PERFORM GROUP LTD
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 to M Shares and I Shares | · If a third party agrees with Shareholders who would hold at least 90% of the Shares in issue following a 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 on a Liquidity Event | · Proceeds arising from a Liquidity Event which are available for distribution to Shareholders are 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 £896,000,000; 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 £[●]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. |
2 Cap yet to be determined.
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