Publication of Offer Memorandum – offer period ends 28 February 2014
Transaction highlights
Recommended public offer for all UNIT4 Shares at an offer price of EUR 38.75 (cum dividend) in cash per Share
The Management Board and the Supervisory Board of UNIT4 fully support and unanimously recommend the Offer to all Shareholders for acceptance
The Central Works Council of UNIT4 has rendered positive advice in respect of the Offer
The members of the Management Board have, subject to termination of the conditional agreement between UNIT4 and the Offeror, entered into irrevocable undertakings to tender the Shares which they are expected to hold (together representing 6.55% of the fully diluted share capital of UNIT4) and vote in favour of certain governance resolutions to be proposed at an extraordinary general meeting of Shareholders
The Offer Period commences on 23 December 2013 at 09.00 hours, CET, and ends on 28 February 2014 at 17.40 hours, CET, unless extended
UNIT4 will convene an extraordinary general meeting of Shareholders to be held on 19 February 2014 at 15.00 hours, CET, during which, among other matters, the Offer will be discussed
The Offer shall be subject to satisfaction or waiver of the Offer Conditions as set out in the Offer Memorandum, including an 85% acceptance condition
The Offeror is in the process of filing all requests for regulatory approvals
Sliedrecht/London, 20 December 2013 – With the publication of the Offer Memorandum today, AI Avocado B.V. (the “Offeror”), a company ultimately indirectly controlled by funds advised and managed by Advent International Corporation (“Advent”), and UNIT4 N.V. (“UNIT4”) jointly announce that the Offeror is making a recommended cash offer to all holders of issued and outstanding ordinary shares (“Shareholders”), including all ordinary shares which may be issued and/or delivered by UNIT4 at or before settlement of the Offer, in each case with a nominal value of EUR 0.05 each in the capital of UNIT4 (the “Shares”) to acquire their Shares at an offer price of EUR 38.75 (cum dividend) in cash for each Share (the “Offer”).
The Offer
The Offeror is making the Offer on the terms and subject to the conditions and restrictions contained in the Offer Memorandum dated 20 December 2013 (the “Offer Memorandum”). Shareholders tendering their Shares under the Offer will be paid in consideration for each Share validly tendered and transferred (geleverd) an amount in cash of EUR 38.75 (thirty-eight euro and seventy-five euro cents) cum dividend (the “Offer Price”).
The Offer values 100% of the Shares of UNIT4 at EUR 1,172 million. The Offer Price represents a premium of 32.4% to the closing price of 11 October 20131 (the “Reference Date”) and a premium of 54.8% to the average closing share price of the last 12 months prior to that date.
The Offeror confirmed in a press release dated 18 November 2013 that it has sufficient funds available to complete the Offer.
Sale process
Since the initial expressions of interest for a potential takeover bid from several parties during the summer of 2013, a special committee consisting of Mr Philip Houben and Mr Rob Ruijter, both members of the Supervisory Board of UNIT4 (the “Special Committee”), was appointed to engage in discussions with the potential bidders to oversee a structured process and safeguard the interests of all stakeholders of UNIT4.
Following the issuance of a leak press release stating the interest from several parties on 14 October 2013, UNIT4 was approached by additional parties also indicating an interest in a possible takeover. UNIT4 engaged in discussions with some of these interested parties. Consistent with their fiduciary duties, the Management Board and the Supervisory Board of UNIT4 carefully evaluated the expressions of interest in the same way as they had considered the initial approaches and invited additional potential bidders into the process. The process remained competitive until definitive agreement was reached with Advent.
Decision-making and unanimous recommendation from the Management Board and the Supervisory Board
Throughout the entire process, the Special Committee, the Management Board, and the Supervisory Board met on a frequent basis to discuss any developments and key decisions in response thereto. The full Supervisory Board also consulted and held various meetings with its professional advisors, some of which without any members of the Management Board in attendance. The Supervisory Board engaged ABN AMRO to provide independent financial advice and issue a fairness opinion.
1 Last closing price prior to the announcement of preliminary interest in UNIT4 on Monday 14 October 2013
The Special Committee remained closely involved at all stages of the process which ultimately led to the Offer. The Special Committee held frequent conference calls and meetings with key external professional advisors and/or members of the Management Board to be updated on the latest developments, monitor the process, discuss the Offer and alternatives thereto as well as the considerations underlying the key decisions and resolutions in connection therewith.
