TIDMIMD
RNS Number : 9746B
Independent Media Distribution PLC
28 February 2011
For immediate release
________________________________________________________________________
__________
NOT FOR RELEASE, DISTRIBUTION OR PUBLICATION IN WHOLE OR IN PART
IN OR INTO OR FROM ANY JURISDICTION WHERE IT IS UNLAWFUL TO DO
SO
28 February 2011
Recommended cash acquisition
of
Independent Media Distribution plc
by
Lausanne Acquisitions Limited, a company controlled by
investment partnerships advised by Vitruvian Partners LLP
(to be implemented by a scheme of arrangement under Part 26 of
the Companies Act 2006)
Summary
-- The Independent Directors of IMD and the board of Bidco are
pleased to announce that they have reached agreement on the terms
of a recommended acquisition of the entire issued and to be issued
share capital of IMD by Bidco. Bidco is a newly incorporated
company which has been formed for the purposes of making the
Acquisition at the direction of, and is controlled, by the
Vitruvian Fund advised by Vitruvian Partners.
-- Scheme Shareholders (other than Simon Cox in relation to the
Cox Shares) will be entitled to receive 91 pence in cash for each
Scheme Share.
-- The Acquisition values the entire issued and to be issued
share capital of IMD at approximately GBP33.9 million.
-- The price of 91 pence per Scheme Share represents a premium
of:
-- 13.8 per cent. to the Closing Price of 80 pence per IMD Share
on 25 February 2011, the last business day prior to the date of
this announcement;
-- 23.0 per cent. to the average Closing Price of 74 pence per
IMD Share for the six months prior to the date of this
announcement; and
-- 33.8 per cent. to the average Closing Price of 68 pence per
IMD Share for the twelve months prior to the date of this
announcement.
-- IMD is a provider of media logistics solutions, operating in
the UK, Ireland, Germany, Switzerland, Austria and France. The
Company provides content distribution and advertising data services
to creative and media agencies, post production houses,
broadcasters and online publishers.
-- Vitruvian Partners is an independent private equity firm that
specialises in middle-market buyouts, growth buyouts and growth
capital investments in the United Kingdom and elsewhere in Northern
Europe. Vitruvian Partners acts as discretionary manager to the
Vitruvian Fund which comprises total commitments of EUR925
million.
-- It is intended that the Acquisition will be implemented by
means of a Court sanctioned scheme of arrangement under Part 26 of
the Companies Act 2006.
-- The implementation of the Scheme will be subject to a number
of conditions including the Conditions and the passing of a
resolution to approve the Scheme by a simple majority in number of
the Independent Scheme Shareholders present, entitled to vote and
voting at the Court Meeting (or at an adjournment thereof), either
in person or by proxy, representing not less than 75 per cent. in
value of Scheme Shares voted at the Court Meeting (or at any
adjournment thereof).
-- Upon the Scheme becoming effective, it will be binding on all
Scheme Shareholders, irrespective of whether they attend or voted
at the Court Meeting or the General Meeting (and if they attended
and voted, whether or not they voted in favour).
-- The Bidco Group has entered into arrangements with the
Executive Managers in relation to their equity involvement in the
Bidco Group. Under these arrangements the Executive Managers are
expected to invest GBP387,964 in the Bidco Group either from their
own resources directly or indirectly held and/or utilising some or
all of the cash consideration that each will be entitled to receive
upon implementation of the Scheme. Simon Cox will also be investing
by means of allotment to him of Bidco Ordinary Shares as
consideration for the cancellation of the Cox Shares.
-- IMD has entered into the Inducement Fee Agreement with
Vitruvian Partners (on behalf of Bidco) under which IMD has given
certain non-solicitation undertakings and agreed, under certain
circumstances, to pay an inducement fee to Vitruvian Partners of
one per cent. of the value of the Acquisition (plus any VAT only to
the extent both applicable and recoverable by IMD). Further details
of the Inducement Fee Agreement are provided below.
-- IMD and Bidco have entered into the Implementation Agreement
which governs their relationship during the period until the
Acquisition becomes effective, lapses or is withdrawn or the
agreement is otherwise terminated. The parties have agreed, amongst
other things, to co-operate with regard to the process of
implementing the Acquisition. The Implementation Agreement also
contains provisions which grant Bidco the right to match the
financial value of competing offers from third parties. Further
details of the Implementation Agreement are provided below.
-- The Independent Directors, who have been so advised by Oakley
Capital, consider the terms of the Acquisition to be fair and
reasonable. In providing its advice, Oakley Capital has taken into
account the commercial assessments of the Independent Directors.
Accordingly, the Independent Directors intend to recommend to IMD
Shareholders to vote in favour of the Acquisition at the Court
Meeting and the General Meeting.
-- Bidco has received irrevocable undertakings from the
Independent Directors (and certain of their related trusts or
associated companies) to: (i) vote in favour of the Acquisition at
the Court Meeting; (ii) vote in favour of the resolutions required
to implement the Acquisition to be proposed at the General Meeting;
and (iii) accept any potential takeover offer subsequently made by
Bidco at a price per IMD Share of 91 pence or more, in respect of,
in aggregate, 13,599,124 IMD Shares representing approximately 39.7
per cent. of the entire issued share capital of IMD.
-- Bidco has also received irrevocable undertakings from certain
of the Executive Managers (and certain of their related trusts or
associated companies) to: (i) consent to the Acquisition and
undertake to the Court to be bound by the Scheme; and (ii) vote in
favour of the resolutions required to implement the Acquisition to
be proposed at the General Meeting (other than the resolution
approving the Management Arrangements) to the extent that they hold
shares at the time of the General Meeting; and (iii) accept any
potential takeover offer subsequently made by Bidco at a price per
IMD Share of 91 pence or more in respect of, in aggregate, 320,630
IMD Shares, representing approximately 0.9 per cent. of the entire
issued share capital of IMD.
-- Bidco has received from Independent IMD Shareholders (not
being the Independent Directors) irrevocable undertakings to: (i)
vote in favour of the Acquisition at the Court Meeting; (ii) vote
in favour of the resolutions required to implement the Acquisition
to be proposed at the General Meeting; and (iii) accept any
potential takeover offer subsequently made by Bidco at a price per
IMD Share of 91 pence or more, in respect of, in aggregate,
5,684,800 IMD Shares representing approximately 16.6 per cent. of
the entire issued share capital of IMD.
-- Further details of these irrevocable undertakings are set out
in Appendix III to this announcement.
-- In aggregate, therefore, Bidco has received irrevocable
undertakings to vote at the General Meeting in favour of the
resolutions required to implement the Scheme, the Capital Reduction
and amendments to the articles of association of IMD to be proposed
at the General Meeting, in respect of 19,604,554 IMD Shares,
representing approximately, in aggregate, 57.2 per cent. of the
existing issued share capital of IMD.
-- It is expected that the Scheme Document will be posted to
Shareholders and, for information only, to participants in the IMD
Share Schemes by 25 March 2011 and will become effective by the end
of May 2011 subject to the satisfaction (or, if applicable, waiver)
of all relevant conditions (including the Conditions).
DC Advisory Partners is acting as financial adviser to Bidco in
connection with the Acquisition. Oakley Capital is acting as
financial adviser to IMD in connection with the Acquisition.
Commenting on the Acquisition, David Haynes, an Independent
Director of IMD said:
"The Acquisition represents an opportunity for IMD Shareholders
to realise their investment in IMD, in cash, at a premium to the
current IMD Share price. The Independent Directors are pleased to
recommend the Acquisition which we believe, in the context of the
risks and opportunities faced by the Company, represents an
attractive valuation for IMD Shareholders."
Commenting on the Acquisition, Simon Cox, Chief Executive
Officer of IMD said:
"This important step in IMD's life means that we can continue to
create more value in our chosen field of media logistics whilst
adopting new strategies to do this that will be complemented by the
financial flexibility and support of Vitruvian Partners."
Commenting on the Acquisition, Toby Wyles, Managing Partner of
Vitruvian Partners said:
"We are delighted to be backing IMD as it looks to build on its
strong position in the content distribution and advertising data
services markets. We look forward to working with IMD's highly
respected management team and providing the necessary capital for
IMD to evolve and expand in this rapidly developing sector."
Enquiries
Bidco Tel: + 44 (0)20 7518
2800
Toby Wyles / Ben Johnson
DC Advisory Partners, financial adviser Tel: + 44 (0) 20 7856
to Bidco 0999
Richard Madden / David Sanders
IMD Tel: +44 (0) 7765 258
995
David Haynes
Oakley Capital, financial adviser Tel: + 44 (0) 20 7766
to IMD 6900
Chris Godsmark / Daniel Havercroft
This summary should be read in conjunction with the accompanying
full text of this announcement which sets out further details of
the Acquisition and which forms an integral part of this
announcement. Appendix I to this announcement contains the
conditions to, and certain further terms of, the Acquisition.
Appendix II contains further details of the sources of information
and bases of calculations set out in this announcement. Appendix
III contains further details of the irrevocable undertakings and
Appendix IV contains definitions of certain expressions used in
this summary and in this announcement.
Important information
The Scheme Document, containing further details of the
Acquisition (including notices of a Court Meeting and a General
Meeting) together with the Forms of Proxy, will be posted to IMD
Shareholders and, for information only, to participants in the IMD
Share Schemes as soon as practicable and in any event within 28
days of this announcement, unless otherwise agreed with the
Panel.
The directors of Bidco and the investment committee of Vitruvian
Partners (all of whose names will be set out in the Scheme
Document) accept responsibility for the information contained in
this announcement save for the information for which the investment
committee of Vitruvian Partners alone accepts responsibility, as
set out below and the information for which the directors of IMD or
the Independent Directors accept responsibility, as set out below.
To the best of the knowledge and belief of the directors of Bidco
and the investment committee of Vitruvian Partners (who have taken
all reasonable care to ensure that such is the case), such
information for which they are responsible is in accordance with
the facts and does not omit anything likely to affect the import of
such information.
The investment committee of Vitruvian Partners accepts
responsibility for the information relating to Vitruvian Partners
and the Vitruvian Funds. To the best of the knowledge and belief of
the investment committee of Vitruvian Partners (who have taken all
reasonable care to ensure that such is the case), such information
for which they are responsible is in accordance with the facts and
does not omit anything likely to affect the import of such
information.
The directors of IMD (all of whose names will be set out in the
Scheme Document) accept responsibility for the information
contained in this announcement relating to IMD, the IMD Group and
themselves and their immediate families, related trusts and
connected persons. To the best of the knowledge and belief of the
directors of IMD (who have taken all reasonable care to ensure that
such is the case), such information for which they are responsible
is in accordance with the facts and does not omit anything likely
to affect the import of such information.
The Independent Directors accept responsibility for their
recommendation of the Acquisition contained in the announcement. To
the best of the knowledge and belief of the Independent Directors
(who have taken all reasonable care to ensure that such is the
case), such information for which they are responsible is in
accordance with the facts and does not omit anything likely to
affect the import of such information.
DC Advisory Partners which is authorised and regulated by the
Financial Services Authority for investment business activities, is
acting for Bidco as financial adviser in relation to the
Acquisition and is not acting for any other person in relation to
the Acquisition. DC Advisory Partners will not be responsible to
anyone other than Bidco for providing the protections afforded to
its clients or for providing advice in relation to the contents of
this announcement or any offer or arrangements referred to
herein.
Oakley Capital which is authorised and regulated by the
Financial Services Authority is acting exclusively for IMD and
no-one else as financial adviser in relation to the Acquisition.
Oakley Capital will not be responsible to anyone other than IMD for
providing the protections afforded to its clients or for providing
advice in relation to the contents of this announcement or any
offer or arrangements referred to herein.
Overseas Shareholders
The availability of the Acquisition or the distribution of this
announcement to persons who are not resident in the United Kingdom
may be affected by the laws of the relevant jurisdictions in which
they are located. Persons who are not resident in the United
Kingdom should inform themselves of, and observe, any applicable
requirements. Any failure to comply with these restrictions may
constitute a violation of the securities laws of any such
jurisdiction.
