TIDMPER
RNS Number : 2850W
Access Industries (UK) Limited
06 November 2014
NOT FOR RELEASE, PUBLICATION OR DISTRIBUTION IN WHOLE OR IN
PART, DIRECTLY OR INDIRECTLY, IN OR INTO OR FROM ANY JURISDICTION
WHERE TO DO SO WOULD CONSTITUTE A VIOLATION OF THE RELEVANT LAWS OR
REGULATIONS OF SUCH JURISDICTION.
FOR IMMEDIATE RELEASE
6 November 2014
MANDATORY FINAL CASH OFFER
(the "Offer")
by
AI PG LLC (the "Purchaser")
(part of the ACCESS INDUSTRIES GROUP)
for
PERFORM GROUP PLC ("Perform")
Offer update
Background
On 8 October 2014, the Purchaser announced that its Offer for
Perform was wholly unconditional.
On 10 October 2014, the Purchaser announced that, given the
likelihood of the eventual delisting of Perform, it was giving
consideration to extending certain limited corporate governance
protections, including mechanisms for a future exit, to the
remaining minority shareholders in Perform. It also announced that
the Offer would stay open until further notice and that it would
make information on its intentions in respect of any such
protections available in due course to allow shareholders and the
Independent Directors of Perform to consider their position.
Delisting and amendments to Articles of Association
It was stated in the Offer Document that PTV and the Purchaser
intended, subject to receipt of sufficient acceptances of the
Offer, to procure that Perform makes applications to cancel the
listing of Perform Shares from the UKLA's Official List and to
cancel admission to trading in Perform Shares on the London Stock
Exchange's market for listed securities as soon as practicable. If
sufficient acceptances of the Offer are not received while the
Offer remains open for acceptance, the Purchaser nevertheless
intends to request that the Perform board convenes a general
meeting of Perform Shareholders as soon as reasonably practicable
at which a resolution will be proposed to approve such
cancellation. That resolution will require the approval of 75 per
cent. of the votes cast on such resolution and of a majority of the
votes cast by independent shareholders on the resolution.
"Independent shareholders" means Perform Shareholders other than
the Purchaser and persons acting in concert with the Purchaser.
The Purchaser also intends that, at that general meeting,
resolutions will be proposed (i) to convert Perform into a private
company and (ii) to change its articles of association as
summarised in the Schedule to this announcement. Those resolutions
will require the approval of 75 per cent. of the votes cast on
those resolutions.
Closing of the Offer
The Offer remains open for acceptance. However, once proposals
are posted by Perform to participants in the Perform Performance
Share Plan (which the Purchaser expects to take place in the next
few days), the Purchaser will notify Perform Shareholders who have
not accepted the Offer of a date on which the Offer will close.
That closing date will not be less than 21 days after the date on
which those proposals are posted.
If, at any time when the Offer remains open for acceptance,
there are valid acceptances of the Offer which, together with
Perform Shares acquired or agreed to be acquired by the Purchaser
and/or held by Premium TV Group Limited, result in the Purchaser
and Premium TV Group Limited together holding Perform Shares
carrying, in aggregate, 75 per cent. or more of the voting rights
then normally exercisable at a general meeting of Perform, the
Purchaser will announce that fact. Following any such announcement,
the Offer will remain open for acceptance for at least a further
seven days.
Level of acceptances and ownership
As at 1.00 p.m. (London time) on 5 November 2014, the Purchaser
had received valid acceptances of the Offer which, together with
Perform Shares acquired by the Purchaser, result in the Purchaser
and those persons acting in concert with it holding Perform Shares
carrying, in aggregate, 193,690,114 Perform Shares representing
approximately 73.51 per cent. of the voting rights normally
exercisable at a general meeting of Perform, comprised as
follows:
Valid acceptances of the offer 60,631,245 23.01%
Perform Shares held by:
The Purchaser 19,956,652 7.57%
Premium TV Group Limited 112,052,464 42.53%
Lincoln Benet 481,133 0.18%
Jorg Mohaupt 568,620 0.22%
Total 193,690,114 73.51%
Other information
Thomas Harding, who is acting in concert with the Purchaser, has
accepted the Offer in relation to 20,412 Perform Shares. Save as
disclosed in this announcement, neither the Purchaser, nor any
person acting in concert with the Purchaser, has an interest in or
has any rights to subscribe for any relevant securities of the
Company nor has any short position or any arrangement in relation
to any relevant securities of the Company. For these purposes,
"arrangement" includes any agreement to sell or any delivery
obligation or option arrangement or right to require another person
to purchase or take delivery of any relevant securities of the
Company and any borrowing or lending of any relevant securities of
the Company which have not been on-lent or sold and any outstanding
irrevocable undertaking with respect to any relevant securities of
the Company.
