Bidder's Statement - Peabody Energy

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Rights in respect of the Relevant Shares, subject, if this Offer is withdrawn and the contract arising from your acceptance of the Offer had not become or been declared unconditional before the Offer was withdrawn, to PEAMCoal accounting to you for any such Rights received by PEAMCoal; (7) irrevocably authorised PEAMCoal to notify Macarthur on your behalf that your place of address for the purpose of serving notices upon you in respect of the Relevant Shares is the address specified by PEAMCoal in the notification; (8) with effect from the time and date on which all the conditions to this Offer in section 11.7 have been fulfilled or freed, to have irrevocably appointed PEAMCoal (and any director, secretary or nominee of PEAMCoal) severally from time to time as your true and lawful attorney to exercise all your powers and rights in relation to the Relevant Shares, including (without limitation) powers and rights to requisition, convene, attend and vote in person, by proxy or by body corporate representative, at all general meetings and all court-convened meetings of Macarthur and to request Macarthur to register, in the name of PEAMCoal or its nominee, the Relevant Shares, as appropriate, with full power of substitution (such power of attorney, being coupled with an interest, being irrevocable); (9) with effect from the date on which all the conditions to this Offer in section 11.7 have been fulfilled or freed, to have agreed not to attend or vote in person, by proxy or by body corporate representative at any general meeting or court-convened meeting of Macarthur or to exercise or purport to exercise any of the powers and rights conferred on PEAMCoal (and its directors, secretaries and nominees) in section 11.5(c)(8); (10) agreed that in exercising the powers and rights conferred by the powers of attorney granted under section 11.5(c) (8), the attorney will be entitled to act in the interests of PEAMCoal as the beneficial owner and intended registered holder of the Relevant Shares; (11) agreed to do all such acts, matters and things that PEAMCoal may require to give effect to the matters the subject of this section 11.5(c) (including the execution of a written form of proxy to the same effect as this section 11.5(c) which complies in all respects with the requirements of the constitution of Macarthur) if requested by PEAMCoal; (12) agreed to indemnify PEAMCoal in respect of any claim or action against it or any loss, damage or liability whatsoever incurred by it as a result of you not producing your Holder Identification Number or Security Holder Reference Number or in consequence of the transfer of the Relevant Shares to PEAMCoal being registered by Macarthur without production of your Holder Identification Number or your Security Holder Reference Number for the Relevant Shares; (13) represented and warranted to PEAMCoal that, unless you have notified it in accordance with section 11.1(f), the Relevant Shares do not consist of separate parcels of Shares; (14) irrevocably authorised PEAMCoal (and any nominee) to transmit a message in accordance with Rule 14.17 of the ASX Settlement Operating Rules to transfer the Relevant Shares to PEAMCoal’s Takeover Transferee Holding, regardless of whether it has paid the consideration due to you under this Offer; and (15) agreed, subject to the conditions of this Offer in section 11.7 being fulfilled or freed, to execute all such documents, transfers and assurances, and do all such acts, matters and things that PEAMCoal may consider necessary or desirable to convey the Relevant Shares registered in your (d) name and Rights to PEAMCoal. The undertakings and authorities referred to in section 11.5(c) will remain in force after you receive the consideration for the Relevant Shares and after PEAMCoal becomes registered as the holder of the Relevant Shares. 11.6 Payment of consideration (a) (b) (c) (d) Subject to section 11.4(b) and this section 11.6 and the Corporations Act, PEAMCoal will provide the consideration due to you for the Relevant Shares on or before the earlier of: (1) one month after the date of your acceptance or, if this Offer is subject to a defeating condition when you accept this Offer, within one month after this Offer becomes unconditional; and (2) 21 days after the end of the Offer Period. Where the Acceptance Form requires an additional document to be delivered with your Acceptance Form (such as a power of attorney): (1) if that document is given with your Acceptance Form, PEAMCoal will provide the consideration in accordance with section 11.6(a); (2) if that document is given after your Acceptance Form and before the end of the Offer Period while this Offer is subject to a defeating condition, PEAMCoal will provide