The Supervisory Board and its Special Committee carefully managed any (potential) conflicts of interest at all stages of the process which ultimately led to the Offer, as described in more detail in the Position Statement (as defined below). The Offeror was not permitted to discuss the terms of participation by any members of the Management Board as minority shareholders in the Offeror until UNIT4 and the Offeror had advanced their discussions on the terms of the Merger Protocol.
The Boards have concluded that the Offer is fair to the Shareholders of UNIT4 from a financial point of view and in the best interests of UNIT4 and its stakeholders. The Boards have reached this conclusion after having received extensive legal and financial advice, and having given due and careful consideration to the strategic, financial and social aspects and consequences of the proposed transaction. The Boards have also received fairness opinions, in which ING Bank and ABN AMRO, respectively, have opined that the Offer is fair to the Shareholders of UNIT4 from a financial point of view.
With reference to the above, the Boards fully support and unanimously recommend the Offer to the Shareholders of UNIT4 for acceptance (the “Recommendation”).
Extraordinary general meeting of Shareholders of UNIT4
In accordance with Article 18, paragraph 1 of the Decree, UNIT4 shall convene an extraordinary general meeting (the “EGM”) to discuss the Offer. The EGM shall be held at 15:00 hours on 19 February 2014.
UNIT4 has also agreed with Advent that the Shareholders shall be requested at the EGM to vote, subject to the Offer being declared unconditional (gestanddoening) and effective as per the Settlement Date, on certain resolutions (the “EGM Resolutions”).
UNIT4 expects to make its full year results 2013 available to the Shareholders on its website on 14 February 2014 after close of trading of the Shares on Euronext Amsterdam.
A position statement providing further information to the Shareholders as required pursuant to Article 18, paragraph 2 of the Decree (the "Position Statement"), including the agenda for the EGM (and explanatory notes thereto), is made available by UNIT4 as of today.
Committed Shares
All members of the Management Board, being Mr Chris Ouwinga, Mr Jose Duarte and Mr Edwin van Leeuwen, have, in their capacity as members of the Management Board, entered into irrevocable undertakings in respect of their Shares, subject to the conditional agreement between Advent and UNIT4 not having been terminated, to tender the Shares directly or indirectly held by them and their affiliates (including, for the avoidance of doubt, any Shares to be acquired by them in connection with certain employee equity incentive arrangements) under the Offer in the Offer Period under the same terms are as applicable to all Shareholders and to vote in favour of the EGM Resolutions, in each case subject to the terms and conditions of the Offer Memorandum. The total percentage of Shares which are expected to be subject to the irrevocable undertakings amounts to 6.55% on a fully diluted basis, as described in the Offer Memorandum.
Works Council
UNIT4 and the Offeror are very pleased to announce that UNIT4's Central Works Council has given positive advice in respect of the Offer and the financing thereof, including the security rights.
The secretariat of the Social Economic Council (Sociaal Economische Raad) has been notified in writing of the Offer in accordance with the Merger Code (SER-besluit Fusiegedragsregels 2000)
Offer Period (aanmeldingstermijn)
The offer period will commence at 09:00 hours, CET, on 23 December 2013 and will expire on 28 February 2013 at 17:40 hours, CET (such date, the “Closing Date” and such period, the “Offer Period”), unless the Offer Period is extended, in which case the Closing Date shall be the date on which the extended Offer Period expires.
Shares tendered on or prior to the Closing Date may not be withdrawn, subject to the right of withdrawal of any tender of Shares during the Offer Period in accordance with the provisions of Article 5b, paragraph 5, Article 15, paragraphs 3 and 8 and Article 15a paragraph 3 of the Decree. In case of extension of the Offer Period, any Shares previously tendered and not withdrawn will remain subject to the Offer.
Acceptance by Shareholders
Shareholders who hold their Shares through an Admitted Institution are requested to make their acceptance known through their custodian, bank or stockbroker no later than 17:40 hours, CET, on the Closing Date, unless the Offer Period is extended in accordance with Section 5.7 of the Offer Memorandum. The custodian, bank or stockbroker may set an earlier deadline for communication by Shareholders in order to permit the custodian, bank or stockbroker to communicate its acceptances to Rabobank International (the “Paying and Exchange Agent”) in a timely manner.