Notice to US investors in IMD: The Acquisition relates to the
shares of a UK company and is proposed to be made by means of a
scheme of arrangement provided for under the laws of England and
Wales. The Acquisition is subject to the disclosure requirements
and practices applicable in the United Kingdom to schemes of
arrangement, which differ from the disclosure and other
requirements of US securities laws. Financial information included
in the relevant documentation will have been prepared in accordance
with accounting standards applicable in the United Kingdom (or
other appropriate jurisdictions) that may not be comparable to the
financial statements of US companies.
The Acquisition will not be made available, directly or
indirectly, in or into the United States, Canada, Australia, South
Africa or Japan and no person may vote in favour of the Acquisition
by any such use, means, instrumentality or facility or form within
the United States, Canada, Australia, South Africa or Japan or any
other such jurisdiction if to do so would constitute a violation of
the relevant laws of such jurisdiction. Accordingly, copies of this
announcement, the Scheme Document and the Forms of Proxy are not
being, will not be and must not be mailed or otherwise forwarded,
distributed or sent in, into or from the United States, Canada,
Australia, South Africa or Japan or any other such jurisdiction if
to do so would constitute a violation of the relevant laws of such
jurisdiction and persons receiving this press announcement, the
Scheme Document and the Forms of Proxy (including without
limitation custodians, nominees and trustees) must not mail,
forward, distribute or send them in, into from the United States,
Canada, Australia, South Africa or Japan or any other such
jurisdiction if to do so would constitute a violation of the
relevant laws of such jurisdiction.
This announcement is for information purposes only and is not
intended to and does not constitute or form part of an offer to
sell or invitation to purchase any securities or the solicitation
of any vote for approval in any jurisdiction, nor shall there be
any sale, issue or transfer of the securities referred to in this
announcement in any jurisdiction in contravention of applicable
law. The Scheme will be put to IMD Shareholders solely through the
Scheme Document, and the Forms of Proxy, which will together
contain the full terms and conditions of the Acquisition, including
details of how to vote in favour of the Acquisition. Any response
in relation to the Acquisition should be made only on the basis of
the information contained in the Scheme Documents, the Forms of
Proxy or any other document by which the Acquisition is made.
Cautionary note regarding forward looking statements
This announcement may contain certain forward-looking statements
with respect to the financial condition, results of operations and
business of IMD, the Acquisition and certain plans and objectives
of the boards of IMD and Bidco with respect thereto. These
forward-looking statements can be identified by the fact that they
do not relate only to historical or current facts. Forward-looking
statements often use (without limitation) words such as
"anticipate", "target", "expect", "estimate", "intend", "plan",
"goal", "believe", "will", "may", "should", "would", "could", or
other words of similar meaning. These statements are based on
assumptions and assessments made by the boards of IMD and/or Bidco
in light of their experience and their perception of historical
trends, current conditions, expected future developments and other
factors they believe appropriate. By their nature, forward-looking
statements involve risk and uncertainty, because they relate to
events and depend on circumstances that will occur in the future
and the factors described in the context of such forward-looking
statements in this document could cause actual results and
developments to differ materially from those expressed in or
implied by such forward-looking statements. Although IMD and Bidco
believe that the expectations reflected in such forward-looking
statements are reasonable, IMD and Bidco can give no assurance that
such expectations will prove to have been correct and IMD and Bidco
therefore caution you not to place undue reliance on these
forward-looking statements which speak only as at the date of this
announcement.
Disclosure requirements
Under Rule 8.3(a) of the City Code, any person who is
"interested" (directly or indirectly) in 1 per cent. or more of any
class of relevant securities of an offeree company or of any paper
offeror (being any offeror other than an offeror in respect of
which it has been announced that its offer is, or is likely to be,
solely in cash) must make an "Opening Position Disclosure"
following the commencement of the offer period and, if later,
following the announcement in which any paper offeror is first
identified. An "Opening Position Disclosure" must contain details
of the person's interests and short positions in, and rights to
subscribe for, any "relevant securities" of each of (i) the offeree
company and (ii) any paper offeror(s). An "Opening Position
Disclosure" by a person to whom Rule 8.3(a) applies must be made by
no later than 3.30 p.m. (London time) on the 10th business day
following the commencement of the offer period and, if appropriate,
by no later than 3.30 p.m. (London time) on the 10th business day
following the announcement in
which any paper offeror is first identified. Relevant persons
who deal in the "relevant securities" of the offeree company or of
a paper offeror prior to the deadline for making an "Opening
Position Disclosure" must instead make a "Dealing Disclosure".
Under Rule 8.3(b) of the City Code, any person who is, or
becomes, "interested" in 1 per cent. or more of any class of
"relevant securities" of the offeree company or of any paper
offeror must make a "Dealing Disclosure" if the person deals in any
"relevant securities" of the offeree company or of any paper
offeror. A "Dealing Disclosure" must contain details of the
"dealing" concerned and of the person's interests and short
positions in, and rights to subscribe for, any relevant securities
of each of (i) the offeree company and (ii) any paper offeror, save
to the extent that these details have previously been disclosed
under Rule 8. A "Dealing Disclosure" by a person to whom Rule
8.3(b) applies must be made by no later than 3.30 p.m. (London
time) on the business day following the date of the relevant
dealing.
If two or more persons act together pursuant to an agreement or
understanding, whether formal or informal, to acquire or control an
"interest" in "relevant securities" of an offeree company or a
paper offeror, they will be deemed to be a single person for the
purpose of Rule 8.3.
"Opening Position Disclosures" must also be made by the offeree
company and by any offeror and "Dealing Disclosures" must also be
made by the offeree company, by any offeror and by any persons
acting in concert with any of them (see Rule 8.1, 8.2 and 8.4).
Details of the offeree and offeror companies in respect of whose
relevant securities "Opening Position Disclosures" and "Dealing
Disclosures" must be made can be found in the Disclosure Table on
the Takeover Panel's website at www.thetakeoverpanel.org.uk,
including details of the number of relevant securities in issue,
when the offer period commenced and when any offeror was first
identified. If you are in any doubt as to whether you require to
make an "Opening Position Disclosure" or a "Dealing Disclosure",
you should contact the Panel's Market Surveillance Unit on +44
(0)20 7638 0129.
Terms in quotation marks are defined in the City Code, which can
also be found on the Panel's website at
www.thetakeoverpanel.org.uk.
Market Purchases
In accordance with normal UK market practice, Bidco or its
nominees or brokers (acting as agents) may from time to time make
certain purchases of, or arrangements to purchase, IMD Shares
outside the United States, other than pursuant to the Scheme, prior
to the Effective Date. These purchases may occur either in the open
market at prevailing prices or in private transactions at
negotiated prices. Any information about such purchases will be
disclosed as required in the UK.
Publication on website
A copy of this announcement will be available free of charge,
subject to certain restrictions relating to persons resident in
restricted jurisdictions, on IMD's website at www.imdplc.com by no
later than 12.00 p.m. on 1 March 2011.
A IMD Shareholder, person with information rights or other
person to whom this document is sent electronically or who is sent
a website notification may request a copy of the information
incorporated into this document in hard copy form. A hard copy of
this information will not be sent to any such person unless
requested. Hard copies of such information may be obtained on
request by writing to Chris Godsmark / Daniel Havercroft of Oakley
Capital, 3 Cadogan Gate, London, SW1X 0AS, or by calling +44 (0)20
7766 6900 and a hard copy will be sent to you as soon as possible
and in any event within two business days of your request.
Rule 2.10 Disclosure
In accordance with Rule 2.10 of the City Code, the Company
confirms that it has 34,289,275 IMD Shares of 10 pence each in
issue and admitted to trading on AIM under the ISIN code
GB0031308850.
For immediate release
________________________________________________________________________
__________
NOT FOR RELEASE, DISTRIBUTION OR PUBLICATION IN WHOLE OR IN PART
IN OR INTO OR FROM ANY JURISDICTION WHERE IT IS UNLAWFUL TO DO
SO
28 February 2011
Recommended cash acquisition
of
Independent Media Distribution plc
by
Lausanne Acquisitions Limited, a company controlled by
investment partnerships advised by Vitruvian Partners LLP
(to be implemented by a scheme of arrangement under Part 26 of
the Companies Act 2006)
1. Introduction
The Independent Directors and the board of Bidco are pleased to
announce that they have reached agreement on the terms of a
recommended acquisition of the entire issued and to be issued share
capital of IMD by Bidco. It is intended that the Acquisition will
be effected by means of a scheme of arrangement under Part 26 of
the Companies Act 2006.
Bidco is a newly incorporated company which has been formed for
the purposes of making the Acquisition, and is controlled by, the
Vitruvian Fund advised by Vitruvian Partners.
In view of their arrangements with Bidco as described in
paragraph 4 below, those directors of IMD who are Executive
Managers are each regarded as having a conflict of interest in
relation to the Acquisition. A committee of the board of IMD
comprising the Independent Directors, has therefore been
established for the purposes of progressing the Acquisition,
considering all matters relating to the Acquisition and making the
recommendations to IMD Shareholders in relation to the
Acquisition.
2. The Acquisition
Under the terms of the Scheme, which will be subject to the
Conditions and certain further terms set out in Appendix I to this
announcement and to be set out in the Scheme Document, Scheme
Shareholders (other than in relation to the Cox Shares) will be
entitled to receive:
for each Scheme Share 91 pence in cash
The Acquisition values the entire issued and to be issued share
capital of IMD at approximately GBP33.9 million.
The price of 91 pence per Scheme Share represents a premium of
approximately:
-- 13.8 per cent. to the Closing Price of 80 pence per IMD Share
on 25 February 2011, the last business day prior to the date of
this announcement;
-- 23.0 per cent. to the average Closing Price of 74 pence per
IMD Share for the six months prior to the date of this
announcement; and
-- 33.8 per cent. to the average Closing Price of 68 pence per
IMD Share for the twelve months prior to the date of this
announcement.
The Scheme Document, containing further details of the
Acquisition (including notices of a Court Meeting and a General
Meeting) together with the Forms of Proxy, will be posted to IMD
Shareholders and, for information only to participants in the IMD
Share Schemes, within 28 days of this announcement, unless
otherwise agreed with the Panel. Resolutions to, amongst other
things, approve the Scheme and the Capital Reduction will be put to
IMD Shareholders at the Court Meeting and the General Meeting,
respectively. It is expected that the Court Meeting and the General
Meeting to approve the Acquisition will be held on or about 19
April 2011. Subject to shareholder approval and the satisfaction
(or, if applicable, waiver) of all relevant conditions (including
the Conditions) it is expected that the Scheme will become
effective by the end of May 2011.
Details of how the Cox Shares will be treated pursuant to the
Scheme are set out at paragraph 4 below.
Bidco reserves the right to elect to implement the acquisition
of IMD by way of a takeover offer. In such event, the Acquisition
will be implemented on the same terms (subject to appropriate
amendments), so far as applicable, as those which would apply to
the Scheme except that the Acquisition may exclude IMD Shareholders
in certain overseas jurisdictions.
Bidco has undertaken to consent to the Scheme and will undertake
to the Court to be bound by the terms of the Scheme insofar as it
relates to Bidco, including as to the discharge of the
consideration for the Acquisition.
3. Recommendation
The Independent Directors, who have been so advised by Oakley
Capital, consider the terms of the Acquisition to be fair and
reasonable. In providing its advice to the Independent Directors,
Oakley Capital has taken into account the commercial assessments of
the Independent Directors.
Accordingly, the Independent Directors intend to recommend that
IMD Shareholders vote in favour of the resolutions to be proposed
at the Court Meeting and the General Meeting.
4. Arrangements between Bidco and the Executive Managers
The Bidco Directors believe that the ongoing participation in
the continued growth of IMD by the Executive Managers is very
important, due to their knowledge of the Company and its markets
and their existing relationships with customers and suppliers.
