TIDMIMO
RNS Number : 7195H
Cisco Systems, Inc.
07 December 2020
NOT FOR RELEASE, PUBLICATION OR DISTRIBUTION, IN WHOLE OR IN
PART, DIRECTLY OR INDIRECTLY, IN, INTO OR FROM ANY JURISDICTION
WHERE TO DO SO WOULD CONSTITUTE A VIOLATION OF THE RELEVANT LAWS OR
REGULATIONS OF SUCH JURISDICTION
THIS ANNOUNCEMENT CONTAINS INSIDE INFORMATION
FOR IMMEDIATE RELEASE
7 DECEMBER 2020
RECOMMED CASH OFFER
for
IMIMOBILE PLC
by
CISCO SYSTEMS HOLDINGS UK LIMITED
an indirect wholly-owned subsidiary of Cisco Systems, Inc.
to be effected by means of a scheme of arrangement
under Part 26 of the Companies Act 2006
Summary
-- The board of directors of Cisco Systems Holdings UK Limited
(Bidco), an indirect wholly-owned subsidiary of Cisco Systems, Inc.
(Cisco), and the Independent Directors of IMImobile PLC (IMImobile)
are pleased to announce that they have reached agreement on the
terms of a recommended cash offer by Bidco for the acquisition of
the entire issued and to be issued ordinary share capital of
IMImobile (the Offer). The Offer is intended to be effected by
means of a scheme of arrangement under Part 26 of the Companies Act
(the Scheme).
-- Under the terms of the Offer, each Scheme Shareholder will be entitled to receive:
for each Scheme Share 595 pence in cash
-- The terms of the Offer value the entire issued and to be
issued ordinary share capital of IMImobile at approximately GBP543
million on a fully diluted basis and represent a premium of
approximately:
-- 51.6 per cent. to the Closing Price of 393 pence for each
IMImobile Share on 2 November 2020 (being the last Business Day
before Cisco's first approach to IMImobile);
-- 47.8 per cent. to the Closing Price of 403 pence for each
IMImobile Share on 4 December 2020 (being the last Business Day
before the date of this Announcement); and
-- 59.7 per cent. to the six-month volume weighted average price
of 373 pence as at 4 December 2020 (being the last Business Day
before the date of this Announcement).
Background to and reasons for the Offer
-- Cisco is a global leader in networking, offering a wide array
of technology solutions and services across networking,
collaboration, security, communications and cloud applications.
Cisco's Contact Centre offerings are evolving as its customers move
towards Contact Centre as a Service, a trend that has accelerated
as more agents work from home.
-- Customer expectations are rising. In a competitive market,
businesses now compete not only on products and services, but also
on the quality of the interactive experience they can offer to
their customers. Cisco's vision is to create a comprehensive
Customer Experience as a Service (CXaaS) offer for customers,
offering a platform to provide consistently enjoyable customer
experiences. In order to improve the understanding, analysis and
optimisation of customer journeys, Cisco added an experience
management solution that provides customer sentiment analytics as
well as natural language capabilities that enable AI-powered
customer interactions. IMImobile offers software and services which
allow enterprises to stay constantly connected to their customers
and which will allow Cisco to progress its vision of offering a
comprehensive CXaaS offering.
-- IMImobile's services enable enterprises to offer their
customers enhanced interactive experiences, for example:
-- IMImobile makes it easy for businesses to communicate with a
customer in that customer's channel of choice;
-- IMImobile allows a business to seamlessly manage interactions
across the entire customer journey;
-- IMImobile provides omni-channel programmability that comes in
the form of APIs as well as low-code flow-builders enabling
businesses to rapidly and painlessly change the workflows that
allow them to serve and interact with their customers;
-- IMImobile orchestrates and integrates interactions with
enterprise systems, on an easy-to-use cloud communications
platform; and
-- IMImobile automates interactions to improve experiences,
saving time and reducing costs.
-- Following completion of the Offer, Cisco will be able to
provide customer-facing businesses with an end-to-end customer
interaction management solution as well as an ability to drive
faster and smarter customer interactions and orchestration
throughout the journey and lifecycle of the customer. Furthermore,
Cisco will be able to extend journey analytics and customer
interaction capabilities beyond the Contact Centre and be able to
provide a comprehensive set of popular channels including WhatsApp,
RCS and Apple Business Chat. Every touchpoint on every channel will
be an opportunity to deliver rich, engaging intuitive experiences
where every interaction matters.
Irrevocable undertakings and letters of intent
-- Bidco has received irrevocable undertakings to vote in favour
of the Scheme at the Court Meeting and the Resolutions to be
proposed at the General Meeting (or, in the event that the Offer is
implemented by way of a Takeover Offer, to accept or procure
acceptance of the Offer) in respect of 25,844,714 IMImobile Shares,
representing, in aggregate, approximately 31.3 per cent. of the
issued ordinary share capital of IMImobile as at the Last
Practicable Date. These irrevocable undertakings have been received
from:
-- Liontrust, in respect of 15,412,321 IMImobile Shares,
representing approximately 18.7 per cent. of the issued ordinary
share capital of IMImobile as at the Last Practicable Date; and
-- each of the IMImobile Directors who holds IMImobile Shares,
representing, in aggregate, 10,432,393 IMImobile Shares, being
approximately 12.6 per cent. of the issued ordinary share capital
of IMImobile as at the Last Practicable Date. The irrevocable
undertakings received from the IMImobile Directors remain binding
in the event of a higher offer.
-- Bidco has also received non-binding letters of intent from
each of Hargreave Hale and Octopus Investments to vote in favour of
the Scheme at the Court Meeting and the Resolutions to be proposed
at the General Meeting (or, in the event that the Offer is
implemented by way of a Takeover Offer, to accept or procure
acceptance of the Offer) in respect of, in aggregate, 19,100,656
IMImobile Shares, representing approximately 23.2 per cent. of the
issued ordinary share capital of IMImobile as at the Last
Practicable Date.
-- Bidco has therefore received irrevocable undertakings or
letters of intent in respect of, in aggregate, 44,945,370 IMImobile
Shares, representing approximately 54.5 per cent. of the issued
ordinary share capital of IMImobile as at the Last Practicable
Date.
-- Further details of these irrevocable undertakings and letters
of intent are set out in Appendix 3 to this Announcement.
Recommendation
-- The Independent IMImobile Directors, who have been so advised
by Investec as to the financial terms of the Offer, consider the
terms of the Offer to be fair and reasonable. In providing its
financial advice, Investec has taken into account the commercial
assessments of the IMImobile Directors. Investec is providing
independent financial advice to the Independent IMImobile Directors
for the purposes of Rule 3 of the Code.
-- Accordingly, the Independent IMImobile Directors intend to
recommend unanimously that Scheme Shareholders vote in favour of
the Scheme at the Court Meeting and that IMImobile Shareholders
vote in favour of the Resolutions to be proposed at the General
Meeting (or, in the event that the Offer is implemented by way of a
Takeover Offer, that IMImobile Shareholders accept such Offer) as
the Independent IMImobile Directors who hold IMImobile Shares have
irrevocably undertaken to do in respect of their own entire
beneficial holdings, amounting to 6,316,457 IMImobile Shares, in
aggregate, representing approximately 7.7 per cent. of the issued
share capital of IMImobile as at the Last Practicable Date.
-- The Executive IMImobile Directors have not participated in
the decision to make the recommendation referred to above as they
are beneficiaries under the incentivisation arrangements described
in paragraph 11 of the full Announcement below. However, the
Executive IMImobile Directors, being Jay Patel, Michael Jefferies
and Shyamprasad Bhat, support the Offer, and each of them has,
pursuant to an irrevocable undertaking, undertaken to vote in
favour of the resolutions relating to the Offer at the Court
Meeting and the General Meeting in respect of their beneficial
holdings of 4,115,936 IMImobile Shares, representing, in aggregate,
approximately 5.0 per cent. of the issued share capital of
IMImobile as at the Last Practicable Date.
General
-- If any dividend, other distribution or return of capital is
declared, made or paid in respect of the IMImobile Shares on or
after the date of this Announcement and with a record date prior to
the Effective Date, Bidco reserves the right to reduce the
consideration payable in respect of each IMImobile Share by the
amount of all or part of any such dividend, other distribution or
return of capital, except where IMImobile Shares are or will be
acquired pursuant to the Scheme on a basis which entitles Bidco to
receive any such dividend, other distribution or return of capital
and retain it. If Bidco exercises this right or makes such a
reduction in respect of a dividend or other distribution, IMImobile
Shareholders will be entitled to receive and retain that dividend,
other distribution or return of capital.
-- It is intended that the Offer will be effected by means of a
Court-sanctioned scheme of arrangement under Part 26 of the
Companies Act, further details of which are contained in the full
text of this Announcement (and will be included in the Scheme
Document). However, Bidco reserves the right, with the consent of
the Panel and subject to the terms of the Co-operation Agreement,
to implement the Offer by way of a Takeover Offer.
-- The Offer will be subject to the Conditions and certain
further terms set out in Appendix 1 to this Announcement including,
among other things: (a) the approval of Scheme Shareholders at the
Court Meeting and the passing of the Resolutions to be proposed at
the General Meeting; (b) the sanction of the Scheme by the Court;
(c) the Scheme becoming Effective no later than the Long Stop Date;
and (d) obtaining certain merger control approvals. In order to
become Effective, the Scheme must be approved by a majority in
number of Scheme Shareholders present and voting (and entitled to
vote), either in person or by proxy, at the Court Meeting
representing at least 75 per cent. in value of the Scheme Shares
voted by such holders.
-- The Scheme Document will include full details of the Scheme,
together with an explanatory statement providing details of the
Offer, and the notices convening the Court Meeting and the General
Meeting. The Scheme Document will also contain the expected
timetable for the Offer and will specify the necessary actions to
be taken by IMImobile Shareholders. The Scheme Document will be
sent to IMImobile Shareholders as soon as reasonably practicable
(subject to the availability of the Court to approve the posting of
the Scheme Document). The Panel has consented to a posting date
later than 28 days following the date of this Announcement.