Admitted Institutions may tender Shares for acceptance only to the Paying and Exchange Agent and only in writing. In submitting the acceptance, Admitted Institutions are required to declare that (i) they have the Tendered Shares in their administration, (ii) each Shareholder who accepts the Offer irrevocably represents and warrants that the Tendered Shares are being tendered in compliance with the restrictions set out in Sections 2 (Restrictions) and 3 (Important Information) of the Offer Memorandum and (iii) they undertake to transfer these Tendered Shares to the Offeror prior to or ultimately on the Settlement Date, provided that the Offer has been declared unconditional (gestand is gedaan).
Declaring the Offer unconditional (gestanddoening)
The Offer will be subject to the satisfaction of the offer conditions set out in Section 6.7(a) (Offer Conditions) of the Offer Memorandum (the “Offer Conditions”). The Offer Conditions may be waived, to the extent permitted by law or by agreement, as set out in Section 6.7(b) (Waiver) of the Offer Memorandum.
No later than on the third (3rd) Business Day following the Closing Date, such date being the “Unconditional Date”, the Offeror will determine whether the Offer Conditions have been satisfied or are to be waived. In addition, the Offeror will announce on such date, in accordance with Article 16 of the Decree whether (i) the Offer has been declared unconditional, (ii) the Offer will be extended in accordance with Article 15 of the Decree or (iii) the Offer is terminated, as a result of the Offer Conditions not having been satisfied or waived in accordance with Sections 6.7(b) (Waiver) and 6.7(c) (Satisfaction) of the Offer Memorandum.
Extension
If one or more of the Offer Conditions is not satisfied by the Closing Date or waived in accordance with Section 6.7(b) (Waiver) of the Offer Memorandum, the Offeror may, in accordance with Article 15, paragraph 1 and paragraph 2 of the Decree, extend the Offer Period at its discretion for a minimum period of two (2) weeks and a maximum period of ten (10) weeks in order to have such Offer Conditions satisfied or waived. If so requested in writing by the One-Tier Board, the Offeror must extend the Offer Period for a period of two (2) weeks, except in the event of a Competing Offer or an Other Relevant Offer being made.
Extension of the Offer Period may in any event occur once (extension for more than one period is subject to clearance of the AFM, which will only be given in exceptional circumstances). In case of such extension all references in the Offer Memorandum to 17:40 hours, CET, on the Closing Date shall, unless the context requires otherwise, be changed to the latest date and time to which the Offer Period has been so extended.
If the Offer Period is extended, so that the obligation pursuant to Article 16 of the Decree to announce whether the Offer is declared unconditional is postponed, a public announcement to that effect will be made ultimately on the third (3rd) Business Day following the Closing Date in accordance with the provisions of Article 15, paragraph 1 and paragraph 2 of the Decree. If the Offeror extends the Offer Period, the Offer will expire on the latest time and date to which the Offeror extends the Offer Period.
During an extension of the Offer Period, any Shares previously tendered and not withdrawn will remain subject to the Offer, subject to the right of each Shareholder to withdraw the Shares he or she has already tendered in accordance with Article 15, paragraph 3 of the Decree and subject to any withdrawal rights available pursuant to Article 5b, paragraph 5, Article 15, paragraph 8 and Article 15a, paragraph 3 of the Decree.
Post-Closing Acceptance Period (na-aanmeldingstermijn)
In the event that the Offeror announces that the Offer is declared unconditional (gestand wordt gedaan), the Offeror shall, in accordance with Article 17 of the Decree, within three (3) Business Days after declaring the Offer unconditional, publicly announce a Post-Closing Acceptance Period (na-aanmeldingstermijn) of maximum two (2) weeks to enable Shareholders who did not tender their Shares during the Offer Period to tender their Shares under the same terms and conditions as the Offer.
Settlement
In the event that the Offeror announces that the Offer is declared unconditional (gestand wordt gedaan), Shareholders who have tendered and transferred (geleverd) their Shares for acceptance pursuant to the Offer on or prior to the Closing Date will receive within eight (8) Business Days following the Unconditional Date the Offer Price in respect of each Tendered Share (the “Settlement Date”), at which point dissolution or annulment of a Shareholder's tender or transfer (levering) shall not be permitted.
Governance of UNIT4 post-completion of the Offer
On 24 September 2013, the general meeting of shareholders of UNIT4 resolved to change, with effect from 1 January 2014, the governance structure of UNIT4 and install a One-Tier Board including both executive and non-executive members as a replacement for the Management Board and the Supervisory Board.