Therefore the Executive Managers have reached agreement with Bidco
in relation to the Management Arrangements under which, inter alia,
it is anticipated Simon Cox will invest GBP200,000 (being funded
from approximately 21.5 per cent. of his proceeds from the
Acquisition) in Bidco Ordinary Shares and Philip McDanell and/or an
investment vehicle of which he is the beneficiary will invest
GBP183,064 (being funded from approximately 83.4 per cent. of his
proceeds from the Acquisition) in each case in shares and loan
notes in other companies in the Bidco Group, which together will
give them an economic entitlement to approximately 17.4 per cent.
of the equity in Holdco (indirectly as they will both invest in the
equity via Manco) and approximately GBP369,442 of nominal value in
loan notes in Midco.
In addition, the rest of the Executive Managers will invest
approximately GBP4,900 (being funded from their own resources) in
shares of Manco, which together will give them an economic
entitlement to approximately 6.2 per cent. of the equity in Holdco
(indirectly as they will invest in the equity via Manco).
As part of the Acquisition, the consideration to which Simon Cox
will become entitled under the Scheme upon its implementation in
respect of the Cox Shares will be satisfied by the allotment to him
of Bidco Ordinary Shares. For that reason, the Cox Shares will be
reclassified as A Ordinary Shares pursuant to the Scheme in order
to distinguish them from Scheme Shares in respect of which the cash
consideration described above will be paid.
Such Bidco Ordinary Shares will be exchanged, indirectly, for
equity in Holdco and loan notes in Midco. Holdco and Midco are
other companies in the Bidco Group. Further details of Bidco's
holding company structure will be set out in the Scheme
Document.
The Executive Managers will remain in place to operate IMD once
the Scheme becomes effective on the basis of their current service
contracts, subject to certain agreed amendments.
The Acquisition is subject to, among other things, the approval
by the Independent IMD Shareholders of the Management
Arrangements.
Bidco considers the Management Arrangements to be critical to
the success of the Acquisition and therefore if the Independent IMD
Shareholders do not approve these arrangements at the General
Meeting, Bidco may (at its absolute discretion) seek to invoke
Condition 1(iii) of Part A of Appendix I to this announcement,
which would result in the Acquisition being withdrawn.
None of the Executive Managers shall be entitled to attend,
speak or vote at the Court Meeting.
Oakley Capital considers the terms of the arrangements with the
Executive Managers to be fair and reasonable.
Further details of the Management Arrangements will be set out
in the Scheme Document.
5. Irrevocable undertakings
Bidco has received irrevocable undertakings from the Independent
Directors (and certain of their related trusts and associated
companies) to: (i) vote in favour of the Acquisition at the Court
Meeting; (ii) vote in favour of the resolutions required to
implement the Acquisition to be proposed at the General Meeting;
and (iii) accept any potential takeover offer subsequently made by
Bidco at a price per IMD Share of 91 pence or more, in respect of,
in aggregate, 13,599,124 IMD Shares representing approximately 39.7
per cent. of the entire issued share capital of IMD.
Bidco has also received irrevocable undertakings from certain of
the Executive Managers (and certain of their related trusts and
associated companies) to: (i) consent to the Acquisition and
undertake to the Court to be bound by the Scheme; (ii) vote in
favour of the resolutions required to implement the Acquisition to
be proposed at the General Meeting (other than the resolution
approving the Management Arrangements) to the extent that they hold
shares at the time of the General Meeting; and (iii) accept any
potential takeover offer subsequently made by Bidco at a price per
IMD Share of 91 pence or more in respect of, in aggregate, 320,630
IMD Shares, representing approximately 0.9 per cent. of the entire
issued share capital of IMD.
Bidco has received from Independent IMD Shareholders (not being
the Independent Directors) irrevocable undertakings to: (i) vote in
favour of the Acquisition at the Court Meeting; (ii) vote in favour
of the resolutions required to implement the Acquisition to be
proposed at the General Meeting; and (iii) to accept any potential
takeover offer subsequently made by Bidco at a price per IMD Share
of 91 pence or more, in respect of, in aggregate, 5,684,800 IMD
Shares representing approximately 16.6 per cent. of the entire
issued share capital of IMD.
Further details of these irrevocable undertakings are set out in
Appendix III to this announcement.
In aggregate, therefore, Bidco has received irrevocable
undertakings to vote at the General Meeting in favour of the
resolutions required to implement the Scheme, the Capital Reduction
and amendments to the articles of association of IMD to be proposed
at the General Meeting, in respect of 19,604,554 IMD Shares,
representing approximately, in aggregate, 57.2 per cent. of the
existing issued share capital of IMD.
6. Background to and reasons for the Acquisition
Vitruvian Partners believes that the Executive Managers have
overseen a period of growth in a challenging market environment and
intends to support them in realising their plans for the
Company.
In particular, the Executive Managers have identified a number
of attractive development opportunities which Bidco intends to
support to reinforce IMD's positions in the markets in which it
operates and to enhance its prospects for future growth.
Given the medium term investment horizon required to pursue this
strategy, Vitruvian Partners believes that the next stage of IMD's
development would best be achieved under private ownership.
7. Background to and reasons for recommending the
Acquisition
Since its formation in 1996, IMD has been developing a range of
products and solutions to service the advertising, radio and
television markets, including content distribution and data
administration for the UK and continental Europe. During this
period, IMD has had to adjust to considerable changes in its target
markets and also the competitive landscape in which it operates.
Such changes include the decline of radio content distribution and
the emergence of online video content distribution.
Over the two years to 31 December 2009 IMD increased its
revenues and profits despite the economic climate at the time and
uncertainty over advertising spending. This growth has been
augmented by the expansion of IMD into Ireland, France and Germany,
including the German speaking area of Switzerland.
IMD increased its turnover (year-on-year) by approximately 30
per cent. in the 6 months to 30 June 2010, to GBP4.73 million.
However, in the Independent Directors' opinion, the scale of IMD
remains small relative to much larger diversified media services
companies. As a result, the Independent Directors believe that IMD
faces challenges in its aim to play a major role in a global media
services market which is undergoing changes through the development
of web-based content. These changes have created opportunities, but
also uncertainties, for IMD as it seeks to expand further.
In November 2010, IMD received an indicative approach from
Vitruvian Partners regarding its interest in making a possible
offer for the Company, with the intention of retaining the
Executive Managers to run the Company.
During preliminary discussions, Vitruvian Partners demonstrated
a high level of interest in the Company and the market in which it
operates, including the potential to grow the Company through both
acquisitions and organic growth. This convinced the Independent
Directors of the merits of allowing Vitruvian Partners to progress
this interest and to conduct a limited due diligence exercise in
cooperation with the Company. The discussions have resulted in the
proposed recommended acquisition of IMD by Bidco at a price of 91
pence in cash for each Scheme Share.
The Acquisition represents an opportunity for Scheme
Shareholders to realise the value of their investment in cash and
at a premium to the current market value of the Company.
At a price of 91 pence per Scheme Share, the Acquisition
represents:
-- an equity value of approximately GBP33.9 million for the
entire issued and to be issued share capital of IMD equating to
approximately 26.1 times IMD's profit after taxation (but before
amortisation of consumer related intangibles) of GBP1.3 million for
the year ended 31 December 2009;
-- a premium of 13.8 per cent. to the Closing Price of 80 pence
per IMD Share on 25 February 2011, the last business day prior to
the date of this announcement;
-- a premium of 23.0 per cent. to the average Closing Price of
74 pence per IMD Share for the six months prior to the date of this
announcement; and
-- a premium of 33.8 per cent. to the average Closing Price of
68 pence per IMD Share for the twelve months prior to the date of
this announcement.
Based on IMD's reported net cash at 30 June 2010 of GBP1.0
million, the Acquisition represents:
-- an enterprise value of approximately GBP32.9 million,
equating to 14.3 times IMD's earnings from operating activities
before interest, tax, depreciation and amortisation of GBP2.3
million for the year ended 31 December 2009.
In considering whether to recommend the Acquisition, the
Independent Directors have determined that:
-- the Acquisition represents an opportunity for IMD
Shareholders to realise their entire investment in IMD, in cash and
at a premium, within a relatively short period of time and without
the operational risks inherent in IMD executing its business plan;
and
-- the Acquisition fairly reflects the Company's future growth
prospects.
The Independent Directors also considered that IMD has received
no other expressions of interest from potential offerors since the
approach from Vitruvian Partners.
8. Information on IMD
Established in 1996, IMD is a provider of media logistics
solutions, operating in the UK, Ireland, Germany, Switzerland,
Austria and France. The Company provides content distribution and
advertising data services to creative and media agencies, post
production houses, broadcasters and online publishers.
For the financial year ended 31 December 2009, IMD reported
turnover of GBP8.1 million and profit after taxation (but before
amortisation of consumer related intangibles) of GBP1.3 million. In
the interim six month period ended 30 June 2010, IMD reported
turnover of GBP4.7 million and profit after taxation (but before
amortisation of consumer related intangibles) of GBP1.0 million. At
30 June 2010, IMD had net cash of GBP1.0 million and net assets of
GBP5.2 million.
9. Information on Bidco
Bidco is a private limited company registered in England and
Wales and was incorporated in December 2010.
Bidco was formed for the purposes of making the Acquisition at
the direction of, and is controlled by, the Vitruvian Fund advised
by Vitruvian Partners.
Bidco has not traded since its date of incorporation, nor has it
entered into any obligations other than in connection with the
Acquisition and the financing of the Acquisition.
The current Directors of Bidco are Vitruvian Directors I
Limited, Vitruvian Directors II Limited and Thomas Studd. Toby
Wyles and Ben Johnson have been appointed by Vitruvian Directors I
Limited and Vitruvian Directors II Limited respectively to act as
their representatives in attending board meetings of Bidco.
10. Information on Vitruvian Partners
Vitruvian Partners is an independent private equity firm that
specialises in middle-market buyouts, growth buyouts and growth
capital investments in the United Kingdom and elsewhere in Northern
Europe. Vitruvian Partners investment professionals' experience as
principals in the investment industry dates back to 1990 and
demonstrates an ability to invest successfully over multiple market
cycles throughout a spectrum of industries.
Vitruvian Partners aims to invest in companies across northern
Europe including, the United Kingdom, Eire, Germany, the Nordic
Region, the Netherlands, Belgium, Switzerland and Austria.
Vitruvian Partners focuses on investments in faster moving, less
capital intensive industries such as media, information technology,
telecoms, financial services, healthcare, business services and
leisure.
Vitruvian Partners acts as discretionary manager to the
Vitruvian Fund which comprises total commitments of EUR925 million.
The fund closed to new commitments in February 2008. Vitruvian
Partners' investment focus is on companies operating in 'dynamic
situations' where there is an opportunity to build strategic value
in such businesses as they go through significant change.
The Vitruvian Fund targets investments of EUR15 million to
EUR150 million typically in the sectors referred to above.
11. Financing the Acquisition
DC Advisory Partners has confirmed that it is satisfied that
sufficient resources are available to Bidco to satisfy in full the
cash consideration payable pursuant to the Acquisition. Further
details on the financing of the Acquisition will be set out in the
Scheme Document.
12. Effect of the Scheme on the IMD Share Schemes
Appropriate proposals will be made to holders of options/awards
under the IMD Share Schemes in due course. Details of these
proposals will be set out in the Scheme Document.
13. Directors, management and employees
The board of Bidco has given assurances to the Independent
Directors that, following the Scheme becoming effective, the
existing employment rights, including pension rights, of all
employees of IMD will be fully safeguarded. The board of Bidco has
confirmed to the Independent Directors that Bidco's plans for the
IMD Group do not involve any immediate change to the continued
employment or the terms and conditions of employment of the IMD
Group employees nor are there currently any plans to change the
principal locations of IMD's business.
Following the successful implementation of the Acquisition,
Simon Cox and Philip McDanell will continue as executive directors
of the Company.
The Independent Directors have each undertaken to resign from
the board of IMD upon the Scheme becoming effective. In connection
with his resignation from the board of IMD, David Haynes has
entered into a compromise agreement with IMD (which is conditional
on the Scheme becoming effective) which provides, amongst other
things, for the payment to David Haynes of GBP66,000 and that David
Haynes will be entitled to his normal salary and his existing
entitlement to a bonus until the Effective Date.
14. Disclosure of interests in IMD of Bidco and persons acting
in concert with Bidco
As at 25 February 2011 (the latest practicable date prior to the
date of this announcement) and save as set out below and save for
the irrevocable undertakings referred to in paragraph 5 above,
neither Bidco nor any of the directors of Bidco, any member of the
Bidco Group or Vitruvian Partners, nor, so far as the Bidco
Directors are aware, any person acting in concert with Bidco for
the purposes of the Acquisition, has any interest in, right to
subscribe for, or has borrowed or lent IMD Shares or securities
convertible or exchangeable into IMD Shares (including pursuant to
any long exposure, whether conditional or absolute, to changes in
the process of securities) or right to subscribe for or purchase
the same or holds any options (including traded options) in respect
of or has any right to acquire any IMD Shares or derivatives
referenced to IMD Shares ("IMD Securities"), nor does any such
person have any short position under a derivative, any agreement to
sell or any delivery obligations or right to require another person
to purchase or take delivery in relation to IMD Securities.
(a) IMD Shares held by Bidco, any member of the Bidco Group or
Vitruvian Partners or persons acting in concert with Bidco for the
purposes of the Acquisition as at the date of this announcement
Percentage of
existing issued share
Name(1) Number of IMD Shares capital
Simon Cox 125,000 0.36
Philip McDanell(1) 195,630 0.57
Andrew Troullides 20,000 0.06
Notes:
(1) Philip McDanell has a beneficial interest in 195,630 IMD
Shares which are held by Rock Nominees Limited on behalf of his
personal pension scheme.
(b) Securities convertible or exchangeable into IMD Shares held
by Bidco, any member of the Bidco Group or Vitruvian Partners or
persons acting in concert with Bidco for the purposes of the
Acquisition as at the date of this announcement
Exercise
IMD Shares Price
Management under option (pence) Exercise Date
50 per cent.
from 08/11/07
Simon Cox 834,000 55 to 08/05/16
50 per cent.
from 08/05/09
to 08/05/16
06/03/10 to
Simon Cox 381,000 40 06/03/17
17/12/11 to
Simon Cox 134,556 27 17/12/18
17/12/11 to
Simon Cox 265,444 27 17/12/18
08/11/06 to
Simon Cox 160,000 55 08/05/16
06/03/10 to
Simon Cox 19,000 40 06/03/17
28/02/11 to
Philip McDanell 25,000 40 28/02/18
01/12/12 to
Philip McDanell 70,000 50 01/12/19
01/01/09 to
Andrew Troullides 160,000 40 21/12/16
28/02/11 to
Alistair Hepworth 25,000 40 28/02/18
06/10/12 to
Alistair Hepworth 30,000 45 06/10/19
01/12/12 to
Alistair Hepworth 20,000 50 01/12/19
Clinton Van 28/02/11 to
Ry 25,000 40 28/02/18
Clinton Van 06/10/12 to
Ry 30,000 45 06/10/19
Clinton Van 01/12/12 to
Ry 20,000 50 01/12/19
06/10/12 to
Jean Gaillard 125,000 45 06/10/19
28/02/11 to
Ralph Hekmat 80,000 40 28/02/18
Ross Hunter 20/02/02 to
Priestley 12,992 13.47 21/03/11
Ross Hunter 31/12/03 to
Priestley 12,000 60 30/06/13
Ross Hunter 01/10/08 to
Priestley 50,000 40 30/09/15
Ross Hunter 01/12/12 to
Priestley 40,000 50 01/12/19
20/02/02 to
Shelby Lea Akosa 18,188 13.47 21/03/11
31/12/03 to
Shelby Lea Akosa 12,000 60 30/06/13
01/10/08 to
Shelby Lea Akosa 50,000 40 30/09/15
15. Inducement Fee Agreement
IMD has entered into the Inducement Fee Agreement with Vitruvian
Partners (on behalf of Bidco) under which IMD has given various
undertakings to Vitruvian Partners, including an undertaking that
it will not (and shall procure that none of its directors,
officers, senior employees or advisers shall) solicit or initiate
discussions with any third party in respect of a possible offer for
IMD or any other transaction which is inconsistent with, or an
alternative to, the Acquisition.
As an inducement to Vitruvian Partners to pursue its discussions
with IMD in relation to a possible offer, IMD has agreed to pay an
inducement fee to Vitruvian Partners of one per cent. of the value
of the Acquisition (plus any VAT only to the extent both applicable
and recoverable by IMD). The circumstances in which the inducement
fee will be payable include where:
-- an Independent Inconsistent Transaction is announced before
the Acquisition becomes effective or is declared unconditional in
all respects or lapses or is withdrawn and such Independent
Inconsistent Transaction subsequently becomes or is declared
unconditional in all respects or otherwise completes or becomes
effective; or
-- the Independent Directors announce publicly that they are
recommending or approving an Independent Inconsistent Transaction;
or
-- the Independent Directors withdraw their recommendation of
the Acquisition or adversely modify their recommendation; or
-- the Independent Directors refuse to put forward the Scheme to
the shareholders of IMD; or
-- IMD enters into any arrangement with regard to inducement
fees, break fees or the underwriting of costs or expenses or other
similar arrangements with any other party in connection with an
Independent Inconsistent Transaction.
16. Structure of the Acquisition
It is currently intended that the Acquisition will be effected
by means of a scheme of arrangement under Part 26 of the Companies
Act 2006. This procedure involves an application by IMD to the
Court to sanction the Scheme and to confirm the cancellation of
Scheme Shares pursuant to the Capital Reduction.
The implementation of the Scheme will be subject to a number of
conditions including the Conditions and the passing of a resolution
to approve the Scheme by a simple majority in number of the
Independent Scheme Shareholders present, entitled to vote and
voting at the Court Meeting (or at an adjournment thereof), either
in person or by proxy, representing not less than 75 per cent. in
value of Scheme Shares voted at the Court Meeting (or at any
adjournment thereafter). In addition, the Scheme will require,
amongst other things, the following events to occur:
-- Bidco and each Executive Manager holding IMD Shares
undertaking to the Court that they consent to and will be bound by
the terms of the Scheme;
-- a special resolution in General Meeting to approve and
implement the Scheme, the Capital Reduction any proposed
reorganisation of IMD's share capital (including the redesignation
of the Cox Shares as A Ordinary Shares) and amendments to the
articles of association of IMD being passed at the General
Meeting;
-- an ordinary resolution to approve on a poll the arrangements
between Bidco and the Executive Managers being passed at the
General Meeting; and
-- the sanction of the Scheme and confirmation of the Capital
Reduction by the Court and office copies of the Court Orders being
delivered to the Registrar and, in the case of the Capital
Reduction, such Court Order together with the Statement of Capital
being registered by the Registrar.
Upon the Scheme becoming effective, it will be binding on all
Scheme Shareholders, irrespective of whether they attended or voted
at the Court Meeting or the General Meeting (and if they attended
and voted, whether or not they voted in favour).
Further details of the Scheme will be contained in the Scheme
Document, which will be posted to IMD Shareholders and, for
information purposes only, to participants in the IMD Share
Schemes, within 28 days of this announcement, unless otherwise
agreed with the Panel.
It is expected that the Scheme Document will be posted by 25
March 2011 and will become effective by the end of May 2011 subject
to the satisfaction (or, if applicable, waiver) of all relevant
conditions (including the Conditions).
17. Implementation Agreement
IMD and Bidco have entered into the Implementation Agreement
which governs their relationship during the period until the
Acquisition becomes effective, lapses or is withdrawn or the
agreement is otherwise terminated. The parties have agreed, amongst
other things, to co-operate with regard to the process of
implementing the Acquisition. The agreement contains certain
assurances and confirmations between the parties (including terms
regarding timing and the conduct of the business of the IMD Group
pending completion of the Acquisition).
The Implementation Agreement provides that if a firm
announcement of an Independent Inconsistent Transaction is made
(either under Rule 2.5 of the City Code or, to the extent Rule 2.5
does not apply, any other announcement of an Independent
Inconsistent Transaction), Bidco may revise the terms of the
Acquisition ("Revised Offer"), and for a period of 48 hours from
such announcement, IMD shall not (and it shall procure that no IMD
Director nor any member of the IMD Group shall):
-- accept, approve, recommend or enter into any agreement to
implement such Independent Inconsistent Transaction;
-- withhold, withdraw, adversely modify or qualify their
unanimous recommendation of the Scheme or, should Bidco elect (with
Panel approval) to implement the Acquisition by way of an Offer,
the Offer; or
-- withdraw or fail to proceed (in accordance with the timetable
agreed between the parties) with the Scheme (if applicable).
If such Revised Offer is communicated to either the IMD
Directors or IMD's financial adviser within 48 hours of the firm
announcement of the Independent Inconsistent Transaction, and
provides in the reasonable opinion of IMD's reputable financial
advisor for the purposes of the City Code, equal or better
financial value to IMD Shareholders in comparison to the
Independent Inconsistent Transaction, the Independent Directors
shall as soon as reasonably practicable make a unanimous and
unqualified recommendation of the Revised Offer to the IMD
Shareholders and shall withdraw any recommendation that they may
have made of the Independent Inconsistent Transaction and shall not
recommend that Independent Inconsistent Transaction set out in the
firm announcement of that transaction. IMD will not be liable in
respect of any obligation relating to a Revised Offer where IMD's
directors or the Independent Directors reasonably believe (after
taking advice) that acting or refraining from acting in relation to
the Revised Offer would cause the IMD directors or the Independent
Directors to be in breach of their statutory and fiduciary duties
(if applicable) to IMD.
The Implementation Agreement terminates in certain
circumstances, including:
-- if the Acquisition is not sanctioned by the IMD
Shareholders;
-- if the Acquisition has not become effective by 12 August 2011
or such later date as Bidco and IMD shall agree;
-- by notice in writing from one party to the other party
following a material breach of any of the obligations of the other
party under the Implementation Agreement which, if capable of
remedy, the other party has failed to remedy within three Business
Days of a written notice from the first party requesting the same;
a material breach for this purpose includes a failure to allow
Bidco to make a Revised Offer (as defined above);
-- if an Independent Inconsistent Transaction becomes or is
declared wholly unconditional or is completed or becomes
effective;
-- if the European Commission initiates proceedings under
Article 6(1)(c) of the Council Regulation 139/2004/EC
("Regulation") or, following a referral by the European Commission
under Article 9(1) of the Regulation to a competent authority in
the United Kingdom, there is a subsequent reference to the United
Kingdom Competition Commission;
-- by notice in writing from one party to the other party if the
recommendation of the Independent Directors is withdrawn, modified
or qualified at any time prior to the Scheme becoming
effective;
-- in the event that such termination is agreed in writing
between the parties at any time before the Effective Date;
-- if any of the Conditions which has not been waived is (or
becomes) incapable of satisfaction and if Bidco notifies IMD that
notwithstanding that it has the right to waive a Condition, it will
not do so and that the Panel has confirmed that it will permit
Bidco to invoke such Condition;
-- if Bidco elects to announce a unilateral unrecommended offer
or a mandatory offer for IMD under the City Code; or
-- the inducement fee under the Inducement Fee Agreement is
paid.
18. Cancellation of admission to trading on AIM and
re-registration
The London Stock Exchange will be requested to cancel the
admission to trading of IMD Shares on AIM when the Acquisition
becomes effective. The last day of dealings in IMD Shares on AIM is
expected to be on the business day immediately prior to the
Effective Date and no transfers of IMD Shares will be registered
after 6.00 p.m. on that date. On the Effective Date, share
certificates in respect of IMD Shares will cease to be valid and
should be destroyed. In addition, entitlements to IMD Shares held
within the CREST system will be cancelled on the Effective
Date.
It is intended that, upon the Scheme becoming effective, and
after the admission to trading on AIM of the IMD Shares has been
cancelled, IMD will be re-registered as a private company.
19. General
Your attention is drawn to the further information in the
Appendices which form part of this announcement.
Appendix I sets out Conditions and certain further terms of the
Acquisition.
Appendix II sets out the sources of information and basis of
calculations used in this announcement.
Appendix III sets out the details of those IMD Directors and IMD
Shareholders who have given an irrevocable commitment.
Appendix IV contains the definitions of terms used in this
announcement.
The Acquisition will be governed by English law and will be
subject to the applicable requirements of the City Code, the Panel
and the AIM Rules.
20. Enquiries
Bidco Tel: + 44 (0)20 7518
2800
Toby Wyles / Ben Johnson
DC Advisory Partners, financial adviser Tel: + 44 (0) 20 7856
to Bidco 0999
Richard Madden / David Sanders
IMD Tel: +44 (0) 7765 258
995
David Haynes
Oakley Capital, financial adviser Tel: + 44 (0) 20 7766
to IMD 6900
Chris Godsmark / Daniel Havercroft
21. Further information
Overseas Shareholders
The availability of the Acquisition or the distribution of this
announcement to persons who are not resident in the United Kingdom
may be affected by the laws of the relevant jurisdictions in which
they are located. Persons who are not resident in the United
Kingdom should inform themselves of, and observe, any applicable
requirements. Any failure to comply with these restrictions may
constitute a violation of the securities laws of any such
jurisdiction.
Notice to US investors in IMD: The Acquisition relates to the
shares of a UK company and is proposed to be made by means of a
scheme of arrangement provided for under the laws of England and
Wales. The Acquisition is subject to the disclosure requirements
and practices applicable in the United Kingdom to schemes of
arrangement, which differ from the disclosure and other
requirements of US securities laws. Financial information included
in the relevant documentation will have been prepared in accordance
with accounting standards applicable in the United Kingdom (or
other appropriate jurisdictions) that may not be comparable to the
financial statements of US companies.
The Acquisition will not be made available, directly or
indirectly, in or into the United States, Canada, Australia, South
Africa or Japan and no person may vote in favour of the Acquisition
by any such use, means, instrumentality or facility or form within
the United States, Canada, Australia, South Africa or Japan or any
other such jurisdiction if to do so would constitute a violation of
the relevant laws of such jurisdiction. Accordingly, copies of this
announcement, the Scheme Document and the Forms of Proxy are not
being, will not be and must not be mailed or otherwise forwarded,
distributed or sent in, into or from the United States, Canada,
Australia, South Africa or Japan or any other such jurisdiction if
to do so would constitute a violation of the relevant laws of such
jurisdiction and persons receiving this press announcement, the
Scheme Document and the Forms of Proxy (including without
limitation custodians, nominees and trustees) must not mail,
forward, distribute or send them in, into from the United States,
Canada, Australia, South Africa or Japan or any other such
jurisdiction if to do so would constitute a violation of the
relevant laws of such jurisdiction.
This announcement is for information purposes only and is not
intended to and does not constitute or form part of an offer to
sell or invitation to purchase any securities or the solicitation
of any vote for approval in any jurisdiction, nor shall there be
any sale, issue or transfer of the securities referred to in this
announcement in any jurisdiction in contravention of applicable
law. The Scheme will be put to IMD Shareholders solely through the
Scheme Document, and the Forms of Proxy, which will together
contain the full terms and conditions of the Acquisition, including
details of how to vote in favour of the Acquisition. Any response
in relation to the Acquisition should be made only on the basis of
the information contained in the Scheme Documents, the Forms of
Proxy or any other document by which the Acquisition is made.
Cautionary note regarding forward looking statements
This announcement may contain certain forward-looking statements
with respect to the financial condition, results of operations and
business of IMD, the Acquisition and certain plans and objectives
of the boards of IMD and Bidco with respect thereto. These
forward-looking statements can be identified by the fact that they
do not relate only to historical or current facts. Forward-looking
statements often use (without limitation) words such as
"anticipate", "target", "expect", "estimate", "intend", "plan",
"goal", "believe", "will", "may", "should", "would", "could", or
other words of similar meaning. These statements are based on
assumptions and assessments made by the boards of IMD and/or Bidco
in light of their experience and their perception of historical
trends, current conditions, expected future developments and other
factors they believe appropriate. By their nature, forward-looking
statements involve risk and uncertainty, because they relate to
events and depend on circumstances that will occur in the future
and the factors described in the context of such forward-looking
statements in this document could cause actual results and
developments to differ materially from those expressed in or
implied by such forward-looking statements. Although IMD and Bidco
believe that the expectations reflected in such forward-looking
statements are reasonable, IMD and Bidco can give no assurance that
such expectations will prove to have been correct and IMD and Bidco
therefore caution you not to place undue reliance on these
forward-looking statements which speak only as at the date of this
announcement.
Disclosure requirements
Under Rule 8.3(a) of the City Code, any person who is
"interested" (directly or indirectly) in 1 per cent. or more of any
class of relevant securities of an offeree company or of any paper
offeror (being any offeror other than an offeror in respect of
which it has been announced that its offer is, or is likely to be,
solely in cash) must make an "Opening Position Disclosure"
following the commencement of the offer period and, if later,
following the announcement in which any paper offeror is first
identified. An "Opening Position Disclosure" must contain details
of the person's interests and short positions in, and rights to
subscribe for, any "relevant securities" of each of (i) the offeree
company and (ii) any paper offeror(s). An "Opening Position
Disclosure" by a person to whom Rule 8.3(a) applies must be made by
no later than 3.30 p.m. (London time) on the 10th business day
following the commencement of the offer period and, if appropriate,
by no later than 3.30 p.m. (London time) on the 10th business day
following the announcement in which any paper offeror is first
identified. Relevant persons who deal in the "relevant securities"
of the offeree company or of a paper offeror prior to the deadline
for making an "Opening Position Disclosure" must instead make a
"Dealing Disclosure".
Under Rule 8.3(b) of the City Code, any person who is, or
becomes, "interested" in 1 per cent. or more of any class of
"relevant securities" of the offeree company or of any paper
offeror must make a "Dealing Disclosure" if the person deals in any
"relevant securities" of the offeree company or of any paper
offeror. A "Dealing Disclosure" must contain details of the
"dealing" concerned and of the person's interests and short
positions in, and rights to subscribe for, any relevant securities
of each of (i) the offeree company and (ii) any paper offeror, save
to the extent that these details have previously been disclosed
under Rule 8. A "Dealing Disclosure" by a person to whom Rule
8.3(b) applies must be made by no later than 3.30 p.m. (London
time) on the business day following the date of the relevant
dealing.
If two or more persons act together pursuant to an agreement or
understanding, whether formal or informal, to acquire or control an
"interest" in "relevant securities" of an offeree company or a
paper offeror, they will be deemed to be a single person for the
purpose of Rule 8.3.
"Opening Position Disclosures" must also be made by the offeree
company and by any offeror and "Dealing Disclosures" must also be
made by the offeree company, by any offeror and by any persons
acting in concert with any of them (see Rule 8.1, 8.2 and 8.4).
Details of the offeree and offeror companies in respect of whose
relevant securities "Opening Position Disclosures" and "Dealing
Disclosures" must be made can be found in the Disclosure Table on
the Takeover Panel's website at www.thetakeoverpanel.org.uk,
including details of the number of relevant securities in issue,
when the offer period commenced and when any offeror was first
identified. If you are in any doubt as to whether you require to
make an "Opening Position Disclosure" or a "Dealing Disclosure",
you should contact the Panel's Market Surveillance Unit on +44
(0)20 7638 0129.
Terms in quotation marks are defined in the City Code, which can
also be found on the Panel's website at
www.thetakeoverpanel.org.uk.
Market Purchases
In accordance with normal UK market practice, Bidco or its
nominees or brokers (acting as agents) may from time to time make
certain purchases of, or arrangements to purchase, IMD Shares
outside the United States, other than pursuant to the Scheme, prior
to the Effective Date. These purchases may occur either in the open
market at prevailing prices or in private transactions at
negotiated prices. Any information about such purchases will be
disclosed as required in the UK.
Publication on website
A copy of this announcement will be available free of charge,
subject to certain restrictions relating to persons resident in
restricted jurisdictions, on IMD's website at www.imdplc.com by no
later than 12.00 p.m. on 1 March 2011.
Appendix I
Conditions to and certain further terms of the acquisition
Part A: The Conditions
1. The Acquisition will, if it is implemented by way of the
Scheme, be conditional upon the Scheme becoming unconditional and
becoming effective, subject to the City Code, by not later than 12
August 2011 or such later date (if any) as Bidco and IMD may, with
the consent of the Panel, agree and (if required) the Court may
allow.
The Scheme will be conditional upon:
(i) the approval of the Scheme by a majority in number
representing 75 per cent. or more in value of the Independent
Scheme Shareholders who are on the register of members of IMD at
the Voting Record Time, present and voting, either in person or by
proxy, at the Court Meeting and at any separate class meeting which
may be required by the Court or at any adjournment of that Court
Meeting or any such separate class meeting;
(ii) the special resolutions in connection with and required to
approve and implement the Scheme, the arrangements in respect of
the Cox Shares and the Capital Reduction and set out in the notice
of the General Meeting being duly passed by the requisite majority
at the General Meeting (or at any adjournment thereof);
(iii) the ordinary resolution in connection with and required to
approve and implement the arrangements made and to be made between
the Executive Managers and Bidco set out in the notice of the
General Meeting being duly passed by the requisite majority at the
General Meeting (or at any adjournment thereof); and
(iv) the sanction of the Scheme (without modification, or with
such modifications as are agreed by Bidco and IMD) and the
confirmation of the Capital Reduction by the Court and the Court
Orders and the Statement of Capital being delivered for
registration to the Registrar of Companies.
2. In addition, IMD and Bidco have agreed that, subject as
stated in the first paragraph of Part B below, below, application
to the Court to sanction the Scheme and to confirm the Capital
Reduction will not be made and the office copies of the Court
Orders and the Statement of Capital attached thereto will not be
delivered for registration to the Registrar of Companies unless
conditions 1(i) to (iii) inclusive above have been fulfilled and
unless prior to the Scheme Court Hearing the following Conditions
(as amended if appropriate) have been (and continue to be)
satisfied pending the commencement of that hearing or waived as
referred to below:
(a) no Third Party having intervened and there not continuing to
be outstanding any statute, regulation, notice, decision or order
of any Third Party in each case which would or might reasonably be
expected to:
(i) make the Acquisition, its implementation or the acquisition
or the proposed acquisition by Bidco or any member of the Wider
Bidco Group of any shares or other securities in IMD, or control or
management of, IMD or any other member of the Wider IMD Group void,
illegal or unenforceable in any jurisdiction, or otherwise directly
or indirectly restrain, prevent, prohibit, restrict, delay or
otherwise materially adversely interfere with the same or impose
additional conditions or obligations with respect to the
Acquisition (or its implementation) or such acquisition, or
otherwise impede or challenge the Acquisition (or its
implementation) or such acquisition, or require material adverse
amendment to the terms of the Acquisition or the acquisition of any
IMD Shares or the acquisition of control or management of IMD or
any other member of the Wider IMD Group by Bidco or any member of
the Wider Bidco Group;
(ii) limit or delay the ability of any member of the Wider Bidco
Group or any member of the Wider IMD Group to acquire or to hold or
to exercise effectively, directly or indirectly, all or any rights
of ownership in respect of shares or other securities (or the
equivalent) in, or to exercise voting or management control over,
any member of the Wider IMD Group or any member of the Wider Bidco
Group, in each case, to an extent which is material in the context
of the Wider IMD Group or Wider Bidco Group, in each case, taken as
a whole;
(iii) require, prevent or materially delay any divestiture or
alter the terms envisaged for any divestiture by any member of the
Wider Bidco Group of any shares or other securities in IMD or any
member of the Wider IMD Group (in any case to an extent which is
material in the context of the Wider Bidco Group or the Wider IMD
Group, as the case may be, taken as a whole);
(iv) require, prevent or materially delay any divestiture or
alter the terms envisaged for any divestiture by any member of the
Wider Bidco Group or by any member of the Wider IMD Group of all or
any material part of their respective businesses, assets or
properties or limit the ability of any of them to conduct all or
any part of their respective businesses or to own or control any of
their respective assets or properties or any part thereof (in any
case to an extent which is material in the context of the Wider
Bidco Group or the Wider IMD Group, as the case may be, taken as a
whole);
(v) other than in connection with the implementation of the
Acquisition, require any member of the Wider Bidco Group or of the
Wider IMD Group to subscribe for or acquire, or to offer to
subscribe for or acquire, any shares or other securities (or the
equivalent) or interest in any member of the Wider IMD Group or the
Wider Bidco Group;
(vi) limit the ability of any member of the Wider Bidco Group or
of the Wider IMD Group to integrate its business, or any part of
it, with the businesses or any part of the businesses of any other
member of the Wider Bidco Group and/or of the Wider IMD Group in
each case in a manner which is material in the context of the
Acquisition, or as the case may be, in the context of the Wider
Bidco Group or the Wider IMD Group, as the case may be, taken as a
whole;
(vii) result in any member of the Wider IMD Group ceasing to be
able to carry on business under any name under which it presently
does so (in any case to an extent which is material in the context
of the Wider IMD Group, as taken as a whole); or
(viii) otherwise, adversely affect the business, assets,
profits, financial or trading position or long term prospects
(where such long term prospects do not relate to a change in
general economic conditions and which could not reasonably have
been foreseen on the date hereof) of any member of the Wider Bidco
Group to a material extent or of the Wider IMD Group, taken as a
whole, to a material extent,
in each case to the extent which is material in the context of
the Wider IMD Group taken as a whole and all applicable waiting and
other time periods during which any Third Party could intervene
under any applicable legislation or regulation of any relevant
jurisdiction having expired, lapsed or been terminated (as the case
may be);
(b) all notifications, filings and/or applications which are
necessary having been made, all appropriate waiting and other time
periods (including any extensions of such waiting and other time
periods) under any applicable legislation or regulation of any
relevant jurisdiction having expired, lapsed or terminated (as
appropriate) and all statutory or regulatory obligations in any
relevant jurisdiction having been complied with, in each case in
connection with the Acquisition or the acquisition or proposed
acquisition of any shares or other securities in, or control of,
IMD or any other member of the Wider IMD Group by any member of the
Wider Bidco Group or the carrying on by any member of the Wider IMD
Group of its business in each case where the absence thereof would
have a material adverse effect on the Acquisition or, as the case
may be, on the Wider IMD Group taken as a whole;
(c) all Authorisations which are necessary in any relevant
jurisdiction for or in respect of the Acquisition (or its
implementation) or the acquisition or proposed acquisition of any
shares or other securities in, or control or management of, IMD or
any other member of the Wider IMD Group by Bidco or any member of
the Wider Bidco Group or the carrying on by any member of the Wider
IMD Group of its business having been obtained, in terms and in a
form satisfactory to Bidco, acting reasonably, from all appropriate
Third Parties or from any persons or bodies with whom any member of
the Wider Bidco Group or any member of the Wider IMD Group has
entered into contractual arrangements and such Authorisations
together with all authorisations necessary for any member of the
Wider IMD Group to carry on its business remaining in full force
and effect, and there being no notice or other intimation of any
intention to revoke, suspend, restrict, modify or not to renew any
of the same having been made in connection with the Acquisition or
any other matter directly, or indirectly, arising from the
Acquisition (or its implementation), in each case where the absence
of such Authorisation would have a material adverse effect on the
Wider IMD Group or the Wider Bidco Group, as the case may be, taken
as a whole and all necessary statutory or regulatory obligations in
any relevant jurisdiction having been complied with;
(d) save as Disclosed, there being no provision of any
arrangement, agreement, lease, licence, permit, franchise or other
instrument to which any member of the Wider IMD Group is a party,
or by or to which any such member or any of its assets is or are or
may be bound, entitled or subject, or any circumstance, which, in
each case as a consequence of the Acquisition (or its
implementation) or the acquisition or proposed acquisition of any
shares or other securities in IMD, or control or management of, IMD
or any other member of the Wider IMD Group by any member of the
Wider Bidco Group or otherwise, could reasonably be expected to
result in, in any case to an extent which is or would be material
in the context of the Wider IMD Group taken as a whole:
(i) any monies borrowed by or any other indebtedness or
liabilities (actual or contingent) of, or any grant available to,
any member of the Wider IMD Group being or becoming repayable or
capable of being declared repayable immediately or prior to its
stated repayment date or the ability of any member of the Wider IMD
Group to borrow monies or incur any indebtedness being withdrawn or
inhibited or becoming capable of being withdrawn or inhibited;
(ii) the creation or enforcement of any mortgage, charge or
other security interest over the whole or any part of the business,
property, assets or interests of any member of the Wider IMD Group
or any such mortgage, charge or other security interest (wherever
and whenever created, arising or having arisen) becoming
enforceable;
(iii) any such arrangement, agreement, lease, licence, permit,
franchise or instrument, or the rights, liabilities, obligations or
interests of any member of the Wider IMD Group thereunder, being,
terminated or materially adversely modified or affected or any
adverse action being taken or arising thereunder or any onerous
obligation or material liability arising thereunder;
(iv) any asset or interest of any member of the Wider IMD Group
being or falling to be disposed of or charged (otherwise than in
the ordinary course of business) or ceasing to be available to any
member of the Wider IMD Group or any right arising under which any
such asset or interest could be required to be disposed of or
charged;
(v) any member of the Wider IMD Group ceasing to be able to
carry on business under any name under which it presently does
so;
(vi) the creation or assumption of any liabilities (actual or
contingent) by any member of the Wider IMD Group other than in the
ordinary course of business;
(vii) the financial or trading position or the long term
prospects (where such long term prospects do not relate to a change
in general economic conditions and which could not reasonably have
been foreseen on the date hereof) or the value of any member of the
Wider IMD Group being prejudiced or adversely affected in any
manner; or
(viii) any member of the Wider IMD Group being required to
acquire or repay any shares in and/or indebtedness of any member of
the Wider IMD Group owned by or owed to any third party,
and no event having occurred which, under any provision of any
such arrangement, agreement, lease, licence, permit, franchise or
other instrument to which any member of the Wider IMD Group is a
party, or by or to which any such member or any of its assets may
be found entitled or subject, could reasonably be expected to
result in any of the events or circumstances which are referred to
in paragraphs (i) to (viii) of this condition (d) in any case to an
extent which is or would be material in the context of the Wider
IMD Group as a whole;
(e) save as Disclosed, no member of the Wider IMD Group, since
31 December 2009, being the date to which the last published
audited report and accounts of IMD were made up:
(i) save as between IMD and wholly owned subsidiaries of IMD or
between such subsidiaries, issued or agreed to issue, or authorised
the issue of, additional shares or securities of any class, or
securities convertible into or exchangeable for, or rights,
warrants or options to subscribe for or acquire, any such shares or
convertible securities (save for any IMD Shares allotted upon
exercise of options or vesting of awards granted, under the IMD
Share Schemes before the date hereof, provided such options or
awards have been Disclosed), or redeemed, purchased or reduced any
part of its share capital,
(ii) purchased or redeemed or repaid or proposed the purchase,
redemption or repayment of any of its own shares or other
securities (or the equivalent) or reduced or made or authorised any
other change to any part of its share capital other than pursuant
to the implementation of the Acquisition;
(iii) recommended, declared, paid or made or proposed to
recommend, declare, pay or make any bonus issue in respect of
shares, dividend or other distribution, whether payable in cash or
otherwise;
(iv) except as between IMD and any of its wholly owned
subsidiaries or between such subsidiaries, made, authorised,
proposed or announced an intention to make, propose or authorise
any change in its loan capital;
(v) merged with, demerged or acquired any body corporate,
partnership or business or acquired or disposed of or (other than
in the ordinary course of business) transferred, mortgaged or
charged or created any security interest over any material assets
or any right, title or interest in any material assets (including
shares in any undertaking and trade investments) or authorised,
proposed or announced the same, which in any case is material in
the context of the Wider IMD Group taken as a whole;
(vi) issued or authorised the issue of, or made any change in or
to, any debentures or, other than trade credit incurred in the
ordinary course of business, incurred or increased any indebtedness
or liability (actual or contingent) except as between IMD and any
of its wholly owned subsidiaries or between such subsidiaries,
which in any case is material in the context of the Wider IMD Group
taken as a whole;
(vii) entered into, varied, authorised or announced its
intention to enter into or vary any agreement, transaction,
arrangement or commitment (whether in respect of capital
expenditure or otherwise) which:
(A) is of a long term, onerous or unusual nature or magnitude;
or
(B) restricts the business of any member of the Wider IMD Group,
or
(C) is other than in the ordinary course of business,
and which in any case is material in the context of the Wider
IMD Group taken as a whole;
(viii) entered into, implemented, effected or authorised any
merger, demerger, reconstruction, amalgamation, scheme, commitment
or other transaction or arrangement in respect of itself or another
member of the Wider IMD Group, which in any case is material in the
context of the Wider IMD Group taken as a whole;
(ix) save in relation to any amendments described in this
announcement, entered into or varied or made an offer (which
remains open for acceptance) to vary the terms of any contract,
agreement, commitment or arrangement with, any of the directors or
senior executives of any member of the Wider IMD Group or changed
or entered into any commitment to change the terms of any of the
IMD Share Schemes save for salary increases and bonuses not
resulting in total annual remuneration of any individual exceeding
the immediately preceding year's remuneration by more than three
per cent. or other variations of terms in the ordinary course of
business which are not material in the context of the Acquisition
or the Wider IMD Group taken as a whole;
(x) taken any corporate action or had any step, application,
filing in court, notice or legal proceedings started, served,
instituted or threatened in writing against it or petition
presented or order made for its winding-up (voluntarily or
otherwise), dissolution or reorganisation or for the appointment of
a receiver, administrator, administrative receiver, trustee or
similar officer of all or any material part of its assets and
revenues or any analogous proceedings in any jurisdiction which in
any case is material in the context of the Wider IMD group taken as
a whole;
(xi) been unable, or admitted in writing that it is unable, to
pay its debts or having stopped or suspended (or threatened to stop
or suspend) payment of its debts generally or having entered into
or taken steps to enter into a moratorium, composition, compromise
or arrangement with its creditors in respect of its debts or ceased
or threatened to cease carrying on all or a substantial part of its
business;
(xii) waived, settled or compromised any claim to an extent
which is material in the context of the Wider IMD Group taken as a
whole;
(xiii) terminated or varied the terms of any agreement or
arrangement between any member of the IMD Group and any other
person in a manner which would or might reasonably be expected to
have a material adverse effect on the financial position or long
term prospects (where such long term prospects do not relate to a
change in general economic conditions and which could not
reasonably have been foreseen on the date hereof) of the Wider IMD
Group taken as a whole;
(xiv) made any alteration to its memorandum or articles of
association or other incorporation documents save as required to
implement the Acquisition save where required by law or
regulation;
(xv) put in place any pension schemes for its directors,
employees or their dependants or made or agreed or consented to any
change to:
(A) the terms of the trust deeds constituting the pension
schemes (if any) established for its directors, employees or their
dependants; or
(B) the benefits which accrue, or to the pensions which are
payable, thereunder; or
(C) the basis on which qualification for, or accrual or
entitlement to, such benefits or pensions are calculated or
determined; or
(D) the basis upon which the liabilities (including pensions) of
such pension schemes are funded or made,
or agreed or consented to any change to the trustees including
the appointment of a trust corporation;
(xvi) proposed, agreed to provide or modified the terms of any
share option scheme, incentive scheme or other benefit relating to
the employment or termination of employment of any person employed
by the Wider IMD Group in a manner which is material in the context
of the Wider IMD Group taken as a whole; or
(xvii) entered into any contract, agreement, commitment or
arrangement or passed any resolution or made any offer (which
remains open for acceptance) or proposed or announced any intention
with respect to any of the transactions, matters or events referred
to in this condition (e);
(f) since 31 December 2009, save as Disclosed:
(i) no adverse change or deterioration having occurred in the
business, assets, financial or trading position or profits of any
member of the Wider IMD Group which in any case is material in the
context of the Wider IMD Group taken as a whole;
(ii) no contingent or other liability of any member of the Wider
IMD Group having arisen or been incurred or has been materially
increased which in any case is material in the context of the Wider
IMD Group taken as a whole;
(iii) no litigation, arbitration proceedings, prosecution or
other legal proceedings to which any member of the Wider IMD Group
is or may become a party (whether as plaintiff, defendant or
otherwise) having been threatened in writing, announced,
implemented or instituted by or against or remaining outstanding
against or in respect of any member of the Wider IMD Group which in
any case is material in the context of the Wider IMD Group taken as
a whole;
(iv) no enquiry or investigation by, or complaint or reference
to, any Third Party having been threatened, announced, implemented,
instituted by or against or remaining outstanding against or in
respect of any member of the Wider IMD Group which in any case is
material in the context of the Wider IMD Group taken as a
whole;
(v) no claim being made and no circumstance having arisen which
might reasonably be expected to lead to a claim being made under
the insurance of any member of the Wider IMD Group where such claim
would not be covered by such insurance and where such claim is
material in the context of the Wider IMD Group taken as a whole;
and
(vi) no steps having been taken which are reasonably likely to
result in the withdrawal (without replacement), cancellation or
termination of any licence, permit or consent held by any member of
the Wider IMD Group which is necessary for the carrying on by such
member of its business and which is material in the context of the
Wider IMD Group taken as a whole;
(g) Save as Disclosed, Bidco not having discovered:
(i) that any financial, or business or other information
concerning the Wider IMD Group disclosed publicly at any time by or
on behalf of any member of the Wider IMD Group, is materially
misleading or contains any material misrepresentation of fact or
omits to state a fact necessary to make any information contained
therein not materially misleading, in any case, to an extent which
is material in the context of the Wider IMD Group taken as a
whole;
(ii) that any member of the Wider IMD Group is subject to any
liability (actual or contingent) which is material in the context
of the Wider IMD Group taken as a whole;
(iii) any information which affects the import of any
information disclosed to Bidco at any time by or on behalf of any
member of the Wider IMD Group to an extent which is material and
adverse in the context of the Wider IMD Group taken as a whole;
(iv) that any past or present member of the Wider IMD Group has
failed to comply with any applicable legislation, regulations or
common law of any jurisdiction or any notice, order or requirement
of any Third Party with regard to the use, treatment, handling,
storage, transport, release, disposal, discharge, presence,
spillage, leak or emission of any waste or hazardous or harmful
substance or any substance likely to impair the environment or harm
human or animal health, or otherwise relating to environmental
matters or the health and safety of any person, or that there has
otherwise been any such use, treatment, handling, storage,
transport, release, disposal, discharge, presence, spillage, leak
or emission (whether or not the same constituted non-compliance by
any person with any legislation, regulations or law and wherever
the same may have taken place) which, in any case, would be
reasonably likely to give rise to any liability (whether actual or
contingent) or cost on the part of any member of the Wider IMD
Group which in any case is material in the context of the Wider IMD
Group taken as a whole; or
(v) that there is, or is reasonably likely to be, any obligation
or liability, whether actual or contingent, to make good, repair,
reinstate, remedy or clean up any property now or previously owned,
occupied, operated or made use of or controlled by any past or
present member of the Wider IMD Group or any other property or
controlled waters under any environmental legislation, regulation,
common law, notice, circular, order or other lawful requirement of
any relevant authority or Third Party in any jurisdiction or
otherwise which in any case is material in the context of the Wider
IMD Group taken as a whole.
For the purpose of these conditions:
(a) "Third Party" means any government, government department or
governmental, quasi-governmental, supranational, statutory,
regulatory, environmental or investigative body or association,
institution or agency or authority (including, without limitation,
any anti-trust or merger control authority), any court or
professional or environmental body or any other person or body
whatsoever in any relevant jurisdiction;
(b) a Third Party shall be regarded as having "intervened" if it
has taken, instituted, implemented or threatened (by notice in
writing) any action, proceeding, suit, investigation, enquiry or
reference or made, proposed or enacted any statute, regulation,
decision, notice or order or taken any measures or other steps or
required any action to be taken or information to be provided or
otherwise having done anything and "intervene" shall be construed
accordingly; and
(c) "Authorisations" means authorisations, orders, grants,
recognitions, determinations, certificates, confirmations,
consents, licences, clearances, provisions, permissions and
approvals.
Part B: Waiver of Conditions and further terms of the
Acquisition
To the extent permitted by law and subject to the requirements
of the Panel, Bidco reserves the right to waive all or any of the
above conditions, in whole or in part, except Condition 1. Bidco
shall be under no obligation to waive (if capable of waiver), to
determine to be or remain satisfied or to treat as fulfilled any of
conditions 2(a) to (g) (inclusive) by a date earlier than the date
specified in paragraph 1 of Part A of this Appendix I for the
fulfillment thereof.
Bidco reserves the right to elect to implement the Acquisition
by way of a takeover offer (subject to the Panel's consent). In
such event, such offer will be implemented on the same terms and
conditions (subject to appropriate amendments, including (without
limitation) an acceptance condition set at ninety per cent. (or
such lower percentage (being more than fifty per cent.) as Bidco
may decide (subject to the Panel's consent)) of the shares to which
such offer relates), so far as applicable, as those which would
apply to the Scheme.
If the Panel requires Bidco to make an offer or offers for any
IMD Shares under the provisions of Rule 9 of the City Code, Bidco
may make such alterations to the conditions of the Acquisition,
including to Condition 1, as are necessary to comply with the
provisions of that Rule.
The Acquisition will lapse and the Scheme will not proceed
(unless the Panel otherwise consents) if the European Commission
initiates proceedings under Article 6(1)(c) of Council Regulation
(EC) 139/2004 or makes a referral to a competent authority of the
United Kingdom under Article 9(3)(b) of that Regulation or the
Acquisition or any matter arising from or relating to the
Acquisition is referred to the Competition Commission before the
date of the Court Meeting(s).
The Acquisition will be on the terms and will be subject,
interalia, to the conditions which are set out in Part A of this
Appendix I and those terms which will be set out in the formal
Scheme Document and related Forms of Proxy and such further terms
as may be required to comply with the AIM Rules of the London Stock
Exchange and the provisions of the City Code.
If the Acquisition is effected, save to the extent cancelled
pursuant to the Scheme, IMD Shares will be acquired pursuant to the
Acquisition fully paid and free from all liens, charges, equitable
interests, encumbrances, rights of pre-emption and any other rights
and interests of any nature whatsoever and together with all rights
now and hereafter attaching thereto, including voting rights and
the right to receive and retain in full all dividends and other
distributions (if any) declared, made or paid on or after the date
of this announcement.
Under Rule 13.4 of the City Code, Bidco may only invoke a
condition to the Acquisition so as to cause the Acquisition not to
proceed, to lapse or to be withdrawn if the circumstances which
give rise to the right to invoke the condition are of material
significance to Bidco in the context of the Acquisition. The
conditions contained in paragraph 1 of Part A of this Appendix I
and the conditions related to the European Commission and the
Competition Commission in the fourth paragraph of this Part B are
not subject to this provision of the Code.
The Acquisition and the Scheme will be governed by English law
and will be subject to the jurisdiction of the English courts. The
rules contained in the Code, so far as they are appropriate, apply
to the Acquisition.
The availability of the Acquisition to persons not resident in
the United Kingdom may be affected by the laws of the relevant
jurisdictions. Persons who are not resident in the United Kingdom
should inform themselves about and observe any applicable
requirements.
APPENDIX ii
bases and sources of information
In this announcement:
(a) the value placed by the Acquisition on the entire issued and
to be issued share capital of IMD (approximately GBP33.9 million)
is based on 37,215,602 IMD Shares in issue and/or to be issued on
25 February 2011, the last business day prior to the date of this
announcement;
(b) the Closing Price of the IMD Shares referred to in this
announcement represents the closing middle market price for IMD
Shares on the relevant date as derived from the AIM Appendix to the
Official List;
(c) the six month and twelve month average share price for IMD
Shares has been calculated using the closing middle market prices
for IMD Shares on the relevant dates as derived from the AIM
Appendix to the Official List; and
(d) unless otherwise stated, the financial information relating
to IMD is extracted from the Annual Report and Accounts of IMD for
the year ended 31 December 2009 and the interim results of IMD
published for the six month period ended 30 June 2010.
APPENDIX III
details of irrevocable undertakings
Part A: Independent Directors
The following Independent Directors (and their related trusts
and associated companies) have given irrevocable undertakings to:
(i) vote in favour of the Acquisition at the Court Meeting; (ii)
vote in favour of the resolutions required to implement the
Acquisition to be proposed at the General Meeting; and (iii) to
accept any potential takeover offer subsequently made by Bidco at a
price per IMD Share of 91 pence or more, in relation to the
following IMD Shares:
Percentage of issued
Name Number of IMD Shares share capital of IMD
Charles Dunstone 4,004,961(3) 11.7
Ian Stevenson 120,000(4) 0.4
David Haynes 1,461,225 4.3
Charles Cox(1) 75,000 0.2
Hudson Management Limited(2) 7,937,938 23.1
Notes:
1. Charles Cox is interested in and has given his irrevocable
undertaking in respect of IMD Shares held by Tirol Trading
Corporation (BVI), a company associated with him. Tirol Trading
Corporation (BVI) has also entered into an irrevocable undertaking
on the same terms as Charles Cox in respect of the same 75,000 IMD
shares.
2. Hudson Management Limited is a company associated with David
Haynes.
3. Includes 1,000,000 IMD Shares held on Charles Dunstone's
behalf by Goldman Sachs Nominees.
4. Includes 100,000 IMD Shares held by Hargreaves Lansdown on
behalf of Ian Stevenson's self invested personal pension. Ian
Stevenson has also given an irrevocable undertaking on the same
terms in respect of his options over 25,000 IMD Shares.
The undertakings in this Part A will remain binding in all
circumstances.
Part B: Executive Managers
The following Executive Managers (and their related trusts and
associated companies) have given irrevocable undertakings to: (i)
consent to the Acquisition and undertake to the Court to be bound
by the Scheme; (ii) vote in favour of the resolutions required to
implement the Acquisition to be proposed at the General Meeting
(other than the resolution approving the Management Arrangements);
and (iii) to accept any potential takeover offer subsequently made
by Bidco at a price per IMD Share of 91 pence or more in relation
to the following IMD Shares:
Percentage of issued
Name Number of IMD Shares share capital of IMD
Simon Cox(5) 125,000 0.4
Philip McDanell(6) 195,630 0.6
5. Held in the name of Rock Nominees Limited as trustee for the
IPM personal pension scheme. Philip McDanell has also given an
irrevocable undertaking on the same terms in respect of his options
as set out in paragraph 14 of this announcement.
(6) Simon Cox has also given an irrevocable undertaking on the
same terms in respect of his options as set out in paragraph 14 of
this announcement.
The undertakings in this Part B will remain binding in all
circumstances.
Other shareholders
The following Independent IMD Shareholders (other than the
Independent Directors) (and their related trusts and associated
companies) have given irrevocable undertakings to: (i) consent to
the Acquisition and undertake to the Court to be bound by the
Scheme; (ii) vote in favour of the resolutions required to
implement the Acquisition to be proposed at the General Meeting;
and (iii) to accept any potential takeover offer subsequently made
by Bidco at a price per IMD Share of 91 pence or more in relation
to the following IMD Shares:
Percentage of issued
Name Number of IMD Shares share capital of IMD
Herald Investment Trust
Plc(7) 3,142,300 9.2
Michael Burn 1,950,000 5.7
Peter Haynes(8) 592,500 1.7
7. Held in the name of Herald Investment Management Limited.
8. Held in the name of Fitel Nominees Limited.
The undertakings listed in this Part C will remain binding in
all circumstances other than if either (i) any Independent
Inconsistent Transaction is announced pursuant to Rule 2.5 of the
City Code at a price that is 10 per cent. greater than the
Acquisition price of 91 pence per IMD Share; or (ii) any
Independent Inconsistent Transaction becomes or is declared wholly
unconditional.
appendix IV
DEFINITIONS
The following definitions apply throughout this announcement
unless the context requires otherwise.
"Acquisition" the proposed acquisition of IMD by Bidco
by means of the Scheme (or, should Bidco
so elect, by means of the Offer) on the
terms and subject to the conditions and
further terms set out in this
announcement and to be set out in the
Scheme Document (or the Offer Document
(as the case may be)) and where the
context admits, any subsequent revision,
variation, extension or renewal thereof
and together with all other related
matters to be considered at the Court
Meeting and General Meeting;
"Act" or "Companies Act the Companies Act 2006 (as in force
2006" from time to time);
"AIM" the AIM market of the London Stock
Exchange;
"AIM Rules" the rules for AIM companies and their
nominated advisers published from time
to time by the London Stock Exchange;
"associate" shall be construed in accordance with
section 988(1) of the Companies Act
2006;
"Bidco" Lausanne Acquisitions Limited, a company
incorporated in England and Wales with
registered number 7479150;
"Bidco Directors" the directors of Bidco as at the date
of this announcement;
"Bidco Group" Holdco and its subsidiaries and
subsidiary undertakings and, where the
context permits, each of them;
"Bidco Ordinary Shares" ordinary shares of GBP0.000001 each
in the capital of Bidco;
"board" the board of directors of a company;
"business day" a day which is not a Saturday, Sunday
or public holiday in England;
"Capital Reduction" the reduction of IMD's share capital
pursuant to section 648 of the Companies
Act 2006 provided for by the Scheme;
"City Code" the City Code on Takeovers and Mergers;
"Closing Price" the closing middle-market price of
an IMD Share as derived from the AIM
Appendix to the Official List;
"Conditions" the conditions to the implementation of
the Acquisition (including the Scheme)
which are set out in Appendix I of this
announcement;
"Court" the High Court of Justice in England
and Wales;
"Court Meeting" the meeting or meetings of Independent
Scheme Shareholders (and any adjournment
thereof) to be convened pursuant to an
order of the Court under Part 26 of the
Companies Act 2006 for the purposes of
considering and, if thought fit,
approving the Scheme (with or without
amendment);
"Court Order(s)" the Scheme Court Order and the Reduction
Court Order respectively or, where
the context requires, either of them;
"Cox Shares" 219,780 Scheme Shares held by Simon
Cox;
"DC Advisory Partners" DC Advisory Partners Limited, which
is authorised and regulated in the
United Kingdom by the Financial Services
Authority;
"Disclosed" (i) as disclosed in IMD's annual report
and accounts for the period ended 31
December 2009; (ii) or as disclosed in
IMD's interim results published for the
six months period ended 30 June 2010; or
(iii) as publicly announced by IMD
(through a Regulatory Information
Service) prior to the date of this
announcement; or (iv) as otherwise
disclosed, prior to the date of this
announcement, by or on behalf of IMD in
writing (including in minutes of
disclosure in meetings with the Executive
Managers) delivered to Vitruvian
Partners, Bidco or any other member of
the Bidco Group or their respective
advisers, employees or officers involved
in the Acquisition, or the negotiation
thereof;
"Effective Date" the effective date of the Scheme;
"Executive Managers" members of the management of IMD who have
reached agreement with Bidco in relation
to the Management Arrangements, namely
Simon Cox, Philip McDanell, Ron
Priestley, Andrew Troullides, Clinton Van
Ry, Al Hepworth, Ralph Hekmat, Jean
Gaillard and Shelby Lea Akosa;
"Financial Services Authority" the Financial Services Authority acting
in its capacity as the competent
authority for the purposes of Part VI of
the Financial Services and Markets Act
2000;
"Forms of Proxy" the forms of proxy for use at the Court
Meeting and the General Meeting;
"General Meeting" the general meeting of IMD Shareholders
(and any adjournment thereof) to be
convened in connection with the Scheme;
"Holdco" Lausanne Topco Limited, a company
incorporated in England and Wales with
registered number 7479143, being the
indirect holding company of Bidco;
"IMD" or the "Company" Independent Media Distribution plc;
"IMD Group" IMD and its subsidiaries and subsidiary
undertakings and, where the context
permits, each of them;
"IMD Shareholders" the holders of IMD Shares;
"IMD Shares" the existing issued or unconditionally
allotted and fully paid (or credited as
fully paid) ordinary shares of 10 pence
each in the capital of IMD and any
further such shares which are
unconditionally allotted or issued fully
paid prior to the Reduction Record Time;
"IMD Share Schemes" (a) the option agreements
entered into by IMD and
various individuals, granting
long term incentive options to
such individuals over shares
in IMD; and (b) the option
agreements entered into by IMD
and various individuals,
granting enterprise management
incentive options to such
individuals over shares in
IMD;
"Implementation Agreement" the agreement dated 27 February 2011
between Bidco and IMD relating, among
other things, to the implementation
of the Acquisition;
"Independent Directors" David Haynes, Charles Dunstone, Martina
King, Charles Cox and Ian Stevenson;
"Independent IMD Shareholders" IMD Shareholders other than the Executive
Managers;
"Independent Inconsistent (a) an offer, scheme or
Transaction" arrangement, recapitalisation
or other transaction which
involves a change of control
(as defined in the City Code)
of IMD or any other member of
the IMD Group; or
(b) any arrangement or
transaction which involves or
contemplates the transfer of
any interest in the whole, or
the majority of the
undertaking, assets and/or
business of IMD or any other
member of the IMD Group; or
(c) any other arrangement or
transaction or series of the
same which is materially
inconsistent with or an
alternative to the
Acquisition;
which is in each case to be made or
entered into by or with a third party
which is not acting in concert (as
defined in the City Code) with Bidco;
"Independent Scheme Shareholders" those Scheme Shareholders who are
Independent IMD Shareholders;
"Inducement Fee Agreement" the letter agreement dated 22 December
2010 between IMD and Vitruvian Partners
containing provisions relating to
non-solicitation, the payment of an
inducement fee, irrevocable undertakings
and other matters in relation to the
Acquisition as amended by the letter
between IMD and Vitruvian Partners dated
25 February 2011;
"ISIN code" a UK international securities
identification number;
"Listing Rules" the listing rules of the Financial
Services Authority as amended from time
to time and contained in the Financial
Services Authority's publication of the
same name;
"London Stock Exchange" London Stock Exchange plc;
"Management Arrangements" the arrangements with the Executive
Managers, as described in this
announcement;
"Manco" DMWSL 658 Limited, a company incorporated
in England and Wales with registered
number 7479177;
"Midco" Lausanne Midco Limited, a company
incorporated in England and Wales with
registered number 7476070;
"Oakley Capital" Oakley Capital Limited, which is
authorised and regulated in the United
Kingdom by the Financial Services
Authority;
"Offer" should Bidco elect (with the consent of
the Panel) to make the Acquisition by way
of an offer at an offer price of not less
than 91 pence per IMD Share, the
recommended cash offer to be made by
Bidco to acquire all of the issued and to
be issued IMD Shares not already owned
(or contracted to be acquired) by Bidco
or its associates (including, where the
context so requires, any subsequent
revision, variation, extension or renewal
of such offer);
"Offer Document" should Bidco elect to make the
Acquisition by way of the Offer, the
document containing, amongst other
things, the details of the Offer, the
terms and conditions of the Offer and
certain information about IMD and Bidco
to be sent to IMD Shareholders and
others;
"Official List" the daily official list of the Financial
Services Authority;
"Panel" the Panel on Takeovers and Mergers;
"Reduction Court Order" the order of the Court confirming the
Capital Reduction;
"Reduction Record Time" the time and date specified as such in
the Scheme Document expected to be 6.00
p.m. on the Business Day immediately
preceding the date on which the Reduction
Court Order is made;
"Registrar" the Registrar of Companies in England
and Wales;
"Regulatory Information means any of the services set out in
Service" Appendix 3 to the Listing Rules;
"Scheme" the proposed scheme of arrangement under
Part 26 of the Companies Act 2006 between
IMD and the Scheme Shareholders the full
terms of which will be set out in the
Scheme Document;
"Scheme Court Hearing" the hearing by the Court of the claim
to sanction the Scheme;
"Scheme Court Order" the order of the Court sanctioning the
Scheme under Part 26 of the Companies Act
2006;
"Scheme Document" the document to be sent to IMD
Shareholders and, for information only,
to participants in the IMD Share Schemes,
containing and setting out the Scheme and
the notices convening the Court Meeting
and the General Meeting;
"Scheme Shareholders" holders of Scheme Shares;
"Scheme Shares" (i) the IMD Shares in issue at the
date of the Scheme Document;
(ii) any IMD Shares issued after the
date of the Scheme Document and before
the Voting Record Time; and
(iii) any IMD Shares issued at or after
the Voting Record Time and before the
Reduction Record Time, in respect of
which the original or any subsequent
holders thereof are, or shall have
agreed in writing to be, bound by the
Scheme,
in each case other than any IMD Shares
legally or beneficially owned by members
of the Bidco Group;
"Statement of Capital" the statement of capital (approved by the
Court) showing with respect to IMD's
share capital, as altered by the
Reduction Court Order, the information
required by section 649 of the Companies
Act 2006;
"UK" or "United Kingdom" the United Kingdom of Great Britain
and Northern Ireland;
"US", "USA" or "United States" the United States of America, its
territories and possessions, any State of
the United States of America and the
District of Columbia;
"Vitruvian Funds" the Vitruvian Partnership I Fund,
comprising investment partnerships
advised by Vitruvian Partners;
"Vitruvian Partners" Vitruvian Partners LLP;
"Voting Record Time" the time and date specified in the
Scheme Document, reference to which
entitlement to vote on the Scheme will
be determined, expected to be 6:00
p.m. on the day which is two days before
the date of the Court Meeting or, if
such Court Meeting is adjourned, 6:00
p.m. on the day which is two days before
the day of such adjourned meeting;
"Wider Bidco Group" Bidco and its subsidiaries, subsidiary
undertakings, associated undertakings and
any other undertaking or joint venture or
firm or partnership or company in which
Bidco and/or such subsidiaries or
undertakings (aggregating their
interests) have a substantial interest;
and
"Wider IMD Group" IMD and its subsidiaries, subsidiary
undertakings, associated undertakings and
any other undertaking or joint venture or
firm or partnership or company in which
IMD and/or such subsidiaries or
undertakings (aggregating their
interests) have a substantial interest.
In this announcement references to GBP or pounds and p or pence
are to pounds sterling and pence being the lawful currency of the
United Kingdom.
For the purposes of this announcement:
-- "subsidiary", "holding company", "subsidiary undertaking",
"parent undertaking", "undertaking" and "associated undertaking"
have the respective meanings given thereto by the Companies Act
2006, but for this purpose ignoring paragraph 20(1)(b) of Schedule
4A of the Companies Act 1985; and
-- "substantial interest" means a direct or indirect interest in
10 per cent. or more of the equity share capital (as defined in the
Companies Act 2006).
This information is provided by RNS
The company news service from the London Stock Exchange
END
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