Save where defined in this announcement, terms defined in the
Offer Document have the same meaning in this announcement.
ENQUIRIES:
For further information contact:
The Purchaser / PTV
Lincoln Benet
Jorg Mohaupt
Thomas Harding
Phone: +44 207 368 4100
Brunswick Group (Press agent for Purchaser and PTV)
Ben Fry
bfry@brunswickgroup.com
Andrew Garfield
agarfield@brunswickgroup.com
Phone: +44 207 404 5959
Credit Suisse (Financial adviser to Purchaser)
David Wheeler
Stuart Upcraft
Stuart Field
Joe Hannon
Phone: +44 207 888 8888
IMPORTANT NOTICES
The release, publication or distribution of this announcement
in, into or from jurisdictions other than the United Kingdom, and
the availability of the revised Offer to Perform Shareholders who
are not resident in the United Kingdom, may be restricted by the
laws of those jurisdictions and therefore persons into whose
possession this announcement comes should inform themselves about,
and observe, such restrictions. Any failure to comply with the
restrictions may constitute a violation of the securities laws of
any such jurisdiction. To the fullest extent permitted by law, the
Purchaser disclaims any responsibility or liability for the
violation of such restrictions by such persons.
Credit Suisse, which is authorised by the Prudential Regulation
Authority and regulated by the Prudential Regulation Authority and
the Financial Conduct Authority in the United Kingdom, is acting
exclusively as financial adviser to the Purchaser and for no one
else in connection with the revised Offer and will not be
responsible to any person other than the Purchaser for providing
the protections afforded to clients of Credit Suisse, nor for
providing advice in relation to the revised Offer, the content of
this announcement or any matter referred to herein. Neither Credit
Suisse 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 Credit Suisse in
connection with this revised Offer, any statement contained herein
or otherwise.
In accordance with normal United Kingdom market practice and
subject to applicable regulatory requirements, the Purchaser or its
affiliates or its nominees or its brokers (acting as agents) may
from time to time make certain purchases of, or arrangements to
purchase, Perform Shares outside the United States, other than
pursuant to the revised Offer, before or during the period in which
the revised Offer remains open for acceptance. These purchases may
occur either in the open market at prevailing prices or in private
transactions at negotiated prices. These purchases, or arrangements
to purchase, shall comply with applicable rules in the United
Kingdom, including the City Code on Takeovers and Mergers and the
rules of the London Stock Exchange and applicable US securities
laws (except to the extent of any exemptive relief granted by the
US Securities and Exchange Commission). Any information about such
purchases will be disclosed as required in the United Kingdom and
communicated in the United States in accordance with and under
applicable regulatory requirements (including applicable US
securities laws).
SCHEDULE
Proposed changes to Articles of Association
No. Item Details
---- -------------------- ------------------------------------------------------------------
1 Classes of
share * A Shares - to be held by AI PG LLC and its
Affiliates.
* M Shares - to be held by shareholders in Perform
Group plc who do not sell their shares in the Offer
and so continue to hold shares in the Company once it
is reregistered as a private company.
* I Shares - to be issued by the Company, following its
reregistration as a private Company, to certain
officers and employees as part of a share incentive
plan.(1)
---- -------------------- ------------------------------------------------------------------
2 Voting rights
* A Shares and M Shares are entitled to receive notice
of, attend, speak and vote at shareholder meetings.
* I Shares are entitled to receive notice of, attend
and speak at shareholder meetings, but not to vote.
---- -------------------- ------------------------------------------------------------------
3 Class rights
* A Shares have customary majority shareholder class
rights including (but not limited to) any: (i)
alteration of the articles; (ii) issue of Shares;
(iii) sale of assets of the group; (iv) change of
auditors; (v) M&A transaction; (vi) material
alteration of the structure of the group's business;
(vii) winding up of any member of the group; and
(viii) and listing or sale.
* The class rights of the M Shares and I Shares may be
varied by an ordinary resolution of the Company,
except for resolutions relating to the alteration or
removal of key share rights (e.g. drag and tag along
rights, pre-emption on issues of shares, entitlements
upon a liquidity event, sale and purchase right).
Changes to such rights which are adverse to the M
Shares and I Shares require the approval of a
majority of each class of shares affected by the
change (i.e. the M Shares and/or the I Shares as well
as the A Shares).
---- -------------------- ------------------------------------------------------------------
4 Waiver of class
rights attaching * If a third party agrees with Shareholders who would
to M Shares hold at least 90% of the Shares in issue following a
and I Shares conversion of the Shares into a single class, that it
will offer to acquire all the Shares in the Company
(the "Offer"), conditional upon such conversion
taking place prior to the Offer being made, then the
class rights of the M Shares and I Shares referred to
in point 3 shall not apply. If subsequently the Offer
is not made or, once made, not accepted by the
holders of 90% of the Shares at that time, then the
class rights apply once more. When converting Shares
into a single class, the conversion ratio will be
based on the then value of the Shares when applying
the waterfall of payments for distributions described
at point 5.
---- -------------------- ------------------------------------------------------------------
5 Distribution
of proceeds * Proceeds arising from a Liquidity Event which are
on a Liquidity available for distribution to Shareholders are
Event allocated as follows:
a) first, to the holders of A Shares and M
Shares in the proportion that their holding
of the same bears to the total number of A
Shares and M Shares in issue, an amount up
to an aggregate amount of GBP896,000,000;
b) second, the remaining proceeds are split
between the A Shares, M Shares and I Shares,
with:
i. the I Shares that have vested receiving
a return based on 8% multiplied by the percentage
of I Shares that have vested multiplied by
the remaining proceeds; and
ii. the A Shares and M Shares sharing any
remaining proceeds in the proportion that
their holding of the same bears to the total
number of A Shares and M Shares in issue.
* "Proceeds" are cash or cash equivalent proceeds or
proceeds in the form of securities readily realisable
in cash or cash equivalent but after deductions.
* A "Liquidity Event" is any event which provides a
distribution or other realization to Shareholders in
respect of their shares including by way of a sale of
the Company or an IPO.
* Non-cash proceeds are allocated amongst the Shares
once they have become realised in cash or cash
equivalents.
---- -------------------- ------------------------------------------------------------------
6 Dividends
* Profits available for distribution to Shareholders by
way of dividend are to be distributed in the same
manner as Proceeds arising from a Liquidity Event.
* No dividends may be paid if to do so would be
prohibited by any of the financing arrangements to
which the Company or the group is a party or if there
remain any amounts owing by the Major A Shareholder
(as defined below) under the Sale Right and Purchase
Right (see below) to relevant Shareholders.
---- -------------------- ------------------------------------------------------------------
7 Pre-emption
on issue * All classes of Shares have pro rata pre-emption
rights on further issues of shares except for:
a) issues of I Shares to employees (up to
GBP[--](2) );
b) issues of Shares to third parties as consideration
for the acquisition of shares and/or assets
from that third party; and
c) an emergency issue of shares (where there
is or will likely be an event of default under
the group's financing arrangements), and in
such cases shareholders will have the right
to subscribe or acquire shares on a pro rata
basis following such emergency issue.
---- -------------------- ------------------------------------------------------------------
8 Transfers (General)
* A Shares and M Shares are freely transferable.
* I Shares which have vested are freely transferable. I
Shares which are not vested may not be transferred
unless pursuant to the Sale Right, the Purchase Right,
Drag-along right and Tag-along right.
---- -------------------- ------------------------------------------------------------------
9 Sale Right
* Holders of M Shares and vested I Shares have the
right, if M Shares and vested I Shares represent more
than 1% of the Shares, to require the Major A
Shareholder to acquire some or all of their M Shares
and vested I Shares.