the consideration due to you on or before the earlier of one month after this Offer becomes unconditional and 21 days after the end of the Offer Period; (3) if that document is given after your Acceptance Form and before the end of the Offer Period while this Offer is not subject to a defeating condition, PEAMCoal will provide the consideration due to you on or before the earlier of one month after that document is given and 21 days after the end of the Offer Period; and (4) if that document is given after your Acceptance Form and after the end of the Offer Period, and the Offer is not subject to a defeating condition, PEAMCoal will provide the consideration within 21 days after that document is delivered. However, if at the time the document is given, the Offer is still subject to a defeating condition that relates only to the happening of an event or circumstance referred to in section 652C(1) or (2) of the Corporations Act, PEAMCoal will provide the consideration due to you within 21 days after the Offer becomes unconditional. If you do not provide PEAMCoal with the required additional documents within one month after the end of the Offer Period, PEAMCoal may, in its sole discretion, rescind the contract resulting from your acceptance of this Offer. If you accept this Offer, PEAMCoal is entitled to all Rights in respect of the Relevant Shares. PEAMCoal may require you to provide all documents necessary to vest title to those Rights in PEAMCoal, or otherwise to give it the benefit or value of those Rights. If you do not give those documents to PEAMCoal, or if you have received or are entitled to receive the benefit of those Rights, PEAMCoal will deduct from the consideration otherwise due to you the amount (or value, as reasonably assessed by PEAMCoal) of those Rights, together with the value (as reasonably assessed by PEAMCoal) of the franking credits, if any, attached to the Rights. The consideration payable by PEAMCoal to you under the Offer will be paid to you by cheque in Australian currency. Cheques will be posted to you at your risk by ordinary mail (or in the case of overseas shareholders, by airmail) to either: (1) the address as shown on your Acceptance Form; or (2) the address as shown on the latest version of the 42
(e) Macarthur register of members (as obtained by PEAMCoal). If at the time you accept the Offer any of the following: (1) Banking (Foreign Exchange) Regulations 1959 (Cth); (2) any regulations made under the Anti-Money Laundering And Counter-Terrorism Financing Act 2006 (Cth); (3) Charter of the United Nations Act 1945 (Cth) or any regulations made thereunder; or (4) any other law of Australia, require that an authority, clearance or approval of the Reserve Bank of Australia, the Australian Taxation Office or any other government authority be obtained before you receive any consideration for the Relevant Shares, or would make it unlawful for PEAMCoal to provide any consideration to you for the Relevant Shares, you will not be entitled to receive any consideration for the Relevant Shares until all requisite authorities, clearances or approvals have been received by PEAMCoal. As far as PEAMCoal is aware, as at the date of this Bidder’s <strong>Statement</strong>, the persons to whom this section 11.6(e) will apply include: prescribed supporters of the former government of the Former Federal Republic of Yugoslavia; ministers and senior officials of the Government of Zimbabwe, as well as others associated with the Mugabe regime in Zimbabwe; persons and supporters associated with the Burmese regime; persons and entities responsible for, or involved in, human rights abuses in Syria; entities associated with the Democratic People’s Republic of Korea (North Korea); persons and entities associated with Iran; certain key persons and entities associated with the Qadhafi regime in Libya; persons associated with the former government of Iraq (including senior officials, immediate family members of senior officials, or an entity controlled by any of those persons); the Taliban; members of the Al Qaida organisation; persons and entities from Côte d’Ivoire, the Democratic Republic of the Congo, Eritrea, Lebanon, Liberia, Somalia, Sudan, Rwanda and Sierra Leone; and a person named in the list maintained pursuant to paragraph 2 of Resolution 1390 of the Security Council of the United Nations. 