Southgobi Announces Discloseable and Connected Transaction Deferral of Payment Obligations Under Convertible Debenture
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March 19, 2024
SOUTHGOBI ANNOUNCES DISCLOSEABLE AND
CONNECTED TRANSACTION
DEFERRAL OF PAYMENT OBLIGATIONS UNDER
CONVERTIBLE DEBENTURE
VANCOUVER – SouthGobi Resources Ltd. (TSX-V: SGQ, HK: 1878) (“SouthGobi” or the
“Company”) announces deferral of payment obligation under Convertible Debenture.
Background
This announcement is made by SouthGobi Resources Ltd. (the “Company”, together with its
subsidiaries, the “Group”) pursuant to Rule 13.09(2) and Chapters 14 and 14A of the Rules
Governing the Listing of Securities on the Hong Kong Stock Exchange (the “ Hong Kong
Listing Rules”) and the Inside Information Provisions under Part XIVA of the Securities and
Futures Ordinance (Chapter 571 of the Laws of Hong Kong).
Reference is made to the announcements of the Company dated November 11, 2022, August
30, 2023, October 13, 2023, November 17, 2023 and January 19, 2024 (collectively, the
“Announcements”) and the management proxy circular of the Company dated July 20, 2023
(the “July 2023 Management Proxy Circular”) in relation to the deferral agreements under
the Convertible Debenture. Unless otherwise specified, terms used in this announcement shall
have the meaning as defined in the Announceme nts and the July 2023 Management Proxy
Circular.
The March 2024 Deferral Agreement
The Company announces that, on March 19, 2024, the Company and its subsidiaries, namely
SouthGobi Sands LLC and SGQ Coal Investment Pte. Ltd., entered into a new deferral
agreement (the “March 2024 Deferral Agreement”) with JD Zhixing Fund L.P. (“JDZF”), the
registered holder of the Company’s US$250 million Convertible Debenture issued on
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November 19, 2009 and the Company’s largest shareholder, pursuant to which JDZF agreed
to grant the Company:
(i) a deferral of the cash interest, payment-in-kind interest (“PIK Interest”), management
fees, and related deferral fees of approximately US$96.5 million (the “2023 Deferred
Amounts”) which will be due and payable to JDZF on or before August 31, 2024
pursuant to the deferral agreements dated March 24, 2023 and October 13, 2023;
(ii) a deferral of the cash interest payment of approximately US$7.9 million (the “ May
2024 Cash Interest ”) which will be due and payable on May 19, 2024 under the
Convertible Debenture;
(iii) a deferral of the cash interest payment of approximately US$8.1 million and PIK
Interest payment (the “ November 2024 PIK Interest ”) of approximately US$4.0
million (collectively, the “November 2024 Cash and PIK Interest”), which will, in each
case, be due and payable on November 19, 2024 under the Convertible Debenture;
and
(iv) a deferral of the management fees of approximately US$2.2 million which will be due
and payable to JDZF on November 15, 2024 and February 15, 2025 (the “ Deferred
Management Fees”, and together with the 2023 Deferred Amounts, the May 2024
Cash Interest, the November 2024 Cash and PIK Interest and the Deferred
Management Fees, the “ Deferred Amo unts”) under the Amended and Restated
Cooperation Agreement dated April 23, 2019.
The principal terms of the March 2024 Deferral Agreement are as follows:
Effectiveness of the March 2024 Deferral Agreement
The effectiveness of the March 2024 Deferral Agreement is subject to the Company
providing notice to, and obtaining acceptance (if required) from the TSX Venture
Exchange (“ TSX-V”) and requisite approval from disinterested shareholders of the
Company in accordance with the requirements of applicable Canadian securities laws
and Rule 14.33 and Rule 14A.36 of the Hong Kong Listing Rules.
The Deferral
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JDZF agree d to grant the Company a deferral (the “ Deferral”) of the Deferred
Amounts until August 31, 2025 (the “Deferral Date”).
