To be abundantly clear, the following message is for the benefit of the intrepid (albeit frightened) investors in Ivanhoe Mines (NYSE: IVN) and Rio Tinto (LON: RIO) – a significant number of whom are readers’ pension and 401(k) institutional managers. Failure to renegotiate a grossly out-of-market agreement, advised in part by Goldman Sachs, presents far greater risk to your investment than listening to the empty cries from insipid, patronizing puppets.
The following information prepared by our team at M-CAM was presented to the Mongolian government in the late winter 2010 and early spring 2011, and to the Canadian Broadcasting Corporation in March 2011 for an interview which they never published. While representing the authors’ opinions, CBC failed to even publish the raw text of the agreements with Ivanhoe Mines or Rio Tinto for any reader to formulate his or her own opinion.
It is important to premise any discussion of the Oyu Tolgoi LLC Shareholder’s Agreement (the “SA”) with a reminder of the fundamental policy and structural failures embedded throughout the document and the project as a whole. On the policy/project side, it is, in this author’s opinion, an utter failure to protect the interests of the State of Mongolia (“Mongolia”) that any transaction involving the deployment of a strategic national asset (much less one the size and global consequence of OT) should leave Mongolia with ANY debt (particularly before any cashflows have been received) when it should have been paid a SIGNIFICANT (into the billions of USD) and UPFRONT fee just simply for granting a suitor the right to have the honor to steward such a unique and strategic asset.
On the structural side, the most significant and damaging items are:
1) The Capital Structure. The existence of, and extremely restrictive terms of, the Debt and/or Preferred Shares issued by OT (defined as Shareholder Debt or Funding Shares) as well as the Debt directly from Ivanhoe to Mongolia (defined as Existing Shareholder Loans) representing at least 40% of its entire GDP(!) which have the effect of transferring the value of OT from Mongolia’s equity stake to Ivanhoe as largely illustrated by:
a. Severe limitations on repayment of the debt
b. Exorbitant interest rates - far beyond any legitimate capital market rate
c. An inability to stop Ivanhoe from continuously authorizing the issuance of further debt under the same restrictive terms
2) The Illiquidity of Mongolia’s Equity. An impairment of Mongolia’s equity stake leaving it with no identifiable pathway to ANY Dividends OR the ability to monetize (e.g., sell or borrow against) its equity stake as partially evidenced by:
a. The irrevocable direction of ALL dividends (including Mongolia’s share) to Ivanhoe so long as any debt is outstanding
b. The inability for Mongolia to repay the “dividend absorbing” Debt or force OT to refinance the debt under more favorable terms
c. Restrictions on transfer of ownership (e.g., right of first refusal) and pledging of shares (as collateral to borrow money) that effectively block any ability to receive cash for its equity stake
3) The Lack of any Mechanism to Protect Mongolia’s Assets or Control Adverse Behavior by Ivanhoe. Mongolia has no contractual/legal pathway in which to block and/or remedy any adverse actions contemplated by Ivanhoe, including a protection of Mongolia’s minority equity stake or, more broadly, an ability to protect one of Mongolia’s most strategic assets as demonstrated in part by:
a. The complete absence of any protective representations & warranties and/or ongoing covenants (e.g., minority shareholder rights, performance obligations on Ivanhoe with associated rights and remedies)
b. The control of EVERY corporate governance and management decision through the control of: 1) all day-to-day operations, 2) the Board of Directors and 3) any Shareholder vote including, but not limited to:
i. The unhindered ability to force OT to enter into transactions to “leak” cashflows out of the Company, including approval of bonuses to Ivanhoe’s management
ii. The ability to unilaterally define the meaning of “available cash” for Dividends
iii. The ability to bury OT under Debt or sell its assets
iv. Ability to monetize Ivanhoe’s equity stake explicitly at the expense of Mongolia’s equity stake
c. The EXTREMELY out-of-market Management Services contract which pays Ivanhoe at least 3-5x what Rio Tinto (the 3rd largest mining company in the world) is conventionally compensated.
In summary, the SA effectively and elegantly cuts Mongolia completely out of the primary capital markets value chain around OT. Further, it straddles Mongolia with enormous liabilities and no legal way to protect itself or its strategic assets. It effectively delivers to Ivanhoe the entirety of OT’s value, including 100% of the economic value of Mongolia’s 34% equity stake, while leaving Mongolia with bankruptcy-inducing indebtedness and a lack of control or oversight mechanisms. The Shareholder Agreement should be renegotiated to remedy these structural failures and should hold, as the audacious standard, an agreement that meets or exceeds the standards of the agreements negotiated by Rio Tinto in G-20 countries.
It’s time for actual shareholders to step up and demand that corporate governance rules be a minimum standard for mineral and energy investment. If Rio Tinto and Ivanhoe can’t make money by operating in a form that doesn’t destabilize governments, than they shouldn’t be the recipient of managed funds and should not blight the public equity markets in New York, London and the rest of the world.
A complete review is available upon request.