11.7 Conditions of this Offer Subject to section 11.8, the completion of this Offer and any contract that results from an acceptance of this Offer, are subject to the fulfilment of the conditions set out below: (a) FIRB Before the end of the Offer Period, one of the following occurs: (1) PEAMCoal receiving notice from, or on behalf of, the Australian Treasurer to the effect that there is no objection under the Commonwealth Government’s foreign investment policy or under the FATA to the acquisition by PEAMCoal of the Shares under the Offer and that notice is not subject to any condition; (2) the period provided under the FATA during which the Australian Treasurer may make an order under section 18 or an interim order under section 22 of the FATA prohibiting the acquisition by PEAMCoal of the Shares under the Offer elapsing, without such an order being made; or (3) if an interim order prohibiting the acquisition of the Shares by PEAMCoal under the Offer is made by the Australian Treasurer under section 22 of the FATA, the subsequent period for making a final order prohibiting the acquisition elapsing, without such a final order being made. (b) Other regulatory approvals Before the end of the Offer Period, all waiting periods applicable under any Relevant Law shall have expired or terminated and all (c) (d) (e) (f) approvals or consents that are required by law, regulation or by any Public Authority, whether in Australia or elsewhere, as are necessary to permit: (1) the Offer to be lawfully made to and accepted by the Shareholders; (2) the Takeover Bid to be completed; (3) the continued operation of Macarthur’s businesses and required as a result of the Offer; or (4) any member of the Macarthur Group to carry on its business, are granted, given, made or obtained on an unconditional basis, remain in full force and effect in all respects, and do not become subject to any notice, intimation or indication of intention to revoke, suspend, restrict, modify or not renew the same. No regulatory action Between the Announcement Date and the end of the Offer Period (each inclusive): (1) there is not in effect any preliminary or final decision, order or decree issued by any Public Authority; (2) no action or investigation is announced, commenced or threatened by any Public Authority; and (3) no application is made to any Public Authority (other than by PEAMCoal or any Associate of PEAMCoal), in consequence of or in connection with the Offer (other than an application to, or a decision or order of, ASIC or the Takeovers Panel in exercise of the powers and discretions conferred by the Corporations Act) which restrains, prohibits or impedes, or threatens to restrain, prohibit or impede, or materially impact upon, the making of the Offers and the completion of the Takeover Bid or which requires the divestiture by PEAMCoal of any Shares or any material assets of Macarthur or any Subsidiary of Macarthur. Minimum acceptance At the end of the Offer Period, PEAMCoal has a Relevant Interest in at least 50.01% of the Shares (on a fully diluted basis). Monto litigation and MDL 162 Litigation (1) Between the Announcement Date and the end of the Offer Period (each inclusive), there is not in effect any preliminary or final decision, order, direction or decree issued by any Court, or any compromise or settlement, in consequence of or in connection with the Monto Claims, in each case which has had or would be reasonably likely to have a material adverse effect on the business, assets, liabilities, financial or trading position, profitability or prospects of the Macarthur Group taken as a whole. (2) Between the Announcement Date and the end of the Offer Period (each inclusive), there is not in effect any preliminary or final decision, order, direction or decree issued by any Court, or any compromise or settlement, in consequence of or in connection with the MDL 162 Litigation, in each case which has had or would be reasonably likely to have a material adverse effect on the business, assets, liabilities, financial or trading position, profitability or prospects of the Macarthur Group taken as a whole. No material adverse change (1) Between the Announcement Date and the end of the Offer Period (each inclusive), none of the following occurs: (A) an event, change, condition, matter or thing occurs or will or is reasonably likely to occur; (B) information is disclosed or announced by Macarthur concerning any event, change, condition, matter or thing; or (C) information concerning any event, change, condition, 43
Page 1 and 2: This is an important document and r
Page 3 and 4: Key dates Date original Bidder’s
Page 5: letter to shareholders 4 August 201
Page 8 and 9: 1 Why you should accept the Offer 1
Page 10 and 11: As demonstrated in Figure 3, Macart
Page 12 and 13: 2 Summary of the Offer What PEAMCoa
Page 14 and 15: Peter Kukielski Peter Kukielski is
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Page 18 and 19: 4.4 Directors of Peabody Energy Bri
Page 20 and 21: At 30 June 2011 (US$ millions) (Una
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Page 32 and 33: (being approximately A$4.40 billion
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Bidder's Statement - Peabody Energy

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