Immediately following the Settlement Date, the One-Tier Board will consist of the following nine (9) members: (i) Mr Léo Apotheker, Mr Bret Bolin, Mr Fred Wakeman, Mr John Woyton and Mr Bram Grimmelt as non-executive directors; (ii) Mr Jose Duarte as chief executive officer and executive director and Mr Edwin van Leeuwen as executive director; (iii) Mr Chris Ouwinga as non-executive director and chairman of the One-Tier Board; and (iv) Mr Frank Rövekamp as the Independent Non-Executive. Until the later of four (4) years after the Closing Date and the moment that there are no longer any minority shareholders, one member of the One-Tier Board will be an Independent Non-Executive. Such Independent Non-Executive can only be appointed and dismissed by the general meeting of shareholders upon nomination of the One-Tier Board. The resolution of the One-Tier Board to make a nomination for the appointment of the Independent Non-Executive requires in any event the vote in favour of such nomination by the Independent Non-Executive, except in the event that it concerns his own re-appointment.
Immediately following the Settlement Date, the members of the Management Team shall remain in their current roles in the management of the UNIT4 Group with Mr Jose Duarte as chief executive officer.
Liquidity, delisting and post-closing restructuring measures
The purchase of Shares by the Offeror pursuant to the Offer, among other things, will reduce the number of Shareholders and the number of Shares that might otherwise trade publicly.
In the event that the Offeror acquires 95% or more of the Shares, the Offeror intends to take steps to terminate the listing of the Shares on Euronext Amsterdam as soon as possible. This may further adversely affect the liquidity and market value of any listed Shares not tendered.
Depending on the number of Shares obtained by the Offeror under the Offer, the Offeror intends to initiate a squeeze-out procedure in order to acquire all Shares by the minority Shareholders (subject to the Offeror obtaining 95% or more of the Shares). If, after expiration of the post-closing acceptance period, the Offeror holds less than 95% of the Shares, the Offeror is likely to effect, or cause to effect, certain other post-closing restructuring measures, including and most likely a (triangular) legal merger and/or entering into an asset sale transaction, for the purpose of achieving an optimal operational, legal, financial and/or fiscal structure. UNIT4, or in the event of a (triangular) legal merger UNIT4’s successor, will be subsequently liquidated and liquidation distributions, which are subject to tax, will be made to its minority shareholders (in the form of cash) and to the Offeror (in the form of a loan note), all as further described in the Offer Memorandum. In effectuating any post-closing restructuring measure, due consideration will be given to the interests of minority shareholders of UNIT4.
Announcements
Any further announcements in relation to the Offer will be issued by press release. Subject to any applicable requirements of the applicable rules and without limiting the manner in which the Offeror may choose to make any public announcement, the Offeror will have no obligation to communicate any public announcement other than as described above.
Offer Memorandum, Position Statement and further information
The Offeror is making the Offer on the terms and subject to the conditions and restrictions contained in the Offer Memorandum, dated 20 December 2013, which is available as of today. In addition, as of today, UNIT4 makes available the Position Statement, containing the information required by Article 18, paragraph 2 and Annex G of the Decree in connection with the Offer.
This announcement contains selected, condensed information regarding the Offer and does not replace the Offer Memorandum and/or the Position Statement. The information in this announcement is not complete and additional information is contained in the Offer Memorandum and the Position Statement.
Shareholders are advised to review the Offer Memorandum and the Position Statement in detail and to seek independent advice where appropriate in order to reach a reasoned judgment in respect of the Offer and the content of the Offer Memorandum and the Position Statement. In addition, Shareholders may wish to consult with their tax advisors regarding the tax consequences of tendering their Shares under the Offer.
Digital copies of the Offer Memorandum will be available on the websites of UNIT4 (www.unit4.com) and Advent (www.adventinternational.com). Copies of the Offer Memorandum are also available free of charge at the offices of UNIT4 and the Paying and Exchange Agent at the addresses mentioned below. The UNIT4 and Advent websites do not constitute a part of, and are not incorporated by reference into, the Offer Memorandum. Digital copies of the Position Statement will be available on the website of UNIT4 (www.unit4.com).
UNIT4
UNIT4 N.V.
Stationspark 1000
