisition of royalty interests. It may also experience negative reactions from the
financial markets if it is unable to successfully complete acquisitions of royalty interests or
businesses that own desired royalty interests. Each of these factors may adversely affect the
trading price of the New KHD Shares or KHDs financial condition or results of operations.
KHDs revenues will be subject to operational and other risks faced by operators of its mining
properties.
Although KHD is not expected to pay capital costs or operating costs, its financial results will be
subject to hazards and risks normally associated with developing and operating mining properties,
both for the properties where it may conduct exploration or indirectly for properties operated by
others in which KHD may hold royalty interests. These risks include:
|
|
|
insufficient ore reserves;
|
|
|
|
|
fluctuations in production costs incurred by operators or third parties that may make
mining of ore uneconomical or impact the amount of reserves;
|
103
|
|
|
declines in the prices of resources;
|
|
|
|
|
mine operating and ore processing facility problems;
|
|
|
|
|
economic downturns and operators insufficient financing;
|
|
|
|
|
significant environmental and other regulatory permitting requirements and restrictions;
|
|
|
|
|
challenges by non-mining interests to existing permits and mining rights, and to
applications for permits and mining rights;
|
|
|
|
|
community unrest and labor disputes;
|
|
|
|
|
geological problems;
|
|
|
|
|
pit wall or tailings dam failures;
|
|
|
|
|
natural catastrophes such as floods or earthquakes; and
|
|
|
|
|
the risk of injury to persons, property or the environment.
|
Operating cost increases could have a negative effect on the value of, and income from, any royalty
interests we may acquire by potentially causing an operator to curtail, delay or close operations
at a mine site.
KHD may have limited access to data and disclosure regarding the operation of properties, which
could affect its ability to enhance a royaltys performance.
As a royalty holder, KHD may have limited access to data on the operations or to the actual
properties themselves. This could affect its ability to enhance a royaltys performance. It could
also result in delays in cash flow from that anticipated by KHD based on the stage of development
of Wabush. KHDs royalty payments may be calculated by the royalty payors in a manner different
from KHDs projections and KHD may or may not have rights of audit with respect to such royalty
interests.
KHD may experience difficulty attracting and retaining qualified management and technical personnel
to efficiently operate its business, and the failure to operate its business effectively could have
a material and adverse effect on its profitability, financial condition and results of operations.
KHD is dependent upon the continued availability and commitment of its key management, whose
contributions to immediate and future operations of KHD are of significant importance. The loss of
any such key management could negatively affect business operations. From time to time, KHD will
also need to identify and retain additional skilled management and specialized technical personnel
to efficiently operate its business. The number of persons skilled in the acquisition, exploration
and development of royalties and interests in natural resource properties is limited and
competition for such persons is intense. Recruiting and retaining qualified personnel is critical
to KHDs success and there can be no assurance of such success. If KHD is not successful in
attracting and training qualified personnel, KHDs ability to execute its business model and growth
strategy could be affected, which could have a material and adverse impact on its profitability,
results of operations and financial condition.
KHD will be dependent on the payment of royalties by the owners and operators of its royalty
interests, and any delay in or failure of such royalty payments will affect the revenues generated
by the Wabush iron ore mine or any other royalty interests KHD may acquire.
KHD will be dependent to a large extent upon the financial viability and operational effectiveness
of owners and operators of its royalty interests. Payments from production generally flow through
the operator and there is a risk of delay and additional expense in receiving such revenues.
Payments may be delayed by restrictions imposed by lenders, delays in the sale or delivery of
products, accidents, recovery by operators of expenses incurred in the operation of any royalty
properties, the establishment by operators of reserves for such expenses or the insolvency of an
operator. KHDs rights to payment under the royalties will likely have to be enforced by contract.
This may
104
inhibit its ability to collect outstanding royalties upon a default. Failure to receive any
payments from the owners and operators of mines in which KHD has or may acquire a royalty interest
may result in a material and adverse effect on KHDs profitability, results of operation and
financial condition.
Increased competition for royalty interests and resource investments could adversely affect KHDs
ability to acquire additional royalty and other investments in resources.
Many companies are engaged in the search for and the acquisition of resources, and there is a
limited supply of desirable resource interests. The resource businesses are competitive in all
phases. Many companies are engaged in the acquisition of royalty interests in resource properties,
including large, established companies with substantial financial resources, operational
capabilities and long earnings records. KHD may be at a competitive disadvantage in acquiring
royalty interests in these resource properties as many competitors may have greater financial
resources and technical staff. Accordingly, there can be no assurance that KHD will be able to
compete successfully against other companies in acquiring royalty interests in additional resource
properties. KHDs inability to acquire additional royalty interests in resource properties may
result in a material and adverse effect on KHDs profitability, results of operation and financial
condition.
Royalty and other interests may not be honoured by operators of a project.
Royalty and other interests in natural resource properties are largely contractual in nature.
Parties to contracts do not always honour contractual terms and contracts themselves may be subject
to interpretation or technical defects. To the extent grantors of royalty and other interests do
not abide by their contractual obligations, KHD would be forced to take legal action to enforce its
contractual rights. Such litigation may be time consuming and costly and, as with all litigation,
there is no guarantee of success. Should any such decision be determined adversely to KHD, it may
have a material and adverse effect on KHDs profitability, results of operations and financial
condition.
General Risks Faced by KHD
Shareholders interests will be diluted and investors may suffer dilution in their net book value
per share if KHD issues additional New KHD Shares or raise funds through the sale of equity
securities.
KHDs constating documents will authorize the issuance of the Class A Shares, the New KHD Shares
and Class A preferred shares. In the event that KHD is required to issue any additional common
shares or enter into private placements to raise financing through the sale of equity securities,
Shareholders interests will be diluted and investors may suffer dilution in their net book value
per share depending on the price at which such securities are sold. If KHD issues any such
additional New KHD Shares, such issuances will also cause a reduction in the proportionate
ownership of all other Shareholders. Further, any such issuance may result in a change of control
of our company.
KHDs constating documents contain indemnification provisions and it has entered into agreements
indemnifying its officers and directors against all costs, charges and expenses incurred by them.
KHDs constating documents contain indemnification provisions and it has entered into agreements
with respect to the indemnification of its officers and directors against all costs, charges and
expenses, including amounts payable to settle actions or satisfy judgments, actually and reasonably
incurred by them, and amounts payable to settle actions or satisfy judgments in civil, criminal or
administrative actions or proceedings to which they are made a party by reason of being or having
been a director or officer of KHD. Such limitations on liability may reduce the likelihood of
litigation against KHDs officers and directors and may discourage or deter Shareholders from suing
its officers and directors based upon breaches of their duties to KHD, though such an action, if
successful, might otherwise benefit KHD and the Shareholders.
Certain factors may inhibit, delay or prevent a takeover of KHD which may adversely affect the
price of the New KHD Shares.
Certain provisions of KHDs charter documents and the corporate legislation which govern it may
discourage, delay or prevent a change of control or changes in our management that Shareholders may
consider favourable. Such provisions include authorizing the issuance by the Board of preferred
stock in series, providing for a classified Board with staggered, three-year terms and limiting the
persons who may call special meetings of Shareholders. In addition, the
Investment Canada Act
imposes certain limitations on the rights of non-Canadians to acquire New
105
KHD Shares, although it is highly unlikely that this will apply. If a change of control or change
in management is delayed or prevented, the market price of the New KHD Shares could decline.
Fluctuations in interest rates and foreign currency exchange rates may affect KHDs results of
operations and financial condition.
Fluctuations in interest rates may affect the fair value of KHDs financial instruments sensitive
to interest rates. An increase in market interest rates may decrease the fair value of its fixed
interest rate financial instrument assets and a decrease in market interest rates may increase the
fair value of its fixed interest rate financial instrument liabilities, thereby resulting in a
reduction in the fair value of its equity.
Similarly, fluctuations in foreign currency exchange rates may affect the fair value of KHDs
financial instruments sensitive to foreign currency exchange rates. KHDs reporting currency is the
United States dollar. A depreciation of such currencies against the United States dollar will
decrease the fair value of its financial instrument assets denominated in such currencies and an
appreciation of such currencies against the United States dollar will increase the fair value of
its financial instrument liabilities denominated in such currencies, thereby resulting in a
reduction in KHDs equity.
Under the Shareholders Agreement, KHD will appoint the Custodian to exercise the voting rights
attached to the KID Shares that will be held by KHD after completion of the distribution of the KID
Shares and there is no assurance that the Custodian will act in the best interests of KHD or the
Shareholders.
As part of KHDs stated goal of enhancing long-term value for Shareholders by taking steps to
create two independent, publicly traded companies and allow KHD to focus on the mineral royalty
business, KHD intends to enter into the Shareholders Agreement whereby it appoints the Custodian to
direct the voting of the KID Shares that will be held by KHD after completion of the distribution
of the KID Shares. It is anticipated that, subject to satisfying all of the necessary
requirements, the entering into of the Shareholders Agreement may permit KHD to deconsolidate KIDs
financial position and results prior to the time that it would be efficient, from a tax
perspective, for KHD to distribute the remainder of the KID Shares owned by KHD at such time to the
Shareholders. A number of factors could, however, impair KHDs ability to deconsolidate its
financial results, including the following:
|
|
|
the existence of any common directors or officers among KHD and KID;
|
|
|
|
|
the existence of any cross-guarantees between KHD and KID;
|
|
|
|
|
if the Custodian is an affiliate or related party of KID and/or KHD;
|
|
|
|
|
if the Custodian, through the direction of the voting of the KID Shares, fails to act in
accordance with the terms of the Shareholders Agreement; and
|
|
|
|
|
if KHD is required to continue to guarantee the obligations of KIA and KID under the
Facility subsequent to the completion of the Arrangement.
|
If KHD deconsolidates KIDs financial position and then is required to re-consolidate KIDs
financial results, this could result in inconsistency in the reporting of financial results for
KHD, or the lack of comparability over several financial periods, any of which could have material
adverse consequences on the market price of the shares of KHD.
LEGAL PROCEEDINGS
KHD is subject to routine litigation incidental to its business and is named from time to time as a
defendant in various legal actions arising in connection with KHDs activities, certain of which
may include large claims for punitive damages.
MATERIAL CONTRACTS
KHD has not, within the two years preceding the date of this Information Circular, entered into any
contracts outside of the ordinary course of business that can be reasonably regarded as material to
KHD. For a list of material contracts entered into by KHD in the ordinary course of business
within two years preceding the date of this Information Circular, please see KHDs annual report on
Form 20-F filed on March 27, 2009 for the year ended December 31, 2008, which is incorporated into
this Information Circular by reference.
106
In connection with the Arrangement, KHD proposes to enter into the Shareholders Agreement with the
Custodian whereby KHD will engage the Custodian to direct the voting of the KID Shares that KHD
will continue to hold after consummation of the Arrangement. Subject to satisfying all necessary
requirements and taking the other steps necessary to no longer control KID from an accounting
perspective, the entering into of the Shareholders Agreement may assist KHD with its objective of
deconsolidating KIDs financial position and results from those of KHD prior to the time that it
would be efficient, from a tax perspective, for KHD to distribute the remainder of the KID Shares
owned by KHD at such time to the Shareholders. The deconsolidated financial presentation will more
accurately reflect the ultimate objective of the Arrangement on a going forward basis, as KID would
be deconsolidated from KHD in its entirety. As the Arrangement only contemplates the first tranche
of a distribution of the KID Shares and taking the other steps necessary to no longer control KID
from an accounting perspective, the resulting accounting presentation of KHD on a deconsolidated
basis will enable Shareholders to achieve a more accurate view of both KHD and KID. As a result,
KHD and KID will be in a position to achieve the full potential of the Arrangement prior to the
time they would otherwise be able to achieve such benefits if they were to delay taking the
necessary steps to achieve the deconsolidation until it is efficient, from a tax perspective, to
distribute the remainder of the KID Shares owned by KHD at such time.
The Shareholder Agreement is to become effective immediately on the Effective Date and provides,
among other things, that:
|
(a)
|
|
KHD will provide 10 days notice to the Custodian of any shareholder meeting of
KID;
|
|
|
(b)
|
|
KHD will take all necessary steps to ensure that it can vote the KID Shares at
any shareholder meeting of KID;
|
|
|
(c)
|
|
the Custodian will determine, in its sole discretion, acting in a responsible
manner as a prudent shareholder or investor would do, always having regard to the best
interests of the shareholders of KID, how to vote the KID Shares and will notify KHD no
later than five calendar days prior to any shareholder meeting of KID as to how to vote
the KID Shares;
|
|
|
(d)
|
|
KHD undertakes and covenants that it will vote the KID Shares, or such portion
thereof as determined by the Custodian, in accordance with the instructions of the
Custodian, except as set out in the Shareholders Agreement;
|
|
|
(e)
|
|
KHD will not be obligated to vote the KID Shares as determined by the Custodian
if the Shareholders Agreement is effective or illegal under any prevailing law;
|
|
|
(f)
|
|
KHD will pay an annual fee to the Custodian and indemnify and save harmless the
Custodian for all costs and expenses incurred in the performance of its obligations
under the Shareholders Agreement;
|
|
|
(g)
|
|
in the event that KHD fails to comply with the voting instructions, or
otherwise breaches the Shareholders Agreement, and such breach remains un-remedied
after receipt of notice from the Custodian, then KHD is obliged to immediately
distribute all of the KID Shares then owned to the Shareholders;
|
|
|
(h)
|
|
the Shareholders Agreement will terminate once KHD has distributed all of the
KID Shares that it owns from time to time;
|
|
|
(i)
|
|
immediately upon the completion of any transfer, sale or other disposition of
any of the KID Shares, the obligation to vote any such KID Shares as directed by the
Custodian will terminate; and
|
|
|
(j)
|
|
each of KHD and the Custodian may terminate the Shareholders Agreement for
cause, as such term is defined under German high court rulings, including, without
limitation, for serious and persistent misconduct, breach of the Shareholders Agreement
or persistent failure to comply with the terms of the Shareholders Agreement.
|
107
The Custodian under the Shareholders Agreement will be identified prior to the Effective Date. In
order to achieve the goal of no longer controlling KID from an accounting perspective and the
resulting accounting presentation of KHD on a deconsolidated basis, the Custodian has to be a party
which is not related to or affiliated with KHD and KID, or any of their respective directors or
officers, and includes any party that would be expected to result in KHD having to consolidate its
holding in KID.
KHD has yet to identify a party that will act as the Custodian. If KHD is unable to indentify a
party who is willing to act as the Custodian on or before the Effective Date, then KHD may not be
able to achieve its goal of taking all steps necessary to deconsolidate the financial position and
results of KID from those of KHD and will not proceed with the Arrangement.
The preceding description of the material terms and conditions of the Shareholders Agreement is
qualified in its entirety by the full text of the Shareholders Agreement which is attached as
Schedule P to this Information Circular. Shareholders are encouraged to read the Shareholders
Agreement in its entirety.
TAX CONSEQUENCES
Certain tax consequences relating to the Arrangement that may be material to some Shareholders are
summarized in the Information Circular to which this Schedule is attached under the headings
Certain Canadian Income Tax Consequences and Certain United States Income Tax Consequences.
This summary is however not exhaustive and Shareholders are cautioned not to rely on the disclosure
provided thereby and should consult their own tax advisor regarding the income tax consequences of
the Arrangement.
INTEREST OF EXPERTS
Except as otherwise disclosed herein, none of the experts hired by KHD have any material interest,
direct or indirect, by way of beneficial ownership in KHD.
AUDITORS AND AUDIT COMMITTEE
It is expected that upon completion of the Arrangement, Deloitte & Touche, LLP, Chartered
Accountants, will continue to act as auditors of KHD. In addition, it is expected that the Audit
Committee will continue to be comprised of Gerhard Rolf, Silke Stenger and Indrajit Chatterjee.
Each member is independent and financially literate as such terms are defined in National
Instrument 52-110
Audit Committees
.
FINANCIAL STATEMENT DISCLOSURE FOR KHD
The following financial statements of KHD are incorporated by reference into this Information
Circular:
|
|
|
KHD audited consolidated annual financial statements as at December 31, 2008 and 2007
and for the years ended December 31, 2008, 2007 and 2006, as filed on SEDAR at
www.sedar.com on March 27, 2009; and
|
|
|
|
|
KHD unaudited consolidated interim financial statements for the nine months ended
September 30, 2009 and 2008, as filed on SEDAR at www.sedar.com on November 16, 2009.
|
The following financial statements of KHD are included in this Information Circular:
|
|
|
KHD unaudited pro forma financial statements reflecting the disposition of the
industrial plant technology, equipment and service business comprising a balance sheet as
at September 30, 2009 and a statement of income for the nine months ended September 30,
2009 and year ended December 31, 2008, located at Schedule E to this Information Circular.
|
ADDITIONAL INFORMATION
KHD files annual and other reports, proxy statements and other information with certain Canadian
securities regulatory authorities and with the SEC in the United States. The documents filed with
the SEC are available to the public from the SECs website at http://www.sec.gov. The documents
filed with the Canadian securities regulatory authorities are available at http://www.sedar.com.
Shareholders of KHD may contact KHD by writing to KHDs
108
Secretary to request copies of KHDs
financial statements and MD&A. Financial Information is provided in KHDs comparative financial
statements and MD&A for the financial year ended December 31, 2008.
109
SCHEDULE E
KHD PRO FORMA FINANCIAL STATEMENTS AS AT AND FOR THE
NINE MONTHS ENDED SEPTEMBER 30, 2009
AND THE YEAR ENDED DECEMBER 31, 2008
110
KHD HUMBOLDT WEDAG INTERNATIONAL LTD.
PRO FORMA CONSOLIDATED BALANCE SHEETS
September 30, 2009
(United States Dollars in Thousands)
(Unaudited)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Pro Forma Giving
|
|
|
|
|
|
|
|
|
|
|
Pro Forma
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Effect to
|
|
|
|
|
|
|
|
|
|
|
Giving Effect
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Shareholders
|
|
|
|
|
|
|
|
|
|
|
to Distribution
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Agreement and
|
|
|
|
|
|
|
|
|
|
|
of 26% of KID
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Plan of
|
|
|
Historical
|
|
Note 1
|
|
Shares
|
|
Note 2
|
|
Note 3
|
|
Note 4
|
|
Arrangement
|
|
|
|
ASSETS
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Current Assets
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash and cash equivalents
|
|
|
407,423
|
|
|
|
(1,211
|
)
|
|
|
406,212
|
|
|
|
(304,433
|
)
|
|
|
28,190
|
|
|
|
(5,300
|
)
|
|
|
124,669
|
|
Securities
|
|
|
6,034
|
|
|
|
|
|
|
|
6,034
|
|
|
|
(6,016
|
)
|
|
|
2,174
|
|
|
|
|
|
|
|
2,192
|
|
Restricted cash
|
|
|
27,135
|
|
|
|
|
|
|
|
27,135
|
|
|
|
(27,135
|
)
|
|
|
29
|
|
|
|
|
|
|
|
29
|
|
Accounts receivable, trade
|
|
|
77,904
|
|
|
|
|
|
|
|
77,904
|
|
|
|
(77,677
|
)
|
|
|
127
|
|
|
|
|
|
|
|
354
|
|
Other receivables
|
|
|
22,864
|
|
|
|
|
|
|
|
22,864
|
|
|
|
(17,449
|
)
|
|
|
1,034
|
|
|
|
|
|
|
|
6,449
|
|
Inventories
|
|
|
78,112
|
|
|
|
|
|
|
|
78,112
|
|
|
|
(77,760
|
)
|
|
|
|
|
|
|
|
|
|
|
352
|
|
Contract deposits, prepaid and other
|
|
|
55,610
|
|
|
|
|
|
|
|
55,610
|
|
|
|
(55,101
|
)
|
|
|
319
|
|
|
|
|
|
|
|
828
|
|
Future income tax assets
|
|
|
6,238
|
|
|
|
|
|
|
|
6,238
|
|
|
|
(3,562
|
)
|
|
|
|
|
|
|
|
|
|
|
2,676
|
|
Assets held for sale
|
|
|
26,600
|
|
|
|
|
|
|
|
26,600
|
|
|
|
(26,600
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total current assets
|
|
|
707,920
|
|
|
|
(1,211
|
)
|
|
|
706,709
|
|
|
|
(595,733
|
)
|
|
|
31,873
|
|
|
|
(5,300
|
)
|
|
|
137,549
|
|
Non-current Assets
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Notes receivable
|
|
|
12,214
|
|
|
|
|
|
|
|
12,214
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
12,214
|
|
Investment in parent company
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(34,667
|
)
|
|
|
27,944
|
|
|
|
6,723
|
|
|
|
|
|
Property, plant and equipment
|
|
|
1,738
|
|
|
|
|
|
|
|
1,738
|
|
|
|
(4,405
|
)
|
|
|
3,057
|
|
|
|
|
|
|
|
390
|
|
Interest in resource property
|
|
|
26,975
|
|
|
|
|
|
|
|
26,975
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
26,975
|
|
Equity method investments
|
|
|
43
|
|
|
|
|
|
|
|
43
|
|
|
|
(43
|
)
|
|
|
20
|
|
|
|
|
|
|
|
20
|
|
Future income tax assets
|
|
|
14,099
|
|
|
|
|
|
|
|
14,099
|
|
|
|
(4,634
|
)
|
|
|
|
|
|
|
|
|
|
|
9,465
|
|
Investment in former subsidiaries
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
91,076
|
|
|
|
|
|
|
|
|
|
|
|
91,076
|
|
Other non-current assets
|
|
|
872
|
|
|
|
|
|
|
|
872
|
|
|
|
(872
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
Assets held for sale
|
|
|
302
|
|
|
|
|
|
|
|
302
|
|
|
|
(721
|
)
|
|
|
419
|
|
|
|
|
|
|
|
|
|
|
|
|
Total non-current assets
|
|
|
56,243
|
|
|
|
|
|
|
|
56,243
|
|
|
|
45,734
|
|
|
|
31,440
|
|
|
|
6,723
|
|
|
|
140,140
|
|
|
|
|
|
|
|
764,163
|
|
|
|
(1,211
|
)
|
|
|
762,952
|
|
|
|
(549,999
|
)
|
|
|
63,.314
|
|
|
|
1,423
|
|
|
|
277,689
|
|
|
|
|
LIABILITIES AND SHAREHOLDERS EQUITY
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Current Liabilities
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Accounts payable and accrued expenses
|
|
|
138,484
|
|
|
|
|
|
|
|
134,484
|
|
|
|
(139,248
|
)
|
|
|
14,674
|
|
|
|
1,423
|
|
|
|
15,333
|
|
Progress billings above costs and
estimated earnings on uncompleted contracts
|
|
|
148,964
|
|
|
|
|
|
|
|
148,964
|
|
|
|
(148,964
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
Advance payments received from customers
|
|
|
13,033
|
|
|
|
|
|
|
|
13,033
|
|
|
|
(13,033
|
)
|
|
|
233
|
|
|
|
|
|
|
|
233
|
|
Income tax liabilities
|
|
|
8,671
|
|
|
|
|
|
|
|
8,671
|
|
|
|
(8,496
|
)
|
|
|
83
|
|
|
|
|
|
|
|
258
|
|
Deferred credit, future income tax assets
|
|
|
2,676
|
|
|
|
|
|
|
|
2,676
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2,676
|
|
Accrued pension liabilities, current portion
|
|
|
2,119
|
|
|
|
|
|
|
|
2,119
|
|
|
|
(2,119
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
Provision for warranty costs, current portion
|
|
|
27,294
|
|
|
|
|
|
|
|
27,294
|
|
|
|
(27,294
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
Provision for restructuring costs
|
|
|
10,404
|
|
|
|
|
|
|
|
10,404
|
|
|
|
(10,404
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
Provision for supplier commitments on
terminated customer contracts
|
|
|
22,546
|
|
|
|
|
|
|
|
22,546
|
|
|
|
(22,546
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
Liabilities related to assets held for sale
|
|
|
21,574
|
|
|
|
|
|
|
|
21,574
|
|
|
|
(21,574
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total current liabilities
|
|
|
395,765
|
|
|
|
|
|
|
|
395,765
|
|
|
|
(393,678
|
)
|
|
|
14,990
|
|
|
|
1,423
|
|
|
|
18,500
|
|
Long-term Liabilities
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Long-term debt, less current portion
|
|
|
11,891
|
|
|
|
|
|
|
|
11,891
|
|
|
|
(11,891
|
)
|
|
|
11,891
|
|
|
|
|
|
|
|
11,891
|
|
Accrued pension liabilities, less current portion
|
|
|
29,652
|
|
|
|
|
|
|
|
29,652
|
|
|
|
(29,652
|
)
|
|
|
299
|
|
|
|
|
|
|
|
299
|
|
Provision for warranty costs, less current portion
|
|
|
16,208
|
|
|
|
|
|
|
|
16,208
|
|
|
|
(16,208
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
Deferred credit, future income tax assets
|
|
|
4,389
|
|
|
|
|
|
|
|
4,389
|
|
|
|
(4,389
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
Future income tax liability
|
|
|
12,092
|
|
|
|
|
|
|
|
12,092
|
|
|
|
(12,092
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
Other long-term liabilities
|
|
|
6,809
|
|
|
|
|
|
|
|
6,809
|
|
|
|
(6,809
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
Liabilities related to assets held for sale
|
|
|
2,404
|
|
|
|
|
|
|
|
2,404
|
|
|
|
(2,404
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total long-term liabilities
|
|
|
83,445
|
|
|
|
|
|
|
|
83,445
|
|
|
|
(83,445
|
)
|
|
|
12,190
|
|
|
|
|
|
|
|
12,190
|
|
|
|
|
Total liabilities
|
|
|
479,210
|
|
|
|
|
|
|
|
479,210
|
|
|
|
(477,123
|
)
|
|
|
27,180
|
|
|
|
1,423
|
|
|
|
30,690
|
|
Minority Interests
|
|
|
5,177
|
|
|
|
32,067
|
|
|
|
37,244
|
|
|
|
(37,244
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
Shareholders Equity
|
|
|
279,776
|
|
|
|
(33,278
|
)
|
|
|
246,498
|
|
|
|
(35,632
|
)
|
|
|
36,133
|
|
|
|
|
|
|
|
246,999
|
|
|
|
|
|
|
|
764,163
|
|
|
|
(1,211
|
)
|
|
|
762,952
|
|
|
|
(549,999
|
)
|
|
|
63,313
|
|
|
|
1,423
|
|
|
|
277,689
|
|
|
|
|
The accompanying notes are an integral part of these consolidated financial statements.
111
KHD HUMBOLDT WEDAG INTERNATIONAL LTD. AND SUBSIDIARIES
PRO FORMA CONSOLIDATED STATEMENTS OF OPERATIONS
For Nine Months Ended September 30, 2009
(United States Dollars in Thousands, Except Earnings per Share)
(Unaudited)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Pro Forma
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Giving Effect
|
|
|
|
|
|
|
|
|
|
|
|
Pro Forma
|
|
|
|
|
|
|
|
|
|
|
to
|
|
|
|
|
|
|
|
|
|
|
|
Giving Effect
|
|
|
|
|
|
|
|
|
|
|
Shareholders
|
|
|
|
|
|
|
|
|
|
|
|
to Distribution
|
|
|
|
|
|
|
|
|
|
|
Agreement and
|
|
|
|
|
|
|
|
|
|
|
|
of 26% of
|
|
|
|
|
|
|
|
|
|
|
Plan of
|
|
|
|
Historical
|
|
|
Note 1
|
|
|
KID Shares
|
|
|
Note 2
|
|
|
Note 3
|
|
|
Arrangement
|
|
|
|
|
Revenues
|
|
$
|
366,208
|
|
|
|
|
|
|
|
366,208
|
|
|
|
(366,208
|
)
|
|
|
|
|
|
|
|
|
Cost of revenues
|
|
|
296,160
|
|
|
|
|
|
|
|
296,160
|
|
|
|
(296,160
|
)
|
|
|
|
|
|
|
|
|
Reduction in loss on terminated customer contracts
|
|
|
(76
|
)
|
|
|
|
|
|
|
(76
|
)
|
|
|
76
|
|
|
|
|
|
|
|
|
|
|
|
|
Gross profit
|
|
|
70,124
|
|
|
|
|
|
|
|
70,124
|
|
|
|
(70,124
|
)
|
|
|
|
|
|
|
|
|
|
Income from interest in resource property
|
|
|
8,552
|
|
|
|
|
|
|
|
8,552
|
|
|
|
|
|
|
|
|
|
|
|
8,552
|
|
Selling, general and administrative expense
|
|
|
(55,467
|
)
|
|
|
|
|
|
|
(55,467
|
)
|
|
|
45,300
|
|
|
|
(2,565
|
)
|
|
|
(12,732
|
)
|
Stock-based compensation recovery selling, general and
administrative
|
|
|
210
|
|
|
|
|
|
|
|
210
|
|
|
|
2,144
|
|
|
|
|
|
|
|
2,354
|
|
Restructuring costs
|
|
|
(10,836
|
)
|
|
|
|
|
|
|
(10,836
|
)
|
|
|
11,601
|
|
|
|
(765
|
)
|
|
|
|
|
|
|
|
Operating income
|
|
|
12,583
|
|
|
|
|
|
|
|
12,583
|
|
|
|
(11,079
|
)
|
|
|
(3,330
|
)
|
|
|
(1,826
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest income
|
|
|
5,962
|
|
|
|
|
|
|
|
5,962
|
|
|
|
(6,011
|
)
|
|
|
333
|
|
|
|
284
|
|
Interest expense
|
|
|
(2,024
|
)
|
|
|
|
|
|
|
(2,024
|
)
|
|
|
1,554
|
|
|
|
|
|
|
|
(470
|
)
|
Foreign currency transaction (losses) gains, net
|
|
|
(733
|
)
|
|
|
|
|
|
|
(733
|
)
|
|
|
(1,211
|
)
|
|
|
|
|
|
|
(1,944
|
)
|
Share of loss of equity method investee
|
|
|
(278
|
)
|
|
|
|
|
|
|
(278
|
)
|
|
|
278
|
|
|
|
|
|
|
|
|
|
Settlement of investment in preferred shares of former
subsidiaries
|
|
|
(9,538
|
)
|
|
|
|
|
|
|
(9,538
|
)
|
|
|
|
|
|
|
|
|
|
|
(9,538
|
)
|
Other income (expense), net
|
|
|
3,038
|
|
|
|
|
|
|
|
3,038
|
|
|
|
(4,848
|
)
|
|
|
2,067
|
|
|
|
257
|
|
|
|
|
Income (loss) before income taxes and minority interests
from continuing operations
|
|
|
9,010
|
|
|
|
|
|
|
|
9,010
|
|
|
|
(21,317
|
)
|
|
|
(930
|
)
|
|
|
(13,237
|
)
|
Provision for income taxes:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income taxes
|
|
|
(5,374
|
)
|
|
|
|
|
|
|
(5,374
|
)
|
|
|
8,182
|
|
|
|
|
|
|
|
2,808
|
|
Resource property revenue taxes
|
|
|
(1,941
|
)
|
|
|
|
|
|
|
(1,941
|
)
|
|
|
|
|
|
|
|
|
|
|
(1,941
|
)
|
|
|
|
|
|
|
(7,315
|
)
|
|
|
|
|
|
|
(7,315
|
)
|
|
|
8,182
|
|
|
|
|
|
|
|
867
|
|
|
|
|
Income (loss) before minority interests from continuing
operations
|
|
|
1,695
|
|
|
|
|
|
|
|
1,695
|
|
|
|
(13,135
|
)
|
|
|
(930
|
)
|
|
|
(12,370
|
)
|
Minority interests
|
|
|
(469
|
)
|
|
|
3,385
|
|
|
|
2,916
|
|
|
|
(3,268
|
)
|
|
|
352
|
|
|
|
|
|
|
|
|
Net income (loss)
|
|
|
1,226
|
|
|
|
3,385
|
|
|
|
4,611
|
|
|
|
(16,403
|
)
|
|
|
(578
|
)
|
|
|
(12,370
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic earnings (loss) per share
|
|
$
|
0.04
|
|
|
|
|
|
|
|
0.15
|
|
|
|
|
|
|
|
|
|
|
|
(0.41
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Diluted earnings (loss) per share
|
|
$
|
0.04
|
|
|
|
|
|
|
|
0.15
|
|
|
|
|
|
|
|
|
|
|
|
(0.41
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted average number of common shares outstanding
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
- basic
|
|
|
30,385,985
|
|
|
|
|
|
|
|
30,385,985
|
|
|
|
|
|
|
|
|
|
|
|
30,385,985
|
|
- diluted
|
|
|
30,385,985
|
|
|
|
|
|
|
|
30,385,985
|
|
|
|
|
|
|
|
|
|
|
|
30,385,985
|
|
The accompanying notes are an integral part of these consolidated financial statements.
112
KHD HUMBOLDT WEDAG INTERNATIONAL LTD. AND SUBSIDIARIES
PRO FORMA CONSOLIDATED STATEMENTS OF OPERATIONS
For the Year Ended December 31, 2008
(United States Dollars in Thousands, Except Earnings per Share)
(Unaudited)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Pro Forma
|
|
|
|
|
|
|
|
|
|
|
Pro Forma
|
|
|
|
|
|
|
|
|
|
Giving Effect
|
|
|
|
|
|
|
|
|
|
|
Giving
|
|
|
|
|
|
|
|
|
|
to
|
|
|
|
|
|
|
|
|
|
|
Effect to
|
|
|
|
|
|
|
|
|
|
Shareholders
|
|
|
|
|
|
|
|
|
|
|
Distribution
|
|
|
|
|
|
|
|
|
|
Agreement
|
|
|
|
|
|
|
|
|
|
|
of 26% of
|
|
|
|
|
|
|
|
|
|
and Plan of
|
|
|
Historical
|
|
Note 1
|
|
KID Shares
|
|
Note 2
|
|
Note 3
|
|
Arrangement
|
|
|
|
Revenues
|
|
$
|
638,354
|
|
|
|
|
|
|
|
638,354
|
|
|
|
(638,354
|
)
|
|
|
|
|
|
|
|
|
Cost of revenues
|
|
|
516,631
|
|
|
|
|
|
|
|
516,631
|
|
|
|
(517,241
|
)
|
|
|
610
|
|
|
|
|
|
(Reduction in) loss on terminated customer contracts
|
|
|
31,966
|
|
|
|
|
|
|
|
31,966
|
|
|
|
(31,966
|
)
|
|
|
|
|
|
|
|
|
|
|
|
Gross profit
|
|
|
89,757
|
|
|
|
|
|
|
|
89,757
|
|
|
|
(89,147
|
)
|
|
|
(610
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income from interest in resource property
|
|
|
27,185
|
|
|
|
|
|
|
|
27,185
|
|
|
|
|
|
|
|
|
|
|
|
27,185
|
|
Selling, general and administrative expense
|
|
|
57,996
|
|
|
|
|
|
|
|
57,996
|
|
|
|
(40,503
|
)
|
|
|
3,257
|
|
|
|
20,750
|
|
Stock-based compensation (recovery) expense
selling, general and administrative
|
|
|
4,401
|
|
|
|
|
|
|
|
4,401
|
|
|
|
(3,419
|
)
|
|
|
|
|
|
|
982
|
|
|
|
|
Operating income
|
|
|
54,545
|
|
|
|
|
|
|
|
54,545
|
|
|
|
(45,225
|
)
|
|
|
(3,867
|
)
|
|
|
5,453
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest income
|
|
|
21,449
|
|
|
|
|
|
|
|
21,449
|
|
|
|
(18,208
|
)
|
|
|
1,429
|
|
|
|
4,670
|
|
Interest expense
|
|
|
(2,291
|
)
|
|
|
|
|
|
|
(2,291
|
)
|
|
|
2,198
|
|
|
|
|
|
|
|
(93
|
)
|
Foreign currency transaction gains (losses), net
|
|
|
2,149
|
|
|
|
|
|
|
|
2,149
|
|
|
|
1,823
|
|
|
|
|
|
|
|
3,972
|
|
Loss on investments in preferred shares in former subsidiaries
|
|
|
(55,076
|
)
|
|
|
|
|
|
|
(55,076
|
)
|
|
|
|
|
|
|
|
|
|
|
(55,076
|
)
|
Share of profit (loss) of equity method investees
|
|
|
(272
|
)
|
|
|
|
|
|
|
(272
|
)
|
|
|
272
|
|
|
|
|
|
|
|
|
|
Other income (expense), net
|
|
|
(8,072
|
)
|
|
|
|
|
|
|
(8,072
|
)
|
|
|
5,527
|
|
|
|
2,889
|
|
|
|
344
|
|
|
|
|
Income (loss) before income taxes and minority interests from
continuing operations
|
|
|
12,432
|
|
|
|
|
|
|
|
12,432
|
|
|
|
(53,613
|
)
|
|
|
451
|
|
|
|
(40,730
|
)
|
Recovery of (provision for) income taxes:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income taxes
|
|
|
(12,800
|
)
|
|
|
|
|
|
|
(12,800
|
)
|
|
|
17,217
|
|
|
|
|
|
|
|
4,417
|
|
Resource property revenue taxes
|
|
|
(5,864
|
)
|
|
|
|
|
|
|
(5,864
|
)
|
|
|
|
|
|
|
|
|
|
|
(5,864
|
)
|
|
|
|
|
|
|
(18,664
|
)
|
|
|
|
|
|
|
(18,664
|
)
|
|
|
17,217
|
|
|
|
451
|
|
|
|
(1,447
|
)
|
|
|
|
Income (loss) before minority interests from continuing operations
|
|
|
(6,232
|
)
|
|
|
|
|
|
|
(6,232
|
)
|
|
|
(36,396
|
)
|
|
|
|
|
|
|
(42,177
|
)
|
Minority interests
|
|
|
(720
|
)
|
|
|
9,475
|
|
|
|
8,755
|
|
|
|
(9,522
|
)
|
|
|
767
|
|
|
|
|
|
|
|
|
Net income (loss)
|
|
$
|
(6,952
|
)
|
|
|
9,475
|
|
|
|
2,523
|
|
|
|
(45,918
|
)
|
|
|
1,218
|
|
|
|
(42,177
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic earnings (loss) per share
|
|
$
|
(0.23
|
)
|
|
|
|
|
|
|
0.08
|
|
|
|
|
|
|
|
|
|
|
|
(1.39
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Diluted earnings (loss) per share
|
|
$
|
(0.23
|
)
|
|
|
|
|
|
|
0.08
|
|
|
|
|
|
|
|
|
|
|
|
(1.39
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted average number of common shares outstanding
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
- basic
|
|
|
30,401,018
|
|
|
|
|
|
|
|
|
|
|
|
30,401,018
|
|
|
|
|
|
|
|
30,401,018
|
|
- diluted
|
|
|
30,401,018
|
|
|
|
|
|
|
|
|
|
|
|
30,602,626
|
|
|
|
|
|
|
|
30,401,018
|
|
The accompanying notes are an integral part of these consolidated financial statements.
113
KHD Humboldt Wedag International Ltd.
Notes to Pro Forma Consolidated Financial Statements
(Unaudited)
These pro forma consolidated financial statements are prepared giving effect to the plan of
arrangement whereby KHD Humboldt Wedag International Ltd. (KHD) will distribute, as a first
tranche, approximately 26% of the issued shares of KHD Humboldt Wedag International (Deutschland)
AG (KID) (the Plan of Arrangement). The intention is to divide KHD into two independent
publicly traded companies, with one focused on the industrial plant technology, equipment and
service business and the other focused on the mineral royalty business, through the distribution of
the balance of the KID shares that it owns in one or more tranches in the future in a tax efficient
manner.
As part of the proposed Plan of Arrangement, KID, in addition to the industrial companies it
currently holds, will acquire all other KHD industrial operating companies which KID currently does
not hold from KHD. A cash dividend amounting to $65.8 million will be declared and paid by KID to
its shareholders. Subsequently, KHD will distribute approximately 4,322,844 shares of KID to KHD
shareholders on a pro rata basis, on the basis of one KID common share for every seven KHD shares.
KHD will retain certain assets and liabilities of the industrial group which do not relate to the
core business operations of the industrial group.
These pro forma consolidated financial statements are also prepared giving effect to a proposed
shareholders agreement (the Shareholders Agreement) to be entered into between KHD and an
independent third party corporate shareholder of KID (to be determined) with respect to the
remaining 72% of the KID shares held by KHD. Under the Shareholders Agreement, KHD will agree to
vote the shares of KID held by KHD as instructed by the shareholder who will be party to the
Shareholders Agreement. The pro forma consolidated financial statements assume that as a result of
the Shareholders Agreement, and other steps to separate KHD and KID, KHD will no longer have
control over the KID shares. These pro forma consolidated financials statements reflect the
resulting deconsolidation of the assets and liabilities of KID assuming KHD is able to take all
steps necessary to no longer control KID from an accounting perspective.
Pro forma consolidated balance sheet
The pro forma consolidated balance sheet is prepared as if the Plan of Arrangement were completed
as of September 30, 2009. The following adjustments have been reflected in the pro forma balance
sheet and are assumed to have been completed on September 30, 2009:
|
1.
|
|
Completion of the Plan of Arrangement pursuant to which KID paid a cash dividend of
Euro 45.0 million (approximately $65.8 million of which $1.2 million was paid to minority
shareholders) to KHD and other KID shareholders and KHD distributed approximately 26% of
the shares of KID to KHD shareholders on a pro rata basis.
|
|
|
2.
|
|
Deconsolidation of the assets and liabilities of the industrial plant technology,
equipment and service business as a result of the execution of the Shareholders Agreement
and other steps to be undertaken by KHD.
|
|
|
3.
|
|
Recognition of certain assets and liabilities of the industrial plant technology,
equipment and service business which did not relate to the core operations of the
industrial plant technology, equipment and service business and are to be retained by KHD.
|
|
|
4.
|
|
Settlement of KHD and KID intercompany accounts and shareholdings in cash.
|
The pro forma balance sheet reflects the assumption that management will be able to distribute the
shares of KID in a tax neutral manner.
Pro forma consolidated statements of operations
The pro forma consolidated statements of operations are prepared as if the Plan of Arrangement were
completed at the commencement of each accounting period presented. The following adjustments have
been reflected in the pro forma statements of operations:
114
1.
|
|
Recognition of additional minority interest as a result of the distribution of 26% of
the shares of KID.
|
2.
|
|
Deconsolidation of the operations of the industrial plant technology, equipment and
service business from KHDs historical statement of operations as a result of the execution
of the Shareholders Agreement and other steps to be taken by KHD.
|
3.
|
|
Elimination of intercompany revenues and expenses between KID and KHD.
|
These pro forma financial statements do not reflect the costs of the transactions.
115
SCHEDULE F
INFORMATION CONCERNING KID POST-ARRANGEMENT
Unless the context otherwise requires, capitalized terms used in this Schedule F that are not
defined herein have the meanings ascribed to such terms in the Information Circular to which this
Schedule F is attached. All references to dollar amounts in this Schedule F are to United States
dollars unless expressly stated otherwise.
TABLE OF CONTENTS
|
|
|
|
|
INTRODUCTION
|
|
|
117
|
|
NAME AND INCORPORATION
|
|
|
117
|
|
INTERCORPORATE RELATIONSHIPS
|
|
|
117
|
|
DESCRIPTION OF KIDS BUSINESS
|
|
|
118
|
|
PROPERTY, PLANT AND EQUIPMENT
|
|
|
122
|
|
SELECTED FINANCIAL INFORMATION
|
|
|
122
|
|
DESCRIPTION OF SHARE CAPITAL
|
|
|
123
|
|
OPTIONS TO PURCHASE SHARES OF KID
|
|
|
125
|
|
ESCROWED SECURITIES
|
|
|
125
|
|
PRINCIPAL SHAREHOLDERS
|
|
|
125
|
|
DIRECTORS AND OFFICERS
|
|
|
125
|
|
CORPORATE CEASE TRADE ORDERS OR BANKRUPTCIES
|
|
|
131
|
|
CONFLICTS OF INTEREST
|
|
|
132
|
|
INDEBTEDNESS OF DIRECTORS AND EXECUTIVE OFFICERS
|
|
|
132
|
|
RISK FACTORS
|
|
|
132
|
|
LEGAL PROCEEDINGS
|
|
|
143
|
|
MATERIAL CONTRACTS
|
|
|
143
|
|
INTEREST OF MANAGEMENT AND OTHERS IN MATERIAL TRANSACTIONS
|
|
|
144
|
|
TAX CONSEQUENCES
|
|
|
144
|
|
INTEREST OF EXPERTS
|
|
|
144
|
|
AUDITORS AND AUDIT COMMITTEE
|
|
|
144
|
|
FINANCIAL STATEMENT DISCLOSURE FOR KID
|
|
|
144
|
|
ADDITIONAL INFORMATION
|
|
|
145
|
|
116
INTRODUCTION
The following is a description of KID prior to and following the completion of the Arrangement.