-- The Scheme is expected to become Effective during the first
quarter of 2021, subject to satisfaction or (where applicable)
waiver of the Conditions set out in Appendix 1 to this
Announcement.
-- Commenting on the Offer, Jeetu Patel, senior vice president
and general manager of Cisco's Security and Applications business,
said:
"A great customer relationship is built on consistently
enjoyable interactions where every touchpoint on every channel is
an opportunity for businesses to deliver rich, engaging and
intuitive experiences. We look forward to working with IMImobile to
help create a comprehensive CXaaS solution for the market - one
that gives businesses a platform to provide delightful experiences
across the entire customer lifecycle journey."
-- Commenting on the Offer, John Allwood, Non-Executive Chairman of IMImobile, said:
"The offer from Cisco recognises the significant achievements of
all of the team at IMImobile - we have grown every year, not only
in revenue terms, but also in scale and capability and have one of
the market leading technologies and platforms for customer
engagement. Since listing in 2014, we have delivered a revenue CAGR
of 23% whilst significantly expanding the geographic footprint of
the organisation and now work with many of the world's leading
businesses.
We know that our increasingly digital, always-on world is
transforming the way companies connect to customers on a daily
basis. So now, more than ever, customer experience is a key
competitive advantage for consumer businesses. So, we're creating a
world where enterprises can stay constantly connected to their
customers.
We recognise that our strategic ambitions are closely aligned
with Cisco, as we both seek to make every interaction matter and
transform customer experience for our clients and brands across the
world. Cisco has committed to supporting our current growth plans
and we look forward to pursuing these plans with the benefit of
being part of one of the world's leading technology companies.
In recommending this Offer to the IMImobile Shareholders, the
Independent Directors of IMImobile believe it is in the best
interests of all stakeholders in IMImobile, enabling them to
realise significant and immediate value, whilst enabling the long
term success of the business."
-- Commenting on the Offer, Jay Patel, Group Chief Executive Officer of IMImobile, said:
"We are excited to join Cisco and become part of one of the
world's leading technology companies as they seek to enable great
customer experiences. We believe there will be a world of dynamic,
always-on connections between global businesses and their customers
and the combination of our respective technologies will enable to
us make every interaction matter more for our clients."
This summary should be read in conjunction with, and is subject
to, the full text of this Announcement (including its
Appendices).
The Offer will be subject to the Conditions and further terms
set out in Appendix 1 to this Announcement and to the full terms
and conditions which will be set out in the Scheme Document.
Appendix 2 to this Announcement contains the bases of calculations
and sources of certain information contained in this Announcement.
Appendix 3 to this Announcement contains a summary of the
irrevocable undertakings and letters of intent received by Bidco in
relation to the Offer. Appendix 4 to this Announcement contains
definitions of certain expressions used in this summary and in this
Announcement.
Enquiries:
Cisco
Press Contact: Robyn Blum Tel: +1 (408) 930-8548
Industry Analyst Contact: Anne Purvis-Blomquist Tel: +1 (408) 859-1111
Investor Relations Contact: Carol Villazon Tel: +1 (408) 527-6538
Barclays (financial adviser to Cisco and Bidco) Tel: +44 (0)20 7623 2323
Omar Faruqui
Osman Akkaya
IMImobile c/o Alma PR
Jay Patel, Group Chief Executive Officer
Michael Jefferies, Group Chief Financial Officer
Alma PR (PR adviser to IMImobile ) Tel: +44 (0)20 3405 0205
Rebecca Sanders-Hewett
Susie Hudson
Harriet Jackson
Investec (financial adviser, nominated adviser and joint broker to IMImobile ) Tel: +44 (0)20 7597 5970
Henry Reast
Virginia Bull
Sebastian Lawrence
N+1 Singer (joint broker to IMImobile) Tel: +44 (0)20 7496 3000
Tom Salvesen
Justin McKeegan
Iqra Amin
Allen & Overy LLP and Fenwick & West LLP are retained as
legal advisers to Cisco and Bidco. Addleshaw Goddard LLP is
retained as legal adviser to IMImobile.
Important notices relating to financial advisers
Barclays, which is authorised by the Prudential Regulation
Authority and regulated in the UK by the Financial Conduct
Authority and the Prudential Regulation Authority, is acting
exclusively for Cisco and Bidco and no one else in connection with
the Offer and shall not be responsible to anyone other than Cisco
and Bidco for providing the protections afforded to clients of
Barclays nor for providing advice in connection with the Offer or
any other matter referred to herein.
In accordance with the Code, normal United Kingdom market
practice and Rule 14e-5(b) of the US Exchange Act, Barclays and its
affiliates will continue to act as exempt principal trader in
IMImobile securities on the London Stock Exchange. These purchases
and activities by exempt principal traders which are required to be
made public in the United Kingdom pursuant to the Code will be
reported to a Regulatory Information Service and will be available
on the London Stock Exchange website at
www.londonstockexchange.com. This information will also be publicly
disclosed in the United States to the extent that such information
is made public in the United Kingdom.
Investec, which is authorised by the PRA and regulated in the
United Kingdom by the FCA and the PRA, is acting exclusively as
financial adviser for IMImobile and no one else in relation to the
Offer and/or other matters set out in this Announcement and will
not be responsible to anyone other than IMImobile for providing the
protections afforded to the clients of Investec, or for providing
advice in relation to the Offer, the contents of this Announcement
or any other matter referred to herein. Neither Investec 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 Investec in connection with the
Offer, this Announcement, any statement contained herein or
otherwise.
In accordance with the Code, normal United Kingdom market
practice and Rule 14e-5(b) of the US Exchange Act, Investec and its
affiliates will continue to act as exempt principal trader in
IMImobile securities on the London Stock Exchange. These purchases
and activities by exempt principal traders which are required to be
made public in the United Kingdom pursuant to the Code will be
reported to a Regulatory Information Service and will be available
on the London Stock Exchange website at
www.londonstockexchange.com. This information will also be publicly
disclosed in the United States to the extent that such information
is made public in the United Kingdom.
N+1 Singer, which is authorised and regulated by the Financial
Conduct Authority in the United Kingdom, is acting exclusively as
joint broker to IMImobile and for no one else in connection with
the subject matter of this Announcement and will not be responsible
to anyone other than IMImobile for providing the protections
afforded to its clients or for providing advice in connection with
the subject matter of this Announcement.
Further information
This Announcement is for information purposes only and is not
intended to, and does not, constitute or form part of any offer or
invitation to purchase, otherwise acquire or subscribe for or
dispose of any securities or the solicitation of any vote or
approval in any jurisdiction pursuant to the Offer or otherwise.
The Offer will be made solely through the Scheme Document (or, in
the event that the Offer is to be implemented by means of a
Takeover Offer, the Offer Document), which, together with the Forms
of Proxy, will contain the full terms and conditions of the Offer,
including details of how to vote in respect of the Scheme.
IMImobile Shareholders are advised to read the Scheme Document
(including the related Forms of Proxy) (and/or, in the event that
the Offer is to be implemented by way of a Takeover Offer, the
Offer Document) once this becomes available because it will contain
important information in relation to the Offer. Any vote in respect
of resolutions to be proposed at the Court Meeting and/or the
General Meeting, and any decision in respect of the Scheme or other
response in relation to the Offer, by IMImobile Shareholders should
be made only on the basis of the information contained in the
Scheme Document (and/or, in the event that the Offer is to be
implemented by way of a Takeover Offer, the Offer Document).
This Announcement has been prepared for the purpose 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 England and Wales.
This Announcement does not constitute a prospectus or prospectus
exempted document.
Overseas shareholders
The release, publication or distribution of this Announcement in
jurisdictions other than the United Kingdom may be restricted by
law and therefore any persons who are not resident in the United
Kingdom or who are subject to the laws of any jurisdiction other
than the United Kingdom (including Restricted Jurisdictions) should
inform themselves about, and observe, any applicable legal or
regulatory requirements. In particular, the ability of persons who
are not resident in the United Kingdom or who are subject to the
laws of another jurisdiction to participate in the Offer or to vote
their Scheme Shares in respect of the Scheme at the Court Meeting
or in respect of the Resolutions to be proposed at the General
Meeting, or to execute and deliver Forms of Proxy appointing
another to vote at the Court Meeting and/or the General Meeting on
their behalf, may be affected by the laws of the relevant
jurisdictions in which they are located or to which they are
subject. Any failure to comply with applicable legal or regulatory
requirements of any jurisdiction may constitute a violation of
securities laws in that jurisdiction. To the fullest extent
permitted by applicable law, the companies and persons involved in
the Offer disclaim any responsibility or liability for the
violation of such restrictions by any person.
Unless otherwise determined by Bidco or required by the Code,
and permitted by applicable law and regulation, the Offer shall not
be made available, directly or indirectly, in, into or from a
Restricted Jurisdiction where to do so would violate the laws in
that jurisdiction and no person may vote in favour of the Offer by
any such use, means, instrumentality or form within a Restricted
Jurisdiction or any other jurisdiction if to do so would constitute
a violation of the laws of that jurisdiction.
Copies of this Announcement and any formal documentation
relating to the Offer are not being, and must not be, directly or
indirectly, mailed or otherwise forwarded, distributed or sent in
or into or from any Restricted Jurisdiction or any jurisdiction
where to do so would constitute a violation of the laws of such
jurisdiction and persons receiving such documents (including
custodians, nominees and trustees) must not mail or otherwise
forward, distribute or send them in or into or from any Restricted
Jurisdiction. Doing so may render invalid any related purported
vote in respect of the Offer.
If the Offer is implemented by way of a Takeover Offer (unless
otherwise permitted by applicable law and regulation), the Takeover
Offer may not be made, directly or indirectly, in or into or by use
of the mails or any other means or instrumentality (including,
without limitation, facsimile, e-mail or other electronic
transmission, telex or telephone) of interstate or foreign commerce
of, or any facility of a national, state or other securities
exchange of any Restricted Jurisdiction, and the Offer will not be
capable of acceptance by any such use, means, instrumentality or
facilities or from within any Restricted Jurisdiction.