* The "Major A Shareholder" is AI PG LLC or its
affiliate which holds the greatest number of A Shares
for so long as AI PG LLC and its affiliates between
them hold a majority of the A Shares
* Sale Right can be exercised:
a) during a 30 day window in each year after
the fourth anniversary of the adoption of
the articles; or
b) at any point following 6 months after the
offer is closed, if there is either:
i. (subject to M Shareholders and vested I
Shareholders holding 2.5% or more of the Shares)
a major transaction which is not approved
by a majority of M Shareholders; or
ii. a material related party transaction with
the A Shareholder which is not approved by
a majority of M Shareholders.
* Sale price is fair market value which is determined
by appointed third party valuers in accordance with
agreed criteria.
* If the M Shares and vested I Shares to be sold under
the sale right represent more than 5% of the Shares
then either:
a) the Major A Shareholder will purchase such
Shares for fair market value; or
b) the Major A Shareholder can cause a process
to be run by an investment bank for a sale
or IPO. If at the end of six months there
is no sale or IPO then the relevant shares
will be sold to the Major A Shareholder for
fair market value which will be determined
by: (i) a valuer if there was no likely prospect
of an IPO or sale; or (ii) by reference to
the value of offers received or pursuant to
an IPO if likely to succeed but pulled.
---- -------------------- ------------------------------------------------------------------
10 Purchase Right
* Following 6 months after the offer is closed, for so
long as M Shares and vested I Shares represent less
than 2.5% of the Shares, the Major A Shareholder has
the right at any time to acquire any of the M Shares
and/or vested I Shares for fair market value as
determined by third party valuers in accordance with
agreed criteria.
---- -------------------- ------------------------------------------------------------------
11 Tag-along right
* No transfer or series of transfers of Shares may take
place by shareholders (the "Selling Shareholders")
which would result in a third party (the "Acquirer")
holding more than 50% of the Shares, without the
Acquirer first offering to purchase all the Shares
from the remaining shareholders. The terms of
purchase shall not be less preferential than the
terms offered to the Selling Shareholders (and where
the offer relates to classes of Shares that are not
being sold by the Selling Shareholders, the price
shall be calculated in accordance with the waterfall
of payments for distributions described at point 5).
---- -------------------- ------------------------------------------------------------------
12 Drag -along
right * If the holders of more than 50% of the Company's
issued Shares (the "Majority Selling Shareholders")
wish to sell all their Shares, then they may require
the remaining shareholders to transfer their Shares
on the same terms as the Majority Selling
Shareholders (including timing of sale, form of
consideration and the giving of warranties,
representations, covenants and indemnities but
subject to any differential valuation arising by
virtue of the waterfall of payments for distributions
described at point 5).
---- -------------------- ------------------------------------------------------------------
13 Appointment
of Directors * The holders of A Shares who hold a majority of the
Shares in the Company from time to time may appoint
and remove directors (each an "Investor Director").
Certain conflicts of interest arising from other
interests of the Investor Director or of his
appointor are expressly authorised.
* If Simon Denyer and John Gleasure together hold
13,175,000 M Shares (being 5% of the Shares in issue
at the date of adoption of the Articles based on an
issued share capital of 263,491,246 Shares), then for
so long as the holders of M Shares together hold:
(a) not less than 5% of the Shares in issue
at the date of adoption of the Articles, the
holders of a majority in number of the M Shares
may appoint and remove one director; or
(b) not less than 10% of the shares in issue
at the date of adoption of the Articles, the
holders of a majority in number of the M Shares
may appoint and remove two directors,
(such director(s) being the "Manager Director(s)")
---- -------------------- ------------------------------------------------------------------
14 Quorum for
board meetings * The quorum for a board meeting is one Investor
Director and one Manager Director.
---- -------------------- ------------------------------------------------------------------
(1) Expected rights attaching to the shares are as per this summary but may be varied to the extent required to accommodate tax structuring advice in connection with the implementation of the share incentive plan.
(2) Cap yet to be determined.
This information is provided by RNS
The company news service from the London Stock Exchange
END
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