NAME AND INCORPORATION
KID, a subsidiary of KHD, is a stock corporation organised under the laws of the Federal Republic
of Germany. It was recorded in the commercial register under the name of Maschinenfabrik Fahr
Aktiengesellschaft Gottmadingen on October 24, 1911. The corporate seat of KID was moved to
Cologne and the company was entered into the commercial register of the local court of Cologne on
December 12, 2001. Pursuant to a resolution of the shareholders passed at a general meeting of the
shareholders of KID held on September 29, 2004, KID changed its name to MFC Industrial Holdings
AG. Pursuant to a resolution of the shareholders passed at a general meeting of the shareholders
held on November 13, 2006, KID changed its name to KHD Humboldt Wedag International (Deutschland)
AG. At the KID Meeting, to be held on March 23, 2010, the shareholders of KID will be asked to
approve a change of KIDs name to KHD Humboldt Wedag International AG.
KIDs registered seat and head office is located at Colonia-Allee 3, 51607 Cologne, Germany. The
telephone number of KID is 0049.221.6504.1006 and the internet address is www.khd-hv.com.
As more fully described below, upon completion of the Arrangement, KID will hold, directly and
indirectly, all of KHDs industrial plant technology, equipment and service business.
INTERCORPORATE RELATIONSHIPS
It is expected that upon completion of the Arrangement, the direct and indirect subsidiaries of KID
will be as follows:
|
|
|
|
|
|
|
|
|
|
|
Jurisdiction of
|
|
KIDs
|
|
|
Incorporation
|
|
Beneficial
|
Name of Subsidiary
|
|
or Organization
|
|
Shareholding
|
|
KHD Humboldt Wedag AG
|
|
Germany
|
|
|
100
|
%
|
Humboldt Wedag India Private Ltd.
|
|
India
|
|
|
100
|
%
|
Humboldt Wedag Australia Pty Ltd.
|
|
Australia
|
|
|
100
|
%
|
Humboldt Wedag Inc.
|
|
Delaware
|
|
|
100
|
%
|
EKOF Flotation GmbH
|
|
Germany
|
|
|
100
|
%
|
KHD Humboldt Wedag Machinery Equipment (Beijing) Co. Ltd.
|
|
China
|
|
|
100
|
%
|
ZAB Zementanlagenbau GmbH Dessau
|
|
Germany
|
|
|
98.2
|
%
|
Humboldt Wedag GmbH
|
|
Germany
|
|
|
98.2
|
%
|
KHD Engineering Holding GmbH
|
|
Austria
|
|
|
50
|
%
|
KHD Humboldt Engineering OOO
|
|
Russia
|
|
|
50
|
%
|
OAO Sibgiprozoloto
|
|
Russia
|
|
|
50
|
%
|
117
|
|
|
|
|
|
|
|
|
|
|
Jurisdiction of
|
|
KIDs
|
|
|
Incorporation
|
|
Beneficial
|
Name of Subsidiary
|
|
or Organization
|
|
Shareholding
|
|
Blake International Limited
|
|
British Virgin Islands
|
|
|
100
|
%
|
KHD Humboldt Wedag Industrial Services AG
|
|
Germany
|
|
|
88
|
%
|
HIT Paper Trading GmbH
|
|
Austria
|
|
|
88
|
%
|
Paper Space GmbH
|
|
Germany
|
|
|
88
|
%
|
DESCRIPTION OF KIDS BUSINESS
General
KID is currently the primary holding company of KHDs industrial plant technology, equipment and
service business. Upon completion of the Arrangement, it is expected that all of KHDs current
industrial plant technology, equipment and service business will be held, directly and indirectly,
by KID.
During fiscal year 2009, KHD focused on the industrial plant technology, equipment and service
business for the cement and mining industries and on maintaining leadership in supplying
technologies, equipment and engineering services for the cement and mining sectors, as well as
designing and building plants that produce clinker and cement and process coal and other minerals,
such as copper, gold and diamonds. However, in the fourth quarter of 2009, KHD divested its
interest in its coal and minerals customer group, exclusive of its roller press technologies and
capabilities utilized for mining applications, such that the business of KHD began to be focused on
the cement industry. As a result, the business of KID will also be focused on the cement industry,
although it will also continue to market its roller press technologies and capabilities for mining
applications. The roller press is a proprietary technology which was initially developed for KHDs
cement customer group but has been subsequently and successfully used in the mining sector.
KID is a leader in supplying technologies, engineering and equipment for cement processing. Its
major customer group is expected to be businesses in the cement industry. KID will supply plant
systems as well as machinery and equipment worldwide for the manufacture of cement, whether for new
plants, redevelopments of existing plants or capacity increases for existing plants. It will
design and provide equipment that produces clinker and cement and will offer basic engineering,
detail engineering, plant and equipment for complete plants and plant sections including
modernization and capacity increase measures, as well as automation and process control equipment.
It is expected that KID will have operations in India, Europe, China, Germany and the United
States.
KID will focus on its core strengths of design, engineering, manufacturing, erection and
commissioning of cement plants worldwide. Except for certain specialty machines, it will either
purchase equipment locally or outsource equipment fabrication to its specifications at facilities
in a projects host country, under terms similar or more stringent than those imposed by its
customers.
The scope of KIDs activities will range from the examination and analysis of deposits, scale-up
tests in its own test centers, technical consulting, design and engineering for plants that produce
clinker and cement, plant and equipment for complete plants and plant sections including
modernization and capacity increase measures, as well as automation and process control equipment,
project planning, raw material testing, research and development, erection and commissioning,
personnel training and pre and post sales service. Specific services that KID will provide are
expected to include plant design (i.e. arrangement and layout), equipment design and development,
engineering services (i.e. process, electrical and mechanical), automation services and project
management. It will supervise the erection and perform the commissioning of its equipment and
will train customer personnel on site.
118
The manufacturing of products will be outsourced (according to KIDs specifications) to lower cost
platforms and, to this end, project host countries.
These services will be provided with respect to new cement plants, as well as to assist with the
upgrading of existing plants. In certain instances, services will be provided against irrevocable
letters of credit with prepayment and subsequent payment milestones. KID will provide these
services either directly to the owner, as a member of a team for the provision of a full equipment
line that includes equipment specialists in the complementary fields of materials transport,
blending, storage and packing, or as part of an overall turn-key team which would include members
specializing in civil design and construction management. KID will continue to focus on the supply
of equipment to customers. Its strategic approach to the market will be to be the leading supplier
of innovative, environmentally compliant and energy efficient technologies focused on reduced
operating and maintenance costs.
KIDs product range will focus on grinding and pyro-process technologies. The grinding technologies
can be utilized in raw material, clinker and finished cement grinding, while the pyro-process
equipment includes pre-heaters, kilns, burners and clinker coolers. KID has also developed a range
of systems automation products, including process control systems and equipment optimization
products.
KID will be headquartered in Cologne, Germany and operate internationally via four customer service
centers servicing India, the Americas, Europe, the Middle East and Africa, and Russia/Commonwealth
of Independent States (CIS), respectively.
RZB Bonding Facility
In order to be able to pursue its industrial plant technology, equipment and service business, KID
will depend on the availability of adequate means of bonding (i.e. providing advance payment,
performance or warranty bonds to customers).
On November 30, 2006, as amended June 10, 2008, October 27, 2008 and November 16, 2009, KIA, as the
borrower, KHD, as the guarantor, and RZB entered into the Facility. The Facility provides for a
loan capacity of up to 195 million and will expire on November 25, 2010, unless extended for
another one year term. Under the Facility, security instruments such as sureties, stand-by letters
of credit and guarantees may be granted to the customers of KHD and its subsidiaries. Utilization
requests are made solely by KIA for the entire KHD group of companies. Individual subsidiaries of
KHD have also each issued deficiency guarantees in favour of RZB as collateral for security
instruments that may be granted to them under the Facility. These deficiency guarantees are
independent payment guarantees in favour of RZB for the payment of the monies owed by KIA under the
Facility. Each is paired with an assignment of all receivables and all present and future claims
relating to the relevant underlying security instruments against customers of the KHD group of
companies. in whose favour a security instrument (such as a stand-by letter of credit) is issued by
RZB.
Subsequent to the completion of the Arrangement, KID will require access to the Facility to provide
advance and performance or warranty bonds in relation to any equipment to be supplied by KID to its
customers under irrevocable letters of credit provided by customers as payment security for the
project. As a result, given that upon completion of the Arrangement both KIA and KHD will cease
to be part of the same group with KHD as the parent company, KIA, KHD and KID are in the process of
negotiating the transfer to KID of the Facility prior to the expiration of its current term. RZB
has advised that KHD and KID are required to obtain the consent of RZB to the distribution of the
KID Shares prior to such distribution and prior to the transfer of the bonding line to KID. RZB
has indicated that it will approve the distribution of the KID Shares subject to the following
terms:
|
|
|
the terms of the bonding line will remain unchanged and in effect until the end of its
term in November 2010;
|
|
|
|
|
KHD will remain the guarantor, including with respect to all existing restrictive
covenants which will remain in place until at least November 2010, at which time KHD may
cease to be the guarantor of new bonds;
|
119
|
|
|
KID shall accede to the bonding line as an additional guarantor effective as of the date
of the distribution of the KID Shares but without providing any of its own representations,
warranties or covenants; and
|
|
|
|
|
immediately upon the distribution of the KID Shares, all parties will undertake best
efforts to transfer the bonding line to KID, either with KHD as guarantor until at least
November 2010, or as the parties will then commercially agree.
|
Assuming that the consent of RZB to the distribution of the KID Shares is obtained, upon completion
of the Arrangement KHD will continue to guarantee the obligations of KIA and, following the
proposed transfer, KID, under the Facility until at least November 2010. As of the date of this
Information Circular, the consent of RZB has not been obtained, however RZB has advised that it
will notify KHD and KID as to whether it approves of the distribution of the KID Shares by March
20, 2010.
Research and Development
Focused on industrial plant technology, equipment and service sectors, KIDs research and
development is orientated to its clients requirements and is done by a team of specialized
engineers in various disciplines, supported by testing and analysis facilities with wide-ranging
capabilities organized by application of efficient project-management. Its research and development
activities aim to produce environmentally friendly sustainable products which are energy efficient
and technically and economically optimized for the cement process. The entire research and
development team comprises 72 employees covering product management, product and process
development, as well as the test laboratory. Also included in this group is process engineering to
support the global sales effort.
Recent research activities include further development of clinker cooler, compact mills and waste
fuel combustion chambers. Other current proprietary research activities are addressing grinding
surface materials and designs, expert systems, burners and standardization of plant equipment for
packaged complete solutions for grinding and pyro-processing applications.
In particular, the research and development program focuses on technological options to reduce
carbon dioxide (CO2) and other gaseous and solid emissions from the industrial
production processes. These accrue mainly from gaseous carbon dioxide (CO2) and other
emissions as exhaust gas from contributions of the consumption of electrical energy, use of primary
fuels and the calcining process of cement manufacturing.
The approach to reduce gaseous carbon dioxide (CO2) emissions from industrial combustion
processes is based on new means to utilize waste and specifically biomass-derived fuels. New
processes to capture gaseous carbon dioxide (CO2) from flue gases are being investigated
and eventually developed.
The approach to reduce the consumption of electrical energy focuses on the application of high
pressure comminution technologies to substitute relatively inefficient conventional crushing and
grinding processes presently used in the cement and mining industry.
Other technologies are developed and incorporated to minimize the gaseous and solid emissions from
the cement plant. Among others these include NOx, SOx, CO and particulate. KHD continues to develop
products and process required to meet the stricter governmental environmental standards throughout
the world.
Additionally, the new technologies are controlled by efficiency-boosting automation concepts, which
KID will aim to develop.
Existing Market Conditions
It is anticipated that the current economic conditions will continue to adversely impact the
international construction market due to weak demand, as well as the fact that construction
projects are often dependent on the availability of financing. Some of KIDs customers are
reliant upon access to credit and equity capital markets to finance the projects for which they use
KIDs products and services. If the future economic environment continues to be less
120
favourable than it has been in recent years, KID may experience difficulties due to the reduced
ability of customers to finance projects and, therefore, reduced future demand for KIDs products
and services. These adverse economic conditions could lead to lower than expected revenues for
KID in future years.
Competition
There are major competitors in the industrial plant technology, equipment and service business.
Those competitors include: FLSmidth & Co. A/S, Polysius AG, Sinoma International Engineering
Company Ltd., Claudius Peters Group GmbH, Loesche GmbH and Gebrüder Pfeiffer AG. All of these
companies are international companies with significant resources, capital and access to
information.
KIDs competitors in the cement industry can be segmented into two different types of companies:
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full equipment line suppliers which are companies providing either a similar, or even
broader range of equipment services to the cement industry; and
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part line competitors which are companies focusing on a smaller range of equipment and
technologies.
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The market for cement equipment has three globally active, full equipment line suppliers. These are
FLSmidth & Co. A/ S, Polysius AG and Sinoma International Engineering Company Ltd., who are also
able to offer turn-key solutions independently. KID, by comparison, in providing turn-key
solutions, will have to cooperate with reputed technology and civil construction partners who can
provide the required construction and equipment that is ancillary to KIDs proprietary equipment.
With respect to single machinery equipment for the cement industry, KID will compete with part-line
suppliers, such as Claudius Peters Group GmbH, which focuses on clinker cooling, Loesche GmbH and
Gebrüder Pfeiffer AG, which focus on raw and finished materials grinding, and IKN GmbH, which
focuses on cooler technology.
Sales and Distribution Channels
While it is expected that KID will provide services throughout the world through its subsidiaries
and representative offices, it is expected that sales and marketing efforts will be developed and
coordinated by KIDs sales and marketing team. In general, decisions by clients to increase
production capacities, either through the addition of new lines or through the expansion of
existing facilities, are the result of an extensive formal planning process. Consequently, any
opportunity is usually well known and anticipated by KID and its competitors. However,
opportunities in the after-sales markets are identified by diligent and constant interaction with
operating plant managers. The sales efforts are technical in nature, and consequently the staff
will consist of senior experienced engineers.
KIDs sales organization comprises a central structure based in Cologne, Germany as well as
regional organizations in four customer services centres. The sales organization are managed by a
head of sales and services, based in Cologne, which reports to the management board. The sales
team in Cologne is responsible for providing the strategic direction for sales and marketing as
well as global tendering for projects. The purpose of KIDs customer services centres will be to
be located close to its customer base and to provide local input necessary to win projects and
supply contracts.
The sales organization is structured both regionally and by customer. Sales employees are allocated
to a particular region (Americas / EMEA (Asia Pacific) / India / Russia & CIS) or are responsible
for certain customers (key account managers).
KID will also utilize sales agents to access markets where it is not present. These agents will be
paid on a commission basis.
KIDs sales and after-sales department comprised more than 50 professionals as at December 31,
2009. The sales efforts are technical in nature, and hence most of the sales force are trained and
experienced engineers.
121
KIDs sales process can be divided into two distinct parts: sales and tendering. Sales are
responsible for identifying opportunities as a first step and these opportunities are then given to
the tendering team, who are responsible for the decision whether to proceed with that opportunity.
Proper preparation of a proposal is a major effort, and in the case of a new plant, can represent
an investment in excess of $1 million. The customer usually starts by providing a sample of the
raw material to be processed, as well as specifications for production capacity, energy
requirements, emission limits, product quality, etc. KID must analyze the sample in its test
center, complete preliminary engineering to a sufficient extent so that the major components can be
sized, prepare arrangement plans, and in the case of expansions, develop connection details and
shutdown requirements. Consequently, the decision to bid is strategic and must be made considering
other opportunities available at the time, commitment load by geographic region, country risk,
history with the customer (e.g. have they purchased KIDs or competitors lines in the past),
bonding capacities and the availability of financing. Before a bid is offered to a customer, the
key account manager must present it to an executive committee for authorization.
Patents and Licenses
KID will supply technology, equipment and engineering/design services for cement, coal and minerals
processing, although its dealings with customers in the mining sector will be limited to the
provision of roller press applications. On an international basis, it will offer clients
engineering services, machinery, plant and processes as well as process automation, installation,
commissioning, staff training and after-sales services. In the course of its business, KID has,
and will develop, intellectual property which it protects using the international patent
registering processes. KID licenses the intellectual property and other rights to use certain
parts of its technology to its subsidiaries, suppliers and clients. In total, KID currently holds
370 patents, has 120 patent applications currently pending, and holds approximately 440 trademarks.
PROPERTY, PLANT AND EQUIPMENT
KIDs principal business is the design and engineering of equipment for cement plants around the
world. The fabrication of much of this equipment generally takes place in the area as close to a
project as possible, in order to generate domestic employment activity and minimize costs. KID
maintains a sustainable cooperative relationship with its former workshop in Cologne, Germany which
was sold to the McNally Bharat in October, 2009 and is currently operated by MBE Cologne
Engineering GmbH (
MBE Engineering
). MBE Engineering leases space for an equipment repair
facility in Cologne, Germany where certain specialized KID equipment is also fabricated. It is
expected that KID will continue to lease the office space required for its engineering activities
in Cologne after completion of the Arrangement. Its subsidiaries will also maintain offices in
other parts of Germany, India, the USA, Russia, Australia and China.
SELECTED FINANCIAL INFORMATION
The following table summarizes selected combined financial data for the KHD Industrial Plant
Technology, Equipment and Service Business prepared in accordance with Canadian generally accepted
accounting principles for the three fiscal years ended December 31, 2008 and for the nine months
ended September 30, 2009. The selected financial information should be read in conjunction with
the KHD Industrial Plant Technology, Equipment and Service Businesss audited combined annual
financial statements as at December 31, 2008 and 2007 and for the three years ended December 31,
2008 and unaudited combined interim financial statements as at and for the nine months ended
September 30, 2009 and 2008, included at Schedules G and H, respectively, to this Information
Circular.
122
Selected Financial Data
(Stated in United States dollars in accordance with Canadian GAAP)
(
in thousands, other than per share amounts)
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Nine Months Ended
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Fiscal Year Ended December 31
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September 30, 2009
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2008
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2007
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2006
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Revenues
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$
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366,208
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$
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638,354
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$
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580,391
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$
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404,324
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Operating income
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13,580
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45,225
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|
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48,480
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41,441
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Income from continuing operations
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$
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15,519
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$
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36,443
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|
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$
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48,635
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$
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35,888
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Loss from discontinued operation
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(7,334
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)
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(1,611
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)
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Extraordinary gain
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525
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Net income
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15,519
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36,443
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41,826
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34,277
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Total assets
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706,913
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697,170
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648,619
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N/A
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Net assets
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229,790
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|
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206,917
|
|
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188,582
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N/A
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Long-term debt, less current portion
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11,891
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11,313
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13,920
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N/A
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Shareholders equity
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228,655
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205,895
|
|
|
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186,285
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N/A
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Dividend Policy
The management board and the Supervisory Board of KID may propose a dividend, which must be
approved by shareholders prior to declaration.
DESCRIPTION OF SHARE CAPITAL
As of the date hereof, the share capital of KID is 33,142,552, divided into 16,571,276 shares,
each representing a notional amount of 2, all such shares being issued. Upon completion of the
Arrangement, it is expected that there will be the same number of shares of KID issued. At the KID
Meeting, KID will ask its shareholders to approve an increase in the authorized capital of
16,571,276, by the issuance of up to 16,571,276 shares after the registration of the KID Split
with the commercial register, for utilization within five years from the date of the KID Meeting,
which is the longest period of time permitted under the AktG.
At the KID Meeting, KID will ask its shareholders to approve the KID Split. If approved, the KID
Split will become effective upon the registration of same in the commercial register. Whether or
not KID proceeds with the KID Split will be in the sole and complete discretion of the shareholders
of KID.
Upon completion of the Arrangement and after the registration of the KID Split with the commercial
register, KIDs share capital is expected to consist of 33,142,552, divided into 33,142,552 no par
value, ordinary bearer shares. Shares of KID have been trading on the open market of the FSE since
August 3, 1998.
Each share of KID carries one vote at the general shareholders meeting of KID. The shares of KID
carry full dividend rights. The annual general shareholders meeting, which is held annually
within the first eight months of each financial year, votes on the appropriation of any net profits
and thus on the full or partial disbursement thereof, if any, to shareholders. The executive board
and supervisory board are required to submit a proposal on the appropriation of profits, but the
general shareholders meeting is not bound by such proposal. Individual shareholders have no claim
to the distribution of dividends unless the general shareholders meeting has passed a resolution
to that effect. Dividend claims become time-barred after three years. Where dividend coupons are
submitted, the dividend claims become time-barred two years after the limitation period for
submitting the relevant dividend coupon expires; this limitation period is four years and runs from
the close of the year in which the dividend claim has fallen due. If the limitation period defence
is raised, the dividends remain with KID. Once the global certificate(s) representing shares of
KID have been deposited with Clearstream, Clearstream will automatically credit any dividends
accruing on the shares of KID in the future to the securities account held at the respective
custodian banks. Domestic custodian banks are subject to a corresponding obligation to their
customers. Shareholders whose shares are held in custodial accounts at foreign institutions should
inform themselves of the procedures applicable at such institutions.
123
If approved at the KID Meeting, the executive board of KID may, subject to the consent of the
supervisory board, increase the share capital of KID from March 23, 2010 until March 22, 2015, on
one or more occasions, by a total of up to 16,571,276 against cash contributions or contributions
in kind by issuing up to 16,571,276 shares, after the registration with the commercial register of
the KID Split. Generally, shareholders of KID will be entitled to pre-emptive rights. Statutory
pre-emptive rights may also be granted by way of acquisition of the new shares by a group of credit
institutions obligated to indirectly offer such shares to the shareholders for subscription. If
approved at the KID Meeting, the executive board will be authorized, subject to the consent of the
supervisory board, to exclude shareholders pre-emptive rights in the following cases:
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(i)
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in case of capital increases against cash contributions where the proportionate
amount of the share capital attributable to the new shares issued pursuant to Section
186, paragraph 3, sentence 4 of the AktG exclusive pre-emptive rights does not exceed
in the aggregate 10 per cent of the share capital existing on either the date on which
the authorization enters into effect or the date on which it is exercised, and the
issue of the new shares is not substantially lower, within the meaning of Section 203,
paragraphs 1 and 2, and 186 paragraph 3 sentence 4 of the AktG, than the exchange price
at the time the final issue price is fixed for the shares of the same class and the
same features already trading on the stock exchange. Those shares issued or to be
issued in order to satisfy warrant-linked or convertible bonds are to be counted toward
this maximum threshold, provided such bonds were issued in analogous application of
Section 186, paragraph 3, sentence 4 of the AktG exclusive pre-emptive rights. In
addition, those treasury shares of KID which are sold during the term of the authorized
capital exclusive of pre-emptive rights pursuant to Section 71, paragraph 1, number 8,
sentence 5 and Section 186, paragraph 3, sentence 4 of the AktG are also to be counted
toward the maximum threshold of 10 per cent of the share capital;
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(ii)
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in the case of capital increases against contributions in kind in order to
grant shares for purposes of acquiring companies, parts of companies or equity
investments in companies or other equity;
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(iii)
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to even out fractional amounts;
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(iv)
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to the extent that a third party, which is not a credit institution within the
meaning of Section 186, paragraph 5 of the AktG, subscribes the shares and ascertains
that shareholders are granted indirect preemptive rights to such shares.
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According to KIDs Articles of Association, all shares of KID have been issued as no-par value
ordinary bearer shares, each representing a notional interest in the share capital of 2.00. The
current share capital of the Company in the amount of 33,142,552 is represented by one or several
global share certificates without dividend coupons, which are deposited with Clearstream. Section
6 para. 3 of the Articles of Association excludes the rights of shareholders to receive individual
share certificates for their shares. KID may issue share certificates that represent more than one
shareholders shares (so-called global certificates).
The shares of KID are freely transferable in accordance with provisions applicable to bearer
shares.
In the event KID is dissolved, the liquidation surplus remaining after discharging KIDs
liabilities will accrue to the shareholders pursuant to Section 271 of the AktG.
Prior to the Meeting, KID will apply for the admission of its shares for trading on the FSE and the
VSE. Listing of the shares of KID on the FSE and the VSE is subject to KID fulfilling all of the
respective original listing requirements of each of the FSE and the VSE. The trading price of the
shares of KID will be determined by the market. Commencement of trading on the FSE is expected to
occur on or around March 31, 2010. The trading symbol for the shares of KID on the FSE will be
KWG. Commencement of trading on the VSE will be considered separately following the commencement
of trading on the FSE. Upon commencement of trading in the regulated market of the FSE under the
symbol KWG, the listing in the open market of the FSE will be terminated.
124
OPTIONS TO PURCHASE SHARES OF KID
There are not expected to be any outstanding options to purchase shares of KID upon the completion
of the Arrangement.
ESCROWED SECURITIES
There will be no outstanding securities of KID held in escrow upon completion of the Arrangement.
PRINCIPAL SHAREHOLDERS
Upon completion of the Arrangement, the only persons or corporations that are expected to
beneficially own, directly or indirectly, or exercise control or direction over, voting securities
of KID carrying more than ten per cent of the voting rights attaching to any class of voting
securities of KID would be as follows:
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Name
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Amount Owned
|
|
Percent of Class
(1)
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KHD Humboldt Wedag International Ltd.
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|
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11,875,750
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|
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72.1
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%
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|
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(1)
|
|
Based on 16,456,708 shares of KID issued and
outstanding as of the completion of the Arrangement, not including 114,658
shares of KID owned by KID, assuming that KHD distributes 4,322,844 KID
Shares in the Arrangement.
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DIRECTORS AND OFFICERS
Supervisory Board General
Pursuant to Section 10.1 of KIDs Articles of Association, the supervisory board of KID is composed
of three members. Supervisory board members are elected at the general shareholders meeting by a
simple majority of votes cast. Unless a shorter period is determined at a general shareholders
meeting, supervisory board members are elected for the period until conclusion of the general
shareholders meeting that resolves to exonerate the actions of the supervisory board for the
fourth financial year following commencement of their term of office, however the financial year in
which the term of office begins is not included in calculating the period. For each supervisory
board member, a substitute member may be simultaneously elected. A substitute member is elected for
the remaining term of the supervisory board member unless, at a general shareholders meeting, a
new supervisory board member is elected. Supervisory board members may be re-elected. Members of
the supervisory board may resign from office by submitting one months written notice to the
executive board. The right of supervisory board members to resign from office for good cause is not
affected thereby. Supervisory board members who were elected at a general shareholders meeting
without being nominated may be dismissed at a general shareholders meeting by a majority of at
least three-quarters of the votes cast.
At the first meeting following its election, the supervisory board elects a chairman and a deputy
chairman from among its ranks for the duration of their respective term of office as a supervisory
board member. If the chairman or the deputy resigns from their office prematurely, the supervisory
board must promptly elect a successor for the remainder of the resigning members term of office.
Declarations of intent by the supervisory board and any committees are made by the chairman on
behalf of the supervisory board. Only the chairman of the supervisory board or, in case the
chairman is unable, the deputy chairman, is authorized to receive declarations of intent addressed
to the supervisory board.
Supervisory Board Meetings and the Adoption of Resolutions
Under German corporate law, the supervisory board is required to hold two meetings in each
half-year period. The supervisory board will also be required to convene a meeting if KIDs
business so requires. The chairman of the supervisory board convenes the meetings of the
supervisory board in writing, stating the location and the time of the meeting, the items on the
agenda and any resolutions for decision giving notice of two weeks. The date on which
125
the notice is sent and the date of the meeting are not included in the calculation of this period.
In urgent cases, the chairman may reasonably shorten the period and convene a meeting orally, by
telephone, by facsimile or via other modern means of communication (e.g. by e-mail). The adoption
of a resolution on an item on the agenda that was not included in a notice is only permissible if
no supervisory board member present files an objection. In such cases, absent supervisory board
members must be given the opportunity to subsequently object to the adoption of the resolution
within a reasonable period to be determined by the chairman or to submit a written vote. The
resolution only enters into force if no absent member files an objection within this period.
The supervisory board has quorum if all members have been properly invited to a meeting of the
supervisory board and if at least three members take part in adoption of the relevant resolution.
Absent members may take part in the adoption of resolutions by having written votes submitted by
those supervisory board members present or by members of the executive board who take part in the
meeting of the supervisory board as advisors or [by third persons who were authorized by the absent
supervisory board member.
Supervisory board resolutions are generally adopted at meetings attended by the members in person.
The supervisory board may also adopt resolution by way of written, telephone or similar forms (e.g.
by fax, video conferencing or email) of taking a resolution and voting. On instruction by the
chairman of the supervisory board, resolutions of the supervisory board may also be adopted without
a meeting being convened or held, by telephone, in writing by circular, by facsimile or using other
modern means of communication (e.g. e-mail) provided no member objects to this procedure within a
reasonable period of time stipulated by the chairman. The chairman decides on the manner of voting
in each case. Such decisions are recorded by the chairman and communicated in writing to all
members of the supervisory board.
The members of the executive board shall attend the meetings of the supervisory board in an
advisory capacity. The supervisory board chairman or the supervisory board may preclude the
attendance of members of the executive board if necessary. Other persons may also attend in
accordance with Section 109 of the AktG.
Resolutions of the supervisory board are adopted by a majority of votes cast, unless a different
majority is mandated by law. When determining the results of the voting, abstentions are not
counted. In the event of a tie, the vote of the chairman is decisive.
Minutes of the meetings of the supervisory board are to be prepared and signed by the chairman or
in case of him being prevented the deputy chairman, and promptly forwarded to all members. The
same applies to resolutions adopted outside of meetings.
Legal Position of the Supervisory Board
The supervisory board conducts transactions in accordance with the law and the provisions of the
Articles of Association. In performing its duties, the supervisory board must work on a trusting
basis together with the other governing bodies of the Company. The supervisory board members are
not subject to orders and instructions. They are obliged to keep confidential any and all facts and
circumstances of which they become aware in the course of their supervisory board activities, and
the disclosure of which could have an adverse impact on the Companys interests.
The supervisory board appoints the executive board, advises it and supervises its management. It
decides on management issues where the executive boards rules of procedure or the Articles of
Association require the supervisory boards consent or where the executive board submits
transactions to the supervisory board for its approval. However, in this respect as well, the
supervisory board has no right of initiative or to issue instructions. The executive board must
report to the supervisory board on an ongoing basis on the business policy pursued and on any and
all executive board measures taken or omitted. The supervisory board will represent KID vis-à-vis
the executive board members. It will appoint the auditor to conduct the audit of the annual and
consolidated financial statements pursuant to Section 290 of the
German Commercial Code
. The
supervisory board may establish committees from among its ranks. The supervisory board issues
itself rules of procedure pursuant to mandatory provisions of the law and the Articles of
Association.
126
Members of Supervisory Board Post-Arrangement
Assuming approval by the shareholders of KID at the KID Meeting, and that such approval is not
challenged within one month of the KID Meeting, the supervisory board of KID upon the completion of
the Arrangement is expected to be comprised of the following persons:
Michael J. Smith
Silke Stenger
Gerhard Rolf
Although meetings of the shareholders of KID will be held annually, if elected by the shareholders
of KID at the KID Meeting, the above persons may hold their respective positions until the annual
meeting of KID to be held in the year 2013. However, it is intended that the supervisory board
will change to align KID within its industry in connection with the completion of the Arrangement.
Business Experience of Supervisory Board
Descriptions of the business experience over the last five years of each of those persons expected
to be members of the supervisory board who are currently as follows:
Michael J. Smith- Hong Kong SAR, China
Mr. Smith has been a director of KHD since 1986 and its Chairman since 2003. He was the chief
financial officer of KHD from 2003 until October 16, 2007 and was its secretary until March 1,
2008. Mr. Smith was the president and chief executive officer between 1996 and 2006. He is the
president, secretary and a director of Blue Earth Refineries Inc., a public company with its common
shares registered with the Securities and Exchange Commission under the 1934 Act. Mr. Smith is the
president and a director of Mass Financial. He has extensive experience in advisory services,
corporate finance, restructuring and international taxation planning. Until November 2006, he led
KHDs investing and merchant banking activities.
Silke Stenger Seligenstadt, Germany
Ms. Stenger has been a director of KHD since 2003. She has been the Chief Financial Officer of
Management One Human Capital Consultants since 2006. Previously, she was the Head of Investor
Relations of Koidl & Cie. Holding AG from 1999 to 2002 and acted as an independent management
consultant from 2002 to 2006.
Gerhard Rolf Frankfurt, Germany
Mr. Rolf is retired. He has been a director of KHD since 2009. Formerly, Mr. Rolf was the
European Vice President of Haworth Inc. from 1999 to 2003. Prior to that, he held several
positions with Black and Decker from 1987 to 1993, including Managing Director for Germany and Vice
President Total Quality Europe, and was a member of its European board of directors. He later
became European President of Security Hardware in Bruehl, Germany.
Executive Board General
Pursuant to Section 7.1 of KIDs Articles of Association, the executive board is composed of one or
more persons. The exact number of members is determined by the supervisory board, which appoints
the members of the executive board. Even if the share capital is higher than 3,000,000 the
supervisory board may determine that the executive board be composed of only one person. The
supervisory board may appoint one member of the executive board as the chairman and another member
as the deputy chairman of the executive board. The supervisory board dismisses members of the
executive board. Executive board members are appointed for a maximum term of five years.
Re-appointment or an extension of the term of office for additional five years in each case is
permissible. The supervisory board may revoke the appointment of an executive board member for
good cause prior to expiry of his term of office, for example in the event of a gross breach of
duty, inability to duly manage KIDs business or a vote
127
of no confidence in the executive board member by the general shareholders meeting, unless the
vote of no confidence was clearly on subjective grounds. The formal legal relationship created by
virtue of appointment of an executive board member is to be distinguished from the contract of
service between the executive board member and KID. The contract of service also has a maximum
term of five years, although it may provide for an automatic renewal of the contract of service in
the event of re-appointment. Otherwise, the provisions of the
German Civil Code
on service
relationships apply to the service relationship and termination thereof.
Management and Representation
The members of the executive board conduct the business of KID jointly and with collective
responsibility. They are therefore obliged to inform each other regularly on important
transactions in the divisions they manage and to make every effort to collaborate. Resolutions of
the executive board are adopted by a simple majority of votes cast, unless the law stipulates
unanimity. If the executive board is composed of two or more members, the chairman has the
deciding vote. Regardless of the overall responsibility of the executive board, the
responsibilities of executive board members are assigned in accordance with KIDs Articles of
Association on the basis of a schedule of responsibilities requiring the supervisory boards
consent.
According to the current schedule of responsibilities, Jouni Salo is responsible for overall
management of the Company.
Pursuant to Section 8.1 of KIDs Articles of Association, the executive board may give itself rules
of procedure by unanimous resolution, if the supervisory board does not issue rules of procedure
for the executive board. Rules of procedure shall stipulate that certain types of transactions, in
particular such which materially change the financial position or results of operations of KID or
which materially change its risk exposure, as well as the formation, dissolution, acquisition or
disposal of shareholdings or other transactions beyond what is stipulated by the supervisory board
in the rules of procedure for the executive board, may only be carried out with consent of the
supervisory board. Pursuant to the rules of procedure for the executive board, the following
transactions by the executive board require the consent of the supervisory board:
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the approval of the annual budget including budgeting of sales revenues and results,
investment plan, liquidity and financial plan as well as the associated partial plans and
including projected balance sheet and comprehensive income statement in consolidated form
for KID and its subsidiaries;
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transactions and measures relating to the structure of KID or the foundations of the KID
structure or that have a material influence on the development of KID, especially the
take-up of new lines of business and the cessation or material reduction of existing lines
of business;
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formation, liquidation, acquisition or sale of companies as well as the acquisition or
sale of shares in companies;
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conclusion or termination of enterprise agreements within the meaning of Sections 291
and 292 of the AktG;
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conclusion of cooperation agreements;
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granting of authorized representation or of general powers of attorney for the entire
business, as well as the conclusion of service agreements, to the extent that the service
agreements exceed the expense of 100,000 p.a.;
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conclusion of pension agreements or issuance of pensions commitments;
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granting of bonus payments to employees to the extent that they exceed the amount of
10,000 in the respective case, the acceptance of social liabilities outside the scope of
tariff agreements to the extent that they exceed the annual amount of 5,000 each or to the
extent that they exceed the aggregate annual amount of 10,000;
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conclusion of lease, leasehold and leasing agreements for a term of more than one year
and the respective leasing rates of which exceed the annual amount of 120,000;
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conclusion, amendment or termination of agreements of KID with shareholders, members of
the executive board or with members of the supervisory board or with persons closely
related to them to the extent that KID is not represented by the supervisory board;
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borrowing and granting of loans, issuance of bonds, assumption of guarantees or similar
agreements to the extent that they exceed an amount of 100,000 in the respective case or
in the aggregate in each business year and to the extent that they do not form part of the
approved annual budget or that these transactions are entered into between the Company and
its subsidiaries and that they serve the ordinary business purposes of the subsidiaries;
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projected investments exceeding the amount of 10% of the share capital of KID even if
the investment is made over several financial years as long as they do not form part of the
approved annual budget;
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all other transactions and measures that have a material effect on the results of
operation and financial conditions of KID or its material associated companies;
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assumption of seats on the supervisory boards, material positions in associations or
other business or public organizations; and
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press releases and literary publications.
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The supervisory board may provide its revocable consent to a specific class of transactions in
advance, either in general or subject to the proviso that individual transactions satisfy certain
conditions.
KID will be represented vis-à-vis third parties by two executive board members collectively or by
one executive board member acting jointly with a commercial attorney-in-fact. If only one
executive board member has been appointed, this member represents KID alone. The supervisory board
may stipulate that individual members of the executive board are generally or in certain
circumstances authorized to represent KID to such third parties. No executive board member is
currently authorized to represent KID alone or exempt from the restrictions of multiple
representation within the meaning of the
German Civil Code
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Executive Board Post-Arrangement
The executive board of KID subsequent to the completion of the Arrangement is expected to be
comprised of the following persons:
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Name
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Position
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Jouni Salo
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Chairman and Spokesman of the Executive Board
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Business Experience of Executive Board
Descriptions of the business experience over the last five years of each of those persons expected
to be members of the executive board of KID after completion of the Arrangement are as follows:
Jouni Salo Cologne, Germany
Mr. Salo was appointed as the president of KHDs cement division effective May 1, 2008 and became
the president and chief executive officer of KHD in April, 2009. Mr. Salo has more than 25 years of
international business experience in the industrial equipment market and broad based marketing and
operational understanding at the senior executive level. Mr. Salo has served in a variety of senior
positions with Metso Minerals Inc. and related operations. Most recently, he was President of the
Construction Materials Business Line of Metso Minerals Inc. In this position he was responsible for
the profitability and reorganization of one of the largest business divisions,
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having manufacturing plants in numerous parts of the world and with a strong focus on development
of emerging markets. Previously, he played a pivotal role in the acquisition and integration of
companies around the world. He holds a Bachelor of Science degree in Mechanical Engineering from
the Technical College of Hameenlinna.
About the Shareholders Agreement
In connection with the Arrangement, KHD proposes to enter into the Shareholders Agreement with the
Custodian whereby KHD will engage the Custodian to direct the voting of the KID Shares that KHD
will continue to hold after consummation of the Arrangement to the Custodian. Subject to
satisfying all necessary requirements and taking the other steps necessary to no longer control KID
from an accounting perspective, the entering into of the Shareholders Agreement may assist KHD with
its objective of deconsolidating KIDs financial position and results from those of KHD prior to
the time that it would be efficient, from a tax perspective, for KHD to distribute the KID Shares
owned by KHD at such time to the Shareholders. The deconsolidated financial presentation will more
accurately reflect the ultimate objective of the Arrangement on a going forward basis, as KID would
be deconsolidated from KHD in its entirety. As the Arrangement only contemplates the first tranche
of a distribution of the KID Shares and if KHD takes the steps necessary to no longer control KID
from an accounting perspective, the resulting accounting presentation of KHD on a deconsolidated
basis will enable Shareholders to achieve a more accurate view of both KHD and KID. As a result,
KHD and KID will be in a position to achieve the full potential of the Arrangement prior to the
time they would otherwise be able to achieve such benefits if they were to delay taking the
necessary steps to achieve the deconsolidation until it is efficient, from a tax perspective, to
distribute the remainder of the KID Shares owned by KHD at such time.
The Shareholder Agreement is to become effective immediately on the Effective Date and provides,
among other things, that:
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(a)
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KHD will provide 10 days notice to the Custodian of any shareholder meeting of
KID;
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(b)
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KHD will take all necessary steps to ensure that it can vote the KID Shares at
any shareholder meeting of KID;
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(c)
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the Custodian will determine, in its sole discretion, acting in a responsible
manner as a prudent shareholder or investor would do, always having regard to the best
interests of the shareholders of KID, how to vote the KID Shares and will notify KHD no
later than five calendar days prior to any shareholder meeting of KID as to how to vote
the KID Shares;
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(d)
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KHD undertakes and covenants that it will vote the KID Shares, or such portion
thereof as determined by the Custodian, in accordance with the instructions of the
Custodian, except as set out in the Shareholders Agreement;
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(e)
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KHD will not be obligated to vote the KID Shares as determined by the Custodian
if the Shareholders Agreement is effective or illegal under any prevailing law;
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(f)
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KHD will pay an annual fee to the Custodian and indemnify and save harmless the
Custodian for all costs and expenses incurred in the performance of its obligations
under the Shareholders Agreement;
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(g)
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in the event that KHD fails to comply with the voting instructions, or
otherwise breaches the Shareholders Agreement, and such breach remains un-remedied
after receipt of notice from the Custodian, then KHD is obliged to immediately
distribute all of the KID Shares then owned to the Shareholders;
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(h)
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the Shareholders Agreement will terminate once KHD has distributed all of the
KID Shares that it owns from time to time;
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(i)
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immediately upon the completion of any transfer, sale or other disposition of
any of the KID Shares, the obligation to vote any such KID Shares as directed by the
Custodian will terminate; and
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(j)
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each of KHD and the Custodian may terminate the Shareholders Agreement for
cause, as such term is defined under German high court rulings, including, without
limitation, for serious and persistent misconduct, breach of the Shareholders Agreement
or persistent failure to comply with the terms of the Shareholders Agreement.
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The Custodian under the Shareholders Agreement will be identified prior to the Effective Date. In
order to achieve the goal of no longer controlling KID from an accounting perspective and the
resulting accounting presentation of KHD on a deconsolidated basis, the Custodian has to be a party
which is not related to or affiliated with KHD and KID, or any of their respective directors or
officers, and includes any party that would be expected to result in KHD having to consolidate its
holding in KID.
KHD has yet to identify a party that will act as the Custodian. If KHD is unable to indentify a
party who is willing to act as the Custodian on or before the Effective Date, then KHD may not be
able to achieve its goal of taking all steps necessary to deconsolidate the financial position and
results of KID from those of KHD and will not proceed with the Arrangement.
The preceding description of the material terms and conditions of the Shareholders Agreement is
qualified in its entirety by the full text of the Shareholders Agreement which is attached as
Schedule P to this Information Circular. Shareholders are encouraged to read the Shareholders
Agreement in its entirety.
CORPORATE CEASE TRADE ORDERS OR BANKRUPTCIES
Except as disclosed herein, no director, officer or 10% shareholder of KID:
(a)
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is, as at the date of this Information Circular, or has been within 10 years before the date
of this Information Circular, a director or officer of any issuer (including KHD) that, while
that person was acting in that capacity:
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(i)
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was the subject of a cease trade or similar order, or an order that denied the
issuer access to any exemption under securities legislation, for a period of more than
30 consecutive days;
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(ii)
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was subject to an event that resulted, after the director or officer ceased to
be a director or officer, in KHD being the subject of a cease trade or similar order or
an order that denied the relevant company access to any exemption under securities
legislation, for a period of more than 30 consecutive days; or
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(iii)
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or within a year of that person ceasing to act in that capacity, became
bankrupt, made a proposal under any legislation relating to bankruptcy or insolvency or
was subject to or instituted any proceedings, arrangement or compromise with creditors
or had a receiver, receiver manager or trustee appointed to hold its assets;
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(b)
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has been subject to any penalties or sanctions imposed by a court relating to Canadian
permits legislation or by a Canadian securities regulatory authority (other than penalties
imposed as a result of late filings of insider reports filed by Michael Smith on July 10,
2006) or has entered into a settlement agreement with a Canadian securities regulatory
authority, or been subject to any other penalties or sanctions imposed by a court or
regulatory body that would likely to be considered important to a reasonable investor making
an investment decision; or
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(c)
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has, within the 10 years before the date of this Information Circular, become bankrupt, made
a proposal under any legislation relating to bankruptcy or insolvency, or become subject to or
instituted any
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proceedings, arrangement or compromise with creditors, or had a receiver, receiver manager
or trustee appointed to hold its assets.
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On June 11, 2003, the British Columbia Securities Commission issued a cease trade order with
respect to the shares of Banff Resources Ltd., a company for which Michael Smith served as a
director at the time the cease trade order was issued.
CONFLICTS OF INTEREST
There are not expected to be any existing or potential material conflicts of interest between KID
or a subsidiary of KID and a director or officer of KID or a subsidiary of KID, upon completion of
the Arrangement.
INDEBTEDNESS OF DIRECTORS AND EXECUTIVE OFFICERS
No individual who is a director or executive officer of KID or any associate of such director,
officer or proposed nominee, is or has been indebted to KID or any of its subsidiaries since its
inception, or is or has been indebted to another entity that is or has been the subject of a
guarantee, support agreement, letter of credit or other similar arrangement or understanding
provided by KID or any of its subsidiaries during that period.
RISK FACTORS
This section describes the material risks affecting KIDs business, financial condition, operating
results or prospects. There may be other risks and uncertainties that are not known to KID or that
KID currently believes are not material, but which also may have a material adverse effect on KIDs
business, financial condition, operating results or prospects.
In addition to the other information contained in this Schedule and in the Information Circular to
which it is attached, you should also carefully consider the risks described below. If any of
these risks are actually realized, KIDs business, financial condition, operating results or
prospects could be materially adversely affected.
Much of the information included in this Schedule and in the Information Circular to which it is
attached includes or is based upon estimates, projections or other forward looking statements.
Such forward looking statements include any projections or estimates made by KHD and/or KID and
their management in connection with KIDs projected business operations. While these
forward-looking statements, and any assumptions upon which they are based, are made in good faith
and reflect the current judgment regarding the direction of KIDs business, actual results will
almost always vary, sometimes materially, from any estimates, predictions, projections, assumptions
or other future performance suggested herein.
Such estimates, projections or other forward looking statements involve various risks and
uncertainties as outlined below. The reader is cautioned that important factors in some cases have
affected and, in the future, could materially affect actual results and cause actual results to
differ materially from the results expressed in any such estimates, projections or other forward
looking statements.
KID may face a lack of suitable acquisition or merger or other proprietary investment candidates,
which may limit its growth.
In order to grow its business, KID may seek to acquire or merge with or invest or make proprietary
investments in new companies or opportunities. KIDs failure to make acquisitions or investments
may limit its growth. In pursuing acquisition and investment opportunities, KID may be in
competition with other companies having similar growth and investment strategies. Competition for
these acquisitions or investment targets could result in increased acquisition or investment prices
and a diminished pool of businesses, services or products available for acquisition or investment.
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The worldwide economic downturn has reduced and could continue to reduce the demand for industrial
plant technology, equipment and service business and demand for KIDs products and services.
The ongoing economic crisis has had a significant negative impact on most segments of the world
economy due to many factors including the effects of the subprime lending and general credit market
crises, volatile but generally declining energy costs, slower economic activity, decreased consumer
confidence and commodity prices, reduced corporate profits and capital spending, adverse business
conditions, increased unemployment and liquidity concerns. The industrial plant technology,
equipment and service industry is cyclical in nature. It tends to reflect and be amplified by
general economic conditions, both domestically and abroad. Historically, in periods of recession or
periods of minimal economic growth, the operations underlying industrial plant technology,
equipment and service companies have been adversely affected. Certain end-use markets for clinker
and cement experience demand cycles that are highly correlated to the general economic environment,
which are sensitive to a number of factors outside of KIDs control. If such end-use markets for
clinker and cement significantly deteriorate due to economic effects, KIDs assets, financial
condition and results of operations could be materially and adversely affected.
Payments by customers of KID under a project agreement are typically made by means of a combination
of advance payments and certain milestone payments depending on the progress of the project. As a
result, KIDs revenue is generated predominantly from processing orders on hand and the
corresponding project progress toward the completion of contracts resulting from demand in prior
periods for cement plants according to the percentage-of-completion method. Historically,
approximately 70 to 80% of order backlog has been converted into revenues within a 12-month period.
Due to its high historical order backlog, the strong decline of the cement markets in 2009 has not
yet impacted KHDs revenues and results of operations for the financial year 2009. As a result of
the crisis in the cement markets, KHDs order intake dropped sharply. In addition, it was necessary
to reduce the order backlog on account of cancellation of orders that that already been booked in
2008. Management believes that the years 2010 and 2011 will be marked by significantly decreasing
revenues and results of operations, unless the order intake increases significantly over the level
of 2009. Reduced demand for KIDs products and services and pricing pressures could have a
material adverse effect on the assets, financial condition and results of operations of KID.
In addition, economic effects, including the resulting recession in various countries and slowing
of the global economy, will likely result in a continued decrease in commercial and industrial
demand for KIDs services and products, which could have a material adverse effect on KIDs
financial results. In addition, during recessions or periods of slow growth, the construction
industries typically experience major cutbacks in production which may result in decreased demand
for KIDs products and services. Because KID generally has high fixed costs, KIDs profitability is
significantly affected by decreased output and decreases in the demand for the design and
construction of plant systems or equipment that produce or process clinker and cement. Reduced
demand for KIDs products and services and pricing pressures could have a materially adverse effect
on the assets, financial condition and results of operations of KID.
The worldwide economic downturn has resulted in the prolonging or cancellation of some of KIDs
customers projects and may negatively affect KIDs customers ability to make timely payment to
KID.
Any downturn in the industrial plant technology, equipment and service industry or in the demand
for cement or other related products may be severe and prolonged, and any failure of the industry
or associated markets to fully recover from a downturn could seriously impact KIDs revenue and
harm its business, financial condition and results of operations. During a downturn, the timing and
implementation of some of KIDs larger customer projects may be affected. Some projects may be
prolonged or even discontinued or cancelled.
Furthermore, KIDs customers may face deterioration of their business, cash flow shortages, and
difficulty gaining timely access to sufficient credit, which could result in an impairment of their
ability to make timely payments to KID. In certain emerging markets, customers have obtained bank
guarantees or credit insurance to support credit extended to them. As these expire, there can be no
assurance that such customers will be able to renew or extend the credit support previously made
available.
A prolongation or cancellation of KIDs customers projects and a deterioration of their business
resulting in their inability to meet their payment obligations could have a materially adverse
effect on the assets, financial condition and results of operations of KID.
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Failure to manage its market, product and service portfolio effectively and to develop an effective
marketing and sales strategy to leverage market position in key geographical regions may adversely
affect KIDs financial condition and results of operations.
KID has a global portfolio of products and opportunities. Failure to manage this portfolio
effectively could have a material impact on its business. KID conducts regular reviews of its
market, product and service portfolio balance, as appropriate, looking at numerous factors,
including market weighting, geographical weighting and political risk. Nevertheless, it may still
be exposed to risk factors such as shifts in the demand for its products and services in certain
geographies; adverse changes in the business environment; increased taxes; and government
regulation. Failure to successfully develop or implement a marketing and sales strategy could have
an adverse effect on KIDs business. This marketing strategy includes opportunity identification,
identifying key customer requirements and targeting key opportunities and quality projects that fit
within its strategy. Inability to leverage its market position in key countries and segments could
also have a material adverse effect on its strategy in the long-term.
Failure to successfully deliver and implement major projects in line with established project and
business plans may adversely affect KIDs results of operation and financial condition.
KIDs future revenues and profits are, to a significant extent, dependent upon the successful
completion of major projects within budget, cost and specifications. The delivery of such projects
is subject to health and safety, sub-surface, technical, commercial, legal, contractor and economic
risks. During the pre-tender and tender phases, projects are subject to a number of sub-surface,
engineering, stakeholder, commercial and regulatory risks. The principal risk prior to tender is
failure to accurately assess a projects schedule and cost, leading to margin erosion or negative
returns. Development projects may be delayed or unsuccessful for many reasons, including: cost and
time overruns of projects under construction; failure to comply with legal and regulatory
requirements; equipment shortages; availability, competence and capability of human resources and
contractors; and mechanical and technical difficulties. Projects may also require the use of new
and advanced technologies, which can be expensive to develop, purchase and implement and which may
not function as expected. In the event that KID fails to successfully deliver and implement major
projects in line with project and business plans, its results of operations and financial condition
may be adversely affected.
KIDs core products are mainly produced by contract manufacturers in accordance with KIDs
requirements and quality standards, and non-core products are supplied by other suppliers. Since
the production of steel products is capital intensive, both contractors and suppliers require
advance payments from KID. In particular, due to the worldwide economic downturn, KIDs contractors
and suppliers may face deterioration of their businesses, experience cash flow shortages, and
difficulties gaining timely access to sufficient credit, which could result in production and
supply delays resulting, in turn, in damage claims by KIDs customers for inability to deliver or
late delivery of equipment. Further, advance payments made to contract manufacturers or suppliers
may not be fully recoverable in case of a contractors or suppliers insolvency. A deterioration of
the business of contract manufacturers or suppliers of KHD resulting in production and supply
delays or the inability to produce or supply at all may have a material adverse effect on the
assets, financial condition and results of operations of KID.
The cement plant engineering and equipment supplier industry has lengthy sales cycles due to
customised technology and products.
The current economic crisis has had a significant negative impact on consumer confidence with
reduced corporate profits and capital spending. The industrial plant technology, equipment and
service industry is generally subject to lengthy sales cycles which lengthen considerably in a
downturn. Customers who continue to spend in a downturn may often engage in intense due diligence
putting additional contractual and scope risks on to the suppliers. With an increasing sales
cycle, the power of negotiation may often rest with the customer who may be considering multiple
tenders and options at the same time. The combination of KIDs lengthy sales cycle coupled with
challenging economic conditions could have a materially adverse effect on the assets, financial
condition and results of operations of KID.
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Any significant disruption of KIDs operations may harm its business reputation and cause an
adverse effect on its financial results.
Breakdown of equipment or other events, including catastrophic events such as health and safety
incidents or natural disasters, leading to interruptions at any of KIDs facilities or at any of
the facilities or areas at which it is providing services, could have a material adverse effect on
its financial results. Further, because many of KIDs customers are, to varying degrees, dependent
on planned deliveries, customers that are forced to reschedule their own production due to such
delays could pursue financial claims against KID. KID may incur costs to correct any of these
events, in addition to facing claims from customers or third parties dependent upon the delivery of
our services or products. Further, if any of these events occur and KID is forced to delay the
delivery of its services, then its reputation among actual and potential customers may be harmed,
potentially resulting in a loss of business. While KID maintains insurance policies covering, among
other things, physical damage, business interruptions and product liability, these policies may not
cover all of its losses and it could incur uninsured losses and liabilities arising from such
events, including damage to its reputation, loss of customers and substantial losses in operational
capacity, any of which could have a material adverse effect on its financial results.
Changes in the prices and cost of raw materials could lead to a decrease in the demand for cement
and, in turn, in the demand for cement plants as produced by KID.
KID may be significantly affected by changes in the prices of and demand for cement and other
related products and the supply of materials necessary to make clinker and cement. The prices and
demand for these products and materials can fluctuate widely as a result of various factors beyond
KIDs control such as supply and demand, exchange rates, inflation, changes in global economics,
political and social unrest and other factors. Any substantial increases in the cost of such
materials, or the transportation and/or availability of such materials, could adversely affect the
demand for cement and other related products. If the demand for cement and other related products
decreases, then the demand for KIDs industrial plant technology, equipment and service business
will decrease, which will in turn have a materially adverse effect on the assets, financial
condition and results of operations of KID.
KID is subject to risks associated with changing technology and manufacturing techniques, which
could place KID at a competitive disadvantage.
The successful implementation of KIDs business strategy requires KID to continuously evolve its
existing products and services and introduce new products and services to meet customers needs.
KIDs designs and products are characterized by stringent performance and specification
requirements that mandate a high degree of manufacturing and engineering expertise. KID believes
that its customers rigorously evaluate KIDs services and products on the basis of a number of
factors, including quality, price competitiveness, technical expertise and development capability,
innovation, reliability and timeliness of delivery, product design capability, operational
flexibility, customer service, and overall management. KIDs success depends on its ability to
continue to meet its customers changing requirements and specifications with respect to these and
other criteria. There can be no assurance that KID will be able to address technological advances
or introduce new designs or products that may be necessary to remain competitive and meet
customers requirements within the industrial plant technology, equipment and service business and
should KID fail to do so this could have a materially adverse effect on the assets, financial
condition and results of operations of KID.
Failure to attract, motivate and retain skilled personnel may have a material adverse effect on
KIDs business and results of operations.
KIDs future direction and success depends on the constant review and development of an appropriate
business model and strategy that is aligned with the current business environment and the strengths
of KID. The development, communication and implementation of the strategy will depend on
generating sustainable options for the future and alignment between various stakeholders, including
its customer service centers and its regional strategies. This will require the right management
skills and leadership to deliver success. KIDs performance and ability to mitigate these and
other significant risks within its control depend on the skills and efforts of its employees and
management teams. Future success will depend to a large extent on the continued ability to attract,
retain, motivate and organize highly skilled and qualified personnel. This in turn will be impacted
by competition for
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human resources. Loss of the services of key people or an inability to attract and retain employees
with the right capabilities and experience, may have a material adverse effect on KIDs business
and results of operations.
KIDs competitors include firms traditionally engaged in the industrial plant technology, equipment
and service business and failure to understand the competitive landscape could lead to a decrease
of its market share.
KID conducts its business in a global environment that is highly competitive and unpredictable. Its
primary competitors are international companies with greater resources, capital and access to
information than it. Its competition includes other entities who provide industrial and process
engineering services and/or products related to cement technology, including feasibility studies,
raw material testing, basic and detail plant and equipment engineering, financing concepts,
construction and commissioning, and personnel training. Increased competition may lead to a decline
in the demand for KIDs industrial plant technology, equipment and service business and failure to
understand the competitive landscape, which includes competitors with greater resources and capital
than it could lead to a decrease of its market share.
KID is exposed to political, economic, legal, operational and other risks as a result of its global
operations, which may negatively affect its business, results of operations, financial condition
and cash flow.
In conducting its business in major markets around the world, KID is, and will continue to be,
subject to financial, business, political, economic, legal, operational and other risks that are
inherent in operating in other countries. KID operates on a global basis, in both developed and
underdeveloped countries. In addition to the business risks inherent in developing a relationship
with a newly emerging market, economic conditions may be more volatile, legal and regulatory
systems less developed and predictable, and the possibility of various types of adverse
governmental action more pronounced. Other business risks include warranty claims that may be made
in connection with warranties that KID provides to its customers in connection with the industrial
and engineering products and services that it provides. If KID receives a significant number of
warranty claims, then its resulting warranty costs could be substantial and it could incur
significant legal expenses evaluating or disputing such claims. In addition, inflation,
fluctuations in currency and interest rates, competitive factors, civil unrest and labour problems
could affect KIDs revenues, expenses and results of operations. KIDs operations could also be
adversely affected by acts of war, terrorism or the threat of any of these events as well as
government actions such as expropriation, controls on imports, exports and prices, tariffs, new
forms of taxation or changes in fiscal regimes and increased government regulation in the countries
in which it operates or offers its services. KID also faces the risk that exchange controls or
similar restrictions imposed by foreign governmental authorities may restrict its ability to
convert local currency received or held by it in their countries or to take those other currencies
out of those countries. Unexpected or uncontrollable events or circumstances in any of these
markets could have a material adverse effect on KIDs financial results.
Failure to identify and interpret correctly global or local regulations and legislation may impact
KIDs financial position or reputation.
KIDs business activities are conducted in many different countries and are therefore subject to a
broad range of legislation and regulation. It faces value erosion if it does not identify or
interpret correctly these regulations, respond to changes in market rules and ensure compliance
with same. Many of the countries in which KID conducts, and expects to conduct, business have
recently developed, or are in the process of developing, new regulatory and legal structures.
These regulatory and legal structures, and their interpretation and application by administrative
agencies, may be untested and specific to a given market. Any changes in the regulatory climate in
which KID operates may potentially have a material impact on its business. Failure to meet
regulatory and legislative requirements may have a material adverse effect on KIDs reputation and
may expose it to financial penalties.
Any significant inflation or deflation may negatively affect KIDs business, results of operations
and financial condition.
Inflation may result in increases in KIDs expenses related to the provision of industrial plant
technology, equipment and service business, which may not be readily recoverable in the price of
such services provided to its clients. Increases in inflation in overseas countries could result in
a reduction in KIDs revenues when reported in Euros. To
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the extent that inflation results in rising interest rates and has other adverse effects on capital
markets, it may adversely affect KIDs business, results of operations and financial condition.
Deflation is the risk that prices throughout the economy may decline. Deflation may also result in
the decrease of the price of cement which may result in KIDs customers delaying or cancelling
projects. Any such delays or cancellations could result in reduced demand for KIDs products and
services, which may adversely affect its business, results of operations and financial condition.
Failure to successfully deliver and implement major projects in line with established project and
business plans may adversely affect KIDs results of operation and financial condition.
KIDs future revenues and profits are, to a significant extent, dependent upon serving key
customers globally by successfully completing major projects within budget, schedule and required
specifications. Failure to execute projects successfully for these customers will impact KIDs
ability to win new projects from these and other customers and therefore impact KIDs future
financial results. The principal risk for project execution includes failure to complete the
project on time owing to unforeseen construction problems. In addition the plant or equipment
constructed may not be able to handle the contracted volumes and quantities of product required by
the customer because of design errors or errors in manufacturing or construction. These risks if
they materialise may require KID to pay penalties under the terms of the customer contract. KID may
also be faced with non-conformance of the plant and equipment it supplies which may lead to claims
by the customers against it. In addition the group may face warranty claims in connection with the
industrial and engineering products and services that KID provides. If KID receives a significant
number of warranty claims, then KIDs resulting warranty costs could be substantial and KID could
incur significant legal expenses evaluating or disputing such claims.
The delivery of projects is also subject to health & safety and environmental risks. Execution of
projects may also be unsuccessful due to failure to comply with local legal and regulatory
requirements; equipment shortages; availability, competence and capability of human resources and
contractors; and mechanical and technical difficulties. Some projects may also require the use of
new and advanced technologies, which can be expensive to develop, purchase and implement and which
may not function as expected. Should KID fail to successfully deliver and implement major projects
in line with project and business plans, this could have a materially adverse effect on the assets,
financial condition and results of operations of KID.
Any significant disruption of KIDs operations may harm KIDs business reputation and cause an
adverse effect on KIDs financial results.
Breakdown of equipment or other events, including catastrophic events such as health and safety
incidents or natural disasters, leading to interruptions at any of KIDs facilities or at any of
the facilities or areas at which KID are providing services, could have a material adverse effect
on KIDs financial results. Further, because many of KIDs customers are, to varying degrees,
dependent on planned deliveries, customers that are forced to reschedule their own production due
to such delays could pursue financial claims against KID. KID may incur costs to correct any of
these events, in addition to facing claims from customers or third parties dependent upon the
delivery of KIDs services or products. Further, if any of these events occur and KID is forced to
delay the delivery of KIDs services, then KIDs reputation among actual and potential customers
may be harmed, potentially resulting in a loss of business. While KID maintains insurance policies
covering, among other things, physical damage, business interruptions and product liability, these
policies may not cover all of KIDs losses and KID could incur uninsured losses and liabilities
arising from such events, including damage to KIDs reputation, loss of customers and substantial
losses in operational capacity, any of which could have a materially adverse effect on the assets,
financial condition and results of operations of KID.
Some of KIDs subsidiaries operating in the industrial plant technology, equipment and service
business are staffed by a unionized workforce, and union disputes and other employee relations
issues may materially and adversely affect its financial results.
Some of the employees of KIDs operating subsidiaries are represented by labour unions under
collective bargaining agreements with varying durations and expiration dates. KID may not be able
to satisfactorily renegotiate its bargaining agreements when such agreements expire. In addition,
existing bargaining agreements may not prevent a
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strike or work stoppage in the future, and any such work stoppage may have a material adverse
effect on KIDs financial results.
KID is subject to local legislation and regulations in various countries in which it operates.
Failure to identify, interpret correctly and comply with local regulations and legislation may
impact KIDs reputation and its business.
KIDs business activities are conducted in many different countries and are therefore subject to a
broad range of legislation and regulation. KID face value erosion if KID do not identify or
interpret correctly these regulations, respond to changes in market rules and ensure compliance
with same. Many of the countries in which KID conducts, and expects to conduct, business have
recently developed, or are in the process of developing, new regulatory and legal structures. These
regulatory and legal structures, and their interpretation and application by administrative
agencies, may be untested and specific to a given market. Any changes in the regulatory climate in
which KID operates may potentially have a material impact on KIDs business. Failure to meet
regulatory and legislative requirements may have a material adverse effect on KIDs reputation and
may expose KIDs company to financial penalties. This could, in turn, have a materially adverse
effect on the assets, financial condition and results of operations of KID.
In some countries KIDs projects and investments may be exposed to risks relating to conduct,
ethics, corporate responsibility and anti-competitive practices. Failure to implement KIDs Code of
Conduct and Ethics and policies in investment decisions and in day-to-day operations could have a
material impact on the Groups business.
KIDs Code of Conduct defines the Groups philosophy and underpins corporate responsibility and
ethical practice throughout the organisation. As the company faces the current economic downturn
and in the search for new opportunities it will take the Group into areas which present new and
different challenges to the Groups firm commitment to make the Code of Conduct central to doing
business. KID Groups failure to implement its Code of Conduct and Ethics and/or any damaging
investigations of the Groups activities could impact the Groups reputation and could have a
materially adverse effect on the assets, financial condition and results of operations of KID.
Transactions with parties in countries designated by the United States State Department as state
sponsors of terrorism may lead some potential customers and investors in the United States and
other countries to avoid doing business with KID.
KID is currently engaged and may continue to engage in business with parties in Iran, Sudan, Cuba
and Syria, countries that the United States State Department has designated as state sponsors of
terrorism. This business primarily relates to the provision of spare parts. United States law
generally prohibits United States persons from doing business with such countries. In the case of
these designated countries, there are prohibitions on certain activities and transactions, and
penalties for violation of these prohibitions include criminal and civil fines and imprisonment.
KID is a company incorporated in Germany and, to its knowledge, its activities with respect to
these countries have not involved any United States person in either a managerial or operational
role. While KID seeks to comply with applicable legal requirements in KIDs dealings in these
countries, it is possible that KID or persons employed by KID could be found to be subject to
sanctions or other penalties under this legislation in connection with the activities in these
countries.
KID is aware, through press reports and other means, of initiatives by governmental entities in the
United States and by United States institutions such as universities and pension funds, to adopt
laws, regulations or policies prohibiting transactions with or investment in, or requiring
divestment from, entities doing business with these countries. It is possible that such initiatives
may result in KID being unable to gain or retain entities subject to such prohibitions as
customers. In addition, KIDs reputation may suffer due to KIDs association with these countries.
This could, in turn, have a materially adverse effect on the assets, financial condition and
results of operations of KID.
Some of KIDs subsidiaries operating in the industrial plant technology, equipment and service
business are staffed by a unionized workforce, and union disputes and other employee relations
issues may materially and adversely affect KIDs business.
138
Some of the employees of KIDs operating subsidiaries are represented by labour unions under
collective bargaining agreements with varying durations and expiration dates. KID may not be able
to satisfactorily renegotiate KIDs bargaining agreements when such agreements expire. In addition,
existing bargaining agreements may not prevent a strike or work stoppage in the future, and any
such work stoppage could have a materially adverse effect on the assets, financial condition and
results of operations of KID.
Some of KIDs current and historical operations are subject to a wide range of environmental,
health and safety regulations.
KID is subject to certain environmental, health and safety laws and regulations that affect its
project operations and some of the facilities it operates. KID believes that KID is in compliance
with all material environmental, health and safety laws and regulations related to its products,
operations and business activities. However, there is a risk that KID has to incur expenditures to
cover environmental and health liabilities to maintain compliance with current or future
environmental, health and safety laws and regulations or to undertake any necessary remediation. It
is difficult to reasonably estimate the future impact of environmental matters, including potential
liabilities due to a number of factors especially the lengthy time intervals often involved in
resolving them. Should KID become subject to additional costs for remediation of the sites operated
by it or compliance with environment, health and safety laws and regulations which exceed the
provisions set aside for this risk, this could have a materially adverse effect on the assets,
financial condition and results of operations of KID.
KID may not be able to protect the confidential or unique aspects of its proprietary technology,
which would harm KIDs competitive position.
KID relies on a combination of patents and patent applications, trade secrets, confidentiality
procedures and contractual provisions to protect KIDs technology. Despite KIDs efforts to protect
KIDs technology, unauthorized parties may attempt to copy aspects of the products KID designs or
builds or to obtain and use information that KID regards as proprietary. Policing unauthorized use
of KIDs technology and products is difficult and expensive. In addition, KIDs competitors may
independently develop similar technology or intellectual property. If KIDs technology is copied by
unauthorized parties, violates the intellectual property of others or if KIDs competitors
independently develop competing technology, KID may lose existing customers and KIDs business may
suffer.
Moreover, whilst KID has been issued a large number of patents and other patents applications are
pending, there can be no assurance that any of these patents will not be challenged, invalidated or
circumvented, or that any rights granted under these patents will in fact provide competitive
advantage to KID. Should any of these risks materialize, this could have a materially adverse
effect on the assets, financial condition and results of operations of KID.
KID could infringe third party intellectual property rights.
KID could also be exposed to infringement of third party intellectual property rights. The
development of products and introduction of new products in the industry is often done in parallel
with other competitors and despite gaining patent rights in a particular geography it is possible
that the IP infringes third party patents. If a third party brings a successful infringement claim
against KID the financial consequences can be an award of damages to compensate the third party for
the unauthorised use of its IP or an account of profits which strips KID of the profits it has
made through the unauthorised use of the IP. There is also the possibility of a court granting an
injunction, i.e. an order prohibiting further use of the infringing IP. If the IP is part of a key
system or core product the business impact on KID could be significant. This could, in turn, have a
materially adverse effect on the assets, financial condition and results of operations of KID.
KID could become dependent on licences.
KIDs future product solutions may require it to license technologies from other companies and
successfully integrate such technologies with its products. It may be necessary in the future to
seek or renew licenses relating to various aspects of these products. There can be no assurance
that the necessary licenses would be available on acceptable terms, or at all. Moreover, the
inclusion in KIDs products of software or other intellectual property licensed from third parties
on a non-exclusive basis could limit its ability to protect the proprietary rights in its
139
products. The inability of KID to acquire licences on which it is dependent, or the acquisition at
unfavourable terms, or a lack of protection of its own proprietary rights could have a materially
adverse effect on the assets, financial condition and results of operations of KID.
KID is exposed to risks associated with joint ventures, strategic alliances and third party
agreements to offer complementary products and services.
Some business activities conducted by KID are conducted with strategic alliances and joint venture
partners. The joint ventures are often under the day-to-day management of these partners and may
therefore be subject to risks that are outside the control of the KID.
In addition, if KIDs partnering arrangements fail to perform as expected, whether as a result of
having incorrectly assessed its needs or the capabilities of its strategic partners, its ability to
work with these partners or otherwise, KIDs ability to develop new products and solutions may be
constrained and this may harm its competitive position in the market. Additionally, our share of
any losses from, or commitments to contribute additional capital to, joint ventures has and may
continue to adversely affect KIDs assets, financial condition and results of operations.
Fluctuations in exchange rates and interest rates could expose KID to unidentified or unanticipated
risks and could materially harm its business.
KID uses a variety of instruments and strategies to manage exposure to various types of financial
risks. For example, KID may use derivative foreign exchange contracts to manage KIDs exposure to
foreign currency exchange rate risks. If any of the variety of instruments and strategies that KID
utilizes to manage its exposure to various types of risks is not effective, KID may incur losses.
Unexpected market developments may affect KIDs risk management strategies and unanticipated
developments could impact KIDs risk management strategies in the future. This could, in turn, have
a materially adverse effect on the assets, financial condition and results of operations of KID.
Inflation may result in increases in KIDs expenses related to the provision of industrial plant
technology, equipment and service business, which may not be readily recoverable in the price of
such services provided to KIDs clients. Increases in inflation in foreign currencies could result
in a reduction in KIDs revenues when reported in Euros. To the extent that inflation results in
rising interest rates and has other adverse effects on capital markets, it may adversely affect
KIDs ability to refinance itself and could, in turn, have a materially adverse effect on the
assets, financial condition and results of operations of KID. Deflation is the risk that prices
throughout the economy may decline, which may result in the decrease of the price of cement which
may result in KIDs customers delaying or cancelling projects. Any such delays or cancellations
could result in reduced demand for KIDs products and services. In addition, deflation may result
in a decrease of the prices of KIDs products and services. Any of these risks could have a
materially adverse effect on the assets, financial condition and results of operations of KID.
KID is exposed to uninsured risks as part of its global business.
A [comprehensive] insurance programme is maintained to mitigate significant losses, which, as is
consistent with good industry practice, includes cover for physical damage, removal of debris,
pollution and employers and third-party liabilities. Nevertheless, some of the major risks
involved in the activities of KIDs group cannot, or may not, reasonably and economically be
insured. The programme is subject to certain limits, deductibles, and terms and conditions. In
addition, insurance premium costs are subject to changes based on the overall loss experience of
the insurance markets accessed. Should it turn out that KID is not sufficiently insured against a
certain risk and such risk materializes, this could have a materially adverse effect on the assets,
financial condition and results of operations of KID. Should it turn out that KID is not
sufficiently insured against a certain risk and such risk materializes this could have materially
adverse effect on the assets, financial, conditions and results of operations of KID.
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If KHD and KID are unable to enter into a new bonding facility agreement with RZB, the operations
of KID and its subsidiaries will be materially adversely impaired.
As discussed above, on November 30, 2006, as amended June 10, 2008, October 27, 2008 and November
16, 2009, KIA, as the borrower, KHD, as the guarantor, and RZB entered into the Facility. The
Facility is critical to KHDs industrial plant technology, equipment and service business and, upon
completion of the Arrangement, will be critical to KIDs ongoing business. In order to be able to
pursue its industrial plant technology, equipment and service business, KID will depend on the
availability of adequate means of bonding (i.e. providing advance payment, performance or warranty
bonds to customers). KID will require access to the Facility to provide advance and performance or
warranty bonds in relation to any equipment to be supplied by KID to its customers under
irrevocable letters of credit provided by customers as payment security for the project. As a
result, given that upon completion of the Arrangement both KIA and KHD will cease to be part of the
same group with KHD as the parent company, KIA, KHD and KID are in the process of negotiating the
transfer to KID of the Facility prior to the expiration of its current term. Assuming RZB consents
to the distribution of the KID Shares, KHD will be required to continue to guarantee the
obligations of KIA and, following the proposed transfer, KID, under the Facility until at least
November 2010. Subsequent to the completion of the Arrangement, KID will require access to the
Facility to provide advance and performance or warranty bonds in relation to any equipment to be
supplied by KID to its customers under irrevocable letters of credit provided by customers as
payment security for the project. As a result, given that upon completion of the Arrangement both
KIA and KHD will cease to be part of the same group with KHD as the parent company, KIA, KHD and
KID are in the process of negotiating the transfer to KID of the Facility prior to the expiration
of its current term. RZB has advised that KHD and KID are required to obtain the consent of RZB to
the distribution of the KID Shares prior to such distribution and prior to the transfer of the
bonding line to KID. As of the date of this Information Circular, the consent of RZB has not been
obtained, however RZB has advised that it will notify KHD and KID as to whether it approves of the
distribution of the KID Shares by March 20, 2010. If KHD and KID fail to secure RZBs agreement to
continue making the Facility available to KIA and, following the proposed transfer, KID, subsequent
to completion of the Arrangement, or unless an alternative agreement is able to be entered into
with another lender, the operations of KID and its subsidiaries, and KIDs ability to carry out
same, will be materially adversely affected.
KID is exposed to various counterparty risks which may adversely impact its financial position and
results of operations.
The challenging credit environment since 2008 has highlighted the importance of governance and
management of credit risk. KIDs exposure to credit risk takes the form of a loss that would be
recognized in the event that counterparties failed to, or were unable to, meet their payment
obligations. Such risk may arise in certain agreements in relation to amounts owed for physical
product sales, the use of derivative instruments and the investment of surplus cash balances. The
current credit crisis could also lead to the failure of companies in KIDs sector, potentially
including partners, contractors and suppliers.
KID has exposure to the financial condition of KIDs various lending, investment and derivative
counterparties. With respect to derivative counterparties, KID is periodically party to derivative
instruments to hedge KIDs exposure to foreign currency exchange rate fluctuation. The
counterparties to these contracts are commercial banks. On the maturity dates of these contracts,
the counterparties are potentially obligated to pay KID the net settlement value. If any of the
counterparties to these derivative instruments were to liquidate, declare bankruptcy or otherwise
cease operations, they may not satisfy their obligations under these derivative instruments. In
addition, KID may not be able to cost effectively replace the derivative position depending on the
type of derivative and the current economic environment. If KID was not able to replace the
derivative position, KID would be exposed to a greater level of foreign currency exchange rate risk
which could lead to additional losses.
With respect to lending and investment counterparties, current market conditions may increase
counterparty risks related to KIDs cash equivalents, restricted cash, short-term cash deposits,
receivables and equity securities. KID has deposited KIDs cash and cash equivalents (including
restricted cash) and term deposits with reputable financial institutions with high credit ratings.
As at September 30, 2009, KID had cash and cash equivalents aggregating $370.3 million with one
bank in Austria. If any such counterparties are unable to perform their obligations, KID may,
depending on the type of counterparty arrangement, experience a significant loss of liquidity or a
significant
141
economic loss. Changes in the fair value of these items may adversely impact KIDs financial
position, results of operations, cash flows and liquidity.
In addition, if KHD and KID are able to successfully negotiate the continued availability of the
RZB bonding facility to the KID group of companies upon completion of the Arrangement, KID will be
subject to counterparty risks related to the bonding facility.
KIDs ability to utilize financial resources may be restricted because of tightening and/or
elimination of unsecured credit availability with counterparties. If KID is unable to utilize such
financial resources, KID may be exposed to greater risk with respect to KIDs ability to manage
exposures to fluctuations in foreign currencies, interest rates, and lead prices.
Should any of the above risks materialize this could have a materially adverse effect on the
assets, financial condition and results of operations of KID.
Risks Related to the Shares of KID
A liquid market for the shares of KID may not develop.
Prior to the Meeting, KID will apply for the admission of its shares for trading on the FSE and the
VSE. Listing of the shares of KID on the FSE and the VSE is subject to KID fulfilling all of the
respective original listing requirements of each of the FSE and the VSE. The FSE and the VSE are
small stock exchanges compared to the NYSE and other markets around the world. Accordingly, the
shares of KID may trade with limited volume and high volatility. Moreover, because the shares of
KID are fairly new securities, being sold into a market in which KID has not previously widely sold
securities, it is uncertain whether the shares of KID will receive sufficient market acceptance to
allow for a liquid trading market in the shares of KID to develop. If such a market fails to
develop, Shareholders ability to sell shares of KID will be limited.
Holders whose currency is not the Euro will incur exposure to fluctuating exchange rates.
For holders whose currency is not the Euro, fluctuations in the value of the Euro, the currency in
which KID will be traded on the FSE and the VSE against such holders currency will affect the
market value of the shares of KID, as expressed in the investors currency. In addition, such
fluctuations may also affect the conversion into the investors currency of cash dividends and
other distributions paid on shares of KID, if any, including proceeds received upon a sale or other
disposition of shares of KID.
The trading volume in the shares of KID might be low and the share price could be highly volatile.
Since August 3, 1998, the shares of KID have been trading in the open market of the FSE. The
number of shares traded in the free float may be limited and may result in a low trading volume of
the shares even after admission to trading on the regulated market of the FSE. No assurance can be
given that liquid trading in the shares of KID will develop. As a consequence, investors may, under
certain circumstance, be unable to sell their shares, or be able to sell only after some delay, or
only at a loss. Moreover, even a limited order volume may have a significant effect on the share
price of the shares of KID, resulting in significant higher share price fluctuations than may be
the case with more liquid shares.
In addition after the listing on the regulated market of the FSE, there could be a substantial
fluctuation in the price of the shares of KID in response to,
inter alia
, fluctuations in actual or
predicted results, changes in profit prognoses and/or a failure to meet the expectations of
securities analysts, or changes in overall economic conditions, particularly in the stock market of
developing countries or in the general stock market, or as a result of other factors. The general
volatility of share prices could also put pressure on the shares of KID, even if this is not
directly related to KIDs business, its assets, financial health or profitability or its business
prospects.
Shareholders interests in KID could be diluted as a result of the issuance of new shares of KID.
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In the future, KID may be required to raise additional capital in order to finance its business and
planned growth. Accordingly, at the KID Meeting, the shareholders of KID will be asked to approve
an increase in authorized capital. This will allow the management board, subject to the consent of
the supervisory board, to exclude shareholders statutory subscription rights in certain
circumstances. The issuance of new shares of KID pursuant to a resolution at a general KID
shareholders meeting or from the authorized capital may result in a substantial dilution of
shareholders interests in the share capital of KID. This also applies to the exercise of any
convertible or warrant-linked bonds, if issued; the acquisition of other enterprises or equity
interests in other enterprises using yet to be issued shares in KID; and other measures affecting
KIDs capital.
LEGAL PROCEEDINGS
Other than as set out below, KID knows of no material, active or pending legal proceedings against
it, nor is KID involved as a plaintiff in any material proceeding or pending litigation, nor are
there are any proceedings in which any of KIDs directors or officers is an adverse party or has a
material interest adverse to KIDs interest:
Certain minority shareholders of KID have brought an action for a declaratory judgment of nullity
or, alternatively, for a declaratory judgment of invalidity with respect to KIDs approved
financial statements as of December 31, 2003 and 2002, as well as an action for a declaratory
judgment of nullity of or, alternatively, an action to rescind, the resolutions passed at a meeting
of the shareholders of KID held on September 29, 2004, to give formal approval to the actions of
the executive board and to three members of the supervisory board for the business year of 2003.
The subject matter of the actions were fees in the amount of 1,206,000 (the
Placing Fee
) and
1,914,000 (the
Merchant Banking Fee
) paid by KID to MFC Corporate Services AG (formerly MFC
Merchant Bank S.A.) at the end of 2002 for placing a capital increase in December, 2002 and for the
provision of merchant banking services. The plaintiffs claimed that, as a refund of contributions,
these payments were unlawful and that said financial statements were undervalued because a
corresponding claim for refund had not been recognized.
Based on the decision of the regional court, KID had already entered a claim in the amount of the
Merchant Banking Fee against MFC Corporate Services AG in the financial statements for the
preceding year as an amount recognized in profit or loss and asserted this claim against MFC
Corporate Services AG by a letter dated February 16, 2006. This decision does not refer to the
Placing Fee.
With regard to the actual expenses of 1,976,000, for which MFC Corporate Services AG has provided
detailed evidence, and which were incurred in connection with the services rendered to KID under
the Merchant Banking Agreement, KID has already set up an adequate provision on the liabilities
side in the financial statements for the preceding year to cover for the possibility that, in case
of an ultimate claim against KID, MFC Corporate Services AG asserts a claim for compensation of the
expenses incurred.
By judgment of November 4, 2005, the regional court upheld the plaintiffs claims. KID has lodged
an appeal against this judgment. Since then, one of the plaintiffs claims has been dropped.
With respect to the remaining claims, KID expects that its appeal will be successful. The decision
is still pending due to various postponements.
MATERIAL CONTRACTS
KID has not, within the two years preceding the date of this Information Circular, entered into any
contracts outside of the ordinary course of business that can be reasonably regarded as material to
KID. The following list sets out material contracts entered into by KID in the ordinary course of
business within two years preceding the date of this Information Circular:
On November 30, 2006, as amended June 10, 2008, October 27, 2008 and November 16, 2009, KIA, as the
borrower, KHD, as the guarantor, and RZB entered into the Facility. The Facility provides for a
loan capacity of up to 195 million and will expire on November 25, 2010, unless extended for
another one year term. Under the Facility, security instruments such as sureties, stand-by letters
of credit and guarantees may be granted to the customers of KHD and its subsidiaries. Subsequent
to the completion of the Arrangement, KID will require access to the Facility to provide advance
and performance or warranty bonds in relation to any equipment to be supplied by
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KID to its customers under irrevocable letters of credit provided by customers as payment security
for the project. As a result, given that upon completion of the Arrangement both KIA and KHD will
cease to be part of the same group with KHD as the parent company, KIA, KHD and KID are in the
process of negotiating the transfer to KID of the Facility prior to the expiration of its current
term. RZB has advised that KHD and KID are required to obtain the consent of RZB to the
distribution of the KID Shares prior to such distribution and prior to the transfer of the bonding
line to KID. Assuming that the consent of RZB to the distribution of the KID Shares is obtained,
upon completion of the Arrangement KHD will continue to guarantee the obligations of KIA and,
following the proposed transfer, KID, under the Facility until at least November 2010. As of the
date of this Information Circular, the consent of RZB has not been obtained, however RZB has
advised that it will notify KHD and KID as to whether it approves of the distribution of the KID
Shares by March 20, 2010.
INTEREST OF MANAGEMENT AND OTHERS IN MATERIAL TRANSACTIONS
Except as otherwise disclosed herein, (a) no director or executive officer of KID; (b) no person or
company who beneficially owns, directly or indirectly, shares of KID or who exercises control or
direction of shares of KID, or a combination of both (including control through nominees and
proposed directors) carrying more than 10% of the voting rights attached to the shares of KID
outstanding (an Insider); (c) no director or executive officer of an Insider; and (d) no
associate or affiliate of any of the directors, executive officers or Insiders, has had any
material interest, direct or indirect, in any transaction since the commencement of KIDs most
recently completed financial year or in any proposed transaction which has materially affected or
would materially affect KID or any of its subsidiaries, except with an interest arising from the
ownership of shares of KID where such person or company will receive no extra or special benefit or
advantage not shared on a pro rata basis by all holders of the same class of shares who are
resident in Canada.
In the normal course of operations, KID is expected to enter into transactions with related parties
which include, among others, affiliates whereby KID has a significant equity interest (10% or more)
in the affiliates or have the ability to influence the affiliates operating and financing policies
through significant shareholding, representation on the board of directors, corporate charter
and/or bylaws. These transactions are measured at the exchange value, which represents the amount
of consideration established and agreed to by all the parties.
TAX CONSEQUENCES
Certain tax consequences relating to the Arrangement that may be material to some Shareholders are
summarized in the Information Circular to which this Schedule is attached under the heading Income
Tax Considerations.
This summary is however not exhaustive and Shareholders are cautioned not to
rely on the disclosure provided thereby and should consult their own tax advisor regarding the
income tax consequences of the Arrangement.
INTEREST OF EXPERTS
Except as otherwise disclosed herein, none of the experts hired by KID have any material interest,
direct or indirect, by way of beneficial ownership in KID.
AUDITORS AND AUDIT COMMITTEE
It is expected that Deloitte and Touche GmbH Wirtschaftsprüfungsgesellschaft, through its
Dusseldorf office, will continue to be the auditors of KID following completion of the Arrangement.
Under German law, KID is not required to have an audit committee. In the event that KID
determines to appoint an audit committee, the committee will be established by the Supervisory
Board which will bear responsibility for nominating one or more persons to such committee, each of
whom must be a member of the Supervisory Board.
FINANCIAL STATEMENT DISCLOSURE FOR KID
The following combined financial statements of the KHD Industrial Plant Technology, Equipment and
Service Business are included in this Information Circular:
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|
|
|
audited combined annual financial statements of the KHD Industrial Plant Technology,
Equipment and Service Business as at December 31, 2008 and 2007 and for the three years
ended December 31, 2008, located at Schedule G to this Information Circular; and
|
|
|
|
|
unaudited combined interim financial statements of the KHD Industrial Plant Technology,
Equipment and Service Business as at and for the nine months ended September 30, 2009 and
2008, located at Schedule H to this Information Circular.
|
ADDITIONAL INFORMATION
KID will be required to file annual and other reports with certain German regulatory authorities
upon completion of the Arrangement. Such documents will be available on KIDs website at:
www.khd-hv.com.
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SCHEDULE G
KHD INDUSTRIAL PLANT TECHNOLOGY, EQUIPMENT AND SERVICE BUSINESS
COMBINED FINANCIAL STATEMENTS
146
AUDITORS REPORT
To the Board of Directors of
KHD Humboldt Wedag International Ltd.
We have audited the combined balance sheets of the KHD Humboldt Wedag companies that form the
industrial plant technology, equipment and service business of KHD Humboldt Wedag International
Ltd. (the KHD Industrial Plant Technology, Equipment and Service Business) as at December 31,
2008 and 2007, and the related combined statements of income, comprehensive income and
shareholders equity and cash flows for each of the years in the three year period ended December
31, 2008. These combined financial statements are the responsibility of the KHD Industrial Plant
Technology, Equipment and Service Business management. Our responsibility is to express an opinion
on these combined financial statements based on our audits.
We conducted our audits in accordance with Canadian generally accepted auditing standards. Those
standards require that we plan and perform our audits to obtain reasonable assurance about whether
the combined financial statements are free of material misstatement. An audit includes examining,
on a test basis, evidence supporting the amounts and disclosures in the combined financial
statements. An audit also includes assessing the accounting principles used and significant
estimates made by management, as well as evaluating the overall combined financial statement
presentation.
In our opinion, these combined financial statements present fairly, in all material respects, the
combined financial position of the KHD Industrial Plant Technology, Equipment and Service Business
as at December 31, 2008 and 2007, and the combined results of its operations and cash flows for
each of the years in the three year period ended December 31, 2008 in accordance with Canadian
generally accepted accounting principles.
Deloitte & Touche LLP
Chartered Accountants
Vancouver, British Columbia
March 26, 2009
147
KHD INDUSTRIAL PLANT TECHNOLOGY, EQUIPMENT AND SERVICE BUSINESS
COMBINED BALANCE SHEETS
December 31, 2008 and 2007
(United States Dollars in Thousands)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Notes
|
|
|
2008
|
|
|
2007
|
|
ASSETS
|
|
|
|
|
|
|
|
|
|
|
|
|
Current Assets
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash and cash equivalents
|
|
|
|
|
|
$
|
366,977
|
|
|
$
|
314,264
|
|
Securities
|
|
|
5
|
|
|
|
2,933
|
|
|
|
15,442
|
|
Restricted cash
|
|
|
|
|
|
|
32,008
|
|
|
|
24,116
|
|
Accounts receivable, trade
|
|
|
6
|
|
|
|
62,650
|
|
|
|
61,936
|
|
Other receivables
|
|
|
7
|
|
|
|
15,612
|
|
|
|
8,889
|
|
Inventories
|
|
|
8
|
|
|
|
109,676
|
|
|
|
124,336
|
|
Contract deposits, prepaid and other
|
|
|
9
|
|
|
|
58,171
|
|
|
|
33,289
|
|
Future income tax assets
|
|
|
10
|
|
|
|
59
|
|
|
|
825
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total current assets
|
|
|
|
|
|
|
648,086
|
|
|
|
583,097
|
|
Non-current Assets
|
|
|
|
|
|
|
|
|
|
|
|
|
Investment in parent company
|
|
|
11
|
|
|
|
37,042
|
|
|
|
43,906
|
|
Property, plant and equipment
|
|
|
12
|
|
|
|
6,711
|
|
|
|
7,819
|
|
Equity method investments
|
|
|
|
|
|
|
325
|
|
|
|
654
|
|
Future income tax assets
|
|
|
10
|
|
|
|
4,176
|
|
|
|
11,188
|
|
Other non-current assets
|
|
|
|
|
|
|
830
|
|
|
|
1,955
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total non-current assets
|
|
|
|
|
|
|
49,084
|
|
|
|
65,522
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
697,170
|
|
|
$
|
648,619
|
|
|
|
|
|
|
|
|
|
|
|
|
LIABILITIES AND SHAREHOLDERS EQUITY
|
|
|
|
|
|
|
|
|
|
|
|
|
Current Liabilities
|
|
|
|
|
|
|
|
|
|
|
|
|
Accounts payable and accrued expenses
|
|
|
13
|
|
|
$
|
173,137
|
|
|
$
|
143,053
|
|
Progress billings above costs and estimated earnings on uncompleted contracts
|
|
|
8
|
|
|
|
171,843
|
|
|
|
184,830
|
|
Advance payments received from customers
|
|
|
|
|
|
|
11,331
|
|
|
|
9,190
|
|
Income tax liabilities
|
|
|
|
|
|
|
8,987
|
|
|
|
20,651
|
|
Accrued pension liabilities, current portion
|
|
|
14
|
|
|
|
2,158
|
|
|
|
2,205
|
|
Provision for warranty costs, current portion
|
|
|
15
|
|
|
|
30,856
|
|
|
|
31,503
|
|
Provision for supplier commitments on terminated customer contracts
|
|
|
16
|
|
|
|
23,729
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total current liabilities
|
|
|
|
|
|
|
422,041
|
|
|
|
391,432
|
|
Long-term Liabilities
|
|
|
|
|
|
|
|
|
|
|
|
|
Long-term debt
|
|
|
17
|
|
|
|
11,313
|
|
|
|
13,920
|
|
Accrued pension liabilities, less current portion
|
|
|
14
|
|
|
|
29,209
|
|
|
|
30,981
|
|
Provision for warranty costs, less current portion
|
|
|
15
|
|
|
|
7,524
|
|
|
|
11,799
|
|
Deferred credit, future income tax assets
|
|
|
10
|
|
|
|
4,176
|
|
|
|
4,381
|
|
Future income tax liability
|
|
|
10
|
|
|
|
7,646
|
|
|
|
2,593
|
|
Other long-term liabilities
|
|
|
18
|
|
|
|
8,344
|
|
|
|
4,931
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total long-term liabilities
|
|
|
|
|
|
|
68,212
|
|
|
|
68,605
|
|
|
|
|
|
|
|
|
|
|
|
|
Total liabilities
|
|
|
|
|
|
|
490,253
|
|
|
|
460,037
|
|
Minority Interests
|
|
|
|
|
|
|
1,022
|
|
|
|
2,297
|
|
Shareholders Equity
|
|
|
|
|
|
|
|
|
|
|
|
|
Capital stock
|
|
|
19
|
|
|
|
41,463
|
|
|
|
41,463
|
|
Treasury stock
|
|
|
|
|
|
|
(135
|
)
|
|
|
(135
|
)
|
Contributed surplus
|
|
|
|
|
|
|
7,881
|
|
|
|
4,462
|
|
Retained earnings
|
|
|
|
|
|
|
153,309
|
|
|
|
116,866
|
|
Accumulated other comprehensive income
|
|
|
|
|
|
|
3,377
|
|
|
|
23,629
|
|
|
|
|
|
|
|
|
|
|
|
|
Total shareholders equity
|
|
|
|
|
|
|
205,895
|
|
|
|
186,285
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
697,170
|
|
|
$
|
648,619
|
|
|
|
|
|
|
|
|
|
|
|
|
148
KHD INDUSTRIAL PLANT TECHNOLOGY, EQUIPMENT AND SERVICE BUSINESS
COMBINED STATEMENTS OF INCOME
For the Years Ended December 31, 2008, 2007 and 2006
(United States Dollars in Thousands)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Notes
|
|
|
2008
|
|
|
2007
|
|
|
2006
|
|
Revenues
|
|
|
|
|
|
$
|
638,354
|
|
|
$
|
580,391
|
|
|
$
|
404,324
|
|
Cost of revenues
|
|
|
|
|
|
|
517,241
|
|
|
|
494,982
|
|
|
|
338,778
|
|
Loss on terminated customer contracts
|
|
|
|
|
|
|
31,966
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gross profit
|
|
|
|
|
|
|
89,147
|
|
|
|
85,409
|
|
|
|
65,546
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Selling, general and administrative expense
|
|
|
|
|
|
|
40,503
|
|
|
|
35,188
|
|
|
|
23,488
|
|
Stock-based compensation selling, general and administrative expense
|
|
|
|
|
|
|
3,419
|
|
|
|
1,741
|
|
|
|
617
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating income
|
|
|
|
|
|
|
45,225
|
|
|
|
48,480
|
|
|
|
41,441
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest income
|
|
|
|
|
|
|
18,208
|
|
|
|
8,920
|
|
|
|
4,801
|
|
Interest expense
|
|
|
|
|
|
|
(2,198
|
)
|
|
|
(2,363
|
)
|
|
|
(2,392
|
)
|
Foreign currency transaction (losses) gains, net
|
|
|
|
|
|
|
(1,823
|
)
|
|
|
952
|
|
|
|
246
|
|
Share of (loss) profit of equity method investees
|
|
|
|
|
|
|
(272
|
)
|
|
|
142
|
|
|
|
377
|
|
Other (expense) income, net
|
|
|
20
|
|
|
|
(5,527
|
)
|
|
|
2,855
|
|
|
|
2,996
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income before income taxes and minority interests from continuing operations
|
|
|
|
|
|
|
53,613
|
|
|
|
58,986
|
|
|
|
47,469
|
|
Provision for income taxes:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income taxes
|
|
|
21
|
|
|
|
(17,217
|
)
|
|
|
(10,323
|
)
|
|
|
(11,580
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income before minority interests from continuing operations
|
|
|
|
|
|
|
36,396
|
|
|
|
48,663
|
|
|
|
35,889
|
|
Minority interests
|
|
|
|
|
|
|
47
|
|
|
|
(28
|
)
|
|
|
(1
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income from continuing operations
|
|
|
|
|
|
|
36,443
|
|
|
|
48,635
|
|
|
|
35,888
|
|
Loss from discontinued operations, net of tax
|
|
|
4
|
|
|
|
|
|
|
|
(7,334
|
)
|
|
|
(1,611
|
)
|
Extraordinary gain, net of tax
|
|
|
3
|
|
|
|
|
|
|
|
525
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income
|
|
|
|
|
|
$
|
36,443
|
|
|
$
|
41,826
|
|
|
$
|
34,277
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
149
KHD INDUSTRIAL PLANT TECHNOLOGY, EQUIPMENT AND SERVICE BUSINESS
COMBINED STATEMENTS OF COMPREHENSIVE INCOME
For the Years Ended December 31, 2008, 2007 and 2006
(United States Dollars in Thousands)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2008
|
|
|
2007
|
|
|
2006
|
|
Net income for the year
|
|
$
|
36,443
|
|
|
$
|
41,826
|
|
|
$
|
34,277
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Other comprehensive income (loss)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Unrealized (losses) gains on translating financial
statements of self-sustaining foreign entities and adjustments
from application of U.S. dollar reporting
|
|
|
(15,107
|
)
|
|
|
16,093
|
|
|
|
8,720
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Unrealized loss on available-for-sale securities, net of nil tax
|
|
|
(5,145
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Other comprehensive loss (income)
|
|
|
(20,252
|
)
|
|
|
16,093
|
|
|
|
8,720
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Comprehensive income
|
|
$
|
16,191
|
|
|
$
|
57,919
|
|
|
$
|
42,997
|
|
|
|
|
|
|
|
|
|
|
|
150
KHD INDUSTRIAL PLANT TECHNOLOGY, EQUIPMENT AND SERVICE BUSINESS
COMBINED STATEMENTS OF CHANGES OF SHAREHOLDERS EQUITY
For the Years Ended December 31, 2008, 2007 and 2006
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Accumulated Other Comprehensive Income
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Valuation of
|
|
|
|
|
|
|
|
|
|
Common Stock
|
|
|
Treasury Stock
|
|
|
|
|
|
|
|
|
|
|
Currency
|
|
|
Available-
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Contributed
|
|
|
Retained
|
|
|
Translation
|
|
|
for-sale
|
|
|
|
|
|
|
|
|
|
Amount
|
|
|
Amount
|
|
|
Surplus
|
|
|
Earnings
|
|
|
Adjustment
|
|
|
Securities
|
|
|
Sub-total
|
|
|
Total
|
|
Balance at
December 31, 2005
|
|
|
37,213
|
|
|
|
(135
|
)
|
|
|
2,104
|
|
|
|
40,763
|
|
|
|
(1,184
|
)
|
|
|
|
|
|
|
(1,184
|
)
|
|
|
78,761
|
|
Net income
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
34,277
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
34,277
|
|
Shares issued
|
|
|
4,250
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4,250
|
|
Stock-based compensation
|
|
|
|
|
|
|
|
|
|
|
617
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
617
|
|
Translation adjustment
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
8,720
|
|
|
|
|
|
|
|
8,720
|
|
|
|
8,720
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance at
December 31, 2006
|
|
|
41,463
|
|
|
|
(135
|
)
|
|
|
2,721
|
|
|
|
75,040
|
|
|
|
7,536
|
|
|
|
|
|
|
|
7,536
|
|
|
|
126,625
|
|
Net income
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
41,826
|
|
|
|
|
|
|
|
|
|
|
|
0
|
|
|
|
41,826
|
|
Stock-based compensation
|
|
|
|
|
|
|
|
|
|
|
1,741
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1,741
|
|
Translation adjustment
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
16,093
|
|
|
|
|
|
|
|
16,093
|
|
|
|
16,093
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance at
December 31, 2007
|
|
|
41,463
|
|
|
|
(135
|
)
|
|
|
4,462
|
|
|
|
116,866
|
|
|
|
23,629
|
|
|
|
|
|
|
|
23,629
|
|
|
|
186,285
|
|
Net income
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
36,443
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
36,443
|
|
Stock-based compensation
|
|
|
|
|
|
|
|
|
|
|
3,419
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3,419
|
|
Change in fair value of
securities
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(5,145
|
)
|
|
|
(5,145
|
)
|
|
|
(5,145
|
)
|
Translation adjustment
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(15,107
|
)
|
|
|
|
|
|
|
(15,107
|
)
|
|
|
(15,107
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance at
December 31, 2008
|
|
|
41,463
|
|
|
|
(135
|
)
|
|
|
7,881
|
|
|
|
153,309
|
|
|
|
8,522
|
|
|
|
(5,145
|
)
|
|
|
3,377
|
|
|
|
205,895
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total of retained earnings and accumulated other comprehensive income
|
|
|
|
|
December 31, 2006
|
|
|
82,576
|
|
|
|
|
|
December 31, 2007
|
|
|
140,495
|
|
|
|
|
|
December 31, 2008
|
|
|
156,686
|
|
|
|
|
|
151
KHD INDUSTRIAL PLANT TECHNOLOGY, EQUIPMENT AND SERVICE BUSINESS
COMBINED STATEMENTS OF CASH FLOWS
For the Years Ended December 31, 2008, 2007 and 2006
(United States Dollars in Thousands)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2008
|
|
|
2007
|
|
|
2006
|
|
Cash flows from continuing operating activities
|
|
|
|
|
|
|
|
|
|
|
|
|
Income from continuing operations
|
|
$
|
36,443
|
|
|
$
|
48,635
|
|
|
$
|
35,888
|
|
Adjustments for:
|
|
|
|
|
|
|
|
|
|
|
|
|
Amortization and depreciation
|
|
|
2,931
|
|
|
|
2,466
|
|
|
|
2,236
|
|
Foreign currency transaction losses (gains), net
|
|
|
1,823
|
|
|
|
(952
|
)
|
|
|
(246
|
)
|
Minority interests
|
|
|
(47
|
)
|
|
|
28
|
|
|
|
1
|
|
(Loss) gain on short-term securities
|
|
|
11,216
|
|
|
|
502
|
|
|
|
(386
|
)
|
Stock-based compensation
|
|
|
3,419
|
|
|
|
1,741
|
|
|
|
617
|
|
Future income taxes
|
|
|
13,038
|
|
|
|
(818
|
)
|
|
|
2,078
|
|
Changes in operating assets and liabilities, net of effects of acquisitions and
dispositions:
|
|
|
|
|
|
|
|
|
|
|
|
|
Short-term securities
|
|
|
1,177
|
|
|
|
(2,928
|
)
|
|
|
(3,612
|
)
|
Restricted cash
|
|
|
(9,478
|
)
|
|
|
(5,813
|
)
|
|
|
7,401
|
|
Receivables
|
|
|
(9,394
|
)
|
|
|
13,849
|
|
|
|
(28,901
|
)
|
Inventories
|
|
|
9,300
|
|
|
|
(27,765
|
)
|
|
|
(45,338
|
)
|
Contract deposits, prepaid and other
|
|
|
(27,781
|
)
|
|
|
(6,764
|
)
|
|
|
(11,030
|
)
|
Accounts payable and accrued expenses
|
|
|
42,467
|
|
|
|
5,182
|
|
|
|
42,804
|
|
Progress billings above costs and estimated earnings on uncompleted contracts
|
|
|
(4,264
|
)
|
|
|
76,890
|
|
|
|
51,774
|
|
Advance payments received from customers
|
|
|
2,355
|
|
|
|
(595
|
)
|
|
|
(14,767
|
)
|
Income tax liabilities
|
|
|
(11,250
|
)
|
|
|
8,230
|
|
|
|
7,848
|
|
Provision for warranty costs
|
|
|
(3,046
|
)
|
|
|
10,373
|
|
|
|
1,792
|
|
Provision for supplier commitments on terminated customers contracts
|
|
|
22,413
|
|
|
|
|
|
|
|
|
|
Other
|
|
|
(9
|
)
|
|
|
1,133
|
|
|
|
(863
|
)
|
|
|
|
|
|
|
|
|
|
|
Cash flows provided by continuing operating activities
|
|
|
81,313
|
|
|
|
123,394
|
|
|
|
47,296
|
|
Cash flows from continuing investing activities
|
|
|
|
|
|
|
|
|
|
|
|
|
Purchases of property, plant and equipment
|
|
|
(3,027
|
)
|
|
|
(3,535
|
)
|
|
|
(2,508
|
)
|
Purchases of long-term securities
|
|
|
|
|
|
|
|
|
|
|
(68
|
)
|
Purchases of subsidiaries, net of cash acquired
|
|
|
(1,030
|
)
|
|
|
(6,935
|
)
|
|
|
|
|
Sale of real estate property
|
|
|
|
|
|
|
50,852
|
|
|
|
|
|
Loan to parent company
|
|
|
|
|
|
|
(27,891
|
)
|
|
|
|
|
Other
|
|
|
(1,620
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash flows (used in) provided by continuing investing activities
|
|
|
(5,677
|
)
|
|
|
12,491
|
|
|
|
(2,576
|
)
|
Cash flows from continuing financing activities
|
|
|
|
|
|
|
|
|
|
|
|
|
Borrowings
|
|
|
|
|
|
|
3,292
|
|
|
|
28,759
|
|
Debt repayments
|
|
|
(2,056
|
)
|
|
|
(6,132
|
)
|
|
|
(17,304
|
)
|
Issuance of shares
|
|
|
0
|
|
|
|
|
|
|
|
4,250
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash flows (used in) provided by continuing financing activities
|
|
|
(2,056
|
)
|
|
|
(2,840
|
)
|
|
|
15,705
|
|
Cash flows used in operating activities of discontinued operations
|
|
|
|
|
|
|
(116
|
)
|
|
|
(1,126
|
)
|
Cash flows provided by investing activities of discontinued operations
|
|
|
|
|
|
|
58
|
|
|
|
8
|
|
Cash flows used in financing activities of discontinued operations
|
|
|
|
|
|
|
(245
|
)
|
|
|
(652
|
)
|
Exchange rate effect on cash and cash equivalents
|
|
|
(20,867
|
)
|
|
|
25,476
|
|
|
|
11,742
|
|
|
|
|
|
|
|
|
|
|
|
Increase in cash and cash equivalents
|
|
|
52,713
|
|
|
|
158,218
|
|
|
|
70,397
|
|
Cash and cash equivalents, beginning of year
|
|
|
314,264
|
|
|
|
156,046
|
|
|
|
85,649
|
|
|
|
|
|
|
|
|
|
|
|
Cash and cash equivalents, end of year
|
|
$
|
366,977
|
|
|
|
314,264
|
|
|
$
|
156,046
|
|
|
|
|
|
|
|
|
|
|
|
Cash and cash equivalents at end of year consisted of:
|
|
|
|
|
|
|
|
|
|
|
|
|
Continuing operations
|
|
$
|
366,977
|
|
|
$
|
314,264
|
|
|
$
|
155,898
|
|
Discontinued operations
|
|
|
|
|
|
|
|
|
|
|
148
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
366,977
|
|
|
$
|
314,264
|
|
|
$
|
156,046
|
|
|
|
|
|
|
|
|
|
|
|
Cash
|
|
$
|
366,977
|
|
|
$
|
309,328
|
|
|
$
|
109,473
|
|
Money market funds
|
|
|
|
|
|
|
4,936
|
|
|
|
46,573
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
366,977
|
|
|
$
|
314,264
|
|
|
$
|
156,046
|
|
|
|
|
|
|
|
|
|
|
|
152
KHD INDUSTRIAL PLANT TECHNOLOGY, EQUIPMENT AND SERVICE BUSINESS
NOTES TO COMBINED FINANCIAL STATEMENTS
DECEMBER 31, 2008
Note 1. The Company and Summary of Significant Accounting Policies
These combined financial statements and accompanying notes have been prepared to present the
combined financial positions and results of the entities and predecessor entities that form the
industrial plant technology, equipment and service business of KHD Humboldt Wedag International
Ltd. (KHD Canada), pursuant to the regulations of the British Columbia securities laws.
KHD Canada is incorporated under the laws of British Columbia, Canada. KHD Canada, through its
non-wholly-owned subsidiary, KHD Humboldt Wedag International (Deutschland) AG, in Germany, its
direct wholly-owned subsidiary, KHD Humboldt Wedag International Holding GmbH, in Austria, and
their respective subsidiaries, operates internationally in the industrial plant technology,
equipment and service business and specializes in the cement, coal and mineral industries. KHD
Humboldt Wedag International (Deutschland) AG and KHD Humboldt Wedag International Holding GmbH,
with their respective subsidiaries, are collectively known as KHD in these combined financial
statements.
A. Basis of Presentation
The combined financial statements and accompanying notes have been prepared in conformity with
generally accepted accounting principles (GAAP) applicable in Canada. The presentation currency
of these combined financial statements is United States dollars ($), as rounded to the nearest
thousand (except per share amounts).
These combined financial statements include the accounts of the following entities:
KHD Humboldt Wedag International Holding GmbH
KHD Humboldt Wedag International GmbH*
Humboldt Wedag Inc.*
Humboldt Wedag India Ltd.*
Humboldt Wedag Australia Pty Ltd.*
KHD Humboldt Wedag (Shanghai) International Industries Limited
KHD Humboldt Wedag International (Deutschland) AG
KHD Humboldt Wedag GmbH
KHD Humboldt Wedag International Insurance Ltd.
EKOF Flotation GmbH*
KHD Humboldt Wedag Machinery Equipment (Beijing) Co. Ltd.*
Humboldt Wedag Coal & Minerals Technology GmbH
ZAB Zementanlagenbau GmbH Dessau
ZAB Industrietechnik & Service GmbH
Humboldt Wedag (SA) (Pty) Ltd.*
MFC & KHD International Industries Limited
KHD Sales and Marketing Ltd.*
KHD Humboldt Wedag International, FEZ*
Humboldt Wedag GmbH
Blake International Limited
HIT International Trading AG
Tianjin Humboldt Wedag Liyuan Machinery & Technology Ltd.
* These entities are directly or indirectly owned by KHD Humboldt Wedag International Holding GmbH
and compose the consolidated financial statements of KHD Humboldt Wedag International Holding GmbH.
These entities are referred to as the KHD Industrial Plant Technology, Equipment and Service
Business, or KHD, in these combined financial statements. KHD considers KHD Canada as its ultimate
parent company. KHD Canada and its subsidiaries (other than KHD) are referred to as Parentco in
these financial statements.
153
B. Significant Accounting Policies
(i) Principles of Combination
The combined financial statements include the accounts of KHD and jointly controlled enterprises
(collectively, the Company in these combined financial statements). The Company uses
proportionate consolidation method for its interest in jointly controlled enterprises, pursuant to
CICA Handbook Section 3055,
Interests in Joint Ventures,
whereby the Companys share of each of the
assets, liabilities, income and expenses of a jointly controlled enterprise is combined line by
line with similar items in the Companys combined financial statements. All significant
intercompany accounts and transactions within the combined KHD Industrial Plant Technology,
Equipment and Service Business have been eliminated.
The Company uses the equity method to account for investments when it has the ability to
significantly influence the investees operating and financial policies. Under the equity method,
the investment is initially recorded at cost, then reduced by distributions and increased or
decreased by the Companys proportionate share of the investees net earnings or loss and
unrealized currency translation adjustment. When there is an other than temporary decline in value,
the investment is written down and the unrealized loss is included in the results of operations.
(ii) Foreign Currency Translation
The Company translates assets and liabilities of its self-sustaining foreign subsidiaries at the
rate of exchange at the balance sheet date. Revenues and expenses have been translated at the
average rate of exchange throughout the year. Unrealized gains or losses from these translations,
or currency translation adjustments, are included in the accumulated other comprehensive income
under the equity section of the combined balance sheets.
Transaction gains that arise from exchange rate fluctuations on transactions denominated in a
currency other than the local functional currency are included in the combined statements of
income.
(iii) Financial Instruments
Effective January 1, 2007, the Company adopted Canadian Institute of Chartered Accountants
(CICA) Handbook Section 3855,
Financial Instruments Recognition and Measurement
; Section 3865,
Hedges
; Section 3861,
Financial Instruments Disclosure and Presentation
; Section 1530,
Comprehensive Income
; and Section 3251,
Equity
. These CICA Handbook Sections provide comprehensive
requirements for the recognition and measurement of financial instruments, as well as standards on
when and how hedge accounting may be applied.
Effective January 1, 2008, the Company adopted CICA Handbook Section 3862,
Financial Instruments
Disclosures
and Section 3863,
Financial Instruments Presentation
. The adoption of these new
accounting standards resulted in incremental disclosures and did not have any material impact on
the Companys financial position as of January 1, 2008.
In October, 2008, the AcSB approved amendments to CICA Handbook Section 3855,
Financial Instruments
Recognition and Measurement
, Section 3861,
Financial Instruments Disclosure and Presentation
and Section 3862,
Financial Instruments Disclosure
, which permit the reclassification of some
financial instruments in rare circumstances, which are the steps that the International Accounting
Standards Board and other regional and international bodies are using to address financial
reporting issues associated with the credit crisis that occurred since the third quarter of 2008.
The amendments apply to reclassifications made on or after July 1, 2008. These amendments do not
have an impact on the financial statements for the year ended December 31, 2008.
CICA Handbook Section 3855 requires all financial assets and financial liabilities to be classified
by characteristic and/or management intent. Except for certain financial instruments which are
excluded from the scope of Section 3855, all financial assets are classified into one of four
categories: held-for-trading, held-to-maturity, loans and receivables, and available-for-sale; and
all financial liabilities are classified into one of two categories: held-for-
154
trading and other financial liabilities. Regular way purchases and sales of financial assets are
accounted for at settlement date.
Generally, a financial asset or financial liability held for trading is a financial asset or
financial liability that meets either of the conditions: (i) it is not a loan or receivable and is
(a) acquired or incurred principally for the purpose of selling or repurchasing it in the near
term; (b) part of a portfolio of identified financial instruments that are managed together and for
which there is evidence of a recent actual pattern of short-term profit taking; or (c) a
derivative, except for a derivative that is a designated and effective hedging instrument; or (ii)
it is designated by the Company upon initial recognition as held for trading. Any financial
instrument may be designated when initially recognized as held for trading, except for (i)
financial instruments whose fair value cannot be reliably measured and (ii) financial instruments
transferred in a related party transaction that were not classified as held for trading before the
transaction. A financial instrument cannot be reclassified into the held-for-trading category while
it is held or issued; however, pursuant to amendments made in October 2008, if a financial asset is
no longer held for the purpose of selling it in the near term, the entity may reclassify that
financial asset out of the held-for-trading category in rare circumstances.
Available-for-sale financial assets are those non-derivative financial assets that are designated
as available for sale, or that are not classified as loans and receivables, held-to-maturity
investments, or held for trading. Non-derivative financial liabilities are classified as other
financial liabilities.
When a financial asset or financial liability is recognized initially, the Company measures it at
its fair value (except as specified for certain related party transactions). The subsequent
measurement of a financial instrument and the recognition of associated gains and losses is
determined by the financial instrument classification category.
After initial recognition, the Company measures financial assets, including derivatives that are
assets, at their fair values, without any deduction for transaction costs it may incur on sale or
other disposal, except for the following financial assets: (a) held-to-maturity investments which
are measured at amortized cost using the effective interest method; (b) loans and receivables which
are measured at amortized cost using the effective interest method; (c) investments in equity
instruments that do not have a quoted market price in an active market and are measured at cost
(other than such instruments that are classified as held for trading); and (d) derivatives that are
linked to and must be settled by delivery of equity instruments of another entity whose fair value
cannot be reliably measured and are measured at cost. All financial assets, except those measured
at fair value with changes in fair value recognized in net income, are subject to review for
impairment. After initial recognition, the Company measures all financial liabilities at amortized
cost using the effective interest method, except for financial liabilities that are classified as
held for trading (including derivatives that are liabilities) which are measured at their fair
values (except for derivatives that are linked to and must be settled by delivery of equity
instruments of another entity whose fair value cannot be reliably measured which should be measured
at cost).
A gain or loss on a financial asset or financial liability classified as held for trading is
recognized in net income for the period in which it arises. A gain or loss on an available-for-sale
financial asset is recognized directly in other comprehensive income, except for impairment losses,
until the financial asset is derecognized, at which time the cumulative gain or loss previously
recognized in accumulated other comprehensive income is recognized in net income for the period.
For financial assets and financial liabilities carried at amortized cost, a gain or loss is
recognized in net income when the financial asset or financial liability is derecognized or
impaired, and through the amortization process.
Whenever quoted market prices are available, bid prices are used for the valuation of financial
assets while ask prices are used for financial liabilities. When the market for a financial
instrument is not active, the Company establishes fair value by using a valuation technique.
Valuation techniques include using recent arms length market transactions between knowledgeable,
willing parties, if available; reference to the current fair value of another instrument that is
substantially the same; discounted cash flow analysis; option pricing models and other valuation
techniques commonly used by market participants to price the instrument.
Pursuant to CICA Handbook Section 3855, transaction costs related to the acquisition of
held-for-trading financial assets and liabilities are expensed as incurred. For all other financial
assets and liabilities, the Company elects to
155
expense transaction costs immediately. Transaction costs are incremental costs that are directly
attributable to the acquisition or disposal of a financial asset or liability.
(iv) Cash and Cash Equivalents
Cash and cash equivalents are classified as held for trading and include highly liquid investments
(e.g. money market funds) with original maturities of three months or less and are generally
interest bearing.
(v) Short-term Cash Deposits
Short-term cash deposits are classified as held-to-maturity financial assets and include term
deposits with original maturities of more than three months. They are interest bearing and are to
mature within 12 months after the balance sheet date.
(vi) Restricted Cash
Restricted cash is classified as held for trading. Restricted cash at December 31, 2008 and 2007
was provided as security for the performance of industrial plant technology, equipment and service
contracts.
(vii) Securities
Securities are classified as held for trading and short-term or long-term available-for-sale
securities.
Publicly-traded securities (debt and equity) which are acquired principally for the purpose of
selling in the near term are classified as held for trading. Securities held for trading are marked
to their bid prices on the balance sheet date and unrealized gains and losses are included in the
statement of income.
Available-for-sale securities consist of publicly-traded securities (debt and equity) and unlisted
equity securities which are not held for trading and not held to maturity. Short-term
available-for-sale securities are generally unlisted equity securities which are purchased with
managements intention to sell in the near term. Long-term available-for-sale securities are
purchased with the intention to hold until market conditions render alternative investments more
attractive. The available-for-sale securities are stated at bid price whenever quoted market prices
are available. When the market for the available-for-sale security is not active, the Company
establishes fair value by using a valuation technique. Unrealized gains and losses are recorded in
other comprehensive income unless there has been an other than temporary decline in value, at which
time the available-for-sale security is written down and the write-down is included in the result
of operations.
Gain and loss on sales of securities are recognized on the average cost basis on the settlement
dates.
(viii) Receivables
Typically, receivables are financial instruments which are not classified as held for trading or
available-for-sale. They are classified as loans and receivables and are measured at amortized cost
without regard to the Companys intention to hold them to maturity.
Receivables are net of an allowance for credit losses, if any. The Company performs ongoing credit
evaluation of customers and adjusts the allowance accounts for specific customer risks and credit
factors. Receivables are considered past due on an individual basis based on the terms of the
contracts.
(ix) Allowance for Credit Losses
The Companys allowance for credit losses is maintained at an amount considered adequate to absorb
estimated credit-related losses. Such allowance reflects managements best estimate of the losses
in the Companys receivables and judgments about economic conditions. Estimates and judgments could
change in the near-term, and could result in a significant change to a recognized allowance. Credit
losses arise primarily from receivables but may also relate to other credit instruments issued by
or on behalf of the Company, such as guarantees and letters of credit. An
156
allowance for credit losses may be increased by provisions which are charged to income and reduced
by write-offs net of any recoveries.
Specific provisions are established on an individual basis. A country risk provision may be made
based on exposures in less developed countries and on managements overall assessment of the
underlying economic conditions in those countries. Write-offs are generally recorded after all
reasonable restructuring or collection activities have taken place and there is no realistic
prospect of recovery.
(x) Derivative Financial Instruments
Derivative financial instruments are financial contracts whose value is derived from interest
rates, foreign exchange rates or other financial or commodity indices. These instruments are either
exchange-traded or negotiated. Derivatives are included on the combined balance sheet and are
measured at fair value. Derivatives that qualify as hedging instruments are accounted for in
accordance with CICA Handbook Section 3865. For derivatives that do not qualify as hedging
instruments, the unrealized gains and losses are included in the result of operations.
Where the Company has both the legal right and intent to settle derivative assets and liabilities
simultaneously with a counterparty, the net fair value of the derivative positions is reported as
an asset or liability, as appropriate.
(xi) Inventories
Inventories consist of construction raw materials, work-in-progress, contracts-in-progress and
finished goods. Inventories are recorded at the lower of cost (specific item basis and first-in
first-out methods) or estimated net realizable value. Cost, where appropriate, includes a
proportion of manufacturing overheads incurred in bringing inventories to their present location
and condition. Net realizable value represents the estimated selling price less all estimated costs
of completion and cost to be incurred in marketing, selling and distribution.
The Company recognizes revenues from construction contracts under the percentage-of-completion
method. The recognized income is the estimated total income multiplied by the percentage of
incurred costs to date to the most recently estimated total completion costs. Under the
percentage-of-completion method, the contracts-in-progress includes costs and estimated earnings
above billings on uncompleted contracts. Progress billings above estimated costs and estimated
earnings on uncompleted contracts and advances received from customers are shown as liabilities.
Prepayments and deposits for inventories on construction contracts are included in the account of
contract deposits, prepaid and other.
(xii) Property, Plant and Equipment
Property, plant and equipment are carried at cost, net of accumulated depreciation. Property, plant
and equipment are tested for recoverability whenever events or changes in circumstances indicate
that their carrying amounts may not be recoverable and an impairment loss is measured as the amount
by which their carrying amounts exceed their fair value using the estimated future undiscounted
cash flows. Any resulting write-downs to fair value are charged to the result of operations. No
such losses have been recorded in these combined financial statements.
Property, plant, and equipment are depreciated according to the following lives and methods:
|
|
|
|
|
|
|
Lives
|
|
Method
|
Buildings
|
|
25 years
|
|
straight-line
|
Manufacturing plant equipment
|
|
3 to 20 years
|
|
straight-line
|
Office equipment
|
|
3 to 10 years
|
|
straight-line
|
Depreciation and amortization expense of property, plant and equipment amounting to $2,931 in 2008,
$2,466 in 2007 and $2,236 in 2006, respectively, is included in cost of sales and general and
administrative expenses, as applicable. Repairs and maintenance are charged to expense as incurred.
157
(xiii) Asset Retirement Obligations
The Company accounts for obligations associated with the retirement of long-lived assets that
result from the acquisition, construction, development and the normal operation of long-lived
assets under CICA Handbook Section 3110,
Asset Retirement Obligations
. Under these rules, a
reasonable estimate of fair value of the liability is initially recorded and the carrying value of
the related asset is increased by the corresponding amount. In periods subsequent to initial
measurement, the Company recognizes period-to-period changes in the liability for an asset
retirement obligation resulting from the passage of time and revisions to either the timing or the
amount of the original estimate of undiscounted cash flows. The Company does not currently have any
material asset retirement obligations.
(xiv) Provisions
Provisions are recognized when the Company has a present obligation as a result of a past event, it
is probable that an outflow of resources embodying economic benefits will be required to settle the
obligation and a reliable estimate can be made of the amount of the obligation. Provisions are
measured at the managements best estimate of the expenditure required to settle the obligation at
the balance sheet date. Legal costs in connection with a loss contingency are recognized when
incurred.
(xv) Revenue Recognition and Cost of Revenues
Revenues are derived from providing industrial plant technology, equipment and services. The
revenue is recognized under the percentage-of-completion method, measured by costs incurred to date
to the total estimated cost for the entire contract. Revenues include revenues from change orders
after the change orders are approved by the customers.
Cost of revenues include all direct material, labour costs, selling expenses and amortization as
well as any other direct and indirect cost attributable to each individual contract such as
warranty and freight costs. If estimated costs to complete a contract indicate a loss, provision is
made in the current period for the total anticipated loss. This method is used as management
considers the estimated total cost to be the best available measure of progress on contracts. Cost
of revenues for the period includes the benefit of claims settled on contracts completed in prior
years.
Management conducts periodic reviews of its cost estimates. The effect of any revision is accounted
for by way of a cumulative catch-up adjustment to revenues and/or cost of revenues, pursuant to the
percentage-of-completion method, in the period in which the revision takes place.
Pre-contract costs are expensed as incurred in general and administrative expenses until it is
virtually certain that a contract will be awarded; from which time further pre-contract costs are
recognized as an asset and charged as an expense over the period of the contract.
For interest and dividend income, recognition is warranted when it is probable that economic
benefits will flow to the Company and the amount of income can be measured reliably. Interest
income is recognized on a time proportion basis, taking into account the effective yield on the
asset.
The revenues are reported net of sales taxes.
(xvi) Warranty Costs
The contracts and services of the Companys industrial plant technology, equipment and service
business are typically covered by product and service warranty that is typically arranging from one
year to two years (and three or four years in exceptional cases), starting with commissioning. Many
of the Companys construction contracts guarantee the plants for a pre-defined term against
technical problems. Each contract defines the conditions under which a customer may make a claim.
The provision is calculated per contract and is based on a number of factors, including the
historical warranty claims and cost experience, the type and duration of warranty coverage, the
nature of products sold and in service and counter-warranty coverage available from the Companys
suppliers.
158
Management reviews the provision for warranty costs periodically and any adjustment is recorded in
cost of revenues.
(xvii) Research and Development Costs
Research and development costs are charged to general and administrative expenses when incurred.
The Company incurred research and development costs of $4,286, $2,851 and $3,986 in 2008, 2007 and
2006, respectively. There are no development costs which meet the criteria for deferral.
(xviii) Stock-Based Compensation
Certain employees of the Company are granted stock options by Parentco to subscribe for common
shares of Parentco and such stock options are accounted for as stock-based compensation. The
Company follows CICA Handbook Section 3870,
Stock-based Compensation and Other Stock-based
Payments
, which requires share-based transactions to be measured on a fair value basis using
Black-Scholes option-pricing model, with the following assumptions for the three years ended
December 31, 2008: a weighted average expected life of 3.0 years, expected dividend yield of 0%,
expected volatility of 28% to 50% and risk-free interest rates of 3.0% to 5.0%. Stock-based
compensation expenses are classified as selling, general and administrative expenses and credited
to contributed surplus under shareholders equity. These stock options will be forfeited without
consideration upon employees ceasing their employment relationship with the Company.
These stock options do not and will not have an impact on the Companys share capital account or
the number of shares issued.
(xix) Employee Future Benefits
The Company has defined benefit pension plans for employees of certain KHD companies in Europe.
Employees hired after 1996 are generally not eligible for such benefits. The Company relies on
independently prepared actuarial reports to record pension costs and pension liabilities, using the
projected benefit method prorated on services (also known as the projected unit credit method). The
report is prepared based on certain demographic and financial assumptions. The variables in the
actuarial computation include demographic assumptions about the future characteristics of the
employees (and their dependants) who are eligible for benefits, the discount rate (based on market
yields on high quality corporate bonds), and future salary.
The Company uses a systematic method of recognizing actuarial gains and losses in income.
Adjustments arising from changes in assumptions and experience gains and losses are amortized over
estimated average remaining service lifetime when the cumulative unamortized balance exceeds 10% of
the greater of accrued obligations. However, when all, or almost all, of the employees are no
longer active, the Company will base the amortization on the average remaining life expectancy of
the former employees.
(xx) Taxes on Income
The Company uses the asset and liability method to provide for income taxes on all transactions
recorded in these combined financial statements. Under this method, future income tax assets and
liabilities are recognized for temporary differences between the tax and accounting bases of assets
and liabilities as well as for the benefit of losses to be carried forward to future years for tax
purposes that are more likely than not to be realized using expected tax rates in which the
temporary differences are expected to be recovered or settled. Future income tax is charged or
credited to combined statement of income, except when it relates to items charged or credited
directly to equity, in which case the future income tax is also dealt with in equity.
Future income tax assets and liabilities are offset when there is a legally enforceable right to
set off current tax assets against current tax liabilities, and when they relate to income tax
levied by the same taxation authority and the Company intends to settle its current tax assets and
liabilities on a net basis.
159
A future income tax asset or liability is not recognized on earnings or loss relating to the
Companys foreign operations where repatriation of such amounts is not contemplated in the
foreseeable future.
In acquisitions that are not business combinations, an excess of the value of income tax assets,
which management believes is more likely than not to be realized, over the consideration paid for
such assets is recorded as a deferred credit and recognized in the statement of operations in the
same period that the related tax asset is realized.
The operations of the Company are complex, and related tax interpretations, regulations and
legislation are continually changing. As a result, there are usually some tax matters in question
that result in uncertain tax positions. The Company only recognises the income tax benefit of an
uncertain tax position when it is more likely than not that the ultimate determination of the tax
treatment of the position will result in that benefit being realised. The Company includes interest
charges and penalties on current tax liabilities, if any, as a component of financing costs.
(xxi) Measurement Uncertainty
The preparation of financial statements in conformity with Canadian and United States generally
accepted accounting principles requires management to make estimates and assumptions that affect
the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities
at the date of the financial statements and the reported amounts of revenues and expenses during
the reporting period. Key areas of estimation where management has made difficult, complex or
subjective judgments, often as a result of matters that are inherently uncertain, include those
relating to allowance for credit losses, fair value of financial instruments in an inactive market,
provision for warranty costs, pension liabilities, other than temporary impairments of securities,
accounting for construction contracts, and valuation of property, plant and equipment, future
income tax and provision for income taxes, and provision for supplier commitments on terminated
customer contracts, among other items. Managements best estimates are based on the facts and
circumstances available at the time estimates are made, historical experience, general economic
conditions and trends, and managements assessment of probable future outcomes of these matters.
Actual results could differ from these estimates, and such differences could be material.
D. Future Changes to Accounting Standards
Goodwill and Intangible Assets
AcSB issued CICA Handbook Section 3064,
Goodwill and Intangible Assets,
which establishes standards
for the recognition, measurement, presentation and disclosure of goodwill and intangible assets by
profit-oriented enterprises. This new standard applies to goodwill subsequent to initial
recognition. Standards for the initial recognition, measurement and disclosure of goodwill acquired
in a business combination are provided in CICA Handbook Section 1581,
Business Combination.
CICA
Handbook Section 3064 applies to annual and interim financial statements relating to fiscal years
beginning on or after October 1, 2008. Management has reviewed the requirements and concluded that
they will not have significant impact on the Companys financial statements.
Business Combinations
AcSB issued CICA Handbook Section 1582,
Business Combinations
, in January 2009 to replaces Section
1581. This new standard applies prospectively to business combinations for which the acquisition
date is on or after the beginning of the first annual reporting period beginning on or after
January 1, 2011. Earlier application is permitted. CICA Handbook Sections 1582, 1601,
Combined
Financial Statements,
and 1602,
Non-controlling Interests,
should be applied at the same time.
Management is reviewing the requirements of these new standards.
Note 2. Capital Disclosure on the Companys Objective, Policies and Processes for Managing Its
Capital Structure
The Companys objectives when managing capital are: (i) to safeguard the entitys ability to
continue as a going concern, so that it can continue to provide returns for shareholders and
benefits for other stakeholders, (ii) to provide an adequate return to shareholders by pricing
products and services commensurately with the level of risk, and (iii) to maintain a flexible
capital structure which optimizes the cost of capital at acceptable risk.
160
The Company sets the amount of capital in proportion to risk. The Company manages the capital
structure and makes adjustments to it in the light of changes in economic conditions and the risk
characteristics of the underlying assets. In order to maintain or adjust the capital structure, the
Company may adjust the amount of dividends paid to shareholders, return capital to shareholders,
issue new shares, or sell assets to reduce debt.
Consistently with others in the industry, the Company monitors capital on the basis of the
debt-to-adjusted capital ratio and long-term debt-to-equity ratio. The debt-to-adjusted capital
ratio is calculated as net debt divided by adjusted capital. Net debt is calculated as total debt
less cash and cash equivalents. Adjusted capital comprises all components of equity and some forms
of subordinated debt, if any. The long-term debt-to-equity ratio is calculated as long-term debt
divided by shareholders equity.
|
|
|
|
|
|
|
|
|
|
|
2008
|
|
|
2007
|
|
Total debt
|
|
$
|
11,313
|
|
|
$
|
13,920
|
|
Less: cash and cash equivalents
|
|
|
(366,977
|
)
|
|
|
(314,264
|
)
|
|
|
|
|
|
|
|
Net debt (net cash and cash equivalents)
|
|
$
|
(355,664
|
)
|
|
$
|
(300,344
|
)
|
Total equity
|
|
$
|
205,895
|
|
|
$
|
186,285
|
|
Debt-to-adjusted capital ratio
|
|
Not applicable
|
|
Not applicable
|
There were no amounts in accumulated other comprehensive income relating to cash flow hedges nor
were there any subordinated debt instruments as at December 31, 2008 and 2007. The debt-to-adjusted
capital ratio in 2008 and 2007 were not applicable since the Company had a net cash and cash
equivalents balance.
|
|
|
|
|
|
|
|
|
|
|
2008
|
|
|
2007
|
|
Long-term debt
|
|
$
|
11,313
|
|
|
$
|
13,920
|
|
Shareholders equity
|
|
$
|
205,895
|
|
|
$
|
186,285
|
|
Long-term debt-to-equity ratio
|
|
|
0.05
|
|
|
|
0.07
|
|
During 2008, the Companys strategy, which was unchanged from 2007, was to maintain the
debt-to-adjusted capital ratio and the long-term debt-to-equity ratio at a low level. The Company
had a net cash and cash equivalent balance after deduction of the total debt. The Companys
long-term debt-to-equity ratio was 0.05 and 0.07 as at December 31, 2008 and 2007, respectively.
Such low ratios facilitate the Company to secure access to credit facilities at favourable
financing terms for its core business activities. (See Note 8.)
The Company is required to comply with certain financial covenants under a bank credit
facility. The Company is in compliance with the financial covenants in 2008 and 2007. (See Notes 8
and 17.)
Note 3. Acquisitions of Subsidiaries
There was no business combination transaction in 2008 and 2006.
In September 2007, the Company acquired 5.17% common shares in a 94.83% owned German subsidiary for
$1,561 in cash from a limited partnership (in which the Company holds 94.5% interest and the
Company is not the general partner thereof). The German subsidiary had been consolidated since
March 2004. The Company did not recognize any goodwill or intangible assets on the acquisition.
There was an excess of the fair value of acquired net assets over cost, which resulted in an
extraordinary gain of $525, net of income taxes and minority interest.
In December 2007, the Company acquired a 75.06% controlling interest in HIT for consideration of
$6,104 in cash. HIT was a German company publicly traded on the CDAX stock exchange. At the
acquisition date, HITs major business activity related to passive investment in marketable
securities and its net assets comprised almost entirely cash and marketable securities. The
acquisition is an indirect purchase of assets and not considered a business combination. No
goodwill or intangible assets were recorded as a result of this acquisition. HIT was combined since
its acquisition date. HIT has tax loss carry forwards of approximately $74,501. The future income
tax asset related to these losses is reduced by valuation allowance and offset by a deferred credit
for income taxes.
161
Note 4. Discontinued Operations
Real estate and other interests
Parentco entered into an arrangement Agreement in March 2007, as amended on June 29, 2007, with SWA
Reit and Investments Ltd. (SWA Reit), a corporation governed by the laws of Barbados. The
agreement provided for Parentco to complete an arrangement (the Arrangement) under Section 288 of
the British Columbia Business Corporations Act, whereby, among other things, Parentco would
transfer certain non-core real estate interests and other assets indirectly held by it to SWA Reit
and then distribute all of the Austrian depositary certificates representing the common shares of
SWA Reit held by it, pro rata, to Parentcos shareholders by way of a reduction of the paid up
capital with respect to Parentcos common shares. Prior to the completion of the Arrangement, the
Company sold these real estate interests and other assets to SWA for $50,852 in cash.
For reporting purposes, the results of operations of SWA Reit have been presented as discontinued
operations. For 2007 and 2006, the revenues of $nil and $nil, respectively; and the pre-tax loss of
$1,003 and $3,810, respectively, were reported in discontinued operations.
There was no disposition of subsidiaries in 2008 and 2006.
Note 5. Securities
Short-term securities
|
|
|
|
|
|
|
|
|
|
|
2008
|
|
|
2007
|
|
Trading securities:
|
|
|
|
|
|
|
|
|
Common shares, at fair value
|
|
$
|
2,933
|
|
|
$
|
15,442
|
|
|
|
|
|
|
|
|
Investments in the publicly-listed common shares securities comprised seven companies (three
companies represented 80% and the largest one represented 58% of total investment amount) and 11
companies as at December 31, 2008 and 2007, respectively.
Note 6. Accounts Receivable, Trade
|
|
|
|
|
|
|
|
|
|
|
2008
|
|
|
2007
|
|
Trade receivables, gross amount
|
|
$
|
65,115
|
|
|
$
|
64,868
|
|
Less: Allowance for credit losses
|
|
|
(2,465
|
)
|
|
|
(2,932
|
)
|
|
|
|
|
|
|
|
Trade receivables, net amount
|
|
$
|
62,650
|
|
|
$
|
61,936
|
|
|
|
|
|
|
|
|
As at December 31, 2008, trade receivables of $19,241 were past due but not impaired. The aging
analysis of these trade receivables as at December 31, 2008 is as follows:
|
|
|
|
|
Below 30 days
|
|
$
|
4,754
|
|
Between 31 and 60 days
|
|
|
1,857
|
|
Between 61 and 90 days
|
|
|
2,448
|
|
Over 90 days
|
|
|
10,182
|
|
|
|
|
|
|
|
$
|
19,241
|
|
|
|
|
|
As at December 31, 2008, trade receivables of $2,465 were impaired and an allowance for credit
losses of $2,465 has been provided. The aging analysis of these trade receivables as at December
31, 2008 is as follows:
|
|
|
|
|
Below 30 days
|
|
$
|
487
|
|
Between 31 and 60 days
|
|
|
8
|
|
Between 61 and 90 days
|
|
|
|
|
Over 90 days
|
|
|
1,970
|
|
|
|
|
|
|
|
$
|
2,465
|
|
|
|
|
|
162
The movement of the allowance for credit losses during the current year is as follows:
|
|
|
|
|
Balance at December 31, 2007
|
|
$
|
2,932
|
|
Additions
|
|
|
1,407
|
|
Reversals
|
|
|
(944
|
)
|
Write-offs
|
|
|
(811
|
)
|
Cumulative translation adjustment
|
|
|
(119
|
)
|
|
|
|
|
Balance at December 31, 2008
|
|
$
|
2,465
|
|
|
|
|
|
As at December 31, 2008, there was no trades receivable which would otherwise be past due or
impaired if the terms had not been renegotiated.
Note 7. Other Receivables
|
|
|
|
|
|
|
|
|
|
|
2008
|
|
|
2007
|
|
Investment income (of which $453 and $415 was due from affiliates at December 31, 2008 and 2007, respectively)
|
|
$
|
1,667
|
|
|
$
|
1,059
|
|
Government taxes
|
|
|
8,697
|
|
|
|
3,687
|
|
Due from affiliates
|
|
|
1,957
|
|
|
|
|
|
Derivative assets
|
|
|
1,450
|
|
|
|
388
|
|
Other
|
|
|
1,841
|
|
|
|
3,755
|
|
|
|
|
|
|
|
|
|
|
$
|
15,612
|
|
|
$
|
8,889
|
|
|
|
|
|
|
|
|
The receivables generally arise in the normal course of business and are expected to be collected
within one year from the year end.
As at December 31, 2008, there was no other receivable which would otherwise be past due or
impaired if the terms had not been renegotiated.
Note 8. Inventories
|
|
|
|
|
|
|
|
|
|
|
2008
|
|
|
2007
|
|
Raw materials
|
|
$
|
12,317
|
|
|
$
|
10,114
|
|
Work-in-progress
|
|
|
483
|
|
|
|
563
|
|
Contracts-in-progress
|
|
|
96,876
|
|
|
|
113,659
|
|
|
|
|
|
|
|
|
|
|
$
|
109,676
|
|
|
$
|
124,336
|
|
|
|
|
|
|
|
|
Information on contracts-in-progress at December 31, 2008 and 2007, is as follows:
|
|
|
|
|
|
|
|
|
|
|
2008
|
|
|
2007
|
|
Costs incurred to date on uncompleted contracts
|
|
$
|
560,581
|
|
|
$
|
390,272
|
|
Estimated earnings recognized to date on these contracts
|
|
|
99,567
|
|
|
|
93,007
|
|
|
|
|
|
|
|
|
|
|
|
660,148
|
|
|
|
483,279
|
|
Less: loss contracts (not including loss on the terminated customer contracts) (Note 16)
|
|
|
(1,861
|
)
|
|
|
(3,529
|
)
|
Less: billings to date
|
|
|
(733,705
|
)
|
|
|
(548,541
|
)
|
|
|
|
|
|
|
|
|
|
|
(75,418
|
)
|
|
|
(68,791
|
)
|
Currency translation adjustments
|
|
|
451
|
|
|
|
(2,380
|
)
|
|
|
|
|
|
|
|
|
|
$
|
(74,967
|
)
|
|
$
|
(71,171
|
)
|
|
|
|
|
|
|
|
This amount is included in the combined balance sheet as follows:
|
|
|
|
|
|
|
|
|
Costs and estimated earnings in excess of billings on uncompleted contracts
(included in inventories contracts-in-process)
|
|
$
|
96,876
|
|
|
$
|
113,659
|
|
Progress billings above costs and estimated earnings on uncompleted contracts (included in liabilities)
|
|
|
(171,843
|
)
|
|
|
(184,830
|
)
|
|
|
|
|
|
|
|
|
|
$
|
(74,967
|
)
|
|
$
|
(71,171
|
)
|
|
|
|
|
|
|
|
As at December 31, 2008, the Company did not have a material amount of progress billings that would
not be paid until the satisfaction of conditions specified in the contract for the payment of such
amounts or until defects had been rectified.
163
As at December 31, 2008, KHD has credit facilities of up to a maximum of $478,604 with banks which
issue bonds for the Companys industrial plant technology, equipment and service contracts. As of
December 31, 2008, $241,859 of the available credit facilities amount has been committed and there
are no claims outstanding against the credit facilities. As at December 31, 2008, cash of $32,008
has been collateralized against these credit facilities. The banks charges 0.7% to 0.8% for issuing
bonds. The Company is in compliance with covenants as stipulated in the credit facilities.
Note 9. Contract Deposits, Prepaid and Other
|
|
|
|
|
|
|
|
|
|
|
2008
|
|
|
2007
|
|
Prepayments and deposits for inventories on construction contracts
|
|
$
|
58,171
|
|
|
$
|
33,289
|
|
|
|
|
|
|
|
|
Note 10. Future Income Tax Assets and Liabilities
The tax effect of temporary differences and tax loss carryforwards that give rise to significant
components of future tax assets and liabilities are as follows:
|
|
|
|
|
|
|
|
|
|
|
2008
|
|
|
2007
|
|
Non-capital tax loss carryforwards
|
|
$
|
34,295
|
|
|
$
|
49,035
|
|
Uncompleted contracts
|
|
|
(23,420
|
)
|
|
|
(17,700
|
)
|
Other
|
|
|
5,072
|
|
|
|
518
|
|
|
|
|
|
|
|
|
|
|
|
15,947
|
|
|
|
31,853
|
|
Valuation allowance
|
|
|
(19,358
|
)
|
|
|
(22,433
|
)
|
|
|
|
|
|
|
|
|
|
$
|
(3,411
|
)
|
|
$
|
9,420
|
|
|
|
|
|
|
|
|
Future income tax assets are included in the combined balance sheet as follows:
|
|
|
|
|
|
|
|
|
Current
|
|
$
|
59
|
|
|
$
|
825
|
|
Non-current
|
|
|
4,176
|
|
|
|
11,188
|
|
|
|
|
|
|
|
|
|
|
|
4,235
|
|
|
|
12,013
|
|
Future income tax liabilities are included in the combined balance sheet as follows:
|
|
|
|
|
|
|
|
|
Non-current
|
|
|
(7,646
|
)
|
|
|
(2,593
|
)
|
|
|
|
|
|
|
|
Net future income tax assets
|
|
$
|
(3,411
|
)
|
|
$
|
9,420
|
|
|
|
|
|
|
|
|
In assessing the realizability of future tax assets, management considers whether it is more likely
than not that some portion or all of the future tax assets will be realized. The ultimate
realization of future tax assets is dependent upon the generation of future taxable income during
the periods in which those temporary differences become deductible or before the tax loss
carryforwards expire. Management considers the future reversals of existing taxable temporary
differences, projected future taxable income, taxable income in prior years and tax planning
strategies in making this assessment. Management believes it is more likely than not the Company
will realize the benefits of these future income tax assets, net of the valuation allowances.
At December 31, 2008, the Company had estimated accumulated non-capital losses which expire in the
following countries as follows:
|
|
|
|
|
|
|
|
|
Country
|
|
Amount
|
|
|
Expiration dates
|
|
Germany
|
|
|
122,732
|
|
|
Indefinite
|
China
|
|
|
2,347
|
|
|
|
2010-2012
|
|
The Company has recognized a long-term deferred credit in the amount of $4,176 and $4,381 as at
December 31, 2008 and 2007, respectively, representing the excess of the amounts assigned to the
acquired assets over the consideration paid (and after the pro rata allocation to reduce the values
assigned to any non-monetary assets acquired). The deferred credit will be amortized to income tax
expense in proportion to the net reduction in the future income tax asset that gives rise to the
deferred credit.
164
Note 11. Investment in Parentco
Investment in Parentco comprised:
|
|
|
|
|
|
|
|
|
|
|
2008
|
|
|
2007
|
|
Common shares (295,490 shares at both December 31, 2008 and 2007)
|
|
$
|
3,300
|
|
|
$
|
8,860
|
|
Preferred shares, redeemable for cash
|
|
|
7,155
|
|
|
|
7,155
|
|
Loan (19,100) interest rate at 1-month-EURIBOR, repayable at
the later of (i) the day specified in, or (ii) the day that is
30
th
day following receipt of, the repayment notice
|
|
|
26,587
|
|
|
|
27,891
|
|
|
|
|
|
|
|
|
|
|
$
|
37,042
|
|
|
$
|
43,906
|
|
|
|
|
|
|
|
|
The investment in common shares and preferred shares are classified as available-for-sale and the
loan as loans and receivables.
During 2007, the Company converted a loan of $7,155 into the preferred shares of Parentco.
Note 12. Property, Plant and Equipment
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2008
|
|
|
2007
|
|
|
|
|
|
|
|
Accumulated
|
|
|
Net
|
|
|
|
|
|
|
Accumulated
|
|
|
Net
|
|
|
|
Cost
|
|
|
Depreciation
|
|
|
BookValue
|
|
|
Cost
|
|
|
Depreciation
|
|
|
Book Value
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Buildings
|
|
$
|
1,335
|
|
|
$
|
853
|
|
|
$
|
482
|
|
|
$
|
1,435
|
|
|
$
|
800
|
|
|
$
|
635
|
|
Manufacturing plant and equipment
|
|
|
43,829
|
|
|
|
37,604
|
|
|
|
6,225
|
|
|
|
44,312
|
|
|
|
37,137
|
|
|
|
7,175
|
|
Office equipment
|
|
|
25
|
|
|
|
21
|
|
|
|
4
|
|
|
|
22
|
|
|
|
13
|
|
|
|
9
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
45,189
|
|
|
$
|
38,478
|
|
|
$
|
6,711
|
|
|
$
|
45,769
|
|
|
$
|
37,950
|
|
|
$
|
7,819
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
In 2007, the manufacturing plant and equipment and office equipment disposed as a result of
dispositions of subsidiaries aggregated $41 at the time of the dispositions. There was no
disposition of subsidiaries in 2008.
Note 13. Accounts Payable and Accrued Expenses
|
|
|
|
|
|
|
|
|
|
|
2008
|
|
|
2007
|
|
Accounts payable
|
|
$
|
160,744
|
|
|
$
|
129,598
|
|
Value-added and other taxes
|
|
|
2,373
|
|
|
|
964
|
|
Affiliates
|
|
|
891
|
|
|
|
876
|
|
Compensation
|
|
|
7,106
|
|
|
|
8,451
|
|
Interest due to affiliates
|
|
|
117
|
|
|
|
|
|
Derivative liabilities
|
|
|
285
|
|
|
|
543
|
|
Other
|
|
|
1,621
|
|
|
|
2,621
|
|
|
|
|
|
|
|
|
|
|
$
|
173,137
|
|
|
$
|
143,053
|
|
|
|
|
|
|
|
|
Generally, these payable and accrual accounts do not bear interest and they have a maturity of
less than a year.
Note 14. Employee Future Benefits
The Company maintains defined benefit plans that provide pension benefits for the employees of
certain KHD companies in Europe. Employees of KHD hired after 1996 are generally not eligible for
such benefits. The employees are not required to make contributions to the plan.
The defined benefit plan is unfunded and, therefore, does not have any plan assets. Also, the plan
has no unamortized prior service costs or gains or losses.
165
The table below shows the net pension expense and the change in benefit obligations of the
plan.
|
|
|
|
|
|
|
|
|
|
|
2008
|
|
|
2007
|
|
Accrued benefit obligation, beginning of year
|
|
$
|
33,186
|
|
|
$
|
30,223
|
|
Current service cost
|
|
|
48
|
|
|
|
711
|
|
Interest cost
|
|
|
1,670
|
|
|
|
1,419
|
|
Deferred compensation
|
|
|
70
|
|
|
|
70
|
|
|
|
|
|
|
|
|
Net pension cost
|
|
|
1,788
|
|
|
|
2,200
|
|
Cash benefit payments
|
|
|
(2,070
|
)
|
|
|
(2,444
|
)
|
Currency translation adjustments
|
|
|
(1,537
|
)
|
|
|
3,207
|
|
|
|
|
|
|
|
|
Accrued benefit obligation, end of year
|
|
$
|
31,367
|
|
|
$
|
33,186
|
|
|
|
|
|
|
|
|
Included in the combined balance sheet as follows:
|
|
|
|
|
|
|
|
|
Current portion
|
|
$
|
2,158
|
|
|
$
|
2,205
|
|
Long-term portion
|
|
|
29,209
|
|
|
|
30,981
|
|
|
|
|
|
|
|
|
|
|
$
|
31,367
|
|
|
$
|
33,186
|
|
|
|
|
|
|
|
|
An actuarial report is completed yearly as at December 31. Significant actuarial assumptions for
the accrued benefit obligation (which approximates the projected benefit obligation) and the
benefit cost as at December 31, and for the year then ended are as follows:
|
|
|
|
|
|
|
|
|
|
|
2008
|
|
2007
|
Weighted average discount rate
|
|
|
6.0
|
%
|
|
|
5.3
|
%
|
Rate of increase in future compensation
|
|
|
0.0
|
%
|
|
|
0.0
|
%
|
As of December 31, 2008 and 2007, the actuarial report showed a projected benefit obligation of
$31,428 and $33,953, respectively, and an excess of $61 and $767, respectively, has not yet been
recognized as a component of net periodic benefit cost.
Under the German laws, the pension liability is an unsecured claim and does not rank in priority to
any other unsecured creditors.
The benefits expected to be paid are as follows:
|
|
|
|
|
Year
|
|
Amount
|
|
2009
|
|
$
|
2,158
|
|
2010
|
|
|
2,158
|
|
2011
|
|
|
2,158
|
|
2012
|
|
|
2,158
|
|
2013
|
|
|
2,018
|
|
Thereafter
|
|
|
20,717
|
|
|
|
|
|
|
|
$
|
31,367
|
|
|
|
|
|
Note 15. Provision for Warranty Costs
Warranty activity consisted of:
|
|
|
|
|
|
|
|
|
|
|
2008
|
|
|
2007
|
|
Balance at beginning of year
|
|
$
|
43,302
|
|
|
$
|
29,115
|
|
Costs incurred
|
|
|
(10,013
|
)
|
|
|
(3,371
|
)
|
Warranty reserves established on completed contracts
|
|
|
16,554
|
|
|
|
19,913
|
|
Reversal of reserves at end of warranty period
|
|
|
(9,630
|
)
|
|
|
(6,292
|
)
|
Currency translation adjustments
|
|
|
(1,833
|
)
|
|
|
3,937
|
|
|
|
|
|
|
|
|
Balance, at end of year
|
|
$
|
38,380
|
|
|
$
|
43,302
|
|
|
|
|
|
|
|
|
Included in the combined balance sheet as follows:
|
|
|
|
|
|
|
|
|
Current portion
|
|
$
|
30,856
|
|
|
$
|
31,503
|
|
Long-term portion
|
|
|
7,524
|
|
|
|
11,799
|
|
|
|
|
|
|
|
|
|
|
$
|
38,380
|
|
|
$
|
43,302
|
|
|
|
|
|
|
|
|
166
Note 16. Provision for Supplier Commitments and Loss on Terminated Customer Contracts
As a result of changes in the market conditions and business environment affected by the
current financial crisis, during the fourth quarter of 2008, the Company received requests from a
limited number of customers to modify the terms of existing contracts. These requests included
extension of credit terms, delays or cancellation of the contracts. In addition, one of the
Companys customers went into voluntary liquidation. These conditions resulted in the termination
of the Companys work on certain customer contracts and the Company recognized the losses on the
terminated customer contracts in the fourth quarter of 2008 as follows:
|
|
|
|
|
Provisions:
|
|
|
|
|
Supplier commitments
|
|
$
|
17,027
|
|
Penalty for cancellation of purchase orders
|
|
|
3,401
|
|
Inventories (contracts-in-progress)
|
|
|
2,606
|
|
|
|
|
|
|
|
|
23,034
|
|
Inventories (raw materials and finished goods)
|
|
|
2,637
|
|
Inventories (contracts-in-progress)
|
|
|
6,037
|
|
Customer receivables
|
|
|
258
|
|
|
|
|
|
Loss on terminated customer contracts for the year
|
|
$
|
31,966
|
|
|
|
|
|
The following table shows the beginning and ending balance of the provisions during 2008:
|
|
|
|
|
Balance at beginning of year
|
|
$
|
|
|
Costs recognized
|
|
|
23,034
|
|
Paid
|
|
|
|
|
Reversal
|
|
|
|
|
Currency translation adjustments
|
|
|
695
|
|
|
|
|
|
Balance, at end of year
|
|
$
|
23,729
|
|
|
|
|
|
Note 17. Long-term Debt
|
|
|
|
|
|
|
|
|
|
|
2008
|
|
|
2007
|
|
Note payable to a bank, 8,127 at both December
31, 2008 and 2007, interest at 2.45% per annum
due quarterly and the entire principal balance
due February 2011. The Company is in compliance
with financial covenants stipulated by the bank
|
|
$
|
11,313
|
|
|
$
|
11,868
|
|
Note payable to a bank, nil at December 31, 2008
and 1,405 at December 31, 2007, interest at 6.0%
per annum due monthly
|
|
|
|
|
|
|
2,052
|
|
|
|
|
|
|
|
|
|
|
|
11,313
|
|
|
|
13,920
|
|
Less current portion
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
11,313
|
|
|
$
|
13,920
|
|
|
|
|
|
|
|
|
As of December 31, 2008, the maturities of debt are as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
Maturity
|
|
Principal
|
|
|
Interest
|
|
|
Total
|
|
2009
|
|
$
|
|
|
|
$
|
277
|
|
|
$
|
277
|
|
2010
|
|
|
|
|
|
|
277
|
|
|
|
277
|
|
2011
|
|
|
11,313
|
|
|
|
138
|
|
|
|
11,451
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
11,313
|
|
|
$
|
692
|
|
|
$
|
12,005
|
|
|
|
|
|
|
|
|
|
|
|
Interest expense on long-term debt was $291, $308 and $473 for the years ended December 31, 2008,
2007 and 2006, respectively.
Note 18. Other Long-term Liabilities
Other long-term liabilities represent trade payables which are due after one year from the balance
sheet date. All the long-term liabilities are expected to be repaid in 2010.
167
Note 19. Share Capital
The Companys share capital consisted of the following entities:
|
|
|
|
|
|
|
|
|
|
|
2008
|
|
|
2007
|
|
KHD Humboldt Wedag International (Deutschland) AG
|
|
$
|
39,422
|
|
|
$
|
39,422
|
|
KHD Humboldt Wedag International Holding GmbH
|
|
|
41
|
|
|
|
41
|
|
MFC & KHD International Industries Limited
|
|
|
|
|
|
|
|
|
Tianjin
Humboldt Wedag Liyuan Machinery & Technology Ltd.
|
|
|
2,000
|
|
|
|
2,000
|
|
|
|
|
|
|
|
|
|
|
$
|
41,463
|
|
|
$
|
41,463
|
|
|
|
|
|
|
|
|
These entities and their subsidiaries composed the Companys economic activities in the industrial
plant technology, equipment and service business.
As at both December 31, 2008 and 2007, KHD Humboldt Wedag International (Deutschland) AG had a
total of 16,571,276 shares outstanding and treasury stock of 114,568 shares.
Note 20. Other Income (Expense), Net
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2008
|
|
|
2007
|
|
|
2006
|
|
Gain (loss) on trading securities, net
|
|
$
|
(11,216
|
)
|
|
$
|
(502
|
)
|
|
$
|
386
|
|
Unrealized holding gains (losses) on currency derivative contracts, net
|
|
|
1,164
|
|
|
|
(145
|
)
|
|
|
|
|
Dividend income
|
|
|
236
|
|
|
|
301
|
|
|
|
236
|
|
Fee income
|
|
|
2,889
|
|
|
|
|
|
|
|
|
|
Other income
|
|
|
1,400
|
|
|
|
3,201
|
|
|
|
2,374
|
|
|
|
|
|
|
|
|
|
|
|
Other income (expense), net
|
|
$
|
(5,527
|
)
|
|
$
|
2,855
|
|
|
$
|
2,996
|
|
|
|
|
|
|
|
|
|
|
|
Note 21. Income Taxes
A reconciliation of the provision for income taxes calculated at applicable statutory rates in
Canada to the provision in the combined statements of income is as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2008
|
|
|
2007
|
|
|
2006
|
|
Income before income taxes and minority
interests from continuing
operations
|
|
$
|
53,613
|
|
|
$
|
58,986
|
|
|
$
|
47,469
|
|
|
|
|
|
|
|
|
|
|
|
Computed provision for income taxes at
statutory rates
|
|
$
|
16,888
|
|
|
$
|
23,594
|
|
|
$
|
18,988
|
|
(Increase) decrease in taxes resulting
from:
|
|
|
|
|
|
|
|
|
|
|
|
|
Statutory tax rate differences
|
|
|
(774
|
)
|
|
|
(4,312
|
)
|
|
|
31
|
|
Non-taxable income
|
|
|
(133
|
)
|
|
|
(97
|
)
|
|
|
|
|
Stock-based compensation
|
|
|
1,077
|
|
|
|
702
|
|
|
|
246
|
|
Permanent differences
|
|
|
887
|
|
|
|
1,379
|
|
|
|
(2,979
|
)
|
Change in valuation allowance
|
|
|
377
|
|
|
|
(12,086
|
)
|
|
|
(6,588
|
)
|
Reduction in future tax rate
|
|
|
(40
|
)
|
|
|
1,132
|
|
|
|
|
|
Other, net
|
|
|
(1,065
|
)
|
|
|
11
|
|
|
|
1,882
|
|
|
|
|
|
|
|
|
|
|
|
Provision for income taxes
|
|
$
|
17,217
|
|
|
$
|
10,323
|
|
|
$
|
11,580
|
|
|
|
|
|
|
|
|
|
|
|
168
Note 22. Commitments and Contingencies
Leases
Future minimum commitments under long-term non-cancellable leases are as follows:
|
|
|
|
|
Year
|
|
Amount
|
|
2009
|
|
$
|
3,694
|
|
2010
|
|
|
1,290
|
|
2011
|
|
|
1,290
|
|
2012
|
|
|
1,290
|
|
2013
|
|
|
1,290
|
|
Thereafter
|
|
|
828
|
|
|
|
|
|
|
|
$
|
9,682
|
|
|
|
|
|
Rent expense was $5,261, $1,013 and $8,132 for the years ended December 31, 2008, 2007 and 2006,
respectively.
Litigation
The Company and its subsidiaries are subject to litigation in the normal course of business.
Management considers the aggregate liability which may result from such litigation not material at
December 31, 2008.
Guarantees
The Company did not have guarantees (which meet the definition of a guarantee pursuant to AcG 14,
Disclosure of Guarantees)
outstanding as of December 31, 2008.
Purchase Obligations
In the normal course of its industrial plant technology, equipment and service business, the
Company enters into purchase orders with its suppliers. The purchase orders aggregated $293,547 at
December 31, 2008 which will be expensed in 2009. Of the total obligations, $260,000 relates to
Germany, $31,700 to India and the balance to other countries.
Note 23. Business Segment Information
The Company operates in one reportable segment: industrial plant technology, equipment and service.
The business of the industrial plant technology, equipment and service segment consists of
supplying technologies, equipment and engineering services for cement, coal and minerals
processing, as well as designing and building plants that produce clinker, cement, clean coal and
minerals
The two major customer groups of industrial plant technology, equipment and service segment are in
cement, and coal and minerals industries. The coal and minerals business was created out of the
cement technology and know-how. Services to these two customer groups share the use of the same
pool of human and capital resources with respect to finance, accounting, general support and risk
management. The revenues of industrial plant technology, equipment and service segment can be
further broken down as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2008
|
|
|
2007
|
|
|
2006
|
|
Cement
|
|
$
|
547,368
|
|
|
$
|
518,573
|
|
|
$
|
340,704
|
|
Coal and minerals
|
|
|
90,986
|
|
|
|
61,818
|
|
|
|
63,620
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
638,354
|
|
|
$
|
580,391
|
|
|
$
|
404,324
|
|
|
|
|
|
|
|
|
|
|
|
169
The following table presents revenues from the industrial plant technology, equipment and service
segment by geographic areas based upon the project location:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2008
|
|
|
2007
|
|
|
2006
|
|
Canada
|
|
$
|
11,720
|
|
|
$
|
512
|
|
|
$
|
72
|
|
Africa
|
|
|
7,596
|
|
|
|
21,393
|
|
|
|
10,488
|
|
Americas
|
|
|
48,836
|
|
|
|
117,905
|
|
|
|
75,651
|
|
Asia
|
|
|
145,636
|
|
|
|
196,348
|
|
|
|
106,336
|
|
Russia & Eastern Europe
|
|
|
213,708
|
|
|
|
83,592
|
|
|
|
41,548
|
|
Europe (other than Russia and Eastern Europe)
|
|
|
57,577
|
|
|
|
35,502
|
|
|
|
29,764
|
|
Middle East
|
|
|
150,856
|
|
|
|
123,283
|
|
|
|
135,759
|
|
Australia
|
|
|
2,425
|
|
|
|
1,856
|
|
|
|
4,706
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
638,354
|
|
|
$
|
580,391
|
|
|
$
|
404,324
|
|
|
|
|
|
|
|
|
|
|
|
Other than the geographic revenue concentrations outlined above, there were no concentrations of
revenues in 2008, 2007, or 2006 in the industrial plant technology, equipment and service segment.
The following table presents long-lived assets, which include property, plant and equipment, by
geographic area based upon the location of the assets.
|
|
|
|
|
|
|
|
|
|
|
2008
|
|
|
2007
|
|
Canada
|
|
$
|
|
|
|
$
|
|
|
Africa
|
|
|
63
|
|
|
|
66
|
|
Americas
|
|
|
200
|
|
|
|
320
|
|
Asia
|
|
|
586
|
|
|
|
837
|
|
Russia & Eastern Europe
|
|
|
21
|
|
|
|
|
|
Europe (other than Russia and Eastern Europe)
|
|
|
5,819
|
|
|
|
6,446
|
|
Middle East
|
|
|
14
|
|
|
|
|
|
Australia
|
|
|
8
|
|
|
|
150
|
|
|
|
|
|
|
|
|
|
|
$
|
6,711
|
|
|
$
|
7,819
|
|
|
|
|
|
|
|
|
Note 24. Financial Instruments
The fair value of financial instruments at December 31 is summarized as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2008
|
|
|
2007
|
|
|
|
Carrying
|
|
|
Fair
|
|
|
Carrying
|
|
|
Fair
|
|
|
|
Amount
|
|
|
Value
|
|
|
Amount
|
|
|
Value
|
|
Financial Assets:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Held-for-trading:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash and cash equivalents (including restricted cash)
|
|
$
|
398,985
|
|
|
$
|
398,985
|
|
|
$
|
338,380
|
|
|
$
|
338,380
|
|
Short-term securities
|
|
|
2,933
|
|
|
|
2,933
|
|
|
|
15,442
|
|
|
|
15,442
|
|
Derivative assets
|
|
|
1,450
|
|
|
|
1,450
|
|
|
|
388
|
|
|
|
388
|
|
Loans and receivables:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Current receivables*
|
|
|
76,812
|
|
|
|
76,812
|
|
|
|
70,437
|
|
|
|
70,437
|
|
Loan to Parentco
|
|
|
26,587
|
|
|
|
26,587
|
|
|
|
27,891
|
|
|
|
27,891
|
|
Available-for-sale instruments that have a quoted
market price in an active market:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Investment in the common shares of the parent company
|
|
|
3,300
|
|
|
|
3,300
|
|
|
|
8,860
|
|
|
|
8,860
|
|
Available-for-sale instruments that do no have a
quoted market price in an active market:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Investment in the preferred shares of Parentco
|
|
|
7,155
|
|
|
|
7,155
|
|
|
|
7,155
|
|
|
|
7,155
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
517,222
|
|
|
$
|
517,222
|
|
|
$
|
468,553
|
|
|
$
|
468,553
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Financial Liabilities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Other financial liabilities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Accounts payable and accrued expenses*
|
|
$
|
163,373
|
|
|
$
|
163,373
|
|
|
$
|
133,095
|
|
|
$
|
133,095
|
|
Debt
|
|
|
11,313
|
|
|
|
11,313
|
|
|
|
13,920
|
|
|
|
13,920
|
|
Other long-term liabilities
|
|
|
8,344
|
|
|
|
8,344
|
|
|
|
4,931
|
|
|
|
4,931
|
|
Held-for-trading:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Derivative liabilities
|
|
|
285
|
|
|
|
285
|
|
|
|
543
|
|
|
|
543
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
183,315
|
|
|
$
|
183,315
|
|
|
$
|
152,489
|
|
|
$
|
152,489
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
*
|
|
not including derivative financial instruments
|
170
Fair value of a financial instrument can be characterized as the amount at which a financial
instrument could be bought or sold in a current transaction between willing parties under no
compulsion to act (that is, other than in a forced transaction, involuntary liquidation or
distressed sale). The best evidence of fair value is published price quotations in an active
market. When the market for a financial asset or financial liability is not active, an entity
establishes fair value by using a valuation technique. The chosen valuation technique makes maximum
use of inputs observed from markets, and relies as little as possible on inputs generated by the
entity. Entity-generated inputs take into account factors that market participants would consider
when pricing the financial instruments at the balance sheet, such as liquidity and credit risks.
Use of judgment is significantly involved in estimating fair value of financial instruments in
inactive markets and actual results could materially differ from the estimates.
The fair value of cash and cash equivalents (including restricted cash) and term deposits is based
on reported market value. The fair value of short-term trading securities is based on quoted market
prices. The fair value of unlisted securities is based on their estimated net realizable values.
The fair values of short-term receivables and accounts payable and accrued expenses, due to their
short-term nature and normal trade credit terms, approximate their carrying value. The fair values
of non-current receivables, long-term debt and other long-term liabilities were determined using
discounted cash flows at prevailing market rates of interest for a similar instrument with a
similar credit rating. The fair values of the foreign currency derivative financial instruments are
based on the quotes from foreign exchange dealers and reviewed and confirmed by management of the
Company by their own valuation process.
Generally, management of the Company believes that the current financial assets and financial
liabilities, due to their short-term nature, do not pose significant financial risks. The Company
uses various financial instruments to manage its exposure to various financial risks. The policies
for controlling the risks associated with financial instruments include, but are not limited to,
standardized company procedures and policies on matters such as hedging of risk exposures,
avoidance of undue concentration of risk and requirements for collateral (including letters of
credit) to mitigate credit risk. The Company has risk managers and internal auditors to perform
audit and checking functions and risk assessment to ensure that company procedures and policies are
complied with.
Many of the Companys strategies, including the use of derivative instruments and the types of
derivative instruments selected by the Company, are based on historical trading patterns and
correlations and managements expectations of future events. However, these strategies may not be
fully effective in all market environments or against all types of risks. Unexpected market
developments may affect the Companys risk management strategies during this time, and
unanticipated developments could impact the Companys risk management strategies in the future. If
any of the variety of instruments and strategies the Company utilizes are not effective, the
Company may incur losses.
171
The nature of the risk that the Companys financial instruments are subject to is set out in
the following table:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Risks
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Market risks
|
Financial instrument
|
|
Credit
|
|
Liquidity
|
|
Currency
|
|
Interest rate
|
|
Other price
|
Cash and cash equivalents (including restricted cash)
|
|
|
X
|
|
|
|
|
|
|
|
X
|
|
|
|
X
|
|
|
|
|
|
Term deposits
|
|
|
X
|
|
|
|
|
|
|
|
X
|
|
|
|
X
|
|
|
|
|
|
Short-term securities
|
|
|
|
|
|
|
|
|
|
|
X
|
|
|
|
|
|
|
|
X
|
|
Derivative assets and liabilities
|
|
|
X
|
|
|
|
X
|
|
|
|
X
|
|
|
|
|
|
|
|
|
|
Current receivables
|
|
|
X
|
|
|
|
|
|
|
|
X
|
|
|
|
|
|
|
|
|
|
Investment in share capital of Parentco
|
|
|
X
|
|
|
|
|
|
|
|
|
|
|
|
X
|
|
|
|
X
|
|
Loan to the Parentco
|
|
|
X
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Accounts payable and accrued expenses
|
|
|
|
|
|
|
X
|
|
|
|
X
|
|
|
|
|
|
|
|
|
|
Long-term debt
|
|
|
|
|
|
|
|
|
|
|
X
|
|
|
|
X
|
|
|
|
|
|
Other long-term liabilities
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest rate risk
Interest rate risk is the risk that the fair value or future cash flows of a financial instrument
will fluctuate due to changes in market interest rates. Short-term financial assets and financial
liabilities are generally not exposed to interest rate risk, because of their short-term nature.
The Companys long-term debt is not exposed to interest rate cash flow risk as the interest rate
has been fixed, though they are exposed to interest rate price risk.
Sensitivity analysis:
At December 31, 2008, if benchmark interest rates (such as LIBOR or prime rates) at that date had
been 100 basis points (1.00%) per annum lower with all other variables held constant, after-tax net
loss for the year 2008 would have been $477 higher, arising mainly as a result of lower net
interest income. Conversely, if benchmark interest rates at that date had been 100 basis points
(1.00%) per annum higher with all other variables held constant, after-tax net loss for the year
2008 would have been $477 lower, arising mainly as a result of higher net interest income. There
would have been no material impact on the Companys other comprehensive loss.
Credit risk
Credit risk is the risk that one party to a financial instrument will fail to discharge an
obligation and cause the other party to incur a financial loss. Financial instruments which
potentially subject the Company to concentrations of credit risk consist of cash and cash
equivalents (including restricted cash), term deposits, contract deposits, derivative and trade and
other receivables. The Company has deposited the cash and cash equivalents (including restricted
cash) and term deposits with reputable financial institutions with high credit ratings, from which
management believes the risk of loss to be remote. The Company has receivables from various
entities including customers, governmental agencies and affiliates and they are not concentrated in
any specific geographic area. Management does not believe that any single customer or geographic
region represents significant credit risk. Credit risk concentration with respect to trade
receivables is limited due to the Companys large and diversified customer base. Credit risk from
trade accounts receivable is mitigated since the customers generally have high credit quality
and/or provide performance guarantees, advance payments, letters of credit and other credit
enhancements. The performance guarantees, advance payments and letters of credit are generally
issued by the bankers of the customers. The credit ratings are performed by the Company internally.
The average contractual credit period for trades receivable is 30 days.
172
The maximum credit risk exposure as at December 31 is as follows:
|
|
|
|
|
Amounts recognized on the combined balance sheet:
|
|
2008
|
|
Cash and cash equivalents (including restricted cash)
|
|
$
|
398,985
|
|
Derivative assets
|
|
|
1,450
|
|
Current receivables
|
|
|
76,812
|
|
|
|
|
|
Loan to Parentco
|
|
|
26,587
|
|
|
|
|
|
Investment in the preferred shares of Parentco
|
|
|
7,155
|
|
|
|
|
|
|
|
|
510,989
|
|
|
|
|
|
|
Guarantee (see Note 22)
|
|
|
|
|
|
|
|
|
Maximum credit risk exposure
|
|
$
|
510,989
|
|
|
|
|
|
Currency risk
Currency risk is the risk that the value of a financial instrument will fluctuate due to changes in
foreign exchange rates. Currency risk does not arise from financial instruments that are
non-monetary items or from financial instruments denominated in the functional currency. The
Company operates internationally and is exposed to risks from changes in foreign currency rates,
particularly Euros and the United States (U.S.) dollars. In order to reduce the Companys
exposure to foreign currency risk on material contracts denominated in foreign currencies (other
than the functional currencies of the subsidiaries), the Company may use foreign currency forward
contracts and options to protect its financial positions. As at December 31, 2008 and 2007, the
Company had derivative financial instruments (foreign currency forward contracts and options) with
aggregate notional amounts of $28,937 and $40,697, respectively, and a net unrealized fair value
gain (loss) of $1,165 and ($155), respectively. As at December 31, 2008, the Company has not
applied hedge accounting because these derivative financial instruments do not meet the conditions
of hedge accounting.
Sensitivity analysis
:
At December 31, 2008, if the U.S. dollar had weakened 10% against the local functional currencies
with all other variables held constant, after-tax net income for the year 2008 would have been $544
lower. Conversely, if the U.S. dollar had strengthened 10% against the local functional currencies
with all other variables held constant, after-tax net income would have been $544 higher. The
reason for such change is mainly due to certain U.S. dollar-denominated financial assets (net of
liabilities) held by entities whose functional currency is not the U.S. dollars. There would have
been no material impact on other comprehensive income in either case.
At December 31, 2008, if the Euro had weakened 10% against the local functional currencies with all
other variables held constant, after-tax net income for the year 2008 would have been $2,016 lower.
Conversely, if the Euro had strengthened 10% against the local functional currencies with all other
variables held constant, after-tax net loss would have been $2,016 higher. The reason for such
change is primarily due to certain Euro-denominated financial assets (net of liabilities) held by
entities whose functional currency is not Euros. There would have been no material impact on other
comprehensive income in either case.
Other price risk
Other price risk is the risk that the value of a financial instrument will fluctuate as a result of
changes in market prices, whether those changes are caused by factors specific to the individual
instrument or its issuer or factors affecting all instruments traded in the market. The Companys
other price risk includes only equity price risk whereby the Companys investments in equities in
other entities held for trading or available-for-sale securities are subject to market price
fluctuation. The Company did not hold any asset-backed securities.
Sensitivity analysis:
At December 31, 2008, if the equity price in general had weakened 10% with all other variables held
constant, after-tax net income and other comprehensive loss for the year 2008 would have been $200
lower and $680 higher, respectively. Conversely, if the equity price in general had strengthened
10% with all other variables held constant, after-tax net income and other comprehensive loss would
have been $200 higher and $680 lower, respectively.
173
Liquidity risk
Liquidity risk is the risk that an entity will encounter difficulty in raising funds to meet
commitments associated with financial instruments. The Companys approach to managing liquidity is
to ensure, as far as possible, that it always has sufficient liquidity to meet its liabilities when
they fall due, under normal and stress conditions, without incurring unacceptable losses. The
Company is not subject to material liquidity risk because of its strong cash position and
relatively insignificant amount of debt. It is the Companys policy to invest cash in highly
liquid, diversified money market funds or bank deposits for a period of less than three months. The
Company may also invest in cash deposits with an original maturity date of more than three months
so as to earn a higher interest income.
Generally, trade payables are due within 90 days and other payables and accrued expenses are due
within one year. Please also refer to Note 17 for debt maturity schedule.
As of December 31, 2008, the Company had $293,547 of purchase obligations with respect to the
normal course of its cement, coal and minerals business. The Company expects to settle these
amounts within one year, with cash on hand and cash to be generated from its operating activities.
Concentration risk
Management determines the concentration risk threshold amount as any single financial asset (or
liability) exceeding 10% of the aggregate financial assets (or liabilities) in the Companys
combined balance sheet.
The Company regularly maintains cash balances in financial institutions in excess of insured
limits. The Company has deposited the cash and cash equivalents (including restricted cash) and
term deposits with reputable financial institutions with high credit rating, and management
believes the risk of loss to be remote. As at December 31, 2008, the Company, as a group, had cash
and cash equivalents aggregating $307,559 with a bank in Austria.
Additional disclosure
In addition to information disclosed elsewhere in these financial statements, the Company had
significant items of income, expense, and gains and losses resulting from financial assets and
financial liabilities which were included in the result of operations in 2008 and 2007 as follows:
|
|
|
|
|
|
|
|
|
|
|
2008
|
|
|
2007
|
|
Interest income on financial assets not classified as held for trading
|
|
$
|
15,467
|
|
|
$
|
8,411
|
|
Interest income on financial assets classified as held for trading
|
|
|
2,741
|
|
|
|
509
|
|
|
|
|
|
|
|
|
Total interest income
|
|
$
|
18,208
|
|
|
$
|
8,920
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest expense on financial liabilities not classified as held for trading
|
|
$
|
(2,194
|
)
|
|
$
|
(2,363
|
)
|
Interest expense on financial liabilities classified as held for trading
|
|
|
(4
|
)
|
|
|
|
|
|
|
|
|
|
|
|
Total interest expense
|
|
$
|
(2,198
|
)
|
|
$
|
(2,363
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Dividend income on financial assets classified as held for trading
|
|
$
|
236
|
|
|
$
|
301
|
|
Dividend income on financial assets classified as available for sale
|
|
|
|
|
|
|
|
|
Net losses on financial assets required to be classified as held for trading
|
|
|
(11,216
|
)
|
|
|
(502
|
)
|
including change in fair value of the trading securities
|
|
|
(10,929
|
)
|
|
|
(1,560
|
)
|
Credit losses
|
|
|
(1,407
|
)
|
|
|
|
|
Note 25. Related Party Transactions
In the normal course of operations, the Company enters into transactions with related parties which
include the Parentco and affiliates which the Company has a significant equity interest (10% or
more) in the affiliates or has the ability to influence the affiliates or the Companys operating
and financing policies through significant
174
shareholding, representation on the board of directors, corporate charter and/or bylaws. These
related party transactions are measured at the exchange value, which represents the amount of
consideration established and agreed to by the parties. In addition to transactions disclosed
elsewhere in these financial statements, the Company had the following transactions with
affiliates.
Continuing operations
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2008
|
|
|
2007
|
|
|
2006
|
|
Fee income
|
|
$
|
2,983
|
|
|
$
|
|
|
|
$
|
9
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fee expense for management services, including expense
reimbursements
|
|
|
(5,025
|
)
|
|
|
(6,670
|
)
|
|
|
(4,086
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest income
|
|
|
1,429
|
|
|
|
500
|
|
|
|
698
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest expense
|
|
|
|
|
|
|
(269
|
)
|
|
|
(476
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
Research and development expense paid to an equity investee
|
|
|
|
|
|
|
|
|
|
|
(1,000
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
Discontinued Operations (See Note 4)
The Company did not earn any income nor incur any expenses in its discontinued operations with
related parties in 2008 and 2007.
During 2004, a subsidiary of the Company sold real estate properties to a corporation in which the
subsidiary owned approximately 19%. The majority shareholder of the purchaser corporation placed
cash deposits and other securities with the Companys banking subsidiary. The Company had an
irrevocable right to deduct the purchase price from the cash deposits and other securities account.
The sale resulted in a gain of $1,787 and the Company had a receivable of $8,772 at December 31,
2005. The receivable was non-interest bearing and secured by the cash deposits and other securities
account and the real estate sold. Neither the Company nor its subsidiaries had any continuing
involvement with the property sold. During 2006, in order to consolidate the Companys holding of
real estate held for sale, the Company and the affiliated corporation agreed to cancel the sale and
the Company recognized a loss of $1,818. The difference in the amounts recognised in 2004 and 2006
was due to the fluctuation of exchange rates.
Note 26. Interest in Joint Ventures
The Company has certain jointly controlled enterprises in Russia which commenced business during
2008. The Company accounts for these jointly controlled enterprises by proportionate consolidation
method, with additional information related to the Companys interests in the joint ventures for
2008 as follows:
|
|
|
|
|
Current assets
|
|
$
|
7,979
|
|
Long-term assets
|
|
|
519
|
|
Current liabilities
|
|
|
7,966
|
|
Long-term liabilities
|
|
|
|
|
Revenues
|
|
|
6,928
|
|
Cost of revenues
|
|
|
5,606
|
|
General and administrative expenses
|
|
|
745
|
|
Interest income
|
|
|
315
|
|
Other expenses
|
|
|
69
|
|
Income before taxes
|
|
|
823
|
|
Net income
|
|
|
619
|
|
cash flows resulting from operating activities
|
|
|
1,023
|
|
cash flows resulting from financing activities
|
|
|
|
|
cash flows resulting from investing activities
|
|
|
(47
|
)
|
Included in the Companys cash and cash equivalents as at December 31, 2008 was an amount of $3,977
from joint ventures which are accounted for by proportionate consolidation. This cash and cash
equivalent amount cannot be distributed to the joint venture partners without the approval of the
respective joint venture steering committee.
175
The amount of income earned and expenses incurred by the joint ventures accounted for by
proportionate consolidation with the Company for 2008 are follows:
|
|
|
|
|
Revenues
|
|
$
|
340
|
|
Cost of revenues
|
|
|
1,051
|
|
In addition, the joint ventures had the following financial assets and liabilities with the Company
as at December 31, 2008:
|
|
|
|
|
Trades receivable
|
|
$
|
139
|
|
Advanced payments
|
|
|
4
|
|
Note 27. Combined Statements of Cash Flows Supplemental Disclosure
Interest paid on a cash basis was $528, $2,363, $1,970, in 2008, 2007 and 2006, respectively.
Income tax paid on a cash basis was $15,947, $2,667, and $627 in 2008, 2007 and 2006, respectively.
The Company had the following nonmonetary transactions.
Nonmonetary transactions in 2008: none.
Nonmonetary transactions in 2007: (1) the Company sold the common shares in a public corporation to
an affiliate for a promissory note at the book value of $8,878 (which approximated fair value) and
no gain or loss was recognized; (2) the affiliate settled the promissory note of $8,878 by
delivering 295,490 common shares of the Parentco to the Company; (3) the Company converted its loan
of $7,155 into the preferred shares of the Parentco.
Nonmonetary transactions in 2006: (1) the Company exchanged its minority equity interest in and
shareholder loans to a unlisted company amounting to $10,325 for two notes receivable due from the
company and entitlements to proceeds from sales of certain equity securities in three public
companies totalling $10,325 and no gain or loss was recognized
Note 28. Subsequent Events
Restructuring activity
The Company expects the dramatic changes in world credit markets and the global recession will have
a negative impact on the Companys customers future capital expenditure programs. In anticipation
of expected lower order intake, the Company is fundamentally restructuring its business model.
The Company has initiated a restructuring program, aligning capacities to changes in market
demands, allocating resources depending on geographical needs and focusing on markets and equipment
that will meet the Companys objective of offering cost effective solutions to the customers. The
initiatives under the restructuring program include a reduction in the international headcount and
an intended divestiture of the coal and mineral customer group. Management estimates that the
restructuring program will cost between $25,000 to $30,000 which primarily relates to employee
severance costs, assets impairments and lease termination costs.
None of these expenses had been recognized or provided for in 2008 and the Company expects to
recognize the loss and expenses in 2009 and 2010.
176
SCHEDULE H
COMBINED
KHD INDUSTRIAL PLANT TECHNOLOGY, EQUIPMENT AND SERVICE BUSINESS
FINANCIAL STATEMENTS
FOR THE NINE MONTHS ENDED
SEPTEMBER 30, 2009 AND 2008
177
KHD INDUSTRIAL PLANT TECHNOLOGY, EQUIPMENT AND SERVICE BUSINESS
COMBINED BALANCE SHEETS
September 30, 2009 and December 31, 2008
(United States Dollars in Thousands)
(Unaudited)
|
|
|
|
|
|
|
|
|
|
|
2009
|
|
|
2008
|
|
ASSETS
|
|
|
|
|
|
|
|
|
Current Assets
|
|
|
|
|
|
|
|
|
Cash and cash equivalents
|
|
$
|
370,271
|
|
|
$
|
366,977
|
|
Securities
|
|
|
6,016
|
|
|
|
2,933
|
|
Restricted cash
|
|
|
27,135
|
|
|
|
32,008
|
|
Accounts receivable, trade
|
|
|
77,677
|
|
|
|
62,650
|
|
Other receivables
|
|
|
17,449
|
|
|
|
15,612
|
|
Inventories
|
|
|
77,760
|
|
|
|
109,676
|
|
Contract deposits, prepaid and other
|
|
|
55,101
|
|
|
|
58,171
|
|
Future income tax assets
|
|
|
3,562
|
|
|
|
59
|
|
Assets held for sale
|
|
|
26,600
|
|
|
|
|
|
|
|
|
|
|
|
|
Total current assets
|
|
|
661,571
|
|
|
|
648,086
|
|
|
|
|
|
|
|
|
|
|
Non-current Assets
|
|
|
|
|
|
|
|
|
Investment in parent company
|
|
|
34,667
|
|
|
|
37,042
|
|
Property, plant and equipment
|
|
|
4,405
|
|
|
|
6,711
|
|
Equity method investments
|
|
|
43
|
|
|
|
325
|
|
Future income tax assets
|
|
|
4,634
|
|
|
|
4,176
|
|
Other non-current assets
|
|
|
872
|
|
|
|
830
|
|
Assets held for sale
|
|
|
721
|
|
|
|
|
|
|
|
|
|
|
|
|
Total non-current assets
|
|
|
45,342
|
|
|
|
49,084
|
|
|
|
|
|
|
|
|
|
|
$
|
706,913
|
|
|
$
|
697,170
|
|
|
|
|
|
|
|
|
LIABILITIES AND SHAREHOLDERS EQUITY
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Current Liabilities
|
|
|
|
|
|
|
|
|
Accounts payable and accrued expenses
|
|
$
|
139,248
|
|
|
$
|
173,137
|
|
Progress billings above costs and estimated earnings on uncompleted contracts
|
|
|
148,964
|
|
|
|
171,843
|
|
Advance payments received from customers
|
|
|
13,033
|
|
|
|
11,331
|
|
Income tax liabilities
|
|
|
8,496
|
|
|
|
8,987
|
|
Accrued pension liabilities, current portion
|
|
|
2,119
|
|
|
|
2,158
|
|
Provision for warranty costs, current portion
|
|
|
27,294
|
|
|
|
30,856
|
|
Provision for restructuring costs
|
|
|
10,404
|
|
|
|
|
|
Provision for supplier commitments on terminated customer contracts
|
|
|
22,546
|
|
|
|
23,729
|
|
Liabilities related to assets held for sale
|
|
|
21,574
|
|
|
|
|
|
|
|
|
|
|
|
|
Total current liabilities
|
|
|
393,678
|
|
|
|
422,041
|
|
|
|
|
|
|
|
|
|
|
Long-term Liabilities
|
|
|
|
|
|
|
|
|
Long-term debt, less current portion
|
|
|
11,891
|
|
|
|
11,313
|
|
Accrued pension liabilities, less current portion
|
|
|
29,652
|
|
|
|
29,209
|
|
Provision for warranty costs, less current portion
|
|
|
16,208
|
|
|
|
7,524
|
|
Deferred credit, future income tax assets
|
|
|
4,389
|
|
|
|
4,176
|
|
Future income tax liability
|
|
|
12,092
|
|
|
|
7,646
|
|
Other long-term liabilities
|
|
|
6,809
|
|
|
|
8,344
|
|
Liabilities related to assets held for sale
|
|
|
2,404
|
|
|
|
|
|
|
|
|
|
|
|
|
Total long-term liabilities
|
|
|
83,445
|
|
|
|
68,212
|
|
|
|
|
|
|
|
|
Total liabilities
|
|
|
477,123
|
|
|
|
490,253
|
|
|
|
|
1,135
|
|
|
|
1,022
|
|
|
|
|
|
|
|
|
|
|
Minority Interests
|
|
|
|
|
|
|
|
|
Shareholders equity
|
|
|
|
|
|
|
|
|
Common stock
|
|
|
39,463
|
|
|
|
41,463
|
|
Treasury stock
|
|
|
(135
|
)
|
|
|
(135
|
)
|
Contributed surplus
|
|
|
10,025
|
|
|
|
7,881
|
|
Retained earnings
|
|
|
166,327
|
|
|
|
153,309
|
|
Accumulated other comprehensive income
|
|
|
12,975
|
|
|
|
3,377
|
|
|
|
|
|
|
|
|
Total shareholders equity
|
|
|
228,655
|
|
|
|
205,895
|
|
|
|
|
|
|
|
|
|
|
$
|
706,913
|
|
|
$
|
697,170
|
|
|
|
|
|
|
|
|
The accompanying notes are an integral part of these combined financial statements.
178
KHD INDUSTRIAL PLANT TECHNOLOGY, EQUIPMENT AND SERVICE BUSINESS
COMBINED STATEMENTS OF OPERATIONS AND RETAINED EARNINGS
For Nine Months Ended September 30, 2009 and 2008
(Unaudited)
(United States Dollars in Thousands)
|
|
|
|
|
|
|
|
|
|
|
2009
|
|
|
2008
|
|
Revenues
|
|
|
|
|
|
|
|
|
Cost of revenues
|
|
$
|
366,208
|
|
|
$
|
474,672
|
|
Reduction in loss on terminated customer contracts
|
|
|
296,160
|
|
|
|
385,019
|
|
Gross profit
|
|
|
(76
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
70,124
|
|
|
|
89,653
|
|
|
|
|
|
|
|
|
|
|
Selling, general and administrative expense
|
|
|
(45,300
|
)
|
|
|
(26,418
|
)
|
Stock-based compensation recovery (expense) selling, general and administrative
|
|
|
(2,144
|
)
|
|
|
(2,866
|
)
|
Restructuring costs
|
|
|
(11,601
|
)
|
|
|
|
|
|
|
|
|
|
|
|
Operating income
|
|
|
11,079
|
|
|
|
60,369
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest income
|
|
|
6,011
|
|
|
|
13,959
|
|
Interest expense
|
|
|
(1,554
|
)
|
|
|
(1,694
|
)
|
Foreign currency transaction gains (losses), net
|
|
|
1,211
|
|
|
|
(3,251
|
)
|
Share of loss of equity method investee
|
|
|
(278
|
)
|
|
|
(40
|
)
|
Other income (expense), net
|
|
|
4,848
|
|
|
|
(5,398
|
)
|
|
|
|
|
|
|
|
Income before income taxes and minority interests from continuing operations
|
|
|
21,317
|
|
|
|
63,945
|
|
Provision for income taxes:
|
|
|
|
|
|
|
|
|
Income taxes
|
|
|
(8,182
|
)
|
|
|
(18,309
|
)
|
|
|
|
|
|
|
|
|
|
|
(8,182
|
)
|
|
|
(18,309
|
)
|
|
|
|
|
|
|
|
Income before minority interests from continuing operations
|
|
|
13,135
|
|
|
|
45,636
|
|
Minority interest
|
|
|
(117
|
)
|
|
|
73
|
|
|
|
|
|
|
|
|
Net income
|
|
|
13,018
|
|
|
|
45,709
|
|
Retained earnings, beginning of the period
|
|
|
153,309
|
|
|
|
116,866
|
|
|
|
|
|
|
|
|
Retained earnings, end of the period
|
|
|
166,327
|
|
|
|
162,575
|
|
|
|
|
|
|
|
|
Accumulated other comprehensive income
|
|
|
12,975
|
|
|
|
9,719
|
|
|
|
|
|
|
|
|
Total of retained earnings and accumulated other comprehensive income
|
|
$
|
179,302
|
|
|
$
|
172,294
|
|
|
|
|
|
|
|
|
The accompanying notes are an integral part of these combined financial statements.
179
KHD INDUSTRIAL PLANT TECHNOLOGY, EQUIPMENT AND SERVICE BUSINESS
COMBINED STATEMENTS OF COMPREHENSIVE INCOME
For Nine Months Ended September 30, 2009 and 2008
(Unaudited)
(United States Dollars in Thousands)
|
|
|
|
|
|
|
|
|
|
|
2009
|
|
|
2008
|
|
Net income for the period
|
|
$
|
13,018
|
|
|
$
|
45,709
|
|
|
|
|
|
|
|
|
|
|
Other comprehensive income (loss), net of tax
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Unrealized gains and losses on translating financial
statements of self-sustaining foreign entities and adjustments
from application of U.S. dollar reporting
|
|
|
10,261
|
|
|
|
(11,035
|
)
|
|
|
|
|
|
|
|
|
|
Unrealised loss on available-for-sale securities
|
|
|
(663
|
)
|
|
|
(2,875
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Other comprehensive income (loss)
|
|
|
9,598
|
|
|
|
(13,910
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Comprehensive income for the period
|
|
|
22,616
|
|
|
|
31,799
|
|
|
|
|
|
|
|
|
The accompanying notes are an integral part of these combined financial statements.
180
KHD INDUSTRIAL PLANT TECHNOLOGY, EQUIPMENT AND SERVICE BUSINESS
COMBINED STATEMENTS OF CASH FLOWS
For Nine Months Ended September 30, 2009 and 2008
(Unaudited)
(United States Dollars in Thousands)
|
|
|
|
|
|
|
|
|
|
|
2009
|
|
|
2008
|
|
Cash flows from continuing operating activities
|
|
|
|
|
|
|
|
|
Income from continuing operations
|
|
$
|
13,018
|
|
|
$
|
45,709
|
|
Adjustments for:
|
|
|
|
|
|
|
|
|
Amortization and depreciation
|
|
|
1,761
|
|
|
|
2,079
|
|
Foreign currency transaction (gains) losses, net
|
|
|
(1,211
|
)
|
|
|
3,251
|
|
Minority interests
|
|
|
117
|
|
|
|
(73
|
)
|
(Gain) loss on short-term securities
|
|
|
(2,732
|
)
|
|
|
7,706
|
|
Stock-based compensation (recovery)
|
|
|
2,144
|
|
|
|
2,866
|
|
Future income taxes
|
|
|
927
|
|
|
|
14,062
|
|
Reduction in loss on terminated customer contracts
|
|
|
(76
|
)
|
|
|
|
|
Restructuring costs, asset impairment charges
|
|
|
992
|
|
|
|
|
|
Changes in operating assets and liabilities,
net of effects of acquisitions and dispositions
|
|
|
|
|
|
|
|
|
Short-term cash deposits
|
|
|
|
|
|
|
(28,624
|
)
|
Short-term securities
|
|
|
|
|
|
|
(1,134
|
)
|
Restricted cash
|
|
|
6,061
|
|
|
|
(8,715
|
)
|
Receivables
|
|
|
(29,937
|
)
|
|
|
(17,869
|
)
|
Inventories
|
|
|
36,624
|
|
|
|
14,828
|
|
Contract deposits, prepaid and other
|
|
|
2,691
|
|
|
|
(32,999
|
)
|
Accounts payable and accrued expenses
|
|
|
(31,480
|
)
|
|
|
22,152
|
|
Progress billings above costs and estimated earnings on
uncompleted contracts, net
|
|
|
(26,736
|
)
|
|
|
26,206
|
|
Advance payments received from customers
|
|
|
6,197
|
|
|
|
2,270
|
|
Income tax liabilities
|
|
|
(884
|
)
|
|
|
(13,636
|
)
|
Provision for warranty costs
|
|
|
5,494
|
|
|
|
(2,350
|
)
|
Provision for restructuring costs
|
|
|
10,404
|
|
|
|
|
|
Provision for supplier commitments on terminated customer contracts
|
|
|
(4,644
|
)
|
|
|
|
|
Other
|
|
|
301
|
|
|
|
(285
|
)
|
|
|
|
|
|
|
|
Cash flows (used in) provided by continuing operating activities
|
|
|
(10,969
|
)
|
|
|
35,444
|
|
Cash flows from continuing investing activities
|
|
|
|
|
|
|
|
|
Purchases of property, plant and equipment, net
|
|
|
(964
|
)
|
|
|
(1,623
|
)
|
Purchases (disposition) of subsidiaries, net of cash acquired (disposed)
|
|
|
(1,395
|
)
|
|
|
(767
|
)
|
Reduction of investment in the parent company
|
|
|
3,500
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash flows used in continuing investing activities
|
|
|
1,141
|
|
|
|
(2,390
|
)
|
Cash flows from continuing financing activities
|
|
|
|
|
|
|
|
|
Debt repayments
|
|
|
|
|
|
|
(503
|
)
|
|
|
|
|
|
|
|
Cash flows provided by continuing financing activities
|
|
|
|
|
|
|
(503
|
)
|
Exchange rate effect on cash and cash equivalents
|
|
|
17,054
|
|
|
|
(16,552
|
)
|
|
|
|
|
|
|
|
Increase in cash and cash equivalents
|
|
|
7,226
|
|
|
|
15,999
|
|
Cash and cash equivalents, beginning of period
|
|
|
366,977
|
|
|
|
314,264
|
|
|
|
|
|
|
|
|
Cash and cash equivalents, end of period
|
|
$
|
374,203
|
|
|
$
|
330,263
|
|
|
|
|
|
|
|
|
Cash and cash equivalents at end of period consisted of:
|
|
|
|
|
|
|
|
|
Cash and cash equivalents
|
|
$
|
374,203
|
|
|
$
|
330,263
|
|
Money market funds
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
374,203
|
|
|
$
|
330,263
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Continuing operations
|
|
$
|
370,271
|
|
|
$
|
330,263
|
|
Held for sale
|
|
|
3,932
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
374,203
|
|
|
$
|
330,263
|
|
|
|
|
|
|
|
|
The accompanying notes are an integral part of these combined financial statement
181
KHD INDUSTRIAL PLANT TECHNOLOGY, EQUIPMENT AND SERVICE BUSINESS
NOTES TO COMBINED FINANCIAL STATEMENTS
September 30, 2009
(Unaudited)
Note 1. Basis of Presentation
These combined financial statements and accompanying notes have been prepared to present the
combined financial positions and results of the entities and predecessor entities that form the
industrial plant technology, equipment and service business of KHD Humboldt Wedag International
Ltd., pursuant to the regulations of the British Columbia securities laws.
KHD Humboldt Wedag International Ltd. (KHD Canada) is incorporated under the laws of British
Columbia, Canada. KHD Canada, through its non-wholly-owned subsidiary KHD Humboldt Wedag
International (Deutschland) AG in Germany and direct wholly-owned subsidiary KHD Humboldt Wedag
International Holding GmbH in Austria and their subsidiaries, operates internationally in the
industrial plant technology, equipment and service business and specializes in the cement, coal and
mineral industries. KHD Humboldt Wedag International (Deutschland) AG and KHD Humboldt Wedag
International Holding GmbH, with their subsidiaries, are collectively known as the KHD Industrial
Plant Technology, Equipment and Service Business or the Company in these combined financial
statements.
The interim period combined financial statements have been prepared by the Company in accordance
with Canadian generally accepted accounting principles (GAAP). The preparation of financial data
is based on accounting principles and practices consistent with those used in the preparation of
the most recent annual financial statements. Certain information and footnote disclosure normally
included in combined financial statements prepared in accordance with GAAP have been condensed or
omitted. These interim period statements should be read together with the audited combined
financial statements and the accompanying notes. In the opinion of the Company, its unaudited
interim combined financial statements contain all normal recurring adjustments necessary in order
to present a fair statement of the results of the interim periods presented. The results for the
periods presented herein may not be indicative of the results for the entire year.
There was no change in entities composing the KHD Industrial Plant Technology, Equipment and
Service Business since December 31, 2008, except that Tianjin Humboldt Wedag Liyuan Machinery &
Technology Ltd. was liquidated during 2009.
The Company considers KHD Canada as its ultimate parent company. KHD Canada and its
subsidiaries (other than the Company) are referred to as the Parentco in these combined financial
statements
Note 2. Accounting Policy Developments
Effective January 1, 2009, the Company adopted Canadian Institute of Chartered Accountants
(CICA) Handbook Section 3064,
Goodwill and Intangible Assets.
During the current period, the
Company also adopted amendments to Handbook Section 3855,
Financial Instruments Recognition and
Measurement.
The adoption of this new accounting standard and amendments does not have any material
impact on the Companys financial position as of January 1, 2009.
Note 3. Defined Benefit Cost
The Company maintains defined benefit plans that provide pension benefits for the employees of
certain companies in Europe. The Company recognized the following amounts of defined benefit cost:
|
|
|
|
|
|
|
|
|
|
|
2009
|
|
2008
|
Nine months ended September 30
|
|
$
|
1,156
|
|
|
$
|
1,285
|
|
182
Note 4. Provision for Restructuring Costs and Assets Held for Sale
As a result of the 2008 financial crisis, the Company expects the dramatic changes in world credit
markets and the global recession will continue to have a negative impact on the Companys
customers future expenditure programs. In anticipation of expected lower order intake, the Company
is fundamentally restructuring its business model.
The Company has initiated a restructuring program to align capacities to changes in market demands,
allocate resources depending on geographical needs and focus on markets and equipment that will
meet the Companys objective of offering cost effective solutions to the customers.
On March 24, 2009, the Company announced its intention to shut down the workshop in Cologne,
Germany and had given official notice of shutdown to the workers council which represents the
employees of the Companys German subsidiary. The initiatives under the restructuring program were
also to include a reduction in the international headcount and the intended divestiture of the coal
and minerals customer group. Management estimated that the restructuring program was likely to cost
approximately $30,000 in total which primarily would relate to employee severance costs, asset
impairments and lease termination costs. The Company expected to recognize the loss and expenses
in 2009 and 2010. As at June 30, 2009, the Company recorded a provision for restructuring costs of
$7,048 which comprised $3,916 in costs associated with involuntary employment terminations, $2,630
in facilities closure and related costs (including lease termination) and $502 currency translation
adjustment.
Effective September 30, 2009, management, as duly authorized by the board of directors, committed
to a plan to sell the workshop in Cologne and the Companys coal and minerals customer group, each
in their respective present conditions, to a third party subject only to terms usual and customary
for sales of such assets. The sale was completed and executed in early October, 2009 and there
were no significant changes to the sale plan prior to closing. Accordingly, the Company revised
the estimates and reversed its provisions for facilities closure and related costs and reduced its
provision for costs associated with involuntary workshop employment terminations which were
recorded upon employee notification earlier in 2009. Management also revisited the 2009 and 2010
estimates for the total restructuring costs and reduced it to $12,000 (including the restructuring
costs recognized to date). Management will continue to monitor the progress of the restructuring
program.
In September, 2009, the Company also reached an agreement with the German workers council as to
the target level of reduction in the number of employees, the job classifications or functions, and
the specifics of the benefit arrangement which enable the employees to determine the type and
amount of benefits they will receive when their employment is terminated. Management, duly
authorized by the board of directors, has approved and committed the Company to the plan of
termination and it is not likely that there will be significant changes to the plan. Accordingly,
the Company recognized the one-time special termination benefits aggregating $9,785 in the current
period.
The restructuring costs for the nine-month period ended September 30, 2009 were as follows:
|
|
|
|
|
Provisions:
|
|
|
|
|
Costs associated with involuntary employment terminations
|
|
$
|
824
|
|
One-time special termination benefits
|
|
|
9,785
|
|
|
|
|
|
|
|
|
10,609
|
|
Impairment of fixed assets
|
|
|
992
|
|
|
|
|
|
Total restructuring costs
|
|
$
|
11,601
|
|
|
|
|
|
Following is a summary of the changes in the provision for restructuring costs during the
nine-month period ended September 30, 2009:
|
|
|
|
|
Balance as at December 31, 2008
|
|
$
|
|
|
Provision during the period, excluding inventory and fixed asset write-downs
|
|
|
16,331
|
|
Paid and payable
|
|
|
(489
|
)
|
Reversal resulting from the sale of the Cologne workshop
|
|
|
(5,722
|
)
|
Currency translation adjustments
|
|
|
284
|
|
|
|
|
|
Balance as at September 30, 2009
|
|
$
|
10,404
|
|
|
|
|
|
183
As at September 30, 2009, as a result of the subsequent disposal of the workshop and the coal and
minerals customer group, the assets and liabilities were reclassified as held for sale as at
September 30, 2009.
The divestment of the coal and minerals customer group and the workshop, exclusive of the roller
press technologies and capabilities, is not presented as a discontinued operation as it cannot be
clearly distinguished from the Companys ongoing operations and the Company will continue to have
involvement in the business, through its retention of its roller press technologies and
capabilities, subsequent to closing. Pursuant to the sale agreement, the Company will receive cash
of $7,500 and may receive contingent payments based on unutilized severance payments for the
workshops employees and certain other contingencies. The Company also agreed to grant the buyer
the right to continue to manufacture the roller press for the Company for a period of three years
from the closing date, provided this is done on normal commercial terms. Further, for a period of
three years, the Company will offer the Cologne workshop contracts to manufacture equipment
required for the Companys cement business that have traditionally been manufactured at the
workshop and the buyer has agreed to undertake such orders on a priority basis. The buyer has also
agreed to assume certain liabilities, including pension obligations, from the Company. The disposal
group has been reported in the industrial plant technology, equipment and service business segment.
Note 5. Provision for Supplier Commitments on Terminated Customer Contracts
As a result of changes in the market conditions and business environment due to the 2008 financial
crisis and its continuing impacts in 2009, the Company terminated work on certain customer
contracts and recognized losses on the terminated customer contracts. Contracts which will not
proceed have been officially cancelled and removed from the Companys project profile.
Following is a summary of the changes in the provision for supplier commitments on the terminated
customer contracts during the nine-month period ended September 30, 2009:
|
|
|
|
|
Balance as at December 31, 2008
|
|
$
|
23,729
|
|
Provisions during the period
|
|
|
4,391
|
|
Paid and payable
|
|
|
(4,541
|
)
|
Reductions through negotiations with suppliers
|
|
|
(4,203
|
)
|
Reclassification to inventory reserve
|
|
|
2,225
|
|
Currency translation adjustments
|
|
|
945
|
|
|
|
|
|
Balance as at September 30, 2009
|
|
$
|
22,546
|
|
|
|
|
|
The following is a summary of the income statement effects recorded with respect to terminated
customer contracts during the nine months ended September 30, 2009.
|
|
|
|
|
Provision during the period
|
|
$
|
4,391
|
|
Reductions through negotiations with suppliers
|
|
|
(4,203
|
)
|
Change in inventory reserve
|
|
|
(264
|
)
|
|
|
|
|
Reduction in loss on terminated customer contracts
|
|
$
|
(76
|
)
|
|
|
|
|
The provision for supplier commitments is continuously monitored and adjusted when necessary. The
final amount will be settled based on negotiations with customers and suppliers.
184
Note 6. Segment Information
The two major customer groups of industrial plant technology, equipment and service segment are in
the cement, and coal and minerals industries. For further information, see Note 4 Assets Held for
Sale. The revenues of the industrial plant technology, equipment and service segment can be
further broken down as follows:
|
|
|
|
|
|
|
|
|
|
|
Nine months ended
|
|
|
|
September 30,
|
|
|
|
2009
|
|
|
2008
|
|
Cement
|
|
$
|
316,488
|
|
|
$
|
407,252
|
|
Coal and minerals
|
|
|
49,720
|
|
|
|
67,420
|
|
|
|
|
|
|
|
|
|
|
$
|
366,208
|
|
|
$
|
474,672
|
|
|
|
|
|
|
|
|
Note 7. Related Party Transactions
In the normal course of operations, the Company enters into transactions with related parties which
include Parentco, affiliates in which the Company has a significant equity interest (10% or more)
or which have the ability to influence the affiliates or the Companys operating and financing
policies through significant shareholding, representation on the board of directors, corporate
charter and/or bylaws. These related party transactions are measured at the exchange value, which
represent the amounts of consideration established and agreed to by the parties. In addition to
transactions disclosed elsewhere in the financial statements, the Company had the following
transactions with related parties during the nine months ended September 30, 2009:
Nine months ended September 30, 2009:
|
|
|
|
|
Fee expense for management services, including expense reimbursements
|
|
$
|
(2,848
|
)
|
Interest income
|
|
|
333
|
|
Other income
|
|
|
2,558
|
|
|
|
|
|
|
As at September 30, 2009:
|
|
|
|
|
|
|
|
|
|
Due from related parties
|
|
$
|
417
|
|
Due to related parties
|
|
|
3,536
|
|
Note 8. Subsequent Event
In connection with Parentcos intention to restructure Parentco into two distinct legal entities (a
mineral royalty company and an industrial plant technology, equipment and service company), the
Company intends to make a cash dividend of Euro 45,000.
185
SCHEDULE I
FAIRNESS OPINION
186
Stephen W.
Semeniuk, CFA
Capital Research & Consulting
KHD Humboldt Wedag International Ltd.
Fairness Opinion on the Proposed Arrangement
with
KHD Humboldt Wedag International (Deutschland) AG
Prepared by: Stephen W. Semeniuk, CFA
Submitted: February 26, 2010
|
|
|
3845 Southridge Avenue, West Vancouver, B.C. V7V 3H9
Phone 604.926.6481 Email stephen_semeniuk@shaw.ca
|
|
|
Table of Contents
|
|
|
|
|
Table of Contents
|
|
|
187
|
|
Summary and Conclusions
|
|
|
188
|
|
Introduction
|
|
|
189
|
|
Description of KHD
|
|
|
189
|
|
Nature of the Wabush Iron Ore Royalty
|
|
|
190
|
|
Description of Cliffs
|
|
|
192
|
|
Reasons for the Arrangement
|
|
|
192
|
|
Pre-Arrangement Reorganization
|
|
|
193
|
|
Terms of the Proposed Arrangement
|
|
|
194
|
|
Assignment
|
|
|
195
|
|
Definition of Value
|
|
|
195
|
|
Credentials and Independence of Valuator
|
|
|
195
|
|
Relationship of Writer with Interested Parties
|
|
|
196
|
|
Scope of the Review
|
|
|
196
|
|
Considerations as to Fairness
|
|
|
196
|
|
Recent Trading Prices of KHD Shares
|
|
|
197
|
|
Valuation of KID and KHD Assets
|
|
|
197
|
|
Value Implications to KHD for Transfer of KID Voting Right
|
|
|
198
|
|
Observations
|
|
|
198
|
|
Conclusions as to Fairness
|
|
|
198
|
|
Exhibits
|
|
|
199 - 203
|
|
Certificate of Qualifications
|
|
|
|
|
188
Summary and Conclusions
KHD Humboldt Wedag International Ltd. (
KHD
) is proposing an arrangement (the
Arrangement
) under
Section 288 of the British Columbia
Business Corporations Act
pursuant to which KHD will make a
partial distribution to the shareholders of KHD (the
KHD Shareholders
), other than to registered
shareholders who may elect to exercise their right of dissent and to shareholders who are
subsidiaries of KHD, of approximately 26% of the issued shares (the
KID Shares
) of KHD Humboldt
Wedag International (Deutschland) AG (
KID
). KHD intends to distribute the balance of the KID
Shares that it owns at such times in the future in a tax efficient manner.
The intention is to divide KHD into two independent, publicly traded companies with one focused on
the industrial plant technology, equipment and service business and the other focused on the
mineral royalty business. Through a series of transactions to be completed prior to the
Arrangement, including the transfer of several of KHDs subsidiaries to KID or one of its
subsidiaries, KID will directly and indirectly hold all of KHDs industrial plant technology,
equipment and service business. KHD will continue to receive royalty payments from the Wabush iron
ore mine (the
Wabush Mine
) located in the Province of Newfoundland and Labrador. Royalties on
the iron ore production from the Wabush Mine are payable under a master lease that terminates in
2055. The current Wabush Mine life, based on the operators estimate of minable reserves, will
extend into the next decade under current operating and pricing conditions.
Upon completion of the Arrangement, the KHD Shareholders will own one new common share of KHD
(each, a
New KHD Share
) and 0.143 KID Shares (calculated prior to a proposed two-for-one forward
split of the KID Shares (the
KID Split
), for which approval of the shareholders of KID will be
sought at a meeting to be held on or about March 23, 2010) for each common share of KHD (each a
KHD Share
) currently held, provided that no fractional KID Shares will be distributed and the
number of KID Shares to which each KHD Shareholder is entitled will be rounded down to the next
whole number and no payment will be made in respect of such fractional KID Shares.
KID is applying for the admission of its shares for trading on the regulated market (General
Standard) of the Frankfurt Stock Exchange (the
FSX
) and the Vienna Stock Exchange (the
VSE
).
Commencement of trading on the regulated market of the FSX is expected to occur on or around March
31, 2010. Commencement of trading on the VSE will be considered separately following the
commencement of trading on the regulated market of the FSX.
The New KHD Shares will continue to be traded on the New York Stock Exchange (the
NYSE
). The
value of the New KHD Shares and the KID Shares will be established by investors in the marketplace
through trading on the NYSE and the FSX and VSE, respectively. The proportional ownership of the
KHD Shareholders, other than shareholders who are subsidiaries of KHD, in the assets and resources
of KHD, including the properties and assets being sold to KID will remain unchanged.
On completion of the Arrangement, KHD will continue as a mineral royalty company and will continue
to receive royalty payments from the operation of the Wabush Mine. KHD will hold approximately 72%
of the KID Shares upon completion of the Arrangement. It will also focus on, among other things,
acquiring additional mineral royalties. KID will continue to build KHDs former industrial plant
technology, equipment and service business.
The distribution of KID and the separation of KHDs mineral royalty assets from the industrial
plant technology, equipment and service business of KHD is intended to increase market interest and
potentially enhance value for KHD Shareholders. If needed, the future fund raising capacity for
KHD to expand its mineral royalty activities should be facilitated by the Arrangement. By
appealing to different groups of investors with different investment objectives, the Arrangement
should facilitate increased investment interest in the activities of KHD and KID that will
potentially enhance the interests of the KHD Shareholders who will continue to participate in KHDs
industrial plant technology, equipment and service activities through the direct ownership of KID
Shares and through the indirect ownership of KID through the ownership of the New KHD Shares, as
KHD will continue to hold an approximate 72% interest in KID. Based on the observations and
analyses of the writer, as well as other relevant factors applying to KHD and KID,
it is the
writers considered opinion that the proposed distribution under the Arrangement of 0.143 KID
Shares (calculated prior to the proposed KID Split) and one New KHD Share for every one KHD Share
is fair, from a financial point of view, to KHD and the KHD Shareholders.
189
February 26, 2010
Board of Directors
KHD Humboldt Wedag International Ltd.
Suite 1620 400 Burrard Street
Vancouver, BC V6C 3A6
Gentlemen:
You have asked the writer to provide a fairness opinion on a proposed Arrangement pursuant to which
KHD will make a partial distribution to the KHD Shareholders, other than to registered shareholders
who may elect to exercise their right of dissent (the
Dissenting Shareholders
) and to
shareholders who are subsidiaries of KHD, of approximately 26% of the KID Shares. KHD intends to
distribute the balance of the KID Shares that it owns at such times in the future in a tax
efficient manner.
On completion of the proposed Arrangement, KHD will continue as a mineral royalty company and will
continue to receive royalty payments from the operation of the Wabush Mine. KHD will also continue
to hold approximately 72% of the KID Shares. When it becomes tax effective, KHD will distribute
the remaining KID Shares to the KHD Shareholders. Royalties on iron ore production from the Wabush
Mine are payable under a master lease that terminates in 2055. The current Wabush Mine life, based
on the operators estimate of minable reserves, will extend into the next decade under current
operating and pricing conditions.
Through a series of transactions to be completed prior to the Arrangement, including the transfer
of several of KHDs subsidiaries to KID or one of its subsidiaries, KID will directly and
indirectly hold all of KHDs industrial plant technology, equipment and service business.
Upon completion of the Arrangement, the KHD Shareholders will own one New KHD Share and 0.143 KID
Shares (calculated prior to the proposed KID Split) for each KHD Share currently held, provided
that no fractional KID Shares will be distributed and the number of KID Shares to which each KHD
Shareholder is entitled will be rounded down to the next whole number and no payment will be made
in respect of each such fractional KID Shares. It is estimated that 4,322,844 KID Shares will be
distributed to the KHD Shareholders, which represents approximately 26% of the KID Shares. KHD
will continue to hold the remaining balance of approximately 72% of the KID Shares.
KID is applying for the admission of its shares for trading on the regulated market of the FSX and
on the VSE. Commencement of trading on the regulated market of the FSX is expected to occur on or
around March 31, 2010. Commencement of trading on the VSE will be considered separately following
the commencement of trading on the regulated market of the FSX.
The New KHD Shares will continue to be traded on the NYSE. The value of the New KHD Shares and the
KID Shares will be established by investors in the marketplace through trading on the NYSE and the
FSX and VSE, respectively. Examples of iron ore related publicly traded entities are the Great
Northern Iron Ore Properties Trust and the Mesabi Trust, which both trade on the NYSE under the
symbols GNI and MSB, respectively. A Canadian example is the Labrador Iron Ore Royalty Trust,
which is listed on the Toronto Stock Exchange under the symbol LIF.UN. In addition, there are a
number of entities listed on various stock exchanges that provide exposure to specific royalty cash
flow streams targeting specific industries and/or commodities, such as natural gas, oil and
precious metals.
Description of KHD
In addition to its interest in the Wabush Mine, KHD owns companies that operate internationally in
the industrial plant technology, equipment and service industry, and specializes in serving
customers in the cement industry. KHD was formerly known as MFC Bancorp Ltd.. On October 28,
2005, the KHD Shareholders approved a name
190
change to KHD Humboldt Wedag International Ltd. to coincide with that of KHDs largest
subsidiary, KHD Humboldt Wedag GmbH, which was founded in 1856 and designs and builds plants that
produce clinker and cement and process coal and other minerals, such as copper, gold and diamonds.
KHD, through its subsidiaries, offers its clients, which are located all over the world, a variety
of services, including examination and analysis of deposits, scale-up tests in its own test
centers, technical consulting, design and engineering for plants that produce clinker and cement,
plant and equipment for complete plants and plant sections, as well as automation and process
control equipment, project planning, raw material testing, research and development, erection and
commissioning, personnel training and pre and post sales service. This array of supplies and
services includes, in particular, the modernization of existing facilities for capacity increases
and reducing specific energy demand and the related burden on the environment. KHD has operations
in India, Europe, China, the Middle East and the United States.
KHD had previously operated in two business sectors: the industrial plant technology, equipment and
service sector and the financial services and merchant banking sector. The financial services and
merchant banking businesses were conducted through a wholly-owned subsidiary of KHD, now known as
Mass Financial Corp. (
Mass
). Effective January 31, 2006, all issued and outstanding common
shares of Mass were distributed by KHD to the KHD Shareholders. The purpose of the transaction was
to enhance value by allowing each of the component companies to concentrate their activities in
their respective sectors of operations, and to be measured on the basis of their performance
against their respective peer group companies. Common shares of Mass are listed for trading on the
VSE.
In 2006, after the separation of Mass and KHD, KHD reported revenues of US$404.3 million, with
income from continuing operations of $34.2 million, or $1.12 per share on a diluted basis. In
2007, revenues increased to $580.4 million and income increased to $51.0 million, or $1.68 per
share on a diluted basis. KHD reported that results for the first nine months of 2008 were
encouraging but, with the onset of the world financial crisis, order intake decreased by 25% and
diluted earnings were down by 114%. In 2008, KHD reported revenues of $638.4 million and a net loss
of $7.0 million, or $0.23 per share on a diluted basis.
Facing a dramatic slowdown in its main cement business, KHD developed restructuring plans and took
steps to address the impact of the financial crisis. It sold its coal and minerals customer group
and its workshop in Cologne, Germany in early October, 2009. These steps were taken to allow KHD
to focus on its core competencies and to significantly reduce the fixed-cost base of its business.
In connection with these sales, KHD retained the rights to its proprietary roller press
technologies and capabilities which are an important part of its industrial plant technology,
equipment and service business.
For the nine months ended September 30, 2009, KHD reported revenues of $366.2 million with a net
income of $1.2 million, or $0.04 per share on a diluted basis. This compares to revenues in the
first nine months of 2008 of $474.7 million and net income of $57.9 million, or $1.89 per share on
a diluted basis. KHDs margins were 19 percent for both the first nine months of 2009 and 2008.
As of September 30, 2009, KHDs cash and cash equivalents increased to $407.4 million (as compared
to $356.8 million at June 30, 2009); working capital was $312.2 million and shareholders equity
was $279.8 million (as compared to $257.9 million as at June 30, 2009). As at September 20, 2009,
KHDs current ratio was 1.79 and its long-term debt-to-equity ratio was 0.04.
Nature of the Wabush Iron Ore Royalty
The Labrador Trough area of Labrador and Quebec, accounting for between 35 to 40 million tonnes of
annual iron ore pellet and concentrate capacity, is one of the three significant iron ore
producing regions of North America. The two other areas are the Mesabi Range in Minnesota and the
Marquette Range in Michigan, which together account for at least 55 million tonnes of annual
output. According to a study published by Natural Resources Canada, the Labrador Trough ores are
coarse grained, magnetite-hematite quartz iron formations that have undergone recrystallization
and can be concentrated with grinding to less than 100 mesh. The Michigan and Minnesota deposits
are taconite based, have a higher work index, require fine grinding to 100 mesh, and, like the
Labrador Trough ores, must be processed as pellets to be saleable. Concentration of the iron ore
is achieved through gravitation and magnetic separation.
191
The three established mining operations in the Labrador Trough have been in operation since the
mid 1960s and 1970s. The Wabush Mine is the smallest of the three, with current operating
capacity of up to 5.0 tonnes annually. All three Canadian iron ore operations have port
facilities in the province of Quebec on the St. Lawrence River, although the Iron Ore Company of
Canada, now known as IOC, and the Wabush Mine conduct mining operations in Labrador, while the
operations of ArcelorMittal Mining (formerly Quebec Cartier Mining Company) are carried out,
nearby, in Quebec.
The Wabush Mine was established as an unincorporated joint venture that began mining iron ore in
1965. The Wabush Mine and concentrating plant are located in the town of Wabush in the Province of
Newfoundland and Labrador. Iron ore mined at the Wabush Mine is concentrated at the Wabush Mine
and the concentrate is then transported by rail to the Wabush pellet plant and shipping facilities,
located some 275 miles south at Pointe Noire, Quebec. As of the end of 2009, approximately 200
million tonnes of iron ore, practically all as pellets, have been shipped from Pointe Noire.
The royalty on the iron ore production of the Wabush Mine was formerly based on the published price
of Old Range Non-Bessemer iron ore at Cleveland, Ohio. From 1984 onwards, the royalty was based on
Mesabi Range Non-Bessemer iron ore when the former royalty index was no longer published. As of
January 1, 1989, the base royalty rate was set at Cdn$1.685 per long ton, subject to quarterly
adjustments consisting of 50% of the average price for a basket of five internationally traded
blast furnace pellets combined with 50% of the fluctuations in the U.S. Producer Price Index, Iron
and Steel Subgroup. The basket of pellet prices, as published in Skillings Mining Review,
consisted of CVRD, KPBO, Samorco, Port Cartier and Carol Lake blast furnace pellets. However, as
Skillings ceased publishing international iron ore prices in 2006, the acknowledged source of price
information on the international iron ore trade is the Tex Report, published in Tokyo.
Price negotiations between the major iron ore producers and steel producers were lengthy and
settled very late into the contract year. For example, ArcelorMittal only announced a price
settlement with its European customers on October 5, 2009. IOC has not yet announced a price
settlement, even though both Canadian benchmark prices for blast furnace pellets have been
identical for at least 20 years. Iron ore pricing to European customers applies on a calendar year
basis whereas prices settled with Far East buyers apply on a fiscal year basis commencing on April
1
st
of each year.
The actual rate of royalty due on shipments from the Wabush Mine made in the last quarter of 2009,
calculated on the assumption that IOC settles with its European customers at the same price as
ArcelorMittal, should be $5.006 per ton of pellets shipped. Wabush also ships minor amounts of
iron ore concentrate but practically all Wabush production is usually shipped in pellet form.
The ownership levels of the Wabush Mine have changed over time. Previously, the ownership of the
Wabush Mine was spread among a number of steel companies in addition to Cliffs Natural Resources
Inc. (
Cliffs
). A subsidiary of Cliffs, Cliffs Mining Co., is the operations manager of Wabush.
On February 1, 2010, Cliffs announced that it had exercised its right of first refusal and
completed the acquisition of U.S. Steel Canadas 44.6% interest and ArcelorMittal Dofascos 28.6%
interest in the Wabush Mines joint venture. Previously, Consolidated Thompson Iron Mines Ltd.
(
Consolidated Thompson
) had announced an agreement with the Wabush Mines other two joint venture
partners, U.S. Steel Canada (44.6%) and ArcelorMittal Dofasco (28.6%), to acquire their interests
for approximately $88 million in cash. Under the terms of the Wabush Mines partnership, Cliffs had
a right of first refusal to acquire each of U.S. Steel Canada and ArcelorMittal Dofascos interest.
By exercising its right of first refusal, Cliffs was entitled to receive the same terms and
conditions contained in the agreement with Consolidated Thompson and, in doing so, increased its
ownership position in Wabush Mines to 100%.
Rising commodity prices tend to improve mining economics and extend mine life. Cliffs stated that
its North American iron ore reserves are defined by the Security and Exchange Commissions (the
SEC
) Industry Standard Guide 7 as that part of a mineral deposit that could be economically and
legally extracted and produced at the time of the reserve determination. All reserves are
classified as proven or probable and are supported by life-of-mine
192
plans. Cliffs added that its ore reserve estimates for its iron ore mines as of December 31, 2008
were estimated from fully-designed open pits, developed using three-dimensional modeling
techniques. These fully designed pits incorporated design slopes, practical mining shapes and
access ramps to assure the accuracy of Cliffs reserve estimates.
In Cliffs Form 10-K submitted for the year ended December 31, 2008, Cliffs indicated that the
iron ore reserves at the Wabush Mine, expressed in terms of standard equivalent pellets, amounted
to 75 million long tones, which represented a doubling of the 39 million long tonnes announced as
of December 31, 2007, after giving effect to 2008 output of 3.9 million long tonnes. The
theoretical remaining life of the Wabush Mine as of December 31, 2009 could be expressed as 17.5
years, based on average annual production of 4.1 million long tonnes over the past five years.
However, mining is a cyclical business and the outlook for the North American iron industry could
change drastically over the course of coming economic cycles. Nevertheless, current indications
are that the life of the Wabush Mine should extend into the next decade. The expiry of the
royalty, should conditions permit mining until that time, occurs in the year 2055.
Description of Cliffs
Cliffs is an international mining and natural resources company with its shares listed on the NYSE
and on the Paris Bourse. It is the largest producer of iron ore pellets in North America, a major
supplier of direct-shipping lump and fines iron ore out of Australia, and a significant producer
of metallurgical coal. With core values of environmental and capital stewardship, its colleagues
across the globe endeavour to provide all stakeholders operating and financial transparency as
embodied in the global reporting initiative framework. Cliffs is organized through three
geographic business units.
The North American business unit consists of six iron ore mines owned or managed in Michigan,
Minnesota and Eastern Canada, and two coking coal mining complexes located in West Virginia and
Alabama. The Asia Pacific business unit consists of two iron ore mining complexes in Western
Australia and a 45% economic interest in a coking and thermal coal mine in Queensland, Australia.
The South American business unit includes a 30% interest in the Amapa project, an iron ore project
in the state of Amapa in Brazil.
In recent years, Cliffs has followed a strategy designed to achieve scale in the mining industry
and focused on serving the worlds largest and fastest growing steel markets. In January, 2010,
Cliffs completed the acquisition of Freewest Resources Canada Inc. and now controls a major
chromium deposit in Ontario that potentially can be developed as an open pit mine.
Reasons for the Arrangement
KHD has studied various ways to increase value for its shareholders and believes that the
component business segments of KHD have greater value than the whole. What precipitated KHD to
take this action now was the significant changes with respect to the ownership of the Wabush Mine
as a result of the exercise by Cliffs of the right of first refusal.
KHD feels that its mineral royalty assets are not complimentary to its industrial plant
technology, equipment and service business, and is therefore proposing the Arrangement in order to
facilitate the separation of its mineral royalty assets from its industrial plant technology,
equipment and service business.
KHD believes that the Arrangement will assist in enhancing long-term value for the KHD
Shareholders by creating two independent and distinct publicly traded companies, each with the
potential to develop and attract management talent appropriate to establishing operating
strategies best suited to the particular assets and business plans of each resulting company. KHD
believes that the separation of the industrial plant technology, equipment and service segment
from the mineral royalty business segment and the creation of two public companies could increase
the combined market value of each of KHD and KID.
193
KHD feels that the combined market value of KHD and KID could be enhanced as the companies should
tend to be valued by investors using criteria typical of companies in the peer groups of their
respective business segments thereby allowing each of KHD and KID to concentrate their activities
within their respective peer group sectors of operations and to be measured on the basis of their
performance as compared to their respective peer group companies. KHD expects that, over time,
each of its component companies will appeal to different groups of investors with particular
investment and risk preferences.
In keeping with the aim of separating KID from KHDs royalty business segment, KHD intends to
enter into a shareholders agreement (the
Shareholders Agreement
) with another shareholder of KID
(the
Custodian
) whereby KHD will transfer the power to direct the voting of the KID Shares that
KHD will continue to hold after consummation of the Arrangement to the Custodian. Subject to
satisfying all necessary requirements and taking the other steps necessary to transfer control of
KID, the entering into of the Shareholders Agreement may assist KHD with the objective of
deconsolidating the assets and liabilities of KID prior to the time that it is value sustaining
and efficient, from a tax perspective, for KHD to distribute the remainder of the KID Shares that
it owns at such times after completion of the Arrangement to the KHD Shareholders.
Pre-Arrangement Reorganization
Certain pre-Arrangement transactions among KHD and its subsidiaries will be completed to reorganize
the business of KHD prior to the Arrangement (the
Pre-Arrangement Reorganization
). The effect of
the Pre-Arrangement Reorganization will be, among other things, to directly or indirectly transfer
to KID, or subsidiaries of KID, the assets and liabilities related to KHDs industrial plant
technology, equipment and service business and to consolidate the KID Shares held by subsidiaries
of KHD into KHD. The Pre-Arrangement Reorganization will include the following events and
transactions:
|
(a)
|
|
Sasamat Capital Corporation (
Sasamat
) will reduce its stated capital to $1
without any payment made on the reduction;
|
|
|
(b)
|
|
KHD will cause the liquidation of Sasamat;
|
|
|
(c)
|
|
KIDs shareholders will vote on the payment of a dividend in an amount to be
determined but, in any event, no greater than 49,785,000, of which KHD will receive
74.62%, MFC Commodities GmbH (
MFCC
) will receive 20.1%, and Pang Hau GmbH & Co. KG
(
Pang Hau KG
) will receive 2.92%;
|
|
|
(d)
|
|
after KHD has paid the dividend described in (c) above, Pang Hau KG will be
dissolved by operation of law. Consequently, KHD will acquire all assets of Pang Hau
KG;
|
|
|
(e)
|
|
after KHD has paid the dividend described in (c) above, KHD will purchase the
KID Shares held by MFCC by delivering to MFCC Canadian dollars equal to the fair market
value of such KID Shares;
|
|
|
(f)
|
|
Mass will meet its obligations under the tracking stock agreement dated
November 27, 2006 among REDAS Tracking Corp. (
Redas
), KHD and Mass by subscribing for
Redas common shares. This subscription will be paid for by delivering Canadian dollars
equal to the sum of the dividend proceeds received by MFCC under (b) above and the
sales proceeds received by MFCC under (d) above;
|
|
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(g)
|
|
KHD will purchase all Redas common shares held by Mass for $100;
|
|
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(h)
|
|
Redas will lend KHD the Canadian-dollar subscription proceeds received from
Mass;
|
|
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(i)
|
|
after settlement of intercompany accounts, KHD Humboldt Wedag International
GmbH (
KIA
) will transfer its interest in the following to KID: Humboldt Wedag India
Private Ltd., EKOF Flotation GmbH, KHD Humboldt Machinery Equipment (Beijing) Co. Ltd.,
Humboldt Wedag
|
194
|
|
|
Inc., 50% of the interest of KIA in KHD Engineering Holding GmbH, and Humboldt
Wedag Australia Pty Ltd.;
|
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(j)
|
|
KHD will incorporate 0873013 B.C. Ltd. (
Newco
);
|
|
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(k)
|
|
KHD will subscribe for Newco shares by delivering Canadian dollars equal in
value to the value of the KHD Shares held by KID; and
|
|
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(l)
|
|
Newco will purchase the KHD Shares held by KID using cash from (k) above.
|
Terms of the Proposed Arrangement
As described in more detail in KHDs Management Information Circular (the
Information Circular
)
to be delivered to the KHD Shareholders in connection with a special meeting of the KHD
Shareholders to be held to consider the Arrangement on March 29, 2010, the distribution of the KID
Shares may, in certain circumstances, be treated as a dividend for US and Canadian tax purposes and
therefore be subject to tax in the US and Canada. If, for Canadian tax purposes, subject to the
assumptions and conditions described in the Information Circular, the distribution of the KID
Shares is not to be treated as a dividend, there would be no tax consequences in Canada.
On the effective date of the Arrangement, the following events and transactions will occur and be
deemed to occur in the following sequence:
|
(a)
|
|
the authorized share structure of KHD will be changed to create an unlimited
number of Class A Shares (the
Class A Shares
), an unlimited number of Class B Shares,
being the New KHD Shares, and an unlimited number of Class A, Series 2 preferred shares
(the
Preferred Shares
), and the Notice of Articles and Articles of KHD will be
amended accordingly;
|
|
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(b)
|
|
New Image Investment Company Limited (
New Image
) and Inverness Enterprises
Ltd. (
Inverness
) will exchange their KHD Shares for the Preferred Shares;
|
|
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(c)
|
|
KHD will add to the stated capital of the KHD Shares an amount equal to the
aggregate stated capital of the KHD Shares exchanged by New Image and Inverness and no
amount will be added to the stated capital of the Preferred Shares;
|
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(d)
|
|
Newco and KHD Holding AG (
KHD AG
and together with Newco, New Image and
Inverness, the
Subsidiaries
) will exchange their respective KHD Shares for Class A
Shares on a one for one basis;
|
|
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(e)
|
|
KHD will add to the stated capital of the KHD Shares an amount equal to the
aggregate stated capital of the KHD Shares exchanged by KHD AG and Newco and no amount
will be added to the stated capital of the Class A Shares;
|
|
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(f)
|
|
the KHD Shareholders other than the Subsidiaries and Dissenting Shareholders
(the
Non-Subsidiary Shareholders
) will exchange each KHD Share for:
|
|
(i)
|
|
one New KHD Share, and
|
|
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(ii)
|
|
0.143 KID Shares (or one (1) KID Share for every seven (7) KHD
Shares (calculated prior to the KID Split being effected)),
|
|
|
|
provided that no fractional KID Shares will be distributed to the Non-Subsidiary
Shareholders and the number of KID Shares to which each Non-Subsidiary Shareholder
is entitled will be rounded down to the next whole number and no payment will be
made in respect of such fractional KID Shares;
|
195
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(g)
|
|
KHD will add to the stated capital of the New KHD Shares an amount equal to the
stated capital of the KHD Shares held by the Non-Subsidiary Shareholders described in
(f), less the fair market value of the KID Shares distributed to such Non-Subsidiary
Shareholders;
|
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(h)
|
|
each issued and outstanding KHD Share held by Dissenting Shareholders will be
acquired by KHD for the amount to be determined in accordance with the dissent
procedures described in the Information Circular;
|
|
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(i)
|
|
the KHD Shares will be eliminated from the authorized capital of KHD and the
New KHD Shares will be altered by changing their identifying name to Common Shares;
and
|
|
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(j)
|
|
the New KHD Shares will be listed for trading on the NYSE.
|
The Plan of Arrangement also provides that KHD can elect not to proceed with the consummation of
the Arrangement if the Arrangement cannot be consummated on commercially reasonable terms, or would
otherwise not be in the best interests of the KHD Shareholders. In the event that the Arrangement
is not approved, then KHD will not proceed with the Arrangement and may retain its interest in KID
through its ownership of the KID Shares.
Assignment
The writer was engaged by the board of directors of KHD (the
KHD Board
) to provide a fairness
opinion on the proposed Arrangement by which KHD is to be restructured into two independent,
publicly traded companies. In connection with the preparation of this fairness opinion, the writer
has not completed, nor has he been requested to complete, an independent estimate of the likely
value of the New KHD Shares, the KID Shares or the likely trading range of the respective
securities after considering the effects of the Arrangement.
The KHD Board believes that the realignment of its business activities advances its stated goal of
enhancing shareholder value by allowing each of KHD and KID to concentrate their activities in
their respective sectors of operations and to be measured on the basis of their performance in
comparison to their respective peer group companies.
Definition of Value
Normally, the definition of value that applies for the purposes of a valuation report or fairness
opinion is Fair Market Value. This concept of value, assuming a going concern scenario, is the
highest price obtainable, expressed in terms of money, in an open and unrestricted market between
knowledgeable, prudent and willing parties, dealing at arms length, who are fully informed and not
under compulsion to transact.
The issue of fairness is usually based on the values that can be attributed to the ownership rights
of shareholders. In the proposed Arrangement involving KHD and KID, on a post-transaction basis,
the pro rata tangible and intangible values attributed to KHD Shareholders on a post Arrangement
basis should be equal to or exceed the prior amount of such considerations. It is the writers
opinion that fairness can be determined on the basis of whether dilution occurs to the perceived
value of KHD Shareholders interests and to the extent that compensating considerations may be
provided in such instances.
Credentials and Independence
The writer is a CFA
®
charter holder who has been granted a Master of Business Administration degree
in finance from Michigan State University and is experienced in the valuation of listed and
unlisted companies and their assets, having held Director of Research and Vice President, Research
positions with several Canadian based investment dealers. The writer is a past director of the
Canadian Council of Financial Analysts and, since 1991, has been providing financial research and
consulting services to members of the legal profession, investment dealers, public and private
companies and individual clients.
196
In these capacities, and previously while employed in the investment industry, the writer has
prepared a wide variety of valuations and fairness opinions on mining properties and other assets
and businesses as prescribed under provincial securities regulations or state and national tax
regimes. These assignments have been undertaken for various participants in the mining industry as
well as in other sectors.
Relationship of Writer with Interested Parties
The writer has no past, present or intended interest in the shares and properties of the companies
mentioned in this report with the exception that the writer has held units of the Labrador Iron Ore
Royalty Income Fund for investment purposes. The writer is not an insider, associate or affiliate
of KHD. The writer has not acted as an advisor to KHD or its affiliates in connection with the
Arrangement.
Additionally, there are no understandings, commitments or agreements between the writer, KHD or the
latters respective predecessor and subsidiary companies and affiliates with respect to future
business dealings. The writer may in the future in the course of conducting financial advisory
services to a broad spectrum of corporate clients perform financial and research services for
companies referred to in the preparation of this report.
Scope of the Review
In performing this assignment, the writer relied on information provided by KHDs management and
advisors and referred to publicly available information on KHD including KHDs SEC filings. Other
information on KHD and its stock trading data was accessed through Canada Stockwatch and other
publicly available sources of financial information.
In the course of this engagement, the writer held a number of discussions with KHDs management and
its advisors. The writer had access to all information requested from KHD and no suggestions were
requested of or offered by KHD as to the approach or methodology used in the preparation of this
fairness opinion. Documents and sources of information accessed by the writer included:
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|
KHDs Annual Report on Form 20-F for the year ended December 31, 2008, filed with the
SEC;
|
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|
|
|
information on KHD in the form of filings and KHDs press releases available for
retrieval on EDGAR and other sources as well as KHDs website;
|
|
|
|
|
trading data on KHDs common shares on the NYSE as carried by Canada Stockwatch and
other sources;
|
|
|
|
|
preliminary and draft independent third-party valuations of KID as well as certain
non-royalty assets to be retained by KHD;
|
|
|
|
|
Iron Ore 2000, published by Natural Resources Canada, Ottawa 1997; and
|
|
|
|
|
the Tex Report, published in Tokyo, selected daily issues from January and February
2010.
|
Considerations as to Fairness
In assessing the fairness of the Arrangement, the writer has analyzed, reviewed and considered
numerous factors, including:
|
|
|
the relative selected past trading volumes and prices of KHDs common shares on NASDAQ
and the NYSE over recent selected periods of time;
|
|
|
|
|
the mining royalty assets held by KHD and financial resources and other activities of
KHD;
|
|
|
|
|
the current working capital position and financing requirements of KID and the increased
focus of KHD on its industrial and engineering services and the expansion of these
operations into China and South East Asia;
|
|
|
|
|
the independent valuations of KID and KHDs mineral royalty assets as provided by a
third-party valuator either directly or to KHD;
|
|
|
|
|
the tax implications of the arrangement on KHD and KID; and
|
|
|
|
|
the existence of other iron ore royalty related securities listed on North American
stock exchanges.
|
197
The proposed Arrangement has significant tax implications for KHD and KID at the corporate level,
as well as possibly on the tax situation of individual non-Canadian KHD Shareholders to the extent
that the fair market value of the KID Shares to be distributed exceeds the paid up capital of all
KHD Shares held before the completion of the Arrangement.
The industrial plant technology, equipment and service assets to be transferred to KID are
currently owned by KHD Shareholders in proportion to their holdings of the KHD Shares. There are
no other outside ownership interests being introduced into KID, except that part of the ownership
in KID will be held directly by KHD Shareholders who will receive a portion of the KID Shares
directly, as well as indirectly through KHD retaining ownership of approximately 72% of the KID
Shares. Thus, on completion of the Arrangement, KHD Shareholders, other than the Subsidiaries,
will retain the same proportional ownership interest in the assets of KHD and KID as they held
prior to the Arrangement.
Recent Trading Prices of KHD Shares
The KHD Shares began trading on the NYSE on June 18, 2007. They were previously traded on the
NASDAQ market. KHD announced, in its 2006 Annual Report, the creation of SWA Reit and Investments
Ltd. (
SWA
) and the planned distribution of SWA securities to the KHD Shareholders. At that time,
KHD also announced its application for listing on the NYSE. The market reacted favourably, as the
KHD Shares were then trading at below US$40 per share. After trading on the NYSE commenced, the
KHD Shares reached a high of US$64.50 before easing, at which point the KHD Shares were split on a
two for one basis.
The KHD price chart shown as Exhibit V is based on raw share trading data and has not been adjusted
to reflect the share split in 2007. The 52 week trading range of the KHD Shares has been $16.10 to
$6.65 per share. On January 6, 2010, the date of KHDs announcement of the proposed Arrangement,
the KHD Shares closed at $14.53 per share and the KHD Shares subsequently reached a closing low of
$12.18 on February 9, 2010. North American share prices generally weakened during this period,
with the broad based Nasdaq Composite Index declining by almost 10%. The February trading range
for the KHD Shares, as provided by Stockwatch, was $11.82 to $14.28 per share. At the mid-point
value of $13.05 per share, the market capitalization of KHD is approximately $395 million.
Valuation of KID and KHD Assets
KHD has received an independent valuation of KID as being within the range of $162 million to $186
million, at recent rates of exchange, and a similar range of value for KHDs mineral royalty
interest in the Wabush Mine. The valuations are required to support the value of the assets being
transferred by KHD to KID (or its subsidiaries). The valuations generally are supportive of the
current market capitalization of KHD.
However, the total value of the assets being transferred between KHD and KID are not germane to the
Arrangement as the distribution of the KID Shares to the KHD Shareholders will not have an impact
on the KHD Shareholders proportional interests in KHD and KID, as might have been the case with a
contemporaneous financing. The Arrangement, as proposed, will not affect the KHD Shareholders
proportional ownership interests in KHDs royalty assets nor in KHDs assets being sold to KID,
except that KHD Shareholders will hold a portion of KIDs ownership directly through the receipt of
KID Shares.
The value of KIDs assets, however, does have relevance from accounting and tax perspectives. The
value of these assets will form the basis of the capital reduction transaction. This transaction
is not a significant valuation issue as the Arrangement has been structured to minimize any cash
tax impact at the corporate levels. Consequently, the fairness of the Arrangement can be decided
on whether the Arrangement does or does not dilute the KHD Shareholders proportional interest in
the industrial plant engineering and equipment supply assets KID is acquiring from KHD.
The Arrangement may create tax consequences to certain non-Canadian KHD Shareholders or to KHD in
terms of the reduction tax offsets to future income generating activities. The writers view is
that the present utilization of future tax offsets are costs of doing business and that the spin
out of KHDs industrial plant technology, equipment and service business is necessary to realize
the potential value locked-up in these assets as well as to establish the value of KHDs mineral
royalty asset on a stand alone basis.
198
Value Implications to KHD for Transfer of KID Voting Rights
As was described earlier, in keeping with the aim of separating KID from KHDs royalty business
segment, KHD intends to enter into the Shareholders Agreement with the Custodian whereby KHD will
transfer the power to direct the voting of the KID Shares that KHD will continue to hold after
consummation of the Arrangement to the Custodian. The transfer of the rights to direct the voting
of the KID Shares to the Custodian may have value implications.
Generally, financial literature includes studies that show that the difference in the value of
voting versus non-voting shares in the same company is small. One authority (Pratt, 5th edition)
quantifies the difference as being within a range of 0% to 7%. Assuming a mid-point value impact
of 3.5% on an approximately 72% interest in KID to be retained by KHD, the value impact on voting
power loss to KHD amounts to approximately $4.94 million or $0.16 per KHD Share. This amount is
well within the typical daily trading range of KHD Shares.
Observations
The distribution of KID and the separation of KHDs mineral royalty assets from the industrial
plant technology, equipment and service activities of KHD is intended to increase market interest
and potentially to enhance KHD Shareholder value. If needed, the future fund raising capacity for
KHD to expand its mineral royalty activities should be facilitated by the Arrangement. By
appealing to different groups of investors with different investment objectives, the Arrangement
should facilitate increased investment interests to be generated in the activities of KHD and KID
that will potentially enhance the interests of current KHD shareholders who will continue to
participate in KHDs engineering activities directly through the ownership of KID Shares and
indirectly though the ownership of the New KHD Shares.
The proposed Arrangement should not impair the ownership position of current KHD Shareholders in
the industrial plant technology, equipment and service related assets of KHD. Post Arrangement,
the KHD Shareholders, other than the Subsidiaries and Dissenting Shareholders, will hold the same
proportional interest in the assets of KID, either directly, through ownership of the KID Shares,
or indirectly, through ownership of the New KHD Shares. KHD Shareholders will maintain their
current ownership levels in KHD as it focuses on enhancing its mineral royalty interests.
Conclusions as to Fairness
Based on the above information, observations and analyses by the writer as well as other relevant
factors applying to KHD and KID, it is the writers considered opinion that the proposed
distribution under the Arrangement of one New KHD Share and 0.143 KID Shares (calculated prior to a
proposed KID Split) for every one KHD Share is fair, from a financial point of view, to KHD and the
KHD Shareholders.
This opinion is given for the sole and exclusive use of the KHD Board and the KHD Shareholders and
is given as of this date. The writer reserves the right to amend or withdraw the conclusions
reached in this Fairness Opinion if a material change occurs in any of the facts, representations
and reports which have been relied upon in preparing this report, or if information provided to the
writer and upon which he has relied, is inaccurate in any material respect. This Fairness Opinion
has been prepared solely for the purpose of providing information. It should not be construed as a
recommendation to buy or sell any of the securities mentioned herein and no representations or
warranties of any kind are intended, implied nor should be inferred.
Yours truly,
Stephen Semeniuk
Stephen W. Semeniuk, CFA
199
Exhibit I, Chinese Import Prices of Iron Ore Fines
200
Exhibit II, Recent Chinese Steel Production levels
201
Exhibit IV
Chinas Iron Ore Imports/Iron & Steel Production
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Iron Ore
|
|
Production
|
|
|
|
|
|
Iron Ore
|
|
Production
|
Year
|
|
Imports
|
|
Pig Iron
|
|
Crude Steel
|
|
Year
|
|
1,000 t
|
|
$1,000
|
|
Pig Iron
|
|
Crude Steel
|
1992
|
|
|
25,224
|
|
|
|
75,893
|
|
|
|
80,935
|
|
|
|
2002
|
|
|
|
111,494
|
|
|
|
2,769,096
|
|
|
|
170,745
|
|
|
|
182,249
|
|
1993
|
|
|
33,047
|
|
|
|
87,377
|
|
|
|
89,539
|
|
|
|
2003
|
|
|
|
148,120
|
|
|
|
4,856,212
|
|
|
|
213,785
|
|
|
|
222,413
|
|
1994
|
|
|
37,343
|
|
|
|
97,409
|
|
|
|
92,613
|
|
|
|
2004
|
|
|
|
208,090
|
|
|
|
12,711,952
|
|
|
|
256,738
|
|
|
|
280,486
|
|
1995
|
|
|
41,150
|
|
|
|
105,286
|
|
|
|
95,360
|
|
|
|
2005
|
|
|
|
275,230
|
|
|
|
18,379,477
|
|
|
|
344,732
|
|
|
|
355,790
|
|
1996
|
|
|
43,870
|
|
|
|
107,210
|
|
|
|
101,237
|
|
|
|
2006
|
|
|
|
326,300
|
|
|
|
20,913,154
|
|
|
|
407,554
|
|
|
|
422,989
|
|
1997
|
|
|
55,110
|
|
|
|
115,114
|
|
|
|
108,911
|
|
|
|
2007
|
|
|
|
382,830
|
|
|
|
33,797,015
|
|
|
|
469,446
|
|
|
|
489,241
|
|
1998
|
|
|
51,770
|
|
|
|
118,521
|
|
|
|
114,588
|
|
|
|
2008
|
|
|
|
443,540
|
|
|
|
60,709,462
|
|
|
|
471,100
|
|
|
|
502,010
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1999
|
|
|
55,270
|
|
|
|
125,330
|
|
|
|
123,954
|
|
|
Jan-Dec09
|
|
|
627,780
|
|
|
|
50,140,397
|
|
|
|
543,748
|
|
|
|
567,842
|
|
2000
|
|
|
69,970
|
|
|
|
131,034
|
|
|
|
127,236
|
|
|
Jan-Dec08
|
|
|
443,450
|
|
|
|
60,709,462
|
|
|
|
469,285
|
|
|
|
500,312
|
|
2001
|
|
|
92,393
|
|
|
|
147,067
|
|
|
|
150,906
|
|
|
% change
|
|
|
41.6
|
%
|
|
|
-17.4
|
%
|
|
|
15.9
|
%
|
|
|
13.5
|
%
|
Source: WSA, Chinas Customs Statistics
203
Certificate of Qualifications
I, Stephen Semeniuk, of 3845 Southridge Avenue, West Vancouver, Canada hereby certify that:
1.
|
|
I graduated with a B. Comm. (Hons.) degree from the University of Windsor.
|
|
2.
|
|
I was granted a M.B.A. in finance from Michigan State University.
|
|
3.
|
|
I am a CFA
®
charter holder, having completed the program offered by the Institute of
Chartered Financial Analysts in 1982.
|
|
4.
|
|
I have been practicing as an independent financial consultant since January 1991 in providing
securities valuation services, fairness opinions, and financial consulting and research
services to lawyers, government, investment dealers and industry.
|
|
5.
|
|
I was formerly Vice President, Research of LOM Western Securities Ltd., at that time, the leading underwriter of junior
resources and industrial companies in Western Canada. I have also held securities research positions with Vancouver-based
Odlum Brown Ltd. and Brink Hudson and Lefever Ltd.
|
|
6.
|
|
I have also held financial planning and operations analysis positions with B.C.R.I.C., Power Corporation of Canada,
Chemcell Ltd. and Ford Motor Company of Canada.
|
|
7.
|
|
The attached Fairness Opinion, on the Arrangement between KHD Humboldt Wedag International
Ltd. (KHD) and KHD Humboldt Wedag International (Deutschland) AG was prepared for the Board
of Directors of KHD and is based on information, documents, and data provided to me as well as
other data, materials and analyses I collected or prepared. I reserve the right to amend or
withdraw the conclusions reached in this report, if a material change occurs in or if any of
the facts, information or representations provided to me is materially inaccurate.
|
|
8.
|
|
In preparing this Fairness Opinion, I was not required to any of the properties mentioned in
this report.
|
|
9.
|
|
I have no past, present or intended interest in the shares or holdings of the companies
discussed in this report.
|
|
10.
|
|
I consent to use of this Fairness Opinion by KHD Humboldt Wedag International Ltd. and KHD
Humboldt Wedag International (Deutschland) AG, for corporate, judicial and regulatory purposes
and for its inclusion or by reference in the companies Information Circular and public files.
The report, however, should not be construed as a recommendation to buy or sell any shares
mentioned in this report. No such representations are intended or implied.
|
Stephen
W. Semeniuk
, West Vancouver, B.C., February
26, 2010.
Stephen W. Semeniuk, B. Comm (Hons), MBA, CFA
205
SCHEDULE J
RIGHTS AND RESTRICTIONS OF CLASS A SHARES
KHD Humboldt Wedag International Ltd.
(the Company)
Special Rights and Restrictions attached to the
Class A Common Shares
The rights and restrictions set out in this Schedule are made in addition to and do not alter or
amend the special rights and restrictions set out in Article 22.1 of the Articles of the Company.
Subject to applicable law and the conditions attaching to the Class A Common Shares (the Class A
Common Shares), the holders of the Class A Common Shares (the Class A Common Shareholders) shall
be entitled to receive notice and to attend and vote at any meetings of shareholders any class of
common shares of the Company.
2.
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|
Liquidation, Dissolution or Winding-Up
|
In the event of any distribution of the assets of the Company on the liquidation, dissolution or
winding-up of the Company, whether voluntary or involuntary, or in the event of any other
distribution of assets of the Company among its shareholders for the purpose of winding-up its
affairs (the Liquidation Distribution), the Class A Common Shareholders shall be entitled to
receive such Liquidation Distribution only after any prior rights of the preferred shares and Class
B Common Shares or any other share ranking prior in right to the Class A Common Shares.
Other than special rights and restrictions set out in section 2 above, the Class A Common Shares
shall rank
pari passu
with all other classes of common shares.
207
SCHEDULE K
RIGHTS AND RESTRICTIONS OF NEW KHD SHARES
208
KHD Humboldt Wedag International Ltd.
(the Company)
Special Rights and Restrictions attached to the
Class B Common Shares
The rights and restrictions set out in this Schedule are made in addition to and do not alter or
amend the special rights and restrictions set out in Article 22.1 of the Articles of the Company.
Subject to applicable law and the conditions attaching to the Class B Common Shares (the Class B
Common Shares), the holders of the Class B Common Shares (the Class B Common Shareholders) shall
be entitled to receive notice and to attend and vote at any meetings of shareholders of any class
of common shares of the Company.
2.
|
|
Liquidation, Dissolution or Winding-Up
|
The Class B Common Shareholders shall be entitled, in the event of any distribution of the assets
of the Company on the liquidation, dissolution or winding-up of the Company, whether voluntary or
involuntary, or in the event of any other distribution of assets of the Company among its
shareholders for the purpose of winding-up its affairs (a Liquidation Distribution), to receive,
before any Liquidation Distribution is made to the Common shareholders, Class A Shareholders or any
other shares of the Company ranking junior to the Class B Common Shares but after any prior rights
of any preferred shares, the stated capital with respect to each Class B Common Share held by them,
together with all declared and unpaid dividends (if any and if preferential) thereon, up to the
date of such Liquidation Distribution, and thereafter the Class B Common Shareholders shall rank
pari passu
with all other classes of common shares in connection with the Liquidation Distribution.
Other than the priority to the stated capital with respect to each Class B Common Share held by a
Class B Common Shareholder, together with all declared and unpaid dividends thereon set out in
section 2 above, the Class B Common Shares shall rank
pari passu
with all other classes of common
shares.
209
SCHEDULE L
RIGHTS AND RESTRICTIONS OF PREFERRED SHARES
210
KHD Humboldt Wedag International Ltd.
(the Company)
Special Rights and Restrictions attached to the
Class A Preference Shares, Series 2
The rights and restrictions set out in this Schedule are made in addition to and do not alter or
amend the special rights and restrictions set out in Articles 22.3 and 22.4 of the Articles of the
Company.
Subject to applicable law and the conditions attaching to the Class A Preference Shares, Series 2
(the Series 2 Shares) as a series, the holders of the Series 2 Shares (the Series 2
Shareholders) shall not be entitled to receive notice of or to attend or to vote at any meetings
of the holders of any class of common shares of the Company (the Common Shares).
2. Issue Price
The issue price for each of the Series 2 Shares shall be the fair market value of one common share
of the Company determined at the time of issue of the Series 2 Shares (the Redemption Amount).
3.
|
|
Cumulative Commercial Rate Preferential Dividend (when and if declared)
|
The Series 2 Shareholders shall be entitled to receive and the Company shall pay to them always in
preference and in priority to any payment of dividends on the Common Shares and any other shares of
the Company ranking junior to the Series 2 Shares as and when declared by the board of directors
(the Directors) of the Company out of moneys of the Company properly applicable to the payment of
dividends, preferential, cumulative, cash dividends, accruing and cumulative from the date of
issue, at the annual rate per Series 2 Share equal to the prevailing commercial rate on the date
the dividend is declared by the Directors of the Company.
4.
|
|
Liquidation, Dissolution or Winding-Up
|
In the event of any distribution of the assets of the Company on the liquidation, dissolution or
winding-up of the Company, whether voluntary or involuntary, or in the event of any other
distribution of assets of the Company among its shareholders for the purpose of winding-up its
affairs (the Liquidation Distribution), the Series 2 Shareholders shall be entitled to receive
per Series 2 Share the Redemption Amount, together with all accrued and unpaid dividends thereon,
before any amount shall be paid by the Company or any assets of the Company shall be distributed to
holders of the Common Shares with respect to the Liquidation Distribution. After payment to the
Series 2 Shareholders of the amounts so payable to them, the Series 2 Shareholders shall not be
entitled to share in any further distribution of assets of the Company.
5.
|
|
Restrictions on Dividends and Issue or Retirement of Shares
|
The Company shall not at anytime without, but may at anytime with, the approval of the Series 2
Shareholders given as specified in Section 6 hereof, authorize or issue any shares, other than
additional series of preferred shares, ranking prior to or on parity with the Series 2 Shares, as
to the payment of dividends or the distribution of assets in the event of any Liquidation
Distribution. Furthermore, so long as any of the Series 2 Shares are outstanding, the Company
shall not at anytime without, but may at anytime with, the approval of the Series 2 Shareholders
given as specified in Section 6 hereof:
|
(a)
|
|
declare, pay or set apart for payment any dividends on the Common Shares; or
|
|
|
(b)
|
|
issue any Series 2 Shares;
|
211
unless, in each such case, all dividends then payable on the Series 2 Shares and on all other
shares of the Company ranking on parity with the Series 2 Shares with respect to the payment of
dividends, accrued to the most recently preceding payment date or dates, have been declared and
paid or set aside for payment.
6.
|
|
Approval of Holders of Series 2 Shares
|
Any approval required to be given hereunder at any time by the Series 2 Shareholders shall, except
as otherwise required by the
Business Corporations Act
(British Columbia), be given by an
instrument or instruments in writing signed by the Series 2 Shareholders holding not less than
two-thirds of the then outstanding Series 2 Shares or by resolution passed by at least two-thirds
of the votes cast at a meeting or adjourned meeting of the Series 2 Shareholders duly called and at
which a quorum was present. In the event that such approval is to be given at a meeting of the
Series 2 Shareholders, a quorum for the meeting shall consist of the Series 2 Shareholders, present
in person or represented by proxy, of not less than a majority of the Series 2 Shares outstanding
at the time of the meeting. If, however, Series 2 Shareholders holding a majority of the
outstanding Series 2 Shares are not present in person or represented by proxy at such meeting
within 30 minutes after the time for which the meeting was called and the meeting is adjourned to a
subsequent date, a quorum for the adjourned meeting shall consist of the Series 2 Shareholders
present in person or represented by proxy at such adjourned meeting.
7.
|
|
Retraction and Redemption
|
Subject to provisions of the
Business Corporations Act
(British Columbia) and upon the occurrence
of any of the following events or circumstances:
|
(i)
|
|
a change in the control of the Company (due to any person acquiring greater
than 50% of the voting shares in the capital of the Company, the commencement of a
tender offer for control of the Company by a third party other than a holder of the
Series 2 Shares, or proxy solicitation by a third party);
|
|
|
(ii)
|
|
the Company becoming insolvent or being unable to meet its liabilities as they
come due; or
|
|
|
(iii)
|
|
any action taken by the Company whereby it seeks protection from its
creditors,
|
the Company will redeem the Series 2 Shares registered in the name of the holder by paying the
Redemption Amount, together with all accrued and unpaid dividends thereon up to but not including
the date of redemption and no more.
8.
|
|
Consent Required for Transfer
|
No Series 2 Shares may be sold, transferred or otherwise disposed of without the consent of the
directors of the Company and the directors of the Company are not required to give any reason for
refusing to consent to any such sale, transfer or other disposition.
212
SCHEDULE M
INTERIM ORDER
213
No.S-
101484
VANCOUVER REGISTRY
IN THE SUPREME COURT OF BRITISH COLUMBIA
IN THE MATTER OF SECTION 288 OF THE
BRITISH COLUMBIA BUSINESS
CORPORATIONS ACT,
S.B.C. 2002, CHAPTER 57, AS AMENDED
AND IN THE MATTER OF A PROPOSED ARRANGEMENT BETWEEN KHD
HUMBOLDT WEDAG INTERNATIONAL LTD. AND KHD HUMBOLDT WEDAG
INTERNATIONAL (DEUTSCHLAND) AG
INTERIM ORDER
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)
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THE HONOURABLE
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)
|
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MONDAY, THE
|
BEFORE
|
|
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)
|
|
|
MR./JUSTICE BUTLER
|
|
|
)
|
|
|
1
st
DAY OF
|
|
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)
|
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|
|
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)
|
|
|
MARCH, 2010
|
THIS APPLICATION of KHD Humboldt Wedag International Ltd., the Petitioner (the Company), coming
on for hearing at Vancouver, British Columbia, on this date; AND UPON HEARING John C. Fiddick,
counsel for the Petitioner; AND UPON READING Affidavit No. 1 of Alan Hartslief, sworn February 26,
2010, and Affidavit No. 1 of Angela Blake, sworn March 1,2010:
THIS COURT ORDERS that:
1.
|
|
The Company shall be permitted to call, hold and conduct a special meeting (the Meeting) at
which the Companys shareholders (the Shareholders), being the holders of the Companys
common shares, will be asked to, among other things, consider and, if deemed advisable, pass,
with or without variation, a special resolution (the Arrangement Resolution), a copy of
which is attached as Schedule B to the Notice of Special Meeting (the Notice of Meeting) and
Management Information Circular (the Information
|
214
- 2 -
|
|
Circular) of the Company dated March 1, 2010, to, among other things, approve an arrangement (the
Arrangement) under Section 288 of the
British Columbia Business Corporations Act,
S.B.C. 2002, C.
57, as amended (the BCBCA) pursuant to the terms of an arrangement agreement (the Arrangement
Agreement) dated February 26, 2010 between the Company and KHD Humboldt Wedag International
(Deutschland) AG (KID), a copy of which is attached as Schedule C to the Information Circular;
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2.
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The Meeting shall be called, held and conducted in accordance with the Notice of Meeting, the
BCBCA, the articles and bylaws of the Company (including the quorum requirements thereof), and
the terms of this Order and any further order of this Honourable Court;
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3.
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At the Meeting, the Company may also transact such other business as is contemplated by the
Information Circular, or as otherwise may be properly brought before the Meeting;
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4.
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The Company is authorized to make such amendments, revisions and/or supplements to the
Arrangement set out in the Arrangement Agreement as it may determine, and the Arrangement, as
so amended, revised and/or supplemented, shall be the Arrangement to be submitted to the
Shareholders at the Meeting and shall be the subject of the Arrangement Resolution;
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5.
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The Company, if it deems advisable, is specifically authorized to adjourn or postpone the
Meeting on one or more occasions, without the necessity of first convening the Meeting or
first obtaining any vote of the Shareholders respecting such adjournment or postponement and
without the need for additional approval of this Court;
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6.
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The Company shall give notice of the Meeting, substantially in the form of the Notice of
Meeting, subject to the Companys ability to change the dates and other relevant information
in the final form of the Notice of Meeting. The Notice of Meeting shall be mailed or delivered
in accordance with paragraph 9 of this Order. Failure or omission to give notice in accordance
with paragraph 9 of this Order, as a result of a mistake or of events beyond the control of
the Company, shall not constitute a breach of this Order or a defect in the calling of the
Meeting and shall not invalidate any resolution passed or
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215
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proceedings taken at the Meeting, but if any such failure or omission is brought to the
attention of the Company, then the Company shall use its best efforts to rectify it by the method
and in the time most reasonably practicable in the circumstances;
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7.
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The Company is hereby authorized and directed to distribute to the Shareholders the
Information Circular, subject to such amendments, revisions or supplements as the Company may
determine. The Information Circular shall be mailed or delivered in accordance with paragraph
9 of this Order. The Information Circular shall have the within Notice of Application (the
Notice of Application) and this Order attached as schedules thereto. Failure or omission to
distribute the Information Circular in accordance with paragraph 9 of this Order as a result
of a mistake or of events beyond the control of the Company shall not constitute a breach of
this Order and shall not invalidate any resolution passed or proceedings taken at the Meeting,
but if any such failure or omission is brought to the attention of the Company, then the
Company shall use its best efforts to rectify it by the method and in the time most reasonably
practicable in the circumstances;
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8.
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The Company is authorized to use proxies at the Meeting, substantially in the form
accompanying the Information Circular, subject to the Companys ability to insert dates and
other relevant information in the final forms of proxy. The Company is authorized, at its
expense, to solicit proxies, directly through its officers, directors and employees, and
through such agents or representatives as it may retain for that purpose, and by mail or such
other forms of personal or electronic communication as it may determine. The Company may
waive, in its discretion, the time limits for the deposit of proxies by the Shareholders if
the Company deems it advisable to do so;
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9.
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The Notice of Application, this Order, the Notice of Meeting, the Information Circular,
the forms of proxy, and any other communications or documents determined by the Company to be
necessary or desirable (collectively, the Meeting Materials), shall be distributed by the Company
to the Shareholders, by mailing the same by prepaid ordinary mail (or, alternatively, by delivery,
in person or by courier), not later than 21 days prior to the date established for the Meeting in
the Notice of Meeting. Distribution to the
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216
- 4 -
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Shareholders shall be to their addresses as they appear on the books and records of the Company as
of February 12, 2010, or such later date as the Company may determine in accordance with the BCBCA
and applicable securities legislation (the Record Date). Distribution of the Meeting Materials to
non-registered Shareholders shall be made by the Company complying with its obligations under
National Instrument 54-101
Communication with Beneficial Owners of Securities of a Reporting
Issuer;
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10.