The availability of the Offer to IMImobile Shareholders who are
not resident in the United Kingdom may be affected by the laws of
the relevant jurisdictions in which they are resident. Persons who
are not resident in the United Kingdom should inform themselves of,
and observe, any applicable requirements. Further details in
relation to IMImobile Shareholders in overseas jurisdictions will
be contained in the Scheme Document.
The Offer will be subject to English law and the applicable
requirements of the Court, the Code, the Panel, the London Stock
Exchange, the AIM Rules and the FCA.
Notice to US investors
The Offer relates to shares of a UK company and is proposed to
be effected by means of a scheme of arrangement under the laws of
England and Wales. A transaction effected by means of a scheme of
arrangement is not subject to the tender offer rules or the proxy
solicitation rules under the US Exchange Act.
Accordingly, the Offer is subject to the disclosure and
procedural requirements applicable in the United Kingdom to schemes
of arrangement which differ from the disclosure requirements of
United States tender offer and proxy solicitation rules.
Furthermore, the payment and settlement procedure with respect to
the Offer will comply with the relevant rules under the Code, which
differ from US payment and settlement procedures, particularly with
regard to the date of payment of consideration.
However, if Bidco were to elect to implement the Offer by means
of a Takeover Offer, such Takeover Offer would be made in
compliance with all applicable United States laws and regulations,
including any applicable exemptions under the US Exchange Act. Such
a Takeover Offer would be made in the United States by Bidco and no
one else, in compliance with US law and regulations, including
Section 14(e) of the US Exchange Act and Regulation 14E
thereunder.
In accordance with normal United Kingdom practice, Cisco, Bidco
or their nominees or their brokers (acting as agents), may from
time to time make certain purchases of, or arrangements to
purchase, shares or other securities of IMImobile outside of the
US, other than pursuant to the Offer, until the date on which the
Offer and/or Scheme becomes effective, lapses or is otherwise
withdrawn, in compliance with applicable law, including the US
Exchange Act. These purchases may occur either in the open market
at prevailing prices or in private transactions at negotiated
prices. Any information about such purchases or arrangements to
purchase shall be disclosed as required in the United Kingdom,
shall be reported to the Regulatory Information Service and shall
be available on the London Stock Exchange website at
www.londonstockexchange.com.
The receipt of consideration by a US holder for the transfer of
its IMImobile Shares pursuant to the Offer will likely be a taxable
transaction for United States federal income tax purposes. Each US
holder of IMImobile Shares is urged to consult their independent
professional adviser immediately regarding the tax consequences of
the Offer applicable to such holder, including under applicable
United States state and local tax laws, as well as overseas and
other tax laws that may be applicable.
Some or all of IMImobile's officers and directors reside outside
the US, and some or all of its assets are or may be located in
jurisdictions outside the US. Therefore, investors may have
difficulty effecting service of process within the US upon those
persons or recovering against IMImobile or its officers or
directors on judgments of US courts, including judgments based upon
the civil liability provisions of the US federal securities laws.
Further, it may be difficult to compel a non-US company and its
affiliates to subject themselves to a US court's judgment. It may
not be possible to sue IMImobile or its officers or directors in a
non-US court for violations of the US securities laws.
Neither the SEC nor any US state securities commission has
approved or disproved or passed judgment upon the fairness or the
merits of the Offer or determined if this Announcement is adequate,
accurate or complete.
Financial information relating to IMImobile included in this
Announcement and the Scheme Document has been or will have been
prepared in accordance with IFRS and may not therefore 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.
Forward-looking statements
This Announcement (including information incorporated by
reference in this Announcement), oral statements made regarding the
Offer, and other information published by IMImobile, any member of
the IMImobile Group, Cisco, Bidco or any other member of the Cisco
Group contain statements which are, or may be deemed to be,
"forward looking statements". 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
words such as, without limitation, "anticipate", "target",
"expect", "estimate", "intend", "plan", "goal", "believe", "aim",
"will", "may", "hope", "continue", "would", "could" or "should" or
other words of similar meaning or the negative thereof.
Forward-looking statements include, but are not limited to,
statements relating to the following: (i) future capital
expenditures, expenses, revenues, economic performance, financial
conditions, dividend policy, losses and future prospects, (ii)
business and management strategies and the expansion and growth of
the operations of IMImobile, any member of the IMImobile Group,
Cisco, Bidco or any other member of the Cisco Group, (iii) the
effects of government regulation on the business of IMImobile, any
member of the IMImobile Group, Cisco, Bidco or any other member of
the Cisco Group, (iv) negative effects relating to this
Announcement and/or status of the Offer, (v) the possibility that
any of the conditions to the Offer will not be satisfied, and (vi)
significant transaction costs (including litigation) or unknown
liabilities. There are many factors which could cause actual
results to differ materially from those expressed or implied in
forward-looking statements. Among such factors are changes in
global, political, economic, business, competitive, market and
regulatory forces, future exchange and interest rates, changes in
tax rates and future business combinations or disposals. Such
statements are qualified in their entirety by the inherent risks
and uncertainties surrounding future expectations.
These forward looking statements are prospective in nature and
are not based on historical facts, but rather on current
expectations and on numerous assumptions regarding the business
strategies and the environment in which IMImobile, any member of
the IMImobile Group, Cisco, Bidco or any member of the Cisco Group
shall operate in the future and are subject to risks and
uncertainties that could cause actual results to differ materially
from those expressed or implied by those statements. By their
nature, these forward-looking statements involve known and unknown
risks, and uncertainties because they relate to events and depend
on circumstances that will occur in the future. The factors
described in the context of such forward-looking statements in this
Announcement may cause the actual results, performance or
achievements of any such person, or industry results and
developments, to be materially different from any results,
performance or achievements expressed or implied by such
forward-looking statements. No assurance can be given that such
expectations will prove to have been correct and persons reading
this Announcement are therefore cautioned not to place undue
reliance on these forward-looking statements which speak only as at
the date of this Announcement. None of IMImobile, any member of the
IMImobile Group, Cisco, Bidco or any other member of the Cisco
Group, or their respective members, directors, officers, employees,
advisers or any person acting on behalf of one or more of them,
provides any representation, assurance or guarantee that the
occurrence of the events expressed or implied in any
forward-looking statements in this Announcement will actually
occur.
None of IMImobile, any member of the IMImobile Group, Cisco,
Bidco or any other member of the Cisco Group, or their respective
members, directors, officers, employees, advisers or any person
acting on behalf of one or more of them, has any intention or
accepts any obligation to update publicly or revise any
forward-looking statement, whether as a result of new information,
future events or otherwise, except to the extent legally required.
All subsequent oral or written forward-looking statements
attributable to IMImobile, any member of the IMImobile Group,
Cisco, Bidco or any other member of the Cisco Group or any persons
acting on their behalf are expressly qualified in their entirety by
the cautionary statement above.
No profit forecasts or estimates
Save in relation to the statements made by IMImobile at
paragraph 9 of this Announcement, no statement in this Announcement
is intended as a profit forecast or estimate for Cisco, Bidco or
IMImobile for any period and no statement in this Announcement
should be interpreted to mean that cash flow from operations,
earnings, or earnings per share or income of those persons (where
relevant) for the current or future financial years would
necessarily match or exceed the historical published cash flow from
operations, earnings, earnings per share or income of those persons
(as appropriate).
Publication on a website
A copy of this Announcement and the documents required to be
published pursuant to Rule 26.1 and Rule 26.2 of the Code will be
made available (subject to certain restrictions relating to persons
resident in Restricted Jurisdictions), free of charge, on
IMImobile's website at
https://investors.imimobile.com/regulatory-announcements/recommended-cash-offer
and on Cisco's website at
http://investor.cisco.com/Recommended-cash-offer by no later than
12 noon on the Business Day following the date of this
Announcement.
Neither the content of these websites nor the content of any
other website accessible from hyperlinks on such websites is
incorporated into, or forms part of, this Announcement.
Requesting hard copy documents
In accordance with Rule 30.3 of the Code, a person so entitled
may request a copy of this Announcement (and any information
incorporated into it by reference to another source) in hard copy
form free of charge. A person may also request that all future
documents, announcements and information sent to that person in
relation to the Offer should be in hard copy form. For persons who
have received a copy of this Announcement in electronic form or via
a website notification, a hard copy of this Announcement will not
be sent to you unless you have previously notified IMImobile's
registrar, Link Group, that you wished to receive all documents in
hard copy form or unless requested in accordance with the procedure
set out below.
If you would like to request a hard copy of this Announcement
from IMImobile please contact IMImobile's registrar, Link Group, on
0371 664 0300 (from within the UK) or on +44 371 664 0300 (from
outside the UK), or by writing to Link Group, 34 Beckenham Road,
Beckenham, Kent BR3 4TU. Calls are charged at 12 pence per minute
and will vary by provider. Calls are charged at the standard
geographic rate and will vary by provider. Calls outside the United
Kingdom will be charged at the applicable international rate. Link
Group is open between 09:00 and 17:30, Monday to Friday, excluding
public holidays in England and Wales. Please note that Link Group
cannot provide any financial, legal or tax advice and calls may be
recorded and monitored for security and training purposes
Information relating to IMImobile Shareholders
Please be aware that addresses, electronic addresses and certain
other information provided by IMImobile Shareholders, persons with
information rights and other relevant persons for the receipt of
communications from IMImobile may be provided to Bidco during the
Offer Period as required under section 4 of Appendix 4 to the
Code.
Rounding
Certain figures included in this Announcement have been
subjected to rounding adjustments. Accordingly, figures shown for
the same category presented in different tables may vary slightly
and figures shown as totals in certain tables may not be an
arithmetic aggregation of the figures that precede them.
Disclosure requirements of the Code
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 securities exchange 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 securities exchange 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
securities exchange 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 securities exchange offeror is first
identified. Relevant persons who deal in the relevant securities of
the offeree company or of a securities exchange 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 securities exchange
offeror must make a Dealing Disclosure if the person deals in any
relevant securities of the offeree company or of any securities
exchange 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 securities exchange
offeror(s), 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
securities exchange 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 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 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.
