proposed scheme of arrangement

346 Pages·2017·7.11 MB·English

by  Sean Lee

THIS SCHEME DOCUMENT IS IMPORTANT AND REQUIRES YOUR IMMEDIATE ATTENTION. THIS SCHEME DOCUMENT INCLUDES AN EXPLANATORY
STATEMENT MADE IN COMPLIANCE WITH SECTION 211 OF THE COMPANIES ACT (CHAPTER 50; 2006 REVISED EDITION) OF THE REPUBLIC OF
SINGAPORE
The Scheme Document is directed at Persons who are believed to be Scheme Creditors. Scheme Creditors include Persons who hold a beneficial
interest as principal in the Notes at the Record Time and the Trustee of the Notes in respect of its claim for reimbursement of certain
remuneration and expenses.
The Record Time for this Scheme is 5:00 p.m. (Singapore time) on 22 September 2017.
If you have assigned, sold or otherwise transferred, or assign, sell or otherwise transfer all of your interests as Scheme Creditor before the Record
Time, the Scheme Company requests that you forward a copy of this Scheme Document to the Person or Persons to whom you have assigned, sold or
otherwise transferred, or to whom you assign, sell or otherwise transfer, such interests; thereafter, you need not take any further action with respect
to this Scheme Document.
If you have only partially assigned, sold or transferred such interests, or partially assign, sell or otherwise transfer such interests before the Record
Time, the Scheme Company requests that you: (i) read this Scheme Document carefully; (ii) forward a copy of this Scheme Document to the Person
or Persons to whom you have assigned, sold or transferred, or to whom you assign, sell or otherwise transfer, such partial interests; and (iii) take such
steps as you consider appropriate following consideration of the matters described in this Scheme Document.
A transferee of a beneficial interest in the Notes after the Record Time will not be entitled to vote at the Scheme Meeting in respect of such
interest. Such transferee will need to make arrangements with the holder of the Notes at the Record Time to ensure that that Person votes in
accordance with the wishes of the transferee.
If you are in any doubt as to any aspect of the proposed Scheme or about any action you should take, you should consult immediately with a
professional adviser of your choice.
PROPOSED
SCHEME OF ARRANGEMENT
(UNDER SECTION 210 OF THE COMPANIES ACT (CHAPTER 50; 2006 REVISED EDITION) OF THE REPUBLIC OF SINGAPORE)
BETWEEN
BLD INVESTMENTS PTE. LTD.
(A PRIVATE COMPANY WITH LIMITED LIABILITY INCORPORATED UNDER THE LAWS OF THE REPUBLIC OF SINGAPORE)
AND
SCHEME CREDITORS
(AS DEFINED IN THE SCHEME)
A meeting of Scheme Creditors to consider and, if thought fit, approve the proposed Scheme will be held on 26 October 2017 commencing at 10:00
a.m. (Singapore time) at 55 Market Street, #03-01, Singapore 048941. The notice of the Scheme Meeting is set out in Appendix 3. Instructions
regarding actions to be taken by Scheme Creditors prior to the Scheme Meeting are set out in Appendix 1A and Appendix 1B. In the event that the
Scheme is approved by the requisite majorities of Scheme Creditors, the Court must sanction the Scheme at a hearing in order for it to become legally
binding. All Scheme Creditors will be entitled to attend such hearing before the Court in person or through legal counsel to support or oppose the
sanction of the Scheme. It is expected that such sanction hearing will be held within two (2) weeks of the Scheme Meeting. Scheme Creditors will be
notified of the time and location of the sanction hearing once the precise date and location of the sanction hearing is known. The Scheme Company will
notify the Scheme Creditors by circulating a notice via the Clearing Systems and by posting a notice on the Scheme Manager’s website at
www.bldinvestmentsscheme.com.
The GAP Shares and the Warrants will not be registered under the US Securities Act of 1933 (the “US Securities Act”), or any state or other securities
laws of the United States of America or any other jurisdiction. The GAP Shares and the Warrants are being offered outside the United States of
America in accordance with Regulation S under the US Securities Act. In the event that any holder of Notes is resident in the United States of America,
the Scheme Company will rely on the exemption from registration under Section 3(a)(10) of the US Securities Act or such other exemption as is
available under applicable laws and regulations. The Court has been informed that any order sanctioning the Scheme, if granted, may constitute
the basis for an exemption from the registration requirements of the US Securities Act provided by Section 3(a)(10).
In making any investment decision, Scheme Creditors must rely on their own independent examination of the Scheme in order to satisfy
themselves as to the relative merits and risks involved. Neither the GAP Shares nor the Warrants have been recommended by any US federal or state
securities commission or other regulatory authority in any other jurisdiction. Furthermore, none of the foregoing authorities have confirmed the
accuracy or determined the adequacy of this Scheme Document. Any representation or statement to the contrary is a criminal offence.
Important information relating to all relevant securities law considerations is set out under the heading “Important Notice” on pages 1 to 4 of this
Scheme Document.
HELPLINES AND DOCUMENT REQUESTS
The Scheme Company has appointed Borrelli Walsh Pte Limited as Scheme Manager in order to assist Scheme Creditors and other interested parties
in connection with the Scheme and, in particular, the proper completion of Account Holder Letters and/or Proof of Debt. If you have any questions
relating to this Scheme Document or the completion of the Account Holder Letter and/or Proof of Debt, please contact the Scheme Manager at:
Address: One Raffles Place, Tower 2, #10-62, Singapore 048616
Telephone: [phone]
Fax: [phone]
Email: [email protected]
31 August 2017
TABLE OF CONTENTS
PAGES
1. IMPORTANT NOTICE 1
2. DEFINITIONS 5
3. EXPECTED TIMETABLE OF PRINCIPAL EVENTS 18
4. IMPORTANT INSTRUCTIONS FOR NOTEHOLDERS, ACCOUNT HOLDERS AND OTHER SCHEME
CREDITORS 20
5. QUESTIONS AND ANSWERS 23
6. LETTER FROM THE BOARD OF BLD INVESTMENTS PTE. LTD. 28
7. EXPLANATORY STATEMENT 37
8. THE SCHEME OF ARRANGEMENT 46
APPENDIX 1A INSTRUCTIONS ON HOW TO VOTE FOR NOTEHOLDERS
APPENDIX 1B INSTRUCTIONS ON HOW TO VOTE FOR THE TRUSTEE
APPENDIX 2 EFFECT OF SECURITIES LAW RESTRICTIONS UNDER THE SCHEME
APPENDIX 3 NOTICE OF SCHEME MEETING
APPENDIX 4A ACCOUNT HOLDER LETTER
APPENDIX 4B PROOF OF DEBT FORM
APPENDIX 5 DEED OF UNDERTAKING
APPENDIX 6 FAIRNESS OPINION OF FINANCIAL ADVISER
APPENDIX 7 GAP SHARES TRUST DEED
APPENDIX 8 WARRANT INSTRUMENT
APPENDIX 9 INFORMATION MEMORANDUM
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IMPORTANT NOTICE
1. GENERAL
Definitions: Capitalised words and phrases used in this Scheme Document have the meaning provided on
pages 5 to 17.
Scheme Creditors: This Scheme Document is being sent to Persons who are believed to be Scheme
Creditors at the date of this Scheme Document. Scheme Creditors include Persons who hold a beneficial
interest as principal in the Notes at the Record Time (collectively, “Noteholders”) and the Trustee of the
Notes in respect of certain remuneration and expenses due to it under the terms of the Trust Deed
(“Trustee”). This Scheme Document is accompanied by (i) for Noteholders, an Account Holder Letter,
which contains, among other things, voting instructions and elections; and (ii) for the Trustee of the Notes,
a Proof of Debt. It is important that you read this Scheme Document carefully for information about the
Scheme.
If you are a Noteholder, you should contact your Account Holder to ensure that an Account Holder Letter
is completed and returned on your behalf to the Chairman.
If you are the Trustee of the Notes, you should complete the Proof of Debt and return the completed
Proof of Debt to the Chairman.
Transfers of Scheme Claims: If you have assigned, sold or otherwise transferred, or assign, sell or otherwise
transfer, all of your interests as Scheme Creditor before the Record Time, the Scheme Company requests that
you forward a copy of this Scheme Document to the Person or Persons to whom you have assigned, sold or
otherwise transferred, or to whom you assign, sell or otherwise transfer, such interests. Thereafter, you need
not take any further action with respect to this Scheme Document.
If you have only partially assigned, sold or otherwise transferred such interests, or partially assign, sell or
otherwise transfer such interests before the Record Time, the Scheme Company requests that you: (i) read
this Scheme Document carefully; (ii) forward a copy of this Scheme Document to the Person or Persons to
whom you have assigned, sold or transferred, or to whom you assign, sell or otherwise transfer, such partial
interests; and (iii) take such steps as you consider appropriate following consideration of the matters
described in this Scheme Document. Copies of this Scheme Document are available from the Scheme
Manager.
If you are a Noteholder, please note that no assignment or transfer of any beneficial or other proprietary
interest in the Notes after the Record Time shall be recognised for the purposes of determining entitlements
to attend and vote at the Scheme Meeting. Accordingly, a transferee of a beneficial interest in the Notes
after the Record Time should make arrangements with the Person who held such interest at the Record Time
to ensure that such Person votes in accordance with the wishes of the transferee and for the transferee to
receive the GAP Shares and the Warrants if the Scheme becomes effective. A transferee of a beneficial or
other proprietary interest in the Notes after the Record Time will, however, be bound by the terms of the
Scheme in the event that it becomes effective.
Record Time: The Record Time for the Scheme will be 5:00 p.m. (Singapore time) on 22 September 2017.
Scheme Meeting: A meeting of Scheme Creditors to consider and, if thought fit, approve the Scheme will be
held on 26 October 2017, commencing at 10:00 a.m. (Singapore time) at 55 Market Street, #03-01, Singapore
048941. The notice of the Scheme Meeting is set out at Appendix 3. Instructions about actions to be taken
by Scheme Creditors prior to the Scheme Meeting are set out in Appendix 1A and Appendix 1B. In the event
that the Scheme is approved by the requisite majorities of Scheme Creditors, the Court must then sanction the
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Scheme at a hearing and an office copy of the order of the Court must be delivered to ACRA in order for the
Scheme to become legally binding. All Scheme Creditors will be entitled to attend such hearing before the
Court in person or through legal representatives to support or oppose the sanction of the Scheme. It is
expected that such sanction hearing will be held within two (2) weeks of the Scheme Meeting. Scheme
Creditors will be notified of the time and location of the sanction hearing once the precise date and location
of the sanction hearing is known. The Scheme Company will notify the Scheme Creditors by circulating a notice
via the Clearing Systems and by posting a notice on the Scheme Manager’s website at
www.bldinvestmentsscheme.com.
Reliance: This Scheme Document has been prepared in connection with a proposed scheme of arrangement
under Section 210 of the Act to be made between the Scheme Company and Scheme Creditors. Nothing in
this Scheme Document or any other document issued with or appended to it should be relied on for any
purpose other than to make a decision about whether to vote in favour of or against the Scheme. In particular
and without limitation, nothing contained in this Scheme Document or any other document issued with or
appended to it should be relied on in connection with the purchase of any shares, bonds, notes or assets of,
or the making of any investment in, any member of the Group. Additionally, both the Parent and GAP are listed
on the Indonesian stock exchange and are therefore required to make regular public disclosures on financial
performance and significant corporate actions. In this regard, it is the responsibility of the Scheme Creditors
to make their own enquiries into these public disclosures.
Information: The Scheme Company and the Parent have taken all reasonable steps to ensure that the Scheme
Document contains all information reasonably necessary to enable Scheme Creditors to make an informed
decision about the effect of the Scheme. To the best of the knowledge and belief of the Scheme Company and
the Parent, the information contained in this Scheme Document accords with the facts and does not omit
anything likely to affect the importance of such information.