As consideration for the deferral of the Deferred Amounts which relate to payment
obligations arising from the Convertible Debenture, the Company agreed to pay JDZF
a deferral fee equal to 6.4% per annum (the “Convertible Debenture Deferral Fee”)
on the ou tstanding balance of such Deferred Amounts, commencing on the date on
which each such Deferred Amounts would otherwise have been due and payable
under the Convertible Debenture.
As consideration for the deferral of the Deferred Amounts which relate to payment
obligations arising from the Amended and Restated Cooperation Agreement, the
Company agreed to pay JDZF a deferral fee equal to 1.5% per annum (together with
the Convertible Debenture Deferral Fee, the “ Deferral Fees ”) on the outstanding
balance of such Deferred Amounts commencing on the date on which each such
Deferred Amounts would otherwise have been due and payable under the Amended
and Restated Cooperation Agreement.
The March 2024 Deferral Agreement does not contemplate a fixed repayment
schedule for the Deferred Amounts or related deferral fees. Instead, the March 2024
Deferral Agreement, requires the Company to use its best efforts to pay the Deferred
Amounts and relat ed deferral fees due and payable under the March 2024 Deferral
Agreement to JDZF. During the period beginning as of the effective date of the March
2024 Deferral Agreement and ending as of the Deferral Date, the Company will provide
JDZF with monthly updat es of its financial status and business operations, and the
Company and JDZF will on a monthly basis discuss and assess in good faith the
amount (if any) of the Deferred Amounts and related deferral fees that the Company
may be able to repay to JDZF, havin g regard to the working capital requirements of
the Company’s operations and business at such time and with the view of ensuring
that the Company’s operations and business would not be materially prejudiced as a
result of any repayment.
If at any time before the Deferred Amounts and related deferral fees are fully repaid,
the Company proposes to appoint, replace or terminate one or more of its chief
executive officer, its chief financial officer or any other senior executive(s) in charge of
its principal business function or its principal subsidiary, the Company will first consult
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with, and obtain written consent (such consent shall not be unreasonably withheld)
from JDZF prior to effecting such appointment, replacement or termination.
The occurrence of a Deferral Event of Default or an Event of Default (as such term is
defined in the Convertible Debenture) will: (i) entitle JDZF to pursue any and all
remedies against the
Company and the Guarantors in accordance with the Convertible Debenture; and (ii)
result in
the principal, interest and other amounts owing under the March 202 4 Deferral
Agreement, the Convertible Debenture and related security agreements becoming
immediately due and payable without any requirement for JDZF to deliver notice to the
Company.
The aforementioned summary of the principal terms of the March 2024 Deferral Agreement is
not comprehensive, and is qualified in its entirety by reference to the full text of the March
2024 Deferral Agreement, a copy of which has been filed on the Com pany’s profile on
SEDAR+ at www.sedarplus.ca.
Basis of Determination of the Deferral Fees
The Deferral Fees which are expected to be satisfied by the internal resources and/or external
borrowings of the Group were determined on an arm’s length basis (or on terms no less
favourable to the Group than terms available from independent third parties) among the parties
to the March 2024 Deferral Agreement, taking into account the following factors:
(i) the deferral fees stipulated under the previous deferral agreements, including the
deferral fee at the rate of 6.4% per annum as consideration for the def erred interest
payments arising from the Convertible Debenture and 1.5% per annum as
consideration for the deferred management fees arising from the Amended and
Restated Cooperation Agreement contemplated under the November 2023 Deferral
Agreement, which i s the latest deferral agreement before the March 2024 Deferral
Agreement;
(ii) historically, the higher finance costs incurred by the Group for receiving financial
assistance from independent third parties of the Group within the past five years, the
rate of which generally fell within the range from 15% to 16%;
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(iii) based on the publicly available information and to the Company's understanding, the
finance costs of industry peers and listed companies in similar industry as the Group
are of a similar range as the those of the Deferral Fees, with the interest rates ranged
from 3% to 9.25% per annum; and
(iv) the reasons and benefits as set out in the section headed “Reasons and benefits of
the March 2024 Deferral Agreement” below.
General Information of the Parties
The Group
The Company is an integrated coal mining, development and trading company. SGQ Coal
Investment Pte. Ltd. is a wholly-owned subsidiary of the Company incorporated under the laws
of Singapore, which is principally engaged in the investment holdi ng business activities.
SouthGobi Sands LLC is a wholly-owned subsidiary of the Company incorporated under the
laws of Mongolia, which is principally engaged in coal mining, development and exploration of
properties in Mongolia.
JDZF
JDZF is an exempt limited partnership formed under the laws of the Cayman Islands, which is
principally engaged in investment holding activities. JDZF’s general partner and limited partner
are JD Dingxing Limited and Inner Mongolia Tianyu Trading Limited. To the best of the
Company’s knowledge and belief, the ultimate beneficial owner of the limited partner is Mr.
Yong An and that of the general partner is Ms. Chonglin Zhu. Mr. Yong An is the Chairman
and founder of Inner Mongolia Tianyu Innovation Investment Group Co. Ltd.* ( 內蒙古天宇創
新投資集團有限公司) (“Tianyu Group”), and has conducted business in Inner Mongolia region
since 1998. Ms. Chonglin Zhu was the Chief Financial Officer of Tianyu Group from March
2015 to September 2022, and was also responsible for managing JDZF. Ms. Chonglin Zhu
has served as the executive Director and Senior Vice President of Finance of the Company
since September 8, 2022 , and has been appointed as the Chief Fin ancial Officer of the
Company on February 2, 2024.
Reasons for and Benefits of the March 2024 Deferral Agreement
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In evaluating the transaction contemplated under the March 2024 Deferral Agreement, the
board (the “ Board”) of directors (the “ Directors”) of the Company has taken into account ,
among other things, the terms of the Deferral and the March 2024 Deferral Agreement, the
Company’s financial position and the possible funding alternatives reasonably available to the
Company and considered that: (i) the Deferral is offered on reasonable commercial terms not
less advantageous to the Company than if the Company obtained similar financing from a
person dealing at arm’s length with the Company; (ii) the terms of the Deferral are reasonable
in the circum stances of the Company; (iii) the Deferral is designed to improve the financial
position of the Company; (iv) the Deferral will enhance the Company’s ability to continue as a
going concern in the near term and provide the Company with financial flexibility to consider
and explore different measures to secure additional capital or to pursue a strategic debt
restructuring or refinancing plan with JDZF; and (v) the best interests of the Company and its
shareholders (the “Shareholders”) will be served by approv ing the Deferral and the March
2024 Deferral Agreement.
Board Review and Approval
Based on the above , the Board (excluding (i) the Directors who are appointed by JDZF
pursuant to contractual nomination rights contained in the securityholders agreement between
the Company, JDZF and a former shareholder of the Company and certain deferral
agreements between JDZF, the Company and certain of its subsidiaries relating to the
Convertible Debenture, namely, Mr. Ruibin Xu, Ms. Chonglin Zhu and Mr. Ch en Shen
(collectively, the “ Deferral Interested Directors ”); and (ii) the independent non -executive
Directors, whose views are to be contained in the letter from the independent board committee
(the “Independent Board Committee ”) in the Company’s managemen t proxy circular (the
“Management Proxy Circular”) to be despatched to the Shareholders) are of the view that
the March 2024 Deferral Agreement and the transaction contemplated thereunder are entered,
despite not in the ordinary and usual course of business of the Group, on normal commercial
terms (on arm’s length basis or terms no less favourable to the Group than terms available
from independent third parties) , and are fair and reasonable and in the interests of the
Company and the Shareholders as a whole.
The Deferral Interested Directors who have a material interest in the March 2024 Deferral
Agreement and the transaction contemplated thereunder were required to abstain from voting
on the Board resolutions approving the same. Except for the Defer ral Interested Directors,
none of the Company’s Directors have any material interest in the March 2024 Deferral
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Agreement and the transaction contemplated thereunder, and none of the Directors were
required to abstain from voting on the Board resolutions approving the same.
Shareholders’ Approval Pursuant to MI 61 -101 Requirements under applicable
Canadian securities laws
Pursuant to Part 5 of Multilateral Instrument 61-101 (“MI 61-101”) under applicable Canadian
securities laws, the Company is required to seek minority shareholder approval of the March
2024 Deferral Agreement, excluding the common shares beneficially owned by JDZF (as
defined below) (the “ Disinterested Shareholders ” or the “ Independent Shareholders ”)
because: (i) JDZF is a related party of the Company for purposes of MI 61-101 because JDZF
has beneficial ownership of more than 10% of the voting rights attached to the outstanding
common shares of the Company; and (ii) the March 2024 Deferral Agreement is a related
party transaction for purposes of MI 61 -101 because the March 2024 Deferral Agreement
materially amends the terms of an outstanding debt or liability owed by the Company to a
related party.
To the best of the Company’s knowledge, as of the date hereof, 85,714,194 common shares,
representing approximately 28.98% of the issued and outstanding common shares of the
Company, are beneficially owned by JDZF. Accordingly, the 85,714,194 votes attached to the
common shares beneficially owned, or over which control or direction is exercised, by JDZF
will be excluded from the vote to approve the March 2024 Deferral Agreement.
With respect to the deferral of the PIK Interest portion of the 2023 Deferred Amounts and the
November 2024 PIK Interest, PIK Interest under the terms of the Convertible Debenture must
be paid and satisfied by the Company by way of issuing common shares in the capital of the
Company (“Common Shares”) at an issue price determined based on the 50 -trading day
volume weighted average price (“VWAP”) of the Company’s common shares as at the date of
payment. Shareholders are cautioned that, as a result of deferring the payment date of the
PIK Interest portion of the 2023 Deferred Amounts and the November 2024 PIK Interest, the
final number of Common Shares that the Company will issue to satisfy the PIK Interest portion
of the 2023 Deferred Amounts and the November 2024 PIK Interest will depend on the
prevailing 50 trading day VWAP of the Common Shares as of the future payment date, and
may result in a number of Common Shares being issued that could be greater than, or lesser
than, then number of Common Shares that the Company would have had to issue on the
original payment date for the PIK Interest portion of the 2023 Deferred Amounts and the
November 2024 PIK Interest.
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Hong Kong Listing Rules implications
Pursuant to the Hong Kong Listing Rules, JDZF is a substantial shareholder of the Company
holding approximately 2 8.98% of the Company ’s issued common shares and hence a
connected person of the Company. The entering into of the March 2024 Deferral Agreement
constitutes a connected transaction of the Company under Chapter 14A of the Listing Rules.
As one or more of the applicable percentage ratios (as defined under Rule 14.07 of the Hong
Kong Listing Rules) in respect of the transaction contemplated under the March 2024 Deferral
Agreement exceed 0.1% but all are less than 5%, the entering into of the March 2024 Deferral
Agreement, on a standalone basis, constitutes a connected transaction of the Compan y and
is subject to reporting and announcement requirements but exempt from circular Independent
Shareholders’ approval requirement under Chapter 14A of the Hong Kong Listing Rules.
However, pursuant to Rules 14.22 and 14A.81 of the Hong Kong Listing Rules, as t he
counterparties to the March 2023 Deferral Agreement , the November 2023 Deferral
Agreement and the March 2024 Deferral Agreement (the “Previous Transactions”) are JDZF
and such transactions are similar in nature and completed within a 12 -month period, such
transactions shall be aggregated.
Accordingly, as one or more of the applicable percentage ratios (as defined under Rule 14.07
of the Hong Kong Listing Rules) in respect of the transaction contemplated under the March
2024 Deferral Agreement, upon aggregation with the Previous Transactions, exceed 5% but
all are less than 25% , the entering into of the March 202 4 Deferral Agreement , on an
aggregated basis, constitutes a discloseable and connected transaction of the Company and
is subject to reporting, announcement , circular and Independent Shareholders’ approval
requirements under Chapter 14 and Chapter 14A of the Hong Kong Listing Rules.
The Meeting and Despatch of Management Proxy Circular
At the Company’s upcoming annual general meeting of shareholders (the “Meeting”) , the
Company will, among other things, propose a resolution for the Independent Shareholders to
consider and, if thought fit, approve the March 2024 Deferral Agreement and the transaction
contemplated thereunder.