You should contact the Panel's Market Surveillance Unit on +44
(0)20 7638 0129 if you are in any doubt as to whether you are
required to make an Opening Position Disclosure or a Dealing
Disclosure.
Rule 2.9 of the Code
For the purposes of Rule 2.9 of the Code, IMImobile confirms
that, as at the Last Practicable Date, it had 82,470,795 ordinary
shares of 10 pence each in issue and admitted to trading on AIM.
The International Securities Identification Number for IMImobile
Shares is GB00BLBP4Y22.
General
If you are in any doubt about the contents of this Announcement
or the action you should take, you are recommended to seek your own
independent financial advice immediately from your stockbroker,
bank manager, solicitor, accountant or independent financial
adviser duly authorised under FSMA if you are resident in the
United Kingdom or, if not, from another appropriately authorised
independent financial adviser.
Time
All times shown in this Announcement are London times, unless
otherwise stated.
NOT FOR RELEASE, PUBLICATION OR DISTRIBUTION, IN WHOLE OR IN
PART, DIRECTLY OR INDIRECTLY, IN, INTO OR FROM ANY JURISDICTION
WHERE TO DO SO WOULD CONSTITUTE A VIOLATION OF THE RELEVANT LAWS OR
REGULATIONS OF SUCH JURISDICTION
THIS ANNOUNCEMENT CONTAINS INSIDE INFORMATION
FOR IMMEDIATE RELEASE
7 DECEMBER 2020
RECOMMED CASH OFFER
for
IMIMOBILE PLC
by
CISCO SYSTEMS HOLDINGS UK LIMITED
an indirect wholly-owned subsidiary of Cisco Systems, Inc.
to be effected by means of a scheme of arrangement
under Part 26 of the Companies Act 2006
1. Introduction
The board of directors of Bidco, an indirect wholly-owned
subsidiary of Cisco, and the Independent IMImobile Directors are
pleased to announce that they have reached agreement on the terms
of a recommended cash offer by Bidco for the acquisition of the
entire issued and to be issued ordinary share capital of
IMImobile.
The Offer is intended to be effected by means of a scheme of
arrangement under Part 26 of the Companies Act.
2. The Offer
Under the terms of the Offer, which shall be subject to the
Conditions and further terms set out in Appendix 1 and to the full
terms and conditions of the Offer which will be set out in the
Scheme Document, each Scheme Shareholder will be entitled to
receive:
for each Scheme Share 595 pence in cash
The terms of the Offer value the entire issued and to be issued
ordinary share capital of IMImobile at approximately GBP543 million
on a fully diluted basis and represent a premium of
approximately:
-- 51.6 per cent. to the Closing Price of 393 pence for each
IMImobile Share on 2 November 2020 (being the last Business Day
before Cisco's first approach to IMImobile);
-- 47.8 per cent. to the Closing Price of 403 pence for each
IMImobile Share on 4 December 2020 (being the last Business Day
before the date of this Announcement); and
-- 59.7 per cent. to the six-month volume weighted average price
of 373 pence as at 4 December 2020 (being the last Business Day
before the date of this Announcement).
If any dividend, other distribution or return of capital is
declared, made or paid in respect of the IMImobile Shares on or
after the date of this Announcement and prior to the Effective
Date, Bidco reserves the right to reduce the consideration payable
in respect of each IMImobile Share by the amount of all or part of
any such dividend, other distribution or return of capital, except
where IMImobile Shares are or will be acquired pursuant to the
Scheme on a basis which entitles Bidco to receive such dividend,
other distribution or return of capital and retain it. If Bidco
exercises this right or makes such a reduction in respect of a
dividend or other distribution, IMImobile Shareholders will be
entitled to receive and retain that dividend, other distribution or
return of capital. Any exercise by Bidco of its rights referred to
in this paragraph shall be the subject of an announcement and, for
the avoidance of doubt, shall not be regarded as constituting any
revision or variation of the terms of the Scheme.
The Scheme Shares will be acquired fully paid and free from all
liens, charges, equitable interests, encumbrances, options, rights
of pre-emption and any other third party rights or interests of any
nature whatsoever and together with all rights now or hereafter
attaching or accruing to them, including, without limitation,
voting rights and the right to receive and retain in full all
dividends and other distributions (if any) announced, declared,
made or paid, or any other return of capital (whether by reduction
of share capital or share premium account or otherwise) made, in
each case, by reference to a record date falling on or after the
Effective Date.
Full details of the Scheme will be included in the Scheme
Document, together with notices of the Court Meeting and the
General Meeting. The Scheme Document will be published as soon as
reasonably practicable (subject to the availability of the Court to
approve the posting of the Scheme Document). The Panel has
consented to a posting date later than 28 days following the date
of this Announcement. Subject to the satisfaction or waiver of the
Conditions, it is expected that the Scheme will become Effective in
the first quarter of 2021.
3. Background to and reasons for the Offer
Cisco is a global leader in networking, offering a wide array of
technology solutions and services across networking, collaboration,
security, communications and cloud applications. Cisco's Contact
Centre offerings are evolving as its customers move towards Contact
Centre as a Service, a trend which has accelerated as more agents
work from home.
Customer expectations are rising. In a competitive market,
businesses now compete not only on products and services, but also
on the quality of the interactive experience they can offer to
their customers. Cisco's vision is to create a comprehensive CXaaS
offer for customers, offering a platform to provide consistently
enjoyable customer experiences. In order to improve the
understanding, analysis and optimisation of customer journeys,
Cisco added an experience management solution that provides
customer sentiment analytics as well as natural language
capabilities that enable AI-powered customer interactions.
IMImobile offers software and services which allow enterprises to
stay constantly connected to their customers and which will allow
Cisco to progress its vision of offering a comprehensive CXaaS
offering.
IMImobile's services enable enterprises to offer their customers
enhanced interactive experiences, for example:
(a) IMImobile makes it easy for businesses to communicate with a
customer in that customer's channel of choice;
(b) IMImobile allows a business to manage seamlessly
interactions across the entire customer journey;
(c) IMImobile provides omni-channel programmability that comes
in the form of APIs as well as low-code flow-builders enabling
businesses to rapidly and painlessly change the workflows that
allow them to serve and interact with their customers;
(d) IMImobile orchestrates and integrates interactions with
enterprise systems, on an easy-to-use cloud communications
platform; and
(e) IMImobile automates interactions to improve experiences, saving time and reducing costs.
Following completion of the Offer, Cisco will be able to provide
customer-facing businesses with an end-to-end customer interaction
management solution as well as an ability to drive faster and
smarter customer interactions and orchestration throughout the
journey and lifecycle of the customer. Furthermore, Cisco will be
able to extend journey analytics and customer interaction
capabilities beyond the Contact Centre and be able to provide a
comprehensive set of popular channels including WhatsApp, RCS and
Apple Business Chat. Every touchpoint on every channel will be an
opportunity to deliver rich, engaging intuitive experiences where
every interaction matters.
4. Recommendation
The Independent IMImobile Directors, who have been so advised by
Investec as to the financial terms of the Offer, consider the terms
of the Offer to be fair and reasonable. In providing its financial
advice, Investec has taken into account the commercial assessments
of the IMImobile Directors. Investec is providing independent
financial advice to the Independent IMImobile Directors for the
purposes of Rule 3 of the Code.
Accordingly, the Independent IMImobile Directors intend to
recommend unanimously that Scheme Shareholders vote in favour of
the Scheme at the Court Meeting and that IMImobile Shareholders
vote in favour of the Resolutions to be proposed at the General
Meeting (or, in the event that the Offer is implemented by way of a
Takeover Offer, that IMImobile Shareholders accept such Offer) as
the Independent IMImobile Directors who hold IMImobile Shares have
irrevocably undertaken to do in respect of their own entire
beneficial holdings, amounting to, in aggregate, 6,316,457
IMImobile Shares, representing approximately 7.7 per cent. of the
issued share capital of IMImobile as at the Last Practicable Date,
as more fully described in Appendix 3 .
The Executive IMImobile Directors have not participated in the
decision to make the recommendation referred to above as they are
beneficiaries under the incentivisation arrangements described in
paragraph 11 of this Announcement. However, the Executive IMImobile
Directors, being Jay Patel, Michael Jefferies and Shyamprasad Bhat,
support the Offer, and each of them has, pursuant to an irrevocable
undertaking, undertaken to vote in favour of the resolutions
relating to the Offer at the Court Meeting and the General Meeting
in respect of their beneficial holdings of 4,115,936 IMImobile
Shares, representing, in aggregate, approximately 5.0 per cent. of
the issued share capital of IMImobile as at the Last Practicable
Date.
5. Background to and reasons for the Independent IMImobile Directors' recommendation
The board of directors and management team of IMImobile have
built a strong business since its initial public offering in 2014,
growing the market capitalisation of IMImobile from GBP56.7 million
on 27 June 2014 to GBP331.9 million as at the Last Practicable
Date. This has been achieved through a combined organic and
inorganic growth strategy, building one of the market's leading
Communications Platform as a Service (CPaaS) businesses.
This continued progress in CPaaS stems from the sustained growth
across all sectors and regions for cloud communication platform
products and services. In addition, increasing momentum from
digital transformation trends, combined with new client wins in the
North American market and a strong pipeline of opportunities means
the IMImobile Group is well positioned to deliver an acceleration
of growth in the future.
The Independent IMImobile Directors consider that the IMImobile
Group's market position is a result of the implementation of its
growth strategy:
(a) to grow the IMImobile Group's share of customer interactions within existing clients;
(b) to accelerate the IMImobile Group's market penetration of
its technologies through partnerships;
(c) to be at the forefront of introducing new innovative
customer engagement technologies; and
(d) to leverage acquisitions for market distribution.
In line with its strategy, the IMImobile Group completed the
milestone strategic acquisition of 3Cinteractive in August 2019,
which strengthened its position in North America and established
its position as one of the global leaders in RCS Business
Messaging.
The IMImobile Group has continued to seek further strategic
acquisition opportunities in line with the clear trend for
consolidation in the CPaaS market. This has led to increasing
valuation multiples across the sector which IMImobile has
benefitted from but which has also hindered IMImobile's advances in
competitive acquisition processes.
Whilst the Independent IMImobile Directors believe there is
potential for future growth in equity value for IMImobile
Shareholders, they recognise the benefits of a combination with
Cisco which is a large global market participant with relevant
industry experience and a commitment to the ongoing investment
requirements of supporting the international growth of the
IMImobile Group's CPaaS platform in a rapidly growing and
consolidating marketplace.
The Independent IMImobile Directors have evaluated the Offer on
behalf of the IMImobile Shareholders and have also considered the
interests of IMImobile's employees, customers and other key
stakeholders. The Independent IMImobile Directors have held
detailed discussions regarding the terms of the potential
acquisition of IMImobile by Cisco. These discussions have resulted
in the Offer at a price of 595 pence in cash for each IMImobile
Share, which the Independent IMImobile Directors are pleased to
note results in a premium enterprise value to EBITDA, less
capitalised R&D, valuation multiple in comparison to the wider
sector peer group.
In the current uncertain economic climate, the Independent
IMImobile Directors believe that an offer from a substantial
organisation, committed to the expansion of the IMImobile Group,
which also gives IMImobile Shareholders an opportunity to realise
their investment in cash, at a significant premium to the
prevailing share price, is in the best interests of all
stakeholders. As such, the Independent IMImobile Directors believe
that the Offer represents a compelling opportunity for IMImobile
Shareholders to immediately and fully realise the value from their
investment in cash at a significant premium.
The Independent IMImobile Directors, who have been so advised by
Investec as to the financial terms of the Offer, consider the terms
of the Offer to be fair and reasonable and unanimously intend to
recommend that IMImobile Shareholders vote in favour of the Scheme
at the Court Meeting and that IMImobile Shareholders vote in favour
of the Resolutions to be proposed at the General Meeting, as they
have irrevocably undertaken to do in respect of their own IMImobile
Shares, representing, in aggregate, approximately 7.7 per cent. of
the issued ordinary share capital of IMImobile as at the Last
Practicable Date.
The Executive IMImobile Directors have not participated in the
decision to make the recommendation referred to above as they are
beneficiaries under the incentivisation arrangements described in
paragraph 11 of this Announcement. However, the Executive IMImobile
Directors, being Jay Patel, Michael Jefferies and Shyamprasad Bhat,
support the Offer, and each of them has, pursuant to an irrevocable
undertaking, undertaken to vote in favour of the resolutions
relating to the Offer at the Court Meeting and the General Meeting
in respect of their beneficial holdings of 4,115,936 IMImobile
Shares, representing, in aggregate, approximately 5.0 per cent. of
the issued share capital of IMImobile as at the Last Practicable
Date.
6. Irrevocable undertakings and letters of intent
Bidco has received irrevocable undertakings to vote in favour of
the Scheme at the Court Meeting and the Resolutions to be proposed
at the General Meeting (or, in the event that the Offer is
implemented by way of a Takeover Offer, to accept or procure
acceptance of the Offer) in respect of 25,844,714 IMImobile Shares,
representing, in aggregate, approximately 31.3 per cent. of the
issued ordinary share capital of IMImobile as at the Last
Practicable Date. These irrevocable undertakings have been received
from:
(a) Liontrust, in respect of 15,412,321 IMImobile Shares,
representing approximately 18.7 per cent. of the issued ordinary
share capital of IMImobile as at the Last Practicable Date; and
(b) each of the IMImobile Directors who holds IMImobile Shares,
representing, in aggregate, 10,432,393 IMImobile Shares, being
approximately 12.6 per cent. of the issued ordinary share capital
of IMImobile as at the Last Practicable Date. The irrevocable
undertakings received from the IMImobile Directors remain binding
in the event of a higher offer.
Bidco has also received non-binding letters of intent from each
of Hargreave Hale and Octopus Investments to vote in favour of the
Scheme at the Court Meeting and the Resolutions to be proposed at
the General Meeting (or, in the event that the Offer is implemented
by way of a Takeover Offer, to accept or procure acceptance of the
Offer) in respect of, in aggregate, 19,100,656 IMImobile Shares,
representing approximately 23.2 per cent. of the issued ordinary
share capital of IMImobile as at the Last Practicable Date.
Bidco has therefore received irrevocable undertakings or letters
of intent in respect of, in aggregate, 44,945,370 IMImobile Shares,
representing approximately 54.5 per cent. of the issued ordinary
share capital of IMImobile as at the Last Practicable Date.
Further details of these irrevocable undertakings and letters of
intent (including the circumstances in which the irrevocable
undertakings will cease to be binding or otherwise fall away) are
set out in Appendix 3 to this Announcement.
7. Information on Cisco and Bidco
Cisco
Cisco is a global leader in networking with a wide array of
technology solutions and services across networking, collaboration,
security, communications and cloud applications. Cisco has been
providing innovative solutions since 1984 and has a very successful
track record of acquiring and integrating new companies and
technologies to broaden its portfolio.
Cisco's products and technologies are grouped into the following
categories: Infrastructure Platforms, Applications, Security and
Other Products. In addition to Cisco's product offerings, it
provides a broad range of service offerings, including technical
support services and advanced services. Increasingly, Cisco is
delivering its technologies through software and services.
Cisco currently operates in more than 115 countries and employs
over 70,000 employees. In the fiscal year ended 25 July 2020, Cisco
generated revenues of approximately USD49 billion and net income of
approximately USD11 billion.
Bidco
Bidco is a company incorporated under the laws of England and
Wales and is an indirect wholly-owned subsidiary of Cisco. Bidco
was incorporated on 2 July 2012. The principal activity of Bidco is
the holding of investments in other companies in the Cisco
Group.
For the financial year ended 27 July 2019, Bidco reported total
losses of USD123 million.
8. Information on IMImobile
IMImobile was incorporated in England and Wales on 4 December
2013 with registration number 08802718 and the IMImobile Shares
were admitted to trading on AIM on 27 June 2014. IMImobile is a
communications software provider whose solutions enable enterprises
to automate digital customer communications and interactions to
improve customer experience and reduce operating costs.
IMImobile's enterprise cloud communications software platform
orchestrates customer interactions, connecting existing business
systems with digital communications channels. Organisations that
trust IMImobile to deliver smarter digital customer engagement
include Hermes, Centrica, AA, O2, EE, BT, Walgreens, Tracfone,
Ooredoo, Best Buy, Express, three of the major retail banks in the
UK and public-sector organisations globally.
IMImobile is headquartered in London with offices across the UK,
Hyderabad, Toronto, Boca Raton, Dubai and Johannesburg and has over
1,100 employees worldwide. IMImobile is quoted on AIM, the market
of that name operated by the London Stock Exchange, with the TIDM
code IMO.
For the financial year ended 31 March 2020, IMImobile reported
revenue of GBP171.2 million, gross profit of GBP79.1 million,
adjusted profit before tax of GBP14.6 million, and adjusted profit
after tax of GBP12.3 million.
9. Current trading and IMImobile Profit Forecast
IMImobile published its half year results for the six months
ended 30 September 2020 earlier today. For the six month period
ended 30 September 2020, IMImobile reported revenue of GBP75.9
million, gross profit of GBP39.0 million and adjusted profit after
tax of GBP6.8 million.
In IMImobile's annual general meeting statement and trading
update published on 29 September 2020, IMImobile made the following
statement:
"The Board are pleased with the Group's performance in the
financial year to date and remain confident that the results for
the full year will be in line with market expectations."
This statement constitutes a profit forecast for the purposes of
the Code and the requirements of Rule 28.1(c)(i) of the Code apply
to such statement.
Basis of preparation
The IMImobile Directors confirm that the IMImobile Profit
Forecast has been properly compiled and is based on the unaudited
management accounts of IMImobile for August 2020 and IMImobile's
unaudited forecasts for the financial year ending 31 March
2021.
The IMImobile Profit Forecast does not take into account the
costs and the impact of the Offer.
In confirming the IMImobile Profit Forecast, the IMImobile
Directors have made the following assumptions in respect of the
financial year ending 31 March 2021:
Assumptions outside of IMImobile's influence or control:
(a) there will be no material adverse change to IMImobile's commercial relationships;
(b) there will be no material changes in market conditions over
the period to 31 March 2021 in relation to either customer demand
or competitive environment;
(c) there will be no material adverse events that will have a
significant impact on IMImobile's major customers or suppliers;
(d) there will be no material adverse change to IMImobile's
business model or market environment before the end of the
financial year ending 31 March 2021;
(e) there will be no material change to existing prevailing
global macroeconomic and political conditions during the 12 months
ending 31 March 2021;
(f) there will be no material change in legislation, taxation or
regulatory requirements impacting IMImobile's operations,
expenditure or its accounting policies; and
(g) there will be no material litigation or regulatory
investigations, or material unexpected developments in any existing
litigation or regulatory investigation, in relation to any of
IMImobile's operations, products or services.
Assumptions within IMImobile's influence or control:
(a) total capital expenditure during the 12 months ending 31
March 2021 will be broadly in line with existing guidance;
(b) IMImobile's cost base will not materially change over the
forecast period to 31 March 2021;
(c) IMImobile's accounting policies will be consistently applied
in the remainder of the financial year ending 31 March 2021;
(d) there will be no material change in the existing operational strategy of IMImobile; and
(e) IMImobile will not carry out any acquisitions or disposals,
nor will it enter into, terminate or vary any joint venture, which
is material in the context of the IMImobile Profit Forecast.
IMImobile Directors' confirmation
The IMImobile Directors have considered the IMImobile Profit
Forecast and confirm that it remains valid, that it has been
properly compiled on the basis of the assumptions set out above and
that the basis of the accounting policies used is consistent with
the accounting policies of IMImobile for the 12 months ended 31
March 2020 and in accordance with IFRS.
10. Strategic plans and intentions with regard to assets, management, employees and pensions
General
Cisco has a successful track record of managing acquired
businesses and building on their success. Cisco is confident in the
overall prospects of IMImobile's business and the products which it
offers, and is excited to partner with the IMImobile management
team to develop the quality of its customer offering and to grow
the IMImobile business in the longer term.
Prior to the date of this Announcement, consistent with market
practice, Bidco has been granted access to IMImobile's senior
management team for the purpose of undertaking confirmatory due
diligence. As a result of that due diligence process, Cisco has
been able to develop a preliminary strategy that it anticipates
delivering for the IMImobile business. Upon completion of the
Offer, Cisco will benefit from having greater access to the
business, employees and customers of IMImobile and will be able to
formulate more detailed long-term strategic plans for IMImobile. It
is anticipated that this more detailed and long-term strategic and
operational planning will be completed within twelve months of the
Effective Date. This will include plans to integrate IMImobile's
product offerings, advance its technology and add further value to
the enlarged set of customers.
From the due diligence that Cisco has been able to conduct to
date, Cisco believes that IMImobile is a well-positioned business
that extends and enhances Cisco's existing capabilities, and Cisco
intends to support IMImobile's existing strategic ambitions.
Following completion of the Offer, Cisco does not expect there
to be any impact on the strategic plans, management, employees and
locations of Cisco's existing business.
VAS Segment
Cisco is aware that the board of directors of IMImobile has been
considering its options in respect of the VAS Segment. Earlier this
year, the board of directors of IMImobile commenced work on
formally reorganising the IMImobile Group into two differentiated
areas based upon their respective product sets, as disclosed in
IMImobile's results for the year ended 31 March 2020.
Cisco notes that, as disclosed in IMImobile's interim results
for the six months ended 30 September 2020, the board of directors
of IMImobile has decided to conduct a strategic review of the
activities relating to the VAS Segment, which may lead to a
possible divestiture of the VAS Segment.
Following completion of the Offer, Cisco will support IMImobile
in its strategic review of the VAS Segment which may include a sale
to a third party, a sale to the existing management or a reduction
in its activities.
In the event that the VAS Segment is divested or there is a
reduction in its activities, Cisco expects that there would be no
material impact on the business activities of the retained
IMImobile Group.
Research and development
Cisco will perform a full review of IMImobile's product
development roadmap and existing research and development functions
following completion of the Offer. This may lead to the
identification of business areas where expenditure can be increased
in order to develop new, highly valued functionality or to
accelerate the existing product development roadmap and/or it may
lead to the identification of certain areas of duplicated research
and development headcount, where operational efficiencies can be
achieved across the combined research and development functions.
Cisco does not expect the Offer to result in material headcount
reductions within the research and development team.
From the confirmatory due diligence conducted to-date, Cisco
intends to maintain the majority of IMImobile's product development
roadmap. Further analysis is needed to ascertain which products
have the potential to be leveraged more broadly across the wider
Cisco Group. Any such products will have their product development
roadmap prioritised.
Employees and management
Cisco greatly values its employees and takes tremendous pride in
being named number one in the World's Best Workplaces list by Great
Place to Work(R) for 2019 and 2020.
Cisco attaches great importance to the skill and experience of
IMImobile's management and employees and recognises their important
contribution to what has been achieved by IMImobile as a business.
Cisco confirms that, following completion of the Offer, the
existing contractual and statutory employment rights of IMImobile
employees will be fully safeguarded in accordance with applicable
law.
Following completion of the Offer, Cisco intends to review
IMImobile's business and operations over a period of twelve months,
including with respect to corporate functions. Based on its
experience from making previous acquisitions, Cisco does not expect
the Offer to result in material headcount reductions in the
IMImobile business overall (including the research and development
team, as mentioned above).
Cisco does not intend to make any material changes to the
balance of skills and functions of employees and management of
IMImobile. Once IMImobile ceases to be quoted on AIM, certain
corporate and support functions may be reduced in scope or will not
be needed, which will potentially require reduced headcount in
these areas. The finalisation and implementation of any workforce
reductions will be subject to comprehensive planning and engagement
with employees and consultation with employee representatives as
required by applicable local law. Any individuals affected will be
treated in a manner consistent with the high standards, culture and
practices of both IMImobile and Cisco.
Subject to compliance with applicable local law, as part of the
review referred to above, Cisco intends to migrate IMImobile
employees onto Cisco's terms and conditions of employment,
consistent with the terms and conditions of employment of Cisco
employees of an equivalent level. Cisco has not yet had the
opportunity to finalise the timing and details of the integration
plan, but would expect the migration to commence within the first
twelve months after completion of the Offer.
It is intended that, upon completion of the Offer, each of the
non-executive IMImobile Directors will resign as an IMImobile
Director.
Pensions
Cisco recognises the importance of IMImobile's pension
obligations and of ensuring that employees' existing contractual
and statutory rights regarding pensions are fully safeguarded in
accordance with applicable law. No member of the IMImobile Group
participates in a defined benefit pension scheme.
As part of the review referred to above, Cisco intends to
evaluate the IMImobile pension schemes with a view to transferring
IMImobile employees into existing Cisco pension schemes in due
course in accordance with local law. Until such migration occurs,
Cisco intends to maintain employer contributions to IMImobile's
pension schemes in accordance with applicable law and existing
contractual terms.
Headquarters, locations and fixed assets
Cisco intends to maintain IMImobile's business presence and
headquarter functions in the London area. In conjunction with the
review of IMImobile's business and operations referred to above,
Cisco will also perform a full review of all of IMImobile's
locations of business and this may lead to the identification of
requirements for new locations, locations for future growth and
investment and/or locations where there is unnecessary duplication
or where operational efficiencies can be achieved.
Save as set out above in connection with the review of
IMImobile's locations of business, Cisco has no intention to
redeploy the fixed assets of IMImobile.
Trading facilities
IMImobile Shares are currently admitted to trading on AIM. A
request will be made to the London Stock Exchange to cancel the
admission to trading of the IMImobile Shares on AIM, to take effect
from or shortly after the Effective Date.
Views of the Independent IMImobile Directors
In considering the recommendation of the Offer to IMImobile
Shareholders, the Independent IMImobile Directors have given due
consideration to Cisco's intentions for the business, management,
employees and locations of business of IMImobile.
The Independent IMImobile Directors note the intention of Cisco
to undertake a more detailed review of the business, products and
locations of IMImobile following completion of the Offer and to
finalise integration planning and commence migration of IMImobile
employees onto Cisco terms and conditions of employment, subject to
compliance with applicable local law, each of which is expected to
occur within twelve months of the Effective Date.
The Independent IMImobile Directors are pleased that Cisco has
confirmed its intention to support IMImobile's existing strategic
ambitions and its affirmation of the importance of IMImobile's
management and employees and recognition of their important
contribution. In particular, the Independent IMImobile Directors
welcome Cisco's confirmation that it does not intend to initiate
any material headcount reductions or changes in location of
IMImobile's existing business presence in the London area in the
near term. The Independent IMImobile Directors welcome Cisco's
confirmation that, following completion of the Offer, the existing
contractual and statutory employment rights, including pension
rights, of IMImobile employees will be fully safeguarded in
accordance with applicable law.
11. Incentivisation arrangements
Cisco wishes to ensure strong business momentum through
retention and to ensure that IMImobile employees are fairly
treated. Accordingly, Cisco has agreed retention arrangements for
the Executive IMImobile Directors, each of which is conditional on
completion of the Offer.
The relevant details are as follows:
(a) Jay Patel, Group Chief Executive Officer of IMImobile, will
enter into a new service agreement, pursuant to which he will
continue to receive his current base salary of GBP300,000 per
annum;
(b) Michael Jefferies, Group Chief Financial Officer of
IMImobile, will enter into a new service agreement, pursuant to
which he will receive a base salary of GBP200,000 per annum and,
for the first two years following the Effective Date, an annual
bridging payment of GBP60,000 (payable in instalments); and
(c) Shyamprasad Bhat, Group Chief Technical Officer of
IMImobile, will enter into a new service agreement, pursuant to
which he will receive a base salary of INR9,000,000 per annum.
After the Effective Date, each of the Executive IMImobile
Directors will be eligible to participate in Cisco's standard
annual cash incentive plans that are applicable to others at the
same positions and levels within Cisco. In addition, after the
Effective Date, the Executive IMImobile Directors will be eligible
to receive Cisco equity incentive grants in the ordinary
course.
In addition, Cisco and the Executive IMImobile Directors have
agreed to the following retention arrangements, subject to
continued employment (the Executive Retention Arrangements):
(a) Jay Patel will receive a cash payment of USD3,000,000 from
Cisco, payable in the following instalments: (i) USD1,000,000
payable on the first anniversary of the Effective Date; and (ii)
the remaining USD2,000,000 payable in equal quarterly instalments
over the two year period commencing on the first anniversary of the
Effective Date;
(b) Michael Jefferies will receive a cash payment of
USD1,500,000 from Cisco, payable in the following instalments: (i)
USD500,000 payable on the first anniversary of the Effective Date;
and (ii) the remaining USD1,000,000 payable in equal quarterly
instalments over the three year period commencing on the first
anniversary of the Effective Date; and
(c) Shyamprasad Bhat will receive a cash payment of USD500,000
from Cisco, payable on the first anniversary of the Effective
Date.
The Executive Retention Arrangements are subject to standard
leaver terms.
Other than as set out above, Cisco has not entered into, and has
not had discussions on proposals to enter into, any form of
incentivisation arrangements with members of IMImobile's
management.
As required by Rule 16.2 of the Code, Investec has reviewed the
terms of the arrangements with the Executive IMImobile Directors
set out above and has confirmed that, in its opinion, those
arrangements with the Executive IMImobile Directors are fair and
reasonable as far as IMImobile's Shareholders are concerned. In
providing this advice to the Independent IMImobile Directors,
Investec has taken into account the commercial assessments of the
Independent IMImobile Directors.
12. IMImobile Share Plans
Participants in the IMImobile Share Plans will be contacted
regarding the effect of the Offer on their rights under the
IMImobile Share Plans and appropriate proposals shall be made to
such participants in due course.
Details of the terms of such proposals will be included in the
Scheme Document and in separate letters to be sent to the
participants in the IMImobile Share Plans.
13. Financing of the Offer
The cash consideration payable to IMImobile Shareholders
pursuant to the Offer will be funded from the existing cash
resources of the Cisco Group.
Barclays, in its capacity as financial adviser to Bidco, is
satisfied that the resources available to Bidco are sufficient to
satisfy in full the cash consideration payable to IMImobile
Shareholders under the terms of the Offer.
14. Offer-related arrangements
14.1 Confidentiality Agreement
Cisco Investments LLC, an indirect wholly-owned subsidiary of
Cisco, and IMImobile entered into a confidentiality agreement dated
11 November 2020 (the Confidentiality Agreement) pursuant to which
Cisco has undertaken to: (a) keep confidential information relating
to, inter alia, the Offer and IMImobile and not to disclose it to
third parties (other than to certain permitted parties), unless
required by law or regulation; and (b) use the confidential
information only in connection with the Offer, unless required by
law or regulation.
These confidentiality obligations shall remain in force for a
period of 24 months from the date of the Confidentiality Agreement
(unless terminated earlier as a result of the Scheme becoming
Effective or, in the event that the Offer is implemented by way of
a Takeover Offer, the Takeover Offer becoming unconditional in all
respects in accordance with its terms).
The Confidentiality Agreement also includes customary
non-solicitation obligations on Cisco, subject to customary
carve-outs, for a period of nine months from the date of the
Confidentiality Agreement and a standstill provision in favour of
IMImobile, subject to customary carve-outs, for a period of twelve
months from the date of the Confidentiality Agreement.
14.2 Flexera Confidentiality Agreement
Flexera Software LLC has been engaged by Cisco to review and
perform a code audit on IMImobile's products and to provide Cisco
with reports and analysis related thereto. In connection with this
engagement, Flexera Software LLC and IMImobile entered into a
confidentiality agreement dated 18 November 2020 (the Flexera
Confidentiality Agreement) pursuant to which Flexera Software LLC
has undertaken to: (a) keep confidential information relating to
IMImobile and its technical information and not to disclose it to
third parties (other than to certain permitted parties) unless
required by law or regulation; and (b) use the confidential
information only in connection with advising Cisco in connection
with the Offer, unless required by law or regulation.
These confidentiality obligations shall remain in force until
thirty days after the date either Flexera Software LLC or IMImobile
notifies the other of its intention to terminate.
14.3 Co-operation Agreement
Pursuant to a co-operation agreement dated 7 December 2020 (the
Co-operation Agreement): (a) IMImobile has agreed to co-operate
with Bidco to assist with the satisfaction of certain merger
control conditions; (b) Bidco has agreed to provide IMImobile with
certain information for the purposes of the Scheme Document and to
otherwise assist with the preparation of the Scheme Document; (c)
Bidco has agreed to certain provisions if the Scheme should switch
to a Takeover Offer; and (d) IMImobile and Bidco have agreed
certain arrangements in respect of the IMImobile Share Plans.
The Co-operation Agreement will terminate, inter alia: (a) if
the Offer is withdrawn or lapses; (b) if prior to the Long Stop
Date any Condition becomes incapable of satisfaction; (c) at
Bidco's election if the Independent IMImobile Directors withdraw
their recommendation of the Offer or if the Independent IMImobile
Directors recommend a competing proposal; (d) if the Scheme does
not become Effective in accordance with its terms by the Long Stop
Date; or (e) otherwise as agreed in writing between Bidco and
IMImobile.
15. Structure of and conditions to the Offer
It is intended that the Offer will be effected by means of a
Court-sanctioned scheme of arrangement between IMImobile and the
Scheme Shareholders under Part 26 of the Companies Act, although
Bidco reserves the right to elect (with the consent of the Panel
and subject to the terms of the Co-operation Agreement) to
implement the Offer by way of a Takeover Offer as an alternative to
the Scheme.
The purpose of the Scheme is to provide for Bidco to become the
holder of the entire issued and to be issued ordinary share capital
of IMImobile. This is to be achieved by the transfer of the Scheme
Shares to Bidco, in consideration for which the Scheme Shareholders
will receive the cash consideration on the basis set out in
paragraph 2 of this Announcement.
To become Effective, the Scheme must be approved at the Court
Meeting by the requisite majority of Scheme Shareholders at the
Court Meeting. In respect of the approval of the Scheme, Scheme
Shareholders will be entitled to cast one vote for each Scheme
Share held. The Scheme also requires the Resolutions to be approved
by the requisite majority of IMImobile Shareholders at the General
Meeting. It is expected that the General Meeting will be held
immediately after the Court Meeting. In respect of the Resolutions
to be proposed at the General Meeting, IMImobile Shareholders will
be entitled to cast one vote for each IMImobile Share held.
Once the necessary approvals have been obtained at the Court
Meeting and the General Meeting, and the other Conditions (save for
the Condition set out at paragraph 1 and paragraph 2(c) of Part A
of Appendix 1) have been satisfied or, if applicable, waived) the
Scheme must be sanctioned by the Court (with or without
modification but subject to any modification being on terms
reasonably acceptable to Bidco and IMImobile). The Scheme will only
become Effective once a copy of the Court Order is delivered to the
Registrar of Companies for registration.
The Offer is subject to the Conditions and further terms set out
in Appendix 1 to this Announcement and to the full terms and
conditions that will be set out in the Scheme Document, including,
among other things:
(a) the Scheme becoming Effective by the Long Stop Date;
(b) the approval of the Scheme by a majority in number of Scheme
Shareholders present and voting (and entitled to vote), either in
person or by proxy, at the Court Meeting representing at least 75
per cent. in value of the Scheme Shares voted by such holders, or
at any adjournment thereof on or before the 22nd day after the
expected date of the Court Meeting to be set out in the Scheme
Document in due course (or such later date as may be agreed between
Bidco and IMImobile and the Court may allow);
(c) the passing of the Resolutions by the requisite majority at
the General Meeting to be held on or before the 22nd day after the
expected date of the General Meeting to be set out in the Scheme
Document in due course (or such later date as may be agreed between
Bidco and IMImobile and the Court may allow);
(d) the sanction of the Scheme by the Court on or before the
22nd day after the expected date of the Sanction Hearing to be set
out in the Scheme Document in due course (or such later date as may
be agreed between Bidco and IMImobile and the Court may allow);
and
(e) the receipt of certain merger control approvals.
The Scheme Document will include full details of the Scheme,
together with an explanatory statement providing details of the
Offer, and the notices convening the Court Meeting and the General
Meeting. The Scheme Document will also contain the expected
timetable for the Offer and will specify the necessary actions to
be taken by IMImobile Shareholders. The Scheme Document will be
sent to IMImobile Shareholders as soon as reasonably practicable
(subject to the availability of the Court to approve the posting of
the Scheme Document). The Panel has consented to a posting date
later than 28 days following the date of this Announcement.
Subject to the satisfaction or waiver of the Conditions, and
certain further terms set out in Appendix 1 and to be set out in
the Scheme Document, and subject to the approval and availability
of the Court, it is expected that the Scheme will become Effective
in the first quarter of 2021.
Upon the Scheme becoming Effective, it will be binding on all
Scheme Shareholders, irrespective of whether or not 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) and the
cash consideration payable under the Scheme will be despatched to
Scheme Shareholders no later than 14 days after the Effective
Date.
Any IMImobile Shares issued before the Scheme Record Time will
be subject to the terms of the Scheme. The Resolutions to be
proposed at the General Meeting will, among other matters, provide
that the IMImobile Articles be amended to incorporate provisions
requiring any IMImobile Shares issued after the Scheme Record Time
(other than to Bidco or its nominee(s)) to be automatically
transferred to Bidco on the same terms as the Offer (other than
terms as to timings and formalities). The provisions of the
IMImobile Articles (as amended) will avoid any person (other than
Bidco or its nominee(s)) holding IMImobile Shares after the
Effective Date.
If the Scheme does not become Effective on or before the Long
Stop Date, it will lapse and the Offer will not proceed (unless the
Panel otherwise consents).
The Scheme will be governed by English law and will be subject
to the jurisdiction of the Court and the applicable requirements of
the Code and the Panel.
16. Right to switch to a Takeover Offer
Bidco reserves the right to elect (with the consent of the Panel
and subject to the terms of the Co-operation Agreement) to
implement the Offer by way of a Takeover Offer as an alternative to
the Scheme. In such event, the Offer will be implemented on
substantially the same terms, so far as applicable, as those which
would apply to the Scheme, subject to appropriate amendments to
reflect the change in method of effecting the Offer.
Further, in such circumstances, if sufficient acceptances of the
Offer are received and/or sufficient IMImobile Shares are otherwise
acquired, it is the intention of Bidco to apply the provisions of
Chapter 3 of Part 28 of the Companies Act to acquire compulsorily
the remaining IMImobile Shares in respect of which the Offer has
not been accepted.
17. Cancellation of admission to trading on AIM and re-registration
It is intended that dealings in IMImobile Shares will be
suspended on or shortly before the Effective Date at a time to be
set out in the Scheme Document. It is further intended that an
application will be made to the London Stock Exchange for the
cancellation of admission to trading of IMImobile Shares on AIM,
with effect from or shortly after the Effective Date.
The last day of dealing in IMImobile Shares on AIM is currently
expected to be the Business Day immediately prior to the Effective
Date and it is currently intended that no transfers will be
registered after 6.00 p.m. on that date.
Share certificates in respect of IMImobile Shares will cease to
be valid and should be destroyed on the Effective Date. In
addition, entitlements held within CREST to IMImobile Shares will
be cancelled on the Effective Date.
It is Bidco's intention that, in due course and following the
cancellation of admission to trading on AIM, IMImobile will be
re-registered as a private limited company.
18. Disclosure of interests in IMImobile
As at the close of business on the Last Practicable Date, other
than the irrevocable undertakings and letters of intent referred to
in paragraph 6 of this Announcement, none of Cisco, Bidco, or any
of their directors, or, so far as Cisco and Bidco are aware, any
person acting, or deemed to be acting, in concert with Bidco,
had:
(a) an interest in, or right to subscribe for, relevant securities of IMImobile;
(b) any short position in (whether conditional or absolute and
whether in the money or otherwise), including any short position
under a derivative, any agreement to sell or any delivery
obligation or right to require another person to purchase or take
delivery of, relevant securities of IMImobile;
(c) procured an irrevocable commitment or letter of intent to
accept the terms of the Offer in respect of relevant securities of
IMImobile; or
(d) borrowed, lent or entered into any financial collateral
arrangements or dealing arrangements in respect of any IMImobile
Shares.
Other than the irrevocable undertakings and letters of intent
described in paragraph 6 of this Announcement, no arrangement
exists between Bidco or IMImobile or any person acting in concert
with Bidco or IMImobile in relation to IMImobile Shares. For these
purposes, an arrangement includes any indemnity or option
arrangement, any agreement or any understanding, formal or
informal, of whatever nature, relating to IMImobile Shares which
may be an inducement to deal or refrain from dealing in such
securities.
In the interests of secrecy prior to this Announcement, Bidco
has not made any enquiries in respect of the matters referred to in
this paragraph 18 of certain parties who may be deemed by the Panel
to be acting in concert with Bidco for the purposes of the Offer.
Enquiries of such parties will be made as soon as practicable
following the date of this Announcement, and Bidco confirms that
further disclosure in accordance with Rule 8.1(a) and Note 2(a)(i)
on Rule 8 of the Code will be made as soon as possible and, in any
event, by no later than 12 noon on the date falling 10 business
days after the date of this Announcement.
19. Dividends
If any dividend, other distribution or return of capital is
declared, made or paid in respect of the IMImobile Shares on or
after the date of this Announcement and with a record date prior to
the Effective Date, Bidco reserves the right to reduce the
consideration payable in respect of each IMImobile Share by the
amount of all or part of any such dividend, other distribution or
return of capital, except where IMImobile Shares are or will be
acquired pursuant to the Scheme on a basis which entitles Bidco to
receive such any dividend, other distribution or return of capital
and retain it. If Bidco exercises this right or makes such a
reduction in respect of a dividend or other distribution, IMImobile
Shareholders will be entitled to receive and retain that dividend,
other distribution or return of capital.
20. Overseas shareholders
The availability of the Offer and the distribution of this
Announcement to persons resident in, or citizens of, or otherwise
subject to, jurisdictions outside the UK may be affected by the
laws of the relevant jurisdictions. Such persons should inform
themselves of, and observe, any applicable legal or regulatory
requirements of their jurisdiction. IMImobile Shareholders who are
in any doubt regarding such matters should consult an appropriate
independent professional adviser in the relevant jurisdiction
without delay.
This Announcement is not intended and does not constitute or
form part of any offer to sell or to subscribe for, or any
invitation to purchase or subscribe for, or the solicitation of any
offer to purchase or otherwise subscribe for any securities.
IMImobile Shareholders are advised to read carefully the Scheme
Document and the Forms of Proxy once these have been
despatched.
21. General
In deciding whether or not to vote or procure votes to approve
the Scheme at the Court Meeting or to vote or procure votes in
favour of the Resolutions to be proposed at the General Meeting in
respect of their IMImobile Shares, IMImobile Shareholders should
rely on the information contained, and follow the procedures
described, in the Scheme Document.
Barclays and Investec have each given and not withdrawn their
consent to the publication of this Announcement with the inclusion
herein of the references to their names in the form and context in
which they appear.
The Scheme Document will not be reviewed by any federal state
securities commission or regulatory authority in the US, nor will
any commission or authority pass upon the accuracy or adequacy of
the Scheme Document. Any representation to the contrary is unlawful
and may be a criminal offence.
Appendix 2 contains the bases and sources of certain information
used in this Announcement. Appendix 3 contains details of the
irrevocable undertakings and letters of intent received by Bidco in
relation to the Offer that are referred to in this Announcement.
Appendix 4 contains definitions of certain terms used in this
Announcement.
22. Documents available on website
Subject to certain restrictions in relation to persons in
Restricted Jurisdictions, copies of the following documents will,
by no later than 12 noon on the Business Day following the date of
this Announcement, be made available on Cisco's website at
http://investor.cisco.com/Recommended-cash-offer and IMImobile's
website at
https://investors.imimobile.com/regulatory-announcements/recommended-cash-offer
until the end of the Offer Period:
(a) this Announcement;
(b) the irrevocable undertakings and letters of intent referred
to in paragraph 6 above and summarised in Appendix 3 to this
Announcement;
(c) the Confidentiality Agreement;
(d) the Flexera Confidentiality Agreement;
(e) the Co-operation Agreement; and
(f) the consent letters from each of Barclays and Investec as
referred to in paragraph 21 above.
None of the contents of any website referred to in this
Announcement, or the content of any other website accessible from
hyperlinks on either such website, is incorporated into or forms
part of, this Announcement.
Enquiries:
Cisco
Press Contact: Robyn Blum Tel: +1 (408) 930-8548
Industry Analyst Contact: Anne Purvis-Blomquist Tel: +1 (408) 859-1111
Investor Relations Contact: Carol Villazon Tel: +1 (408) 527-6538
Barclays (financial adviser to Cisco and Bidco) Tel: +44 (0)20 7623 2323
Omar Faruqui
Osman Akkaya
IMImobile c/o Alma PR
Jay Patel, Group Chief Executive Officer
Michael Jefferies, Group Chief Financial Officer
Alma PR (PR adviser to IMImobile ) Tel: +44 (0)20 3405 0205
Rebecca Sanders-Hewett
Susie Hudson
Harriet Jackson
Investec (financial adviser, nominated adviser and joint broker to IMImobile ) Tel: +44 (0)20 7597 5970
Henry Reast
Virginia Bull
Sebastian Lawrence
N+1 Singer (joint broker to IMImobile) Tel: +44 (0)20 7496 3000
Tom Salvesen
Justin McKeegan
Iqra Amin
Allen & Overy LLP and Fenwick & West LLP are retained as
legal advisers to Cisco and Bidco. Addleshaw Goddard LLP is
retained as legal adviser to IMImobile.
Important notices relating to financial advisers
Barclays, which is authorised by the Prudential Regulation
Authority and regulated in the UK by the Financial Conduct
Authority and the Prudential Regulation Authority, is acting
exclusively for Cisco and Bidco and no one else in connection with
the Offer and shall not be responsible to anyone other than Cisco
and Bidco for providing the protections afforded to clients of
Barclays nor for providing advice in connection with the Offer or
any other matter referred to herein.
In accordance with the Code, normal United Kingdom market
practice and Rule 14e-5(b) of the US Exchange Act, Barclays and its
affiliates will continue to act as exempt principal trader in
IMImobile securities on the London Stock Exchange. These purchases
and activities by exempt principal traders which are required to be
made public in the United Kingdom pursuant to the Code will be
reported to a Regulatory Information Service and will be available
on the London Stock Exchange website at
www.londonstockexchange.com. This information will also be publicly
disclosed in the United States to the extent that such information
is made public in the United Kingdom.
Investec, which is authorised by the PRA and regulated in the
United Kingdom by the FCA and the PRA, is acting exclusively as
financial adviser for IMImobile and no one else in relation to the
Offer and/or other matters set out in this Announcement and will
not be responsible to anyone other than IMImobile for providing the
protections afforded to the clients of Investec, or for providing
advice in relation to the Offer, the contents of this Announcement
or any other matter referred to herein. Neither Investec 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 Investec in connection with the
Offer, this Announcement, any statement contained herein or
otherwise.
In accordance with the Code, normal United Kingdom market
practice and Rule 14e-5(b) of the US Exchange Act, Investec and its
affiliates will continue to act as exempt principal trader in
IMImobile securities on the London Stock Exchange. These purchases
and activities by exempt principal traders which are required to be
made public in the United Kingdom pursuant to the Code will be
reported to a Regulatory Information Service and will be available
on the London Stock Exchange website at
www.londonstockexchange.com. This information will also be publicly
disclosed in the United States to the extent that such information
is made public in the United Kingdom.
N+1 Singer, which is authorised and regulated by the Financial
Conduct Authority in the United Kingdom, is acting exclusively as
joint broker to IMImobile and for no one else in connection with
the subject matter of this Announcement and will not be responsible
to anyone other than IMImobile for providing the protections
afforded to its clients or for providing advice in connection with
the subject matter of this Announcement.
Further information
This Announcement is for information purposes only and is not
intended to, and does not, constitute or form part of any offer or
invitation to purchase, otherwise acquire or subscribe for or
dispose of any securities or the solicitation of any vote or
approval in any jurisdiction pursuant to the Offer or otherwise.
The Offer will be made solely through the Scheme Document (or, in
the event that the Offer is to be implemented by means of a
Takeover Offer, the Offer Document), which, together with the Forms
of Proxy, will contain the full terms and conditions of the Offer,
including details of how to vote in respect of the Scheme.
IMImobile Shareholders are advised to read the Scheme Document
(including the related Forms of Proxy) (and/or, in the event that
the Offer is to be implemented by way of a Takeover Offer, the
Offer Document) once this becomes available because it will contain
important information in relation to the Offer. Any vote in respect
of resolutions to be proposed at the Court Meeting and/or the
General Meeting, and any decision in respect of the Scheme or other
response in relation to the Offer, by IMImobile Shareholders should
be made only on the basis of the information contained in the
Scheme Document (and/or, in the event that the Offer is to be
implemented by way of a Takeover Offer, the Offer Document).
This Announcement has been prepared for the purpose 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 England and Wales.
This Announcement does not constitute a prospectus or prospectus
exempted document.
Overseas shareholders
The release, publication or distribution of this Announcement in
jurisdictions other than the United Kingdom may be restricted by
law and therefore any persons who are not resident in the United
Kingdom or who are subject to the laws of any jurisdiction other
than the United Kingdom (including Restricted Jurisdictions) should
inform themselves about, and observe, any applicable legal or
regulatory requirements. In particular, the ability of persons who
are not resident in the United Kingdom or who are subject to the
laws of another jurisdiction to participate in the Offer or to vote
their Scheme Shares in respect of the Scheme at the Court Meeting
or in respect of the Resolutions to be proposed at the General
Meeting, or to execute and deliver Forms of Proxy appointing
another to vote at the Court Meeting and/or General Meