TIDMTOL
NOT FOR RELEASE, PUBLICATION OR DISTRIBUTION, IN WHOLE OR IN PART, IN, INTO OR
FROM ANY JURISDICTION WHERE TO DO SO WOULD CONSTITUTE A VIOLATION OF THE
RELEVANT LAWS OF THAT JURISDICTION
9 March 2011
ACQUISITION
OF
TOLUNA PLC ("TOLUNA")
BY
ITWP ACQUISITIONS LIMITED ("ITWP")
Posting of Scheme Document
On 14 February 2011, the directors of the boards of ToLuna and ITWP announced
that they had agreed the terms of a proposed acquisition of ToLuna by ITWP to
be effected by means of a Court-sanctioned scheme of arrangement under Part 26
of the Companies Act 2006 (the "Acquisition").
The boards of ToLuna and ITWP are pleased to announce that the scheme document
(the "Scheme Document") which sets out, amongst other things, the full terms
and conditions of the Scheme, an explanatory statement pursuant to section 897
of the Companies Act, a timetable of principal events and details of the
actions to be taken by ToLuna shareholders, was posted to ToLuna shareholders
last night. Copies of the Scheme Document will also be posted in due course to
holders of options over shares in ToLuna.
The Court Meeting and the ToLuna General Meeting to be convened in relation to
the implementation of the Acquisition are scheduled to take place on 30 March
2011. Notices of the Court Meeting and the ToLuna General Meeting are set out
in the Scheme Document.
Copies of the Scheme Document are available for inspection during normal
business hours on any weekday (Saturdays, Sundays and public holidays excepted)
at the registered office of ToLuna at 29 Curzon Street, London W1J 7TZ and at
the offices of Addleshaw Goddard, 60 Chiswell Street, London EC1Y 4AG and on
ToLuna's website at www.toluna-group.com.
The anticipated timetable of principal events is as follows:
Event Time and/or
date(1)
(2011)
Latest time for lodging Forms of Proxy for:
(i) Court Meeting 11.00am on
28 March
(ii) General Meeting 11.15am on
28 March
Voting Record Time 6.00pm on 28
March
Court Meeting(2) 11.00am on
30 March
General Meeting(2),(3) 11.15am on
30 March
Latest time for return of Form of Election 1.00pm on 11
April
Court hearing to sanction Scheme 13 April
Scheme Record Time 6.00pm on 14
April
Last day of dealings in, and for registration of transfers of, and 14 April
disablement in CREST of, ToLuna Shares
Court hearing to confirm Capital Reduction 15 April
Effective Date of the Scheme 18 April
Cancellation of trading on AIM of ToLuna Shares 8.00am on 19
April
Latest date for despatch of cheques and crediting CREST accounts 28 April
for cash consideration due under this Scheme
(1) All times shown in this table are London times unless otherwise
stated. The dates and times are indicative only and are based on ToLuna's
current expectations and may be subject to change.
(2) The Court Meeting and the General Meeting will be held at Addleshaw
Goddard LLP, 60 Chiswell Street, London EC1Y 4AG.
(3) To commence at the time fixed or, if later, immediately
following the conclusion or adjournment of the Court Meeting.
The Court Meeting and General Meeting will be held at Addleshaw Goddard LLP, 60
Chiswell Street, London EC1Y 4AG on 30 March 2011.
Terms and expressions used in this announcement shall, unless the context
otherwise requires, have the same meanings as given to them in the announcement
of 14 February 2011 and the Scheme Document.
Enquiries
Perella Weinberg Partners (sole financial adviser to ITWP and Verlinvest)
Tel: +44 (0)20 7268 2800
Philip Yates
Graham Davidson
James Triggs
Merchant Securities Limited (sole financial adviser and Nominated Adviser to
ToLuna)
Tel: +44 (0)20 7628 2200
David Worlidge
Simon Clements
Bidhi Bhoma
FURTHER INFORMATION
This announcement is not intended to, and does not, constitute or form part of
an offer to sell, or otherwise dispose of, or constitute an invitation or the
solicitation of an offer to purchase, subscribe for or otherwise acquire any
securities or the solicitation of any vote or approval in any jurisdiction,
pursuant to the Acquisition or otherwise. The Acquisition will be made solely
by means of the Scheme Document, which will contain the full terms and
conditions of the Acquisition (including details of how to vote in respect of
the Scheme). Any vote in respect of the Scheme should be made only on the basis
of the information contained in the Scheme Document. ToLuna Shareholders are
advised to read the formal documentation in relation to the Acquisition
carefully, once it has been dispatched.
Please be aware that addresses, electronic addresses and certain other
information provided by ToLuna Shareholders, persons with information rights
and other relevant persons for the receipt of communications from ToLuna may be
provided to ITWP during the offer period as required under Section 4 of
Appendix 4 of the Code.
Perella Weinberg Partners UK LLP, which is authorised and regulated in the
United Kingdom by the FSA, is acting exclusively for ITWP and Verlinvest and
for no one else in connection with the Acquisition and is not advising any
other person or treating any other person as its client in relation thereto and
will not be responsible to anyone other than ITWP and Verlinvest for providing
the protections afforded to clients of Perella Weinberg Partners UK LLP, or for
giving advice to any other person in relation to the Acquisition, the contents
of this announcement or any other matter referred to herein. Neither Perella
Weinberg Partners UK LLP nor any of its subsidiaries, branches or affiliates
owes or accepts any duty, liability or responsibility whatsoever (whether
direct or indirect, whether in contract, in tort, under statute or otherwise)
to any person who is not a client of Perella Weinberg Partners UK LLP in
connection with this announcement, any statement contained herein or otherwise.
Merchant Securities Limited, which is authorised and regulated in the United
Kingdom by the FSA, is acting exclusively for ToLuna and for no one else in
connection with the Acquisition and will not be responsible to any person other
than ToLuna for providing the protections afforded to clients of Merchant
Securities Limited, nor for providing advice in relation to the Acquisition,
the content of this announcement or any matter referred to herein. Neither
Merchant Securities Limited nor any of its subsidiaries, branches or affiliates
owes or accepts any duty, liability or responsibility whatsoever (whether
direct or indirect, whether in contract, in tort, under statute or otherwise)
to any person who is not a client of Merchant Securities Limited in connection
with this announcement, any statement contained herein or otherwise.
ITWP reserves the right to elect (with the consent of the Panel) to implement
the Acquisition by means of an Offer. In such event, the Offer will be
implemented on substantially the same terms, subject to appropriate amendments,
as those which would apply to the Scheme. If the Acquisition is implemented by
means of an Offer, it will be made in accordance with the requirements of
applicable law, including US securities laws, to the extent applicable.
OVERSEAS JURISDICTIONS
The distribution of this announcement in jurisdictions other than the United
Kingdom may be restricted by law and the availability of the Acquisition to
ToLuna Shareholders who are not resident in the UK may be affected by the laws
of the relevant jurisdictions. Therefore any persons who are subject to the law
of any jurisdiction other than the UK should inform themselves about, and
observe, any applicable requirements.
This announcement has been prepared for the purposes of complying with English
law and the Code and the information disclosed may not be the same as that
which would have been disclosed if this announcement had been prepared in
accordance with the laws of jurisdictions outside of England.
Notice to US investors in ToLuna
The Acquisition relates to the shares of a UK company, is subject to UK
disclosure requirements (which are different from those of the US) and is
proposed to be made by means of a scheme of arrangement provided for under
English company law. A transaction effected by means of a scheme of
arrangement is not subject to the tender offer rules under the US Exchange
Act. Accordingly, the Acquisition is subject to the disclosure requirements
and practices applicable in the UK to schemes of arrangement which differ from
the disclosure requirements of the US tender offer rules. Financial
information included in this announcement has been prepared, unless
specifically stated otherwise, in accordance with accounting standards
applicable in the UK and thus may not be comparable to the financial
information of US companies or companies whose financial statements are
prepared in accordance with generally accepted accounting principles in the US.
If ITWP exercises its right to implement the Acquisition by way of an Offer,
the Offer will be made in compliance with applicable US laws and regulations.
The receipt of cash pursuant to the Acquisition by a US Holder as consideration
for the cancellation of its ToLuna Shares pursuant to the Scheme may be a
taxable transaction for United States federal income tax purposes and under
applicable United States state and local, as well as foreign and other, tax
laws. Each ToLuna Shareholder is urged to consult his independent professional
adviser immediately regarding the tax consequences of the Acquisition
applicable to him.
It may be difficult for US Holders to enforce their rights and claims arising
out of United States federal securities laws, since ITWP and ToLuna are located
in countries other than the United States, and some or all of their officers
and directors may be residents of countries other than the United States. US
Holders may not be able to sue a non-United States company or its officers or
directors in a non-United States court for violations of United States
securities laws. Further, it may be difficult to compel a non-United States
company and its affiliates to subject themselves to a United States court's
judgement.
In accordance with normal UK practice and pursuant to Rule 14e-5(b) of the US
Exchange Act, ITWP or its nominees, or its brokers (acting as agents), may from
time to time make certain purchases of, or arrangements to purchase, ToLuna
Shares outside of the United States, other than pursuant to the Acquisition,
until the date on which the Acquisition and/or Scheme becomes effective, lapses
or is otherwise withdrawn. 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, will
be reported to a Regulated Information Service and will be available on the
London Stock Exchange website at http://www.londonstockexchange.com/exchange/
news/market-news/market-news-home.html.
FORWARD-LOOKING STATEMENTS
This announcement (including information incorporated by reference in this
announcement) includes "forward-looking statements". These statements are
based on the current expectations of the management of ITWP and ToLuna and are
naturally subject to uncertainty and changes in circumstances. The
forward-looking statements contained herein include statements about the
expected effects of the Acquisition, the expected timing and scope of the
Acquisition and are not based on historical facts. As such, they are
prospective in nature. Forward-looking statements include, without limitation,
statements typically containing words such as "believes", "intends", "expects",
"anticipates", "targets", "estimates" and words of similar import or variations
of such words and phrases or statements that certain actions, events, or
results "may", "could", "should", "would", "might" or "will" be taken, occur,
or be achieved. Although ToLuna and ITWP believe that the expectations
reflected in such forward-looking statements are reasonable, ToLuna and ITWP
can give no assurance that such expectations will prove to have been correct.
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. There are a number of factors that could cause actual results and
developments to differ materially from those expressed or implied by such
forward-looking statements. These factors include, but are not limited to, the
satisfaction of the conditions to the Acquisition and additional factors, such
as: local and global political and economic conditions; foreign exchange rate
fluctuations and interest rate fluctuations (including those from any potential
credit rating decline) and legal or regulatory developments and changes. Other
unknown or unpredictable factors could cause actual results to differ
materially from those in the forward-looking statements. Given these risks and
uncertainties, investors should not place undue reliance on forward-looking
statements as a prediction of actual results. Neither ToLuna nor ITWP
undertake any obligation to update publicly or revise forward-looking
statements, whether as a result of new information, future events or otherwise,
except to the extent legally required.
DEALING DISCLOSURE REQUIREMENTS
Under Rule 8.3(a) of the Code, any person who is interested in one 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 which has 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 (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 pm (London time) on the 10th business day following the commencement
of the offer period and, if appropriate, by no later than 3.30 pm (London time)
on the 10th business day following the announcement in which any paper offer 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 Code, any person who is, or becomes, interested in one
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 pm (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 ToLuna, 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 Rules
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 are required 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.
Publication on websites
A copy of this announcement will be available free of charge, subject to
certain restrictions relating to persons resident in restricted jurisdictions,
for inspection on ToLuna's website at www.ToLuna.com by no later than 12 noon
on 9 March 2011.
END
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