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No one other than those listed in the preceding paragraph of this Order shall be
entitled to receive the Meeting Materials or attend the Meeting and the Shareholders shall be the
only classes of persons to whom notice is to be provided under Part
9,
Division 5 of the BCBCA in
respect of the Arrangement and the Meeting;
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11.
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No other form of service of the Meeting Materials or any portion thereof need be made
or notice given or other materials served in respect of this proceeding or the Meeting. Sending of
the Meeting Materials, including the Notice of Application, as set out in paragraph 9 of this Order
shall be good and sufficient service upon all those who may wish to appear in this proceeding.
Service of the Meeting Materials shall be deemed to be effected on the fourth day following the day
on which the Meeting Materials are mailed, and the Company shall not be required to serve any
affidavits filed in support of this Petition, any motions filed by the Company, any affidavits
filed in support of such motions, or any orders made on application by the Company, except on
written request of a Shareholder addressed to the solicitors of the Company at their address for
delivery set out in paragraph 18;
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12.
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The only persons entitled to vote in person or by proxy on the Arrangement Resolution
shall be the Shareholders as at the close of business (Vancouver time) on the Record Date;
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13.
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Pursuant to Part 9, Division 5 of the BCBCA, the Arrangement Resolution must be passed
by the affirmative vote of at least two-thirds of the votes cast by the Shareholders entitled to
vote on the Arrangement Resolution, present in person or represented by proxy, at the Meeting. For
the purpose of this paragraph, each Shareholder is entitled to one vote for each common share of
the Company held, as determined as of the close of
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217
- 5 -
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business (Vancouver time) on the Record Date, and illegible votes, spoiled votes, defective votes
and abstentions shall be deemed not to be votes cast. Such votes shall be sufficient to authorize
and direct the Company to do all such acts and things as may be necessary or desirable to give
effect to the Arrangement on a basis consistent with what is provided for in the Information
Circular without the necessity of any further approval by the Shareholders, subject only to final
approval of the Arrangement by this Honourable Court;
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14.
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The Arrangement Agreement provides that each Shareholder shall be entitled to exercise
rights of dissent with respect to the Arrangement Resolution, in accordance with and in compliance
with Part 8, Division 2 of the BCBCA, as varied by the Arrangement Agreement, provided that the
notice of dissent to the Arrangement Resolution must be received by the Company not later than 5:00
p.m. (Vancouver time) at least two days before the date of the Meeting in accordance with Section
242(1)(a) of the BCBCA;
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15.
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In all other respects, the terms, restrictions and conditions of the notice of
articles and articles of the Company, including quorum requirements and all other matters, shall
apply in respect of the Meeting;
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16.
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Upon the passing of the Arrangement Resolution pursuant to the provisions of this
Order, the Company shall be permitted to apply by Notice of Application to this Honourable Court
for final approval of the Arrangement;
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17.
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The only persons entitled to appear and be heard at the hearing of the application for
final approval of the Arrangement shall be the Company and any person who has filed an Appearance
to this proceeding pursuant to the Rules of Court;
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18.
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Any Appearance to this proceeding shall be served on counsel for the Company at the
following address: Clark Wilson LLP, 800 885 West Georgia Street, Vancouver, British Columbia,
Canada, V6C 3H1, Attention: John C. Fiddick. The time for appearance shall be abridged to seven
days following the fourth day following the day on which the Meeting Materials are mailed to the
Shareholders residing outside British Columbia;
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218
- 6 -
19.
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In the event that the application for final approval of the Arrangement does not
proceed on the date set forth in the Notice of Application, and is adjourned, only those parties
having previously filed an Appearance shall be entitled to be given notice of the adjourned date;
and
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20.
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The Company shall have leave to apply to vary this Order upon such terms and upon the
giving of such notice as this Honourable Court may direct.
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BY THE COURT
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/s/ [ILLEGIBLE]
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DEPUTY DISTRICT REGISTRAR
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APPROVED AS TO FORM:
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Certified a true copy according
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to the records of the Supreme Court
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at Vancouver, B.C.
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This 1 day of MARCH 2010
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/s/
[ILLEGIBLE]
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Counsel for the Petitioner
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/s/ [ILLEGIBLE]
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Authorized [ILLEGIBLE]
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219
No.
VANCOUVER REGISTRY
IN THE SUPREME COURT OF BRITISH COLUMBIA
IN THE MATTER OF SECTION 288 OF THE
BRITISH
COLUMBIA
BUSINESS CORPORATIONS ACT,
S.B.C. 2002, CHAPTER 57, AS AMENDED
AND IN THE MATTER OF A PROPOSED ARRANGEMENT
BETWEEN KHD HUMBOLDT WEDAG INTERNATIONAL LTD.
AND KHD HUMBOLDT WEDAG INTERNATIONAL
(DEUTSCHLAND) AG
INTERIM ORDER
File No. 27595-19
CLARK WILSON LLP
Barristers & Solicitors, Patent & Trade-mark Agents
800 885 West Georgia Street
Vancouver, BC, Canada V6C 3H1
Telephone: 604.687.5700
Attention: John C. Fiddick File No.:27595-19
220
SCHEDULE N
APPLICATION FOR FINAL ORDER
221
No.
VANCOUVER REGISTRY
IN THE SUPREME COURT OF BRITISH COLUMBIA
IN THE MATTER OF SECTION 288 OF THE
BRITISH COLUMBIA BUSINESS CORPORATIONS ACT
, S.B.C.
2002, C. 57, AS AMENDED
AND IN THE MATTER OF A PROPOSED ARRANGEMENT BETWEEN KHD HUMBOLDT WEDAG
INTERNATIONAL LTD. AND KHD HUMBOLDT WEDAG INTERNATIONAL (DEUTSCHLAND) AG
PETITIONER
NOTICE OF APPLICATION
TO: KHD Humboldt Wedag International Ltd. (the Company) and its Shareholders
NOTICE is hereby given that a Petition has been filed by the Company in the Supreme Court of
British Columbia for approval of an arrangement (the Arrangement) pursuant to Section 288 of the
British Columbia Business Corporations Act
, S.B.C. 2002, Chapter 57, as amended (the BCBCA);
AND NOTICE IS FURTHER GIVEN that by an Interim Order of the Supreme Court of British Columbia,
pronounced on March 1, 2010, the Court gave directions as to the calling, holding, and conduct of a
special meeting of the holders of the Companys common shares for the purpose of considering and
voting upon the Arrangement under Section 288 of the BCBCA, and as to various other matters related
to the Arrangement;
AND NOTICE IS FURTHER GIVEN that an application for a final order approving the Arrangement will be
made before the presiding Judge or Master in Chambers at the Courthouse, 800 Smithe Street, in the
City of Vancouver, in the Province of British Columbia, on March 29, 2010, at the hour of 10:00
a.m., or so soon thereafter as counsel may be heard.
222
If you wish to be heard, any securityholder of the Petitioner affected by the final order sought
may appear (either in person or by counsel) and make submissions at the hearing of the application
for the final order if such person has filed with the Court at the Vancouver Registry, 800 Smithe
Street, Vancouver, British Columbia, an Appearance in the form prescribed by the Rules of Court of
the Supreme Court of British Columbia, and delivered a copy of the filed Appearance to the
Petitioner at its address for delivery set out herein.
The Petitioners address for delivery is c/o Clark Wilson LLP, 800 885 West Georgia Street,
Vancouver, British Columbia, V6C 3H1, Attention: John C. Fiddick.
If you wish to be notified of any adjournment of the application for the final order, you must give
notice of your intention by filing and delivering the form of Appearance as aforesaid. You may
obtain a form of Appearance at the Court Registry, 800 Smithe Street, Vancouver, British
Columbia.
At the hearing of the application for the final order, the Court may approve the Arrangement as
presented, or may approve it subject to such terms and conditions as the Court deems fit.
If you do not file an Appearance and attend either in person or by counsel at the time of such
hearing, the Court may approve the Arrangement, as presented, or may approve it subject to such
terms and conditions as the Court shall deem fit, all without any further notice to you. If the
Arrangement is approved, it will significantly affect the rights of the securityholders of the
Petitioner.
A copy of the Petition and other documents in this proceeding will be furnished to any
securityholder of the Petitioner upon request in writing addressed to the solicitors of the
Petitioner at their address for delivery set out above.
Dated at Vancouver, British Columbia, this 1st day of March, 2010.
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Counsel for the Petitioner
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223
No.
Vancouver Registry
IN THE SUPREME COURT OF
BRITISH COLUMBIA
IN THE MATTER OF AN APPLICATION FOR APPROVAL OF
AN ARRANGEMENT UNDER SECTION 288
OF THE
BRITISH COLUMBIA BUSINESS CORPORATIONS ACT
,
S.B.C. 2002, C. 57, AS AMENDED
AND IN THE MATTER OF A PROPOSED ARRANGEMENT BETWEEN KHD HUMBOLDT WEDAG INTERNATIONAL LTD. AND KHD
HUMBOLDT WEDAG INTERNATIONAL (DEUTSCHLAND) AG
NOTICE OF APPLICATION
File No. 27595-19
CLARK WILSON LLP
Barristers & Solicitors, Patent & Trade-mark Agents
800 885 West Georgia Street
Vancouver, British Columbia V6C 3H1
Telephone: 604.687.5700
Facsimile: 604.687.6314
JOHN C. FIDDICK
Direct Line: 604-643-3159
224
SCHEDULE O
PART 8, DIVISION 2 OF THE BCBCA
(DISSENT PROCEDURES)
225
PART 8 PROCEEDINGS
DIVISION 2 DISSENT PROCEEDINGS
237. Definitions and application
(1) In this Division:
dissenter means a shareholder who, being entitled to do so, sends written notice of dissent when
and as required by section 242;
notice shares means, in relation to a notice of dissent, the shares in respect of which dissent
is being exercised under the notice of dissent;
payout value means,
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(a)
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in the case of a dissent in respect of a resolution, the fair value that the
notice shares had immediately before the passing of the resolution,
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(b)
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in the case of a dissent in respect of an arrangement approved by a court order
made under section 291(2)(c) that permits dissent, the fair value that the notice
shares had immediately before the passing of the resolution adopting the arrangement,
or
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(c)
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in the case of a dissent in respect of a matter approved or authorized by any
other court order that permits dissent, the fair value that the notice shares had at
the time specified by the court order,
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excluding any appreciation or depreciation in anticipation of the corporate action approved or
authorized by the resolution or court order unless exclusion would be inequitable.
(2) This Division applies to any right of dissent exercisable by a shareholder except to the extent
that
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(a)
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the court orders otherwise, or
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(b)
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in the case of a right of dissent authorized by a resolution referred to in
section 238(l)(g), the court orders otherwise or the resolution provides otherwise.
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238. Right to dissent
(1) A shareholder of a company, whether or not the shareholders shares carry the right to vote, is
entitled to dissent as follows:
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(a)
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under section 260, in respect of a resolution to alter the articles to alter
restrictions on the powers of the company or on the business it is permitted to carry
on;
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(b)
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under section 272, in respect of a resolution to adopt an amalgamation
agreement;
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(c)
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under section 287, in respect of a resolution to approve an amalgamation under
Division 4 of Part 9;
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(d)
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in respect of a resolution to approve an arrangement, the terms of which
arrangement permit dissent;
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(e)
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under section 301(5), in respect of a resolution to authorize or ratify the
sale, lease or other disposition of all or substantially all of the companys
undertaking;
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226
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(f)
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under section 309, in respect of a resolution to authorize the continuation of
the company into a jurisdiction other than British Columbia;
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(g)
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in respect of any other resolution, if dissent is authorized by the resolution;
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(h)
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in respect of any court order that permits dissent.
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(2) A shareholder wishing to dissent must
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(a)
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prepare a separate notice of dissent under section 242 for
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(i)
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the shareholder, if the shareholder is dissenting on the shareholders own
behalf, and
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(ii)
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each other person who beneficially owns shares registered in
the shareholders name and on whose behalf the shareholder is dissenting, and
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(b)
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identify in each notice of dissent, in accordance with section 242(4), the
person on whose behalf dissent is being exercised in that notice of dissent, and
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(c)
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dissent with respect to all of the shares, registered in the shareholders
name, of which the person identified under paragraph (b) of this subsection is the
beneficial owner.
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(3) Without limiting subsection (2), a person who wishes to have dissent exercised with respect to
shares of which the person is the beneficial owner must
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(a)
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dissent with respect to all of the shares, if any, of which the person is both
the registered owner and the beneficial owner, and
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(b)
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cause each shareholder who is a registered owner of any other shares of which
the person is the beneficial owner to dissent with respect to all of those shares.
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239. Waiver of right to dissent
(1) A shareholder may not waive generally a right to dissent but may, in writing, waive the right
to dissent with respect to a particular corporate action.
(2) A shareholder wishing to waive a right of dissent with respect to a particular corporate action
must
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(a)
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provide to the company a separate waiver for
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(i)
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the shareholder, if the shareholder is providing a waiver on
the shareholders own behalf, and
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(ii)
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each other person who beneficially owns shares registered in
the shareholders name and on whose behalf the shareholder is providing a
waiver, and
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(b)
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identify in each waiver the person on whose behalf the waiver is made.
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(3) If a shareholder waives a right of dissent with respect to a particular corporate action and
indicates in the waiver that the right to dissent is being waived on the shareholders own behalf,
the shareholders right to dissent with respect to the particular corporate action terminates in
respect of the shares of which the shareholder is both the registered owner and the beneficial
owner, and this Division ceases to apply to
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(a)
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the shareholder in respect of the shares of which the shareholder is both the
registered owner and the beneficial owner, and
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227
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(b)
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any other shareholders, who are registered owners of shares beneficially owned
by the first mentioned shareholder, in respect of the shares that are beneficially
owned by the first mentioned shareholder.
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(4) If a shareholder waives a right of dissent with respect to a particular corporate action and
indicates in the waiver that the right to dissent is being waived on behalf of a specified person
who beneficially owns shares registered in the name of the shareholder, the right of shareholders
who are registered owners of shares beneficially owned by that specified person to dissent on
behalf of that specified person with respect to the particular corporate action terminates and this
Division ceases to apply to those shareholders in respect of the shares that are beneficially owned
by that specified person.
240. Notice of resolution
(1) If a resolution in respect of which a shareholder is entitled to dissent is to be considered at
a meeting of shareholders, the company must, at least the prescribed number of days before the date
of the proposed meeting, send to each of its shareholders, whether or not their shares carry the
right to vote,
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(a)
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a copy of the proposed resolution, and
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(b)
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a notice of the meeting that specifies the date of the meeting, and contains a
statement advising of the right to send a notice of dissent.
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(2) If a resolution in respect of which a shareholder is entitled to dissent is to be passed as a
consent resolution of shareholders or as a resolution of directors and the earliest date on which
that resolution can be passed is specified in the resolution or in the statement referred to in
paragraph (b), the company may, at least 21 days before that specified date, send to each of its
shareholders, whether or not their shares carry the right to vote,
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(a)
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a copy of the proposed resolution, and
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(b)
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a statement advising of the right to send a notice of dissent.
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(3) If a resolution in respect of which a shareholder is entitled to dissent was or is to be passed
as a resolution of shareholders without the company complying with subsection (1) or (2), or was or
is to be passed as a directors resolution without the company complying with subsection (2), the
company must, before or within 14 days after the passing of the resolution, send to each of its
shareholders who has not consented to, or voted in favour of, the resolution, whether or not their
shares carry the right to vote,
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(a)
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a copy of the resolution,
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(b)
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a statement advising of the right to send a notice of dissent, and
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(c)
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if the resolution has passed, notification of that fact and the date on which
it was passed.
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(4) Nothing in subsection (1), (2) or (3) gives a shareholder a right to vote in a meeting at
which, or on a resolution on which, the shareholder would not otherwise be entitled to vote.
241. Notice of court orders If a court order provides for a right of dissent, the company must,
not later than 14 days after the date on which the company receives a copy of the entered order,
send to each shareholder who is entitled to exercise that right of dissent
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(a)
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a copy of the entered order, and
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(b)
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a statement advising of the right to send a notice of dissent.
|
242. Notice of dissent
228
(1) A shareholder intending to dissent in respect of a resolution referred to in section 238(l)(a),
(b), (c), (d), (e) or (f) must,
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(a)
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if the company has complied with section 240(1) or (2), send written notice of
dissent to the company at least 2 days before the date on which the resolution is to be
passed or can be passed, as the case may be,
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(b)
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if the company has complied with section 240(3), send written notice of dissent
to the company not more than 14 days after receiving the records referred to in that
section, or
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(c)
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if the company has not complied with section 240(1), (2) or (3), send written
notice of dissent to the company not more than 14 days after the later of
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(i)
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the date on which the shareholder learns that the resolution was passed, and
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(ii)
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the date on which the shareholder learns that the shareholder is entitled to
dissent.
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(2) A shareholder intending to dissent in respect of a resolution referred to in section 238(1)(g)
must send written notice of dissent to the company
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(a)
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on or before the date specified by the resolution or in the statement referred
to in section 240(2)(b) or (3)(b) as the last date by which notice of dissent must be
sent, or
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(b)
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if the resolution or statement does not specify a date, in accordance with
subsection (1) of this section.
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(3) A shareholder intending to dissent under section 238(l)(h) in respect of a court order that
permits dissent must send written notice of dissent to the company
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(a)
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within the number of days, specified by the court order, after the shareholder
receives the records referred to in section 241, or
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(b)
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if the court order does not specify the number of days referred to in paragraph
(a) of this subsection, within 14 days after the shareholder receives the records
referred to in section 241.
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(4) A notice of dissent sent under this section must set out the number, and the class and series,
if applicable, of the notice shares, and must set out whichever of the following is applicable:
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(a)
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if the notice shares constitute all of the shares of which the shareholder is
both the registered owner and beneficial owner and the shareholder owns no other shares
of the company as beneficial owner, a statement to that effect,
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(b)
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if the notice shares constitute all of the shares of which the shareholder is
both the registered owner and beneficial owner but the shareholder owns other shares of
the company as beneficial owner, a statement to that effect and
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(i)
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the names of the registered owners of those other shares,
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(ii)
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the number, and the class and series, if applicable, of those
other shares that are held by each of those registered owners, and
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(iii)
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a statement that notices of dissent are being, or have been,
sent in respect of all of those other shares;
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229
|
(c)
|
|
if dissent is being exercised by the shareholder on behalf of a beneficial
owner who is not the dissenting shareholder, a statement to that effect and
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(i)
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the name and address of the beneficial owner, and
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(ii)
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a statement that the shareholder is dissenting in relation to
all of the shares beneficially owned by the beneficial owner that are
registered in the shareholders name.
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(5) The right of a shareholder to dissent on behalf of a beneficial owner of shares, including the
shareholder, terminates and this Division ceases to apply to the shareholder in respect of that
beneficial owner if subsections (1) to (4) of this section, as those subsections pertain to that
beneficial owner, are not complied with.
243. Notice of intention to proceed
(1) A company that receives a notice of dissent under section 242 from a dissenter must,
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(a)
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if the company intends to act on the authority of the resolution or court order
in respect of which the notice of dissent was sent, send a notice to the dissenter
promptly after the later of
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(i)
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the date on which the company forms the intention to proceed, and
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(ii)
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the date on which the notice of dissent was received, or
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|
(b)
|
|
if the company has acted on the authority of that resolution or court order,
promptly send a notice to the dissenter.
|
(2) A notice sent under subsection (a) or (b) of this section must
|
(a)
|
|
be dated not earlier than the date on which the notice is sent,
|
|
|
(b)
|
|
state that the company intends to act, or has acted, as the case may be on the
authority of the resolution or court order, and
|
|
|
(c)
|
|
advise the dissenter of the manner in which dissent is to be completed under
section 244.
|
244. Completion of dissent
(1) A dissenter who receives a notice under section 243 must, if the dissenter wishes to proceed
with the dissent, send to KHD or its transfer agent for the notice shares, within one month after
the date of the notice,
|
(a)
|
|
a written statement that the dissenter requires the company to purchase all of
the notice shares,
|
|
|
(b)
|
|
the certificates, if any, representing the notice shares, and
|
|
|
(c)
|
|
if section 242(4)(c) applies, a written statement that complies with subsection
(2) of this section.
|
(2) The written statement referred to in subsection (1)(c) must
|
(a)
|
|
be signed by the beneficial owner on whose behalf dissent is being exercised,
and
|
|
|
(b)
|
|
set out whether or not the beneficial owner is the beneficial
owner of other shares of the company and, if so, set out
|
|
(i)
|
|
the names of the registered owners of those other shares,
|
230
|
(ii)
|
|
the number, and the class and series, if applicable, of those
other shares that are held by each of those registered owners, and
|
|
|
(iii)
|
|
that dissent is being exercised in respect of all of those
other shares.
|
(3) After the dissenter has complied with subsection (1),
|
(a)
|
|
the dissenter is deemed to have sold to the company the notice shares, and
|
|
|
(b)
|
|
the company is deemed to have purchased those shares, and must comply with
section 245, whether or not it is authorized to do so by, and despite any restriction
in, its memorandum or articles.
|
(4) Unless the court orders otherwise, if the dissenter fails to comply with subsection (1) of this
section in relation to notice shares, the right of the dissenter to dissent with respect to those
notice shares terminates and this Division, other than section 247, ceases to apply to the
dissenter with respect to those notice shares.
(5) Unless the court orders otherwise, if a person on whose behalf dissent is being exercised in
relation to a particular corporate action fails to ensure that every shareholder who is a
registered owner of any of the shares beneficially owned by that person complies with subsection
(1) of this section, the right of shareholders who are registered owners of shares beneficially
owned by that person to dissent on behalf of that person with respect to that corporate action
terminates and this Division, other than section 247, ceases to apply to those shareholders in
respect of the shares that are beneficially owned by that person.
(6) A dissenter who has complied with subsection (1) of this section may not vote, or exercise or
assert any rights of a shareholder, in respect of the notice shares, other than under this
Division.
245. Payment for notice shares
(1) A company and a dissenter who has complied with section 244(1) may agree on the amount of the
payout value of the notice shares and, in that event, the company must
|
(a)
|
|
promptly pay that amount to the dissenter, or
|
|
|
(b)
|
|
if subsection (5) of this section applies, promptly send a notice to the
dissenter that the company is unable lawfully to pay dissenters for their shares.
|
(2) A dissenter who has not entered into an agreement with the company under subsection (1) or the
company may apply to the court and the court may
|
(a)
|
|
determine the payout value of the notice shares of those dissenters who have
not entered into an agreement with the company under subsection (1), or order that the
payout value of those notice shares be established by arbitration or by reference to
the registrar, or a referee, of the court,
|
|
|
(b)
|
|
join in the application each dissenter, other than a dissenter who has entered
into an agreement with the company under subsection (1), who has complied with section
244(1), and
|
|
|
(c)
|
|
make consequential orders and give directions it considers appropriate.
|
(3) Promptly after a determination of the payout value for notice shares has been made under
subsection (2)(a) of this section, the company must
|
(a)
|
|
pay to each dissenter who has complied with section 244(1) in relation to those
notice shares, other than a dissenter who has entered into an agreement with the
company under subsection (1) of this section, the payout value applicable to that
dissenters notice shares, or
|
231
|
(b)
|
|
if subsection (5) applies, promptly send a notice to the dissenter that the
company is unable lawfully to pay dissenters for their shares.
|
(4) If a dissenter receives a notice under subsection (l)(b) or (3)(b),
|
(a)
|
|
the dissenter may, within 30 days after receipt, withdraw the dissenters
notice of dissent, in which case the company is deemed to consent to the withdrawal and
this Division, other than section 247, ceases to apply to the dissenter with respect to
the notice shares, or
|
|
|
(b)
|
|
if the dissenter does not withdraw the notice of dissent in accordance with
paragraph (a) of this subsection, the dissenter retains a status as a claimant against
the company, to be paid as soon as the company is lawfully able to do so or, in a
liquidation, to be ranked subordinate to the rights of creditors of the company but in
priority to its shareholders.
|
(5) A company must not make a payment to a dissenter under this section if there are reasonable
grounds for believing that
|
(a)
|
|
the company is insolvent, or
|
|
|
(b)
|
|
the payment would render the company insolvent.
|
246. Loss of right to dissent The right of a dissenter to dissent with respect to notice shares
terminates and this Division, other than section 247, ceases to apply to the dissenter with respect
to those notice shares, if, before payment is made to the dissenter of the full amount of money to
which the dissenter is entitled under section 245 in relation to those notice shares, any of the
following events occur:
|
(a)
|
|
the corporate action approved or authorized, or to be approved or authorized,
by the resolution or court order in respect of which the notice of dissent was sent is
abandoned;
|
|
|
(b)
|
|
the resolution in respect of which the notice of dissent was sent does not
pass;
|
|
|
(c)
|
|
the resolution in respect of which the notice of dissent was sent is revoked
before the corporate action approved or authorized by that resolution is taken;
|
|
|
(d)
|
|
the notice of dissent was sent in respect of a resolution adopting an
amalgamation agreement and the amalgamation is abandoned or, by the terms of the
agreement, will not proceed;
|
|
|
(e)
|
|
the arrangement in respect of which the notice of dissent was sent is abandoned
or by its terms will not proceed;
|
|
|
(f)
|
|
a court permanently enjoins or sets aside the corporate action approved or
authorized by the resolution or court order in respect of which the notice of dissent
was sent;
|
|
|
(g)
|
|
with respect to the notice shares, the dissenter consents to, or votes in
favour of, the resolution in respect of which the notice of dissent was sent;
|
|
|
(h)
|
|
the notice of dissent is withdrawn with the written consent of the company;
|
|
|
(i)
|
|
the court determines that the dissenter is not entitled to dissent under this
Division or that the dissenter is not entitled to dissent with respect to the notice
shares under this Division.
|
247. Shareholders entitled to return of shares and rights If under section 244(4) or (5),
245(4)(a) or 246, this Division, other than this section, ceases to apply to a dissenter with
respect to notice shares,
232
|
(a)
|
|
the company must return to the dissenter each of the applicable share
certificates, if any, sent under section 244(l)(b) or, if those share certificates are
unavailable, replacements for those share certificates,
|
|
|
(b)
|
|
the dissenter regains any ability lost under section 244(6) to vote, or
exercise or assert any rights of a shareholder, in respect of the notice shares, and
|
|
|
(c)
|
|
the dissenter must return any money that the company paid to the dissenter in
respect of the notice shares under, or in purported compliance with, this Division.
|
233
SCHEDULE P
SHAREHOLDERS AGREEMENT
234
THIS VOTING AGREEMENT (Agreement)
is made this March [
], 2010
BETWEEN
KHD HUMBOLDT WEDAG INTERNATIONAL LTD., 1620-400 Burrard Street, Vancouver, British
Columbia, Canada, V6C 3A6, (
KHD
)
AND
[
] (the
Custodian
)
(Each a
Party
and collectively the
Parties"
)
WHEREAS
,
A. The Parties are shareholders of KHD Humboldt Wedag International (Deutschland) AG (
KID
).
KHD is the holder of 12,365,053 KID Shares, approximately 74.62%. The Custodian is the holder of
[
] KID Shares. The Custodian is unrelated to and not affiliated with KHD.
B. KHDs shareholders are asked to approve, in a shareholders meeting scheduled for March 29,
2010 (
KHD Meeting"
), a certain arrangement part of which is the distribution to KHDs shareholders
of a First Tranche (
Arrangement"
). KHD intends to distribute the balance of the shares in KID
that it will continue to own after the distribution of the First Tranche, approximately 8,042,209,
plus the shares which it intends to acquire as part of the Integration, approximately 3,815,361,
i.e. a total of 11,857,570, or 71.55%, in one or more additional tranches in the future.
C. The intention of the Arrangement is to divide KHD into two independent publicly traded
companies with one company, KID, focussed on the industrial plant technology, equipment and service
business, listed at the regulated market of the FSE and the other, KHD, focussed on the mineral
royalty business and listed at the NYSE.
D. KHD wishes to deconsolidate KID and to pursue its independent short and long term
objectives and strategies which are best suited to its respective remaining and new assets and
expertise without having to focus on the separate and distinct line of business conducted by KID.
In addition, the financial presentation of KHD, if KID will be deconsolidated, will more accurately
reflect the ultimate objective of the Arrangement on a going forward basis as KID would be
deconsolidated from KHD in its entirety.
E. As the Arrangement only contemplates the First Tranche of a distribution of the KID Shares,
the accounting presentation of KHD on a deconsolidated basis will enable Shareholders to achieve a
more accurate view of both KHD and KID. As a result, KHD will be in a position to achieve the full
potential of the Arrangement prior to the time it would otherwise be able to achieve such benefits
if it were to delay the deconsolidation until final distribution of all KID Shares held by it.
F. KHD wishes, and the Custodian has agreed, to enter into an agreement pursuant to which the
Custodian will determine how to vote the KID Shares and KHD will vote the KID Shares as so
determined by the Custodian subject to the terms and conditions hereof.
G. KID has applied for Listing and Listing is expected to be approved by the FSE within 1 or 2
days after the KHD Meeting.
H. Except for voting the KID Shares as determined by the Custodian, KHD will retain all rights
attached to the KID shares and in particular will be entitled to all economic benefits associated
with the KID Shares.
235
NOW THEREFORE
, the Parties agree as follows:
1.
|
|
INTERPRETATION, DEFINITIONS
|
1.1.
|
|
The titles and subtitles used in this Agreement are used for convenience only and are not to
be considered in construing or interpreting this Agreement.
|
1.2.
|
|
Capitalized terms used in this Agreement, including the Recitals thereof, shall have the
meaning assigned to them herein or therein and the following terms shall have the following
meaning.
|
|
|
|
Consolidation Risk
means the risk that KHD would have to consolidate its holding in KID,
in particular by means of (i) common directors or officers amongst KHD and KID, (ii)
cross-guarantees between KHD and KID, (iii) an affiliation or related party status of the
Custodian vis-à-vis KHD and/or KID, (iv) voting instructions contrary to this Agreement, and
(v) an obligation of KHD to continue guaranteeing the bonding line between Raiffeisen
Zentralbank AG and KIA or KID, as the case may be;
|
|
|
|
Effective Day
means the day of approval of the amendment resolution at the KHD Meeting;
|
|
|
|
|
First Tranche
means approximately 4,322,844, or 26.09% of the total issued and outstanding shares of KID;
|
|
|
|
|
FSE
means the Frankfurt Stock Exchange;
|
|
|
|
|
Integration
means the transfer to KHD of 484,046 (2.92%) KID Shares from Pang Hau GmbH and
3,331,315 (20.11%) KID Shares from MFC Commodities GmbH;
|
|
|
|
|
KID Meeting
means the annual general meeting and each and any other shareholders meeting
of KID;
|
|
|
|
|
KID Shares
means all of the shares of KID, whether now owned or hereafter acquired by KHD
or which KHD may be legally empowered to vote, but excludes those shares of KID which KID
hereinafter sells, distributes or otherwise disposes;
|
|
|
|
|
Listing
means the admission for trading of the KID Shares at the regulated market of the
FSE;
|
|
|
|
|
Listing Day
means the day of admission for trading of the KID shares at the regulated
market of the FSE;
|
|
|
|
|
Notice of Meeting
means the notice for any KID Meeting, including the agenda and each and
any other material made available by KID to its shareholders;
|
|
|
|
|
NYSE
means the New York Stock Exchange;
|
|
|
|
|
Related Party Status
means, as to the Parties and including KID, any status of affiliation
or any relation under the control of such Party, in respect of, but not limited to,
ownership, directors and officers, that would or could reasonably be expected to result in a
Consolidation Risk;
|
|
|
|
|
Securities Trading Act
means the German Wertpapierhandelsgesetz; and
|
|
|
|
|
Take Over Act
means the German Wertpapiererwerbs- and Übernahmegesetz.
|
236
|
|
|
This Agreement is entered into by the Parties effective as of the Effective Day provided
that such day occurs prior to the Listing Day.
|
3.
|
|
TAKE OVER ACT NOT APPLICABLE
|
3.1.
|
|
The Parties acknowledge and agree that the undertakings contemplated in this Agreement would,
and after the Listing will, constitute acting in concert as defined in the Take Over Act.
However, the Parties believe that this Agreement, which will be effective prior to the
Listing, will be grandfathered and thus will not trigger making a take-over offer. This
opinion is based on the following considerations and facts.
|
|
3.2.
|
|
On the Effective Date of this Agreement, which is prior to the Listing, KHD will hold
directly 74.62% of the KID Shares. The Custodian is acting in concert with KHD. Therefore
KHDs voting rights are attributed to the Custodian, i.e. the Custodian will control an
additional 76.52% of the voting rights attached to the KID Shares prior to the Listing.
|
|
3.3.
|
|
The Take Over Act applies exclusively to stock corporations which are admitted for trading at
an organized market. The KID Shares are currently quoted at the over the counter market
(Freiverkehr) at the FSE which is why the Take Over Act currently does not apply to KID. As a
result, all Parties to this Agreement will hold 30% or more of the voting rights in KID
(
Control
), and thus will have obtained Control (as defined in Sec. 29 of the Take Over Act)
prior to the applicability of the Take Over Act on the KID Shares. Pursuant to Sec. 35
subsection 1 of the Take Over Act, only persons who directly or indirectly obtain Control, are
obliged to make a take-over offer. A person who already has Control at the time the Take Over
Act becomes applicable does not obtain Control.
|
|
3.4.
|
|
The Parties are considering further the following:
|
|
(a)
|
|
After the Integration and subsequent distribution of the First Tranche, KHD
will hold approximately 71.55% voting rights from the KID Shares. Accordingly, [
] will
control 71.55% as a result of acting in concert with KHD under this Agreement. At that
point in time, the Parties, KHD directly and [
] by acting in concert with KHD, will
still have Control (within the meaning of the Take Over Act).
|
|
|
(b)
|
|
The Integration will not trigger a take-over offer, provided that KHDs holding
does not fall short of 30% prior to such transaction.
|
3.5.
|
|
The Parties are aware that once their direct holding of KID Shares together with any
attributed voting rights from KID Shares falls short of 30% of the total issued KID Shares
(the issued shares including own shares held by KID) and either of them would subsequently
acquire a number of KID Shares that results in the aggregate (direct and indirect) in a
holding of 30% or more of KID Shares, they would be obliged to submit a take-over offer for
all of the KID Shares to the outside shareholders.
|
|
4.
|
|
VOTING AGREEMENT
|
|
4.1.
|
|
No Partnership.
Nothing in this Agreement shall be deemed to constitute a partnership between
the Parties.
|
|
4.2.
|
|
Information.
KHD agrees to inform the Custodian of any KID Meeting, including delivery of the
Notice of Meeting no later than 10 calendar days prior to such. Where the Notice is published
at KIDs website, no physical delivery of the Notice will be required.
|
|
4.3.
|
|
Entrance Card, Notification to KID.
KHD undertakes to procure in due time, as is or will then
be required under German law and the articles of KID, entrance cards for all KID Shares held
by it and will
|
237
|
|
|
notify KID that it will participate, either in person or by person holding power of
attorney, in the respective KID Meeting.
|
4.4.
|
|
Determination of Voting.
The Custodian will determine in its sole discretion and responsible
manner, as a prudent shareholder or investor would do, always having regard to the best
interests of the shareholders of KID, as to how to vote the KID Shares and will notify KHD no
later than 5 calendar days prior to the KID Meeting of how and how many of the KID Shares to
vote.
|
|
4.5.
|
|
Voting.
KHD undertakes and covenants that it will vote the KID Shares, or such portion
thereof as determined by the Custodian, in accordance with the instructions of the Custodian,
except as set out in this Agreement. KHD may elect to grant voting power of attorney to any
person, including the Custodian, provided that such voting power of attorney is limited to
voting as instructed by the Custodian.
|
|
4.6.
|
|
Exception.
KHD is exempt from its obligations under Section 4.5, if this Agreement should be
ineffective or illegal under any prevailing law.
|
|
4.7.
|
|
Fees, Reimbursement of Cost.
KHD shall pay an annual fee of CD$ [
] to the Custodian, payable
in advance, and shall indemnify and save harmless the Custodian for all costs and expenses
incurred by the performance of its obligations under this Agreement, such cost including in
particular expenses for technical, commercial, financial, legal or other experts consulted in
respect of the determination of voting.
|
|
4.8.
|
|
Failure to Comply.
In the event that KHD fails to comply with the voting instructions, or
otherwise breaches this Agreement, and such breach remains un-remedied upon notice by the
Custodian to KHD, then KHD is obliged to immediately distribute all of the KID Shares then
owned to its shareholders as provided for in the Arrangement.
|
5.
|
|
UNDERTAKINGS
|
|
5.1.
|
|
Corporate Structure, Management, Boards.
Each Party undertakes and covenants to the
respective other Party that it will not create, or permit to exist, any Related Party Status.
|
|
5.2.
|
|
Holding of KID Shares
. The Parties undertake to keep each other Party at any time informed of
its exact number of KID Shares directly held or to be attributed to it as provided for in the
Take Over Act.
|
|
5.3.
|
|
Disposal of Shares.
Each Party shall be free to dispose of all or parts of the KID Shares
held by it. Except as set out in Section 7.1 hereof such disposal of KID Shares shall have no
impact whatsoever on this Agreement, other than on the number of KID Shares then being subject
matter hereof. For greater certainty the Parties agree that this Agreement shall cease to
have any force or effect in respect of any shares of KID that are transferred by KHD to a
third party.
|
|
5.4.
|
|
Acquisition of Shares.
Each Party shall be free to acquire KID Shares, and KHD shall in
particular be permitted to complete the Integration, provided that such acquisition or the
Integration will not result in either Party being subjected to making a take-over offer under
the Take-Over Act.
|
|
5.5.
|
|
Notification under Securities Trading Act.
Each Party undertakes and covenants to the
respective other Parties that it will duly comply with the notification obligations of the
Securities Trading Act.
|
|
6.
|
|
REPRESENTATIONS AND WARRANTIES
|
|
|
|
Each Party represents and warrants to the respective other Party that (i) it has all
requisite power and authority necessary to execute and deliver this Agreement and to
consummate the transactions and perform the acts contemplated therein, and (ii) this
Agreement has been duly executed and delivered and constitutes a valid and binding
instrument, enforceable in accordance with its terms.
|
238
7.
|
|
TERM, TERMINATION
.
|
|
7.1.
|
|
This Agreement is entered into for such time as KHD is holding KID Shares and is terminated
automatically at the end of the day on which KHD is distributing the last tranche of KID
Shares. For greater certainty, this Agreement is not terminated if the Custodian ceases to
hold any KID Shares.
|
|
7.2.
|
|
Neither Party may terminate this Agreement except as specifically provided for herein.
|
|
7.3.
|
|
Each Party may terminate this Agreement
for cause
(
aus wichtigem Grund)
as such term is
interpreted by German high court rulings. Cause shall include in particular serious and
persistent misconduct or breach of this Agreement and persistent failure to comply with the
terms of this Agreement and in general such serious and material circumstances in the sphere
of or caused by a party which render it unacceptable for the other party to continue being
bound to an agreement.
|
|
8.
|
|
MISCELLANEOUS
|
|
8.1.
|
|
Remedies
. No remedy conferred by this Agreement is intended to be exclusive of any other
remedy which is otherwise available at law, by statute or otherwise. Each remedy shall be
cumulative and in addition to every other remedy given hereunder or now or hereafter existing
at law, by statute or otherwise. The election of any one or more remedy by any of the Parties
shall not constitute a waiver by such Party of the right to pursue any other remedy.
|
|
8.2.
|
|
Severance.
If any provision of this Agreement, which is not material to its efficacy as a
whole, is rendered void, illegal or unenforceable in any respect under any law, the validity,
legality and enforceability of the remaining provisions shall not in any way be affected or
impaired thereby and the Parties shall endeavour in good faith to agree an alternative
provision to the void, illegal or unenforceable provision.
|
|
8.3.
|
|
Survival of Rights, Duties and Obligations.
Termination of this Agreement for any cause shall
not release a Party from any liability which at the time of termination has already accrued to
such Party or which thereafter may accrue in respect of any act or omission prior to such
termination.
|
|
8.4.
|
|
Entire Agreement
. This Agreement constitutes the entire agreement between the Parties in
connection with the matters dealt with herein.
|
|
8.5.
|
|
Non Variation.
Save as otherwise expressly provided, no agreement to amend, add to or
otherwise vary or waive any of the provisions of this Agreement or to cancel or terminate it
shall be effective unless made in writing.
|
|
8.6.
|
|
Assignment.
Save as otherwise expressly provided in this Agreement or agreed upon in writing
by the respective other Party, none of the Parties may assign this Agreement or any of its
rights and obligations under it.
|
|
8.7.
|
|
Further Assurance
. The Parties shall co-operate and execute and deliver to the other Party
such other instruments and documents and take such other actions as may be reasonably
requested from time to time in order to carry out, evidence and confirm their rights and the
intended purpose of this Agreement.
|
|
8.8.
|
|
Counterparts
.
This Agreement may be signed in any number of counterparts, all of
which taken together shall constitute one and the same instrument. Any Party may enter into
this Agreement by signing any such counterpart.
|
|
8.9.
|
|
Costs
. Every Party shall bear its own legal and other costs in respect of the negotiation,
preparation and conclusion of this Agreement and all other documents necessary to give effect
to this Agreement.
|
|
8.10.
|
|
Notices
. All notices and other communications given or made pursuant to this Agreement shall
be in writing and shall be deemed effectively given: (a) upon personal delivery to the Party
to be notified, (b)
|
239
|
|
|
when sent by confirmed electronic mail or facsimile if sent during normal business hours of
the recipient, and if not so confirmed, then on the next business day, (c) five (5) days
after having been sent by registered or certified mail, return receipt requested, postage
prepaid, or (d) one (1) day after deposit with a recognized overnight courier, specifying
next day delivery, with written verification of receipt. All communications shall be sent
to the respective Parties at their address as set forth herein, or to such email address,
facsimile number or address as subsequently modified by written notice.
|
8.11.
|
|
Governing Law.
This Agreement shall be governed by and construed in accordance with the
laws of Germany.
|
|
8.12.
|
|
Delays or Omissions.
No delay or omission to exercise any right, power or remedy accruing
to any Party under this Agreement, upon any breach or default of any other Party under this
Agreement, shall impair any such right, power or remedy of such non-breaching or
non-defaulting Party nor shall it be construed to be a waiver of any such breach or default,
or an acquiescence therein, or of or in any similar breach or default thereafter occurring;
nor shall any waiver of any single breach or default be deemed a waiver of any other breach or
default theretofore or thereafter occurring. Any waiver, permit, consent or approval of any
kind or character on the part of any party of any breach or default under this Agreement, or
any waiver on the part of any party of any provisions or conditions of this Agreement, must be
in writing and shall be effective only to the extent specifically set forth in such writing.
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IN WITNESS WHEREOF
, the Parties have executed this Voting Agreement as of the date first above written.
KHD HUMBOLDT WEDAG INTERNATIONAL LTD.
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Per:
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Authorized Signatory
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[THE CUSTODIAN]
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240
SCHEDULE Q
AUDITORS CONSENT
241
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Deloitte & Touche LLP
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2800 1055 Dunsmuir Street
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4 Bentall Centre
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P.O. Box 49279
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Vancouver BC V7X 1P4
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Canada
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Tel: 604-669-4466
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Fax: 604-685-0395
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www.deloitte.ca
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Auditors consent
We have read the Management Information Circular of KHD Humboldt Wedag International Ltd. (the
Company) dated March 1, 2010 qualifying the distribution of a portion of the Companys industrial
plant technology, equipment and service business to the Shareholders of the Company. We have
complied with Canadian generally accepted standards for an auditors involvement with offering
documents.
We consent to the incorporation by reference in the above-mentioned Management Information Circular
of our report to the Board of Directors and Shareholders of the Company on the consolidated balance
sheets of the Company as at December 31, 2008 and 2007; and the related consolidated statements of
income (loss), shareholders equity and comprehensive income (loss) and cash flows for each of the
three years in the period ended December 31, 2008. Our report is dated March 26, 2009.
We also consent to the inclusion in the above-mentioned Management Information Circular of our
report to the Board of Directors of the Company on the combined balance sheets of the KHD Humboldt
Wedag companies that form the industrial plant technology, equipment and service business of the
Company (the KHD Industrial Plant Technology, Equipment and Service Business) as at December 31,
2008 and 2007; and the related combined statements of income (loss), comprehensive income and
shareholders equity and cash flows for each of the three years in the period ended December 31,
2008. Our report is dated March 26, 2009.
Deloitte & Touche LLP
Chartered Accountants
March 1, 2010
242
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused
this report to be signed on its behalf by the undersigned, thereunto duly authorized.
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KHD HUMBOLDT WEDAG
INTERNATIONAL LTD.
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By:
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/s/ Jouni Salo
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Jouni Salo, President and Chief Executive Officer
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Date: March 3, 2010
Khd Humboldt Wedag International Ltd (NYSE:KHD)
과거 데이터 주식 차트
부터 5월(5) 2024 으로 6월(6) 2024
Khd Humboldt Wedag International Ltd (NYSE:KHD)
과거 데이터 주식 차트
부터 6월(6) 2023 으로 6월(6) 2024