Date of Statements: The statements contained in this Scheme Document are made as at the date of this
Scheme Document, unless another time is specified in relation to them. Delivery of this Scheme Document
shall not give rise to any implication that there has been no change in the facts set out in this Scheme Document
since that date. Any material variation of facts will be notified to Scheme Creditors by the Scheme Company
prior to the Scheme Meeting.
No Opinion: In accordance with normal practice, none of the Scheme Company, the Parent, any other member
of the Group, the Trustee or the Scheme Manager and their respective financial or legal advisers has expressed
any opinion as to the merits of the Scheme or with respect to the effect of the Scheme, except as otherwise
expressly stated in this Scheme Document.
Qualified by Reference: The summary of the principal provisions of the Scheme contained in this Scheme
Document is qualified in its entirety by reference to the Scheme. Each Scheme Creditor is advised to read and
consider carefully the text of the Scheme in full. The remainder of this Scheme Document and, in particular,
the Explanatory Statement (including the Information Memorandum), has been prepared solely to assist
Scheme Creditors in respect of voting on the Scheme.
Class of Creditors: Scheme Creditors constitute a single class of creditors of the Scheme Company and not the
general body of creditors of the Scheme Company as a whole.
Risk Factors: There are many factors beyond the control of the Scheme Company and the Parent which may
impact upon the Scheme. Scheme Creditors are referred to the information under the heading “Risk Factors”
set out in the Information Memorandum.
Professional Advice: Scheme Creditors should not construe the contents of this Scheme Document as legal,
tax or financial advice, and should consult with their own professional adviser as to each of the matters
described in this Scheme Document.
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Scheme Manager: The Scheme Manager expresses no view on the contents of this Scheme Document or the
proposed Scheme. The Scheme Manager has not been involved in the negotiation of the terms of the proposed
Scheme and makes no representations in connection therewith. The Scheme Manager accepts no responsibility
for any of the factual statements contained in this Scheme Document or the effect or effectiveness of the
proposed Scheme.
Trustee: The Trustee expresses no view on the contents of this Scheme Document or the proposed Scheme.
The Trustee has not been involved in the negotiation of the terms of the proposed Scheme and makes no
representations in connection therewith. Neither the Trustee nor any of its directors, agents, advisers or
affiliates accepts any responsibility for any statement contained in this Scheme Document or the effect, merits
or effectiveness of the proposed Scheme.
2. SECURITIES LAW CONSIDERATIONS
No Offer: This Scheme Document does not constitute an offer to sell or the solicitation of an offer to buy the
GAP Shares or the Warrants in any jurisdiction in which any offer or sale is not permitted.
Investment Decision: In making any investment decision, Scheme Creditors must rely on their own
independent examination of the Scheme in order to satisfy themselves as to the relative merits and risks
involved. The GAP Shares and the Warrants have not been recommended by any federal or state securities
commission or other regulatory authority in the United States of America, the Republic of Singapore or any
other jurisdiction. Furthermore, none of the foregoing authorities have confirmed the accuracy or determined
the adequacy of this Scheme Document. Any representation or statement to the contrary is a criminal
offence.
Exemption from Registration: The GAP Shares and the Warrants will not be registered under the US Securities
Act or any state or other securities laws of the United States of America or any other jurisdiction. Accordingly,
the GAP Shares and the Warrants are being offered outside the United States of America in accordance with
Regulation S under the US Securities Act.
In the event that any Scheme Creditor is resident in the United States of America, the Scheme Company will
rely on the exemption from registration under Section 3(a)(10) of the US Securities Act or such other
exemption as is available under applicable laws and regulations.
Section 3(a)(10) of the US Securities Act exempts from registration under the US Securities Act securities issued
in exchange for one or more outstanding securities where, among other requirements, the terms and
conditions of the issuance and exchange of such securities have been approved by a court of competent
jurisdiction, after a hearing upon the fairness of the terms and conditions of the issuance and exchange at
which all Persons to whom the securities will be issued have the right to appear and receive timely notice
thereof.
Given that the Scheme Company is incorporated, and has its centre of main interests in, the Republic of
Singapore, the Court is a court of competent jurisdiction and authorised to conduct a hearing at which the
fairness of the terms and conditions of the Scheme will be considered. The Court has been informed that any
order sanctioning the Scheme, if granted, may constitute the basis for an exemption from the registration
requirements of the US Securities Act provided by Section 3(a)(10).
Securities Law Restrictions: Scheme Creditors are strongly advised to consult their professional advisers as to
whether any laws or regulations which may be applicable to them may give rise to any liability or penalty, or
require them to obtain any governmental or other consents or to pay any taxes or duties, as a result of the
implementation of the Scheme. None of the Scheme Company, the Parent, any other member of the Group,
the Trustee, the Depositary, the Scheme Manager, their respective directors or any other party accepts any
responsibility for any liabilities (including but not limited to consequential liabilities) or regulatory, civil or
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criminal sanctions or penalties incurred by the Scheme Creditors as a result of the implementation of the
Scheme in respect of laws or regulations applicable to them. Please refer to Appendix 2 for detailed
information regarding the securities laws of certain jurisdictions.
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DEFINITIONS
Capitalised words and phrases used in this Scheme Document have the meanings provided below.
“Accepted” means in relation to a Scheme Claim, the acceptance by the Chairman of
such claim (or part thereof) for purposes of determining entitlement to
attend and vote at the Scheme Meeting without dispute or, where
applicable, the acceptance or determination by the Independent Assessor
of such claim (or part thereof) for such purpose in accordance with the POD
Regulations.
“Accepted Claim” means a Scheme Claim against the Scheme Company (calculated by
reference to):
(a) with respect to the Noteholders, the outstanding principal amount
of Notes to which such Claim relates;
(b) with respect to the Trustee, the Remuneration and Expenses Claim.
“Account Holder” means a Person who is recorded in the books of a Clearing System as being
a holder of a book-entry interest in Notes in an account with that Clearing
System or, as the context may require, is or was recorded in such books as
being such a holder of Notes in such an account at the Record Time.
“Account Holder Letter” means a letter from an Account Holder on behalf of the relevant
Noteholder in the form set out at Appendix 4A.
“ACRA” means the Accounting and Corporate Regulatory Authority of the Republic
of Singapore.
“Act” means the Companies Act (Chapter 50; 2006 Revised Edition) of the
Republic of Singapore.
“Additional GAP Shares” means the number of GAP Shares obtained by dividing: (i) the Coordinating
Committee Costs; by (ii) the USD IPO Price.
“Adjudication Date” means the date on which the Chairman will notify each Scheme Creditor
who has submitted an Account Holder Letter or Proof of Debt of the result
of the Chairman’s adjudication of its Account Holder Letter or Proof of
Debt.
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“Approved” means, in relation to the Warrants, that the issuance and settlement of the
Warrants:
(a) have been approved by the requisite majority of shareholders of the
Parent at the EGM; and
(b) fulfill the requirements of prevailing laws and regulations of the
Republic of Indonesia (including but not limited to the approval of
OJK of the terms of the Warrants); and
“Approval” shall be construed accordingly.
“Bar Date” means the date falling twelve (12) calendar months after the Effective Date
(or if such date is not a Business Day, then the next succeeding Business
Day), being the latest date by which Scheme Creditors must establish their
entitlement to the Scheme Consideration.
“Bar Date Scheme means, together:
Creditors”
(a) the Eligible Scheme Creditors; and
(b) each Ineligible Scheme Creditor who establishes its entitlement to
the Scheme Consideration in accordance with the terms of the GAP
Shares Trust Deed prior to the Bar Time.
“Bar Time” means 5:00 p.m. (Singapore time) on the Bar Date.
“BLDA” means BLD Asia Pte Ltd (Singapore UEN 200907533H), a private company
with limited liability, incorporated under the laws of the Republic of
Singapore.
“BLD Shares” means ordinary shares in the capital of the Parent which are in
dematerialized form and listed on the Indonesian Stock Exchange.
“Blocking Instructions” means, as applicable, the irrevocable instructions given by Account Holders
(in accordance with the customary procedures of the relevant Clearing
System) to either Euroclear or Clearstream to block all interests in Notes,
which are the subject of an Account Holder Letter in the securities account
to which they are credited with effect from or before the deadline set by
the relevant Clearing System.
“Board” means the board of directors of the Scheme Company from time to time.
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“Business Day” means a day (other than a Saturday or a Sunday) on which banks are open
for general business in the Republic of Indonesia and the Republic of
Singapore.
“C-BEST” means the Central Depositary and Book Entry Settlement System used by
the Indonesian Central Securities Depository (PT Kustodian Sentral Efek
Indonesia) to carry out the electronic registration and settlement of
securities.
“Chairman” means the chairman of the Scheme Meeting.
“Circulation Date” means the date on which the Chairman will provide each Scheme Creditor
who has submitted an Account Holder Letter or a Proof of Debt with a copy
of the list of Scheme Creditors who have submitted an Account Holder
Letter or a Proof of Debt to the Chairman.
“Clearing Systems” means each of Euroclear and Clearstream, and “Clearing System” means
either one of them.
“Clearstream” means Clearstream Banking, société anonyme and any successor.
“Completion Notice” means the notice to be issued by the Scheme Company and delivered to
the Scheme Manager for circulation to the Trustee and the other Scheme
Creditors via the Clearing Systems confirming satisfaction of the Conditions
and specifying the Effective Date, the Settlement Date, Bar Date and Final
Settlement Date.
“Conditions” means each of the conditions precedent to the effectiveness of the
Scheme, as set out in Chapter 4 of the Scheme.
“Convening Hearing” means the hearing by the Court of the Scheme Company’s application for
permission to convene a meeting of its Scheme Creditors for the purpose of
considering and, if thought fit, approving (with or without modification) the
Scheme.
“Coordinating Committee” means Noteholders holding a beneficial interest as principal in (in aggregate)
thirty point nine percent (30.9%) in outstanding principal amount of the
Notes who have engaged Kirkland & Ellis as legal counsel to advise them as
to matters of English law in connection with their investment in the Notes.
“Coordinating Committee means the compensation for work undertaken by the Coordinating
Costs” Committee in connection with the negotiation of the restructuring of the
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Notes since May 2013, being the amount obtained by multiplying: (i)
US$100,000; by (ii) the number of complete calendar months from (and
including) May 2013 to (but excluding) the calendar month in which the
Effective Date occurs.
“Court” means the High Court of the Republic of Singapore.
“Custodian” means Madison Pacific Trust Limited (in its capacity as custodian of the GAP
Shares).
“Deed of Undertaking” means a deed of undertaking from the Parent and PBU, in the form set out
at Appendix 5.
“Depositary” means The Bank of New York Mellon, London Branch, acting through its
nominee The Bank of New York Depository (Nominees) Limited.
“Dispute” means any dispute whatsoever arising in relation to a claim of a Scheme
Creditor under or in respect of or in connection with the Notes and/or the
Trust Deed, and “Disputed Claims” shall be construed accordingly.
“Distributed GAP Shares” means the number of Residual GAP Shares distributed on the Final
Settlement Date to Ineligible Scheme Creditors who establish their
entitlement to the Scheme Consideration prior to the Bar Time in
accordance with the terms of the GAP Shares Trust Deed.
“Earlybird Deadline” means the time at which Supporting Scheme Creditors holding 75% by
value of the Voting Claims held by all Supporting Scheme Creditors
collectively have voted in favour of the Scheme.
“Earlybird Scheme means each Scheme Creditor at the Record Time that votes or (as the case
Creditor” may be) voted in favour of the Scheme prior to the Earlybird Deadline.
“Effective Date” means the date specified as such in the Completion Notice, on which the
Scheme becomes effective in accordance with its terms.
“EGM” means the extraordinary general meeting of the shareholders of the Parent
convened (on a best-efforts basis) for the purpose of approving the
participation by the Parent in the Scheme and the transactions
contemplated thereby (including, without limitation, the issuance of
Warrants and the settlement of the Warrants in accordance with the terms
of the Warrant Instrument (as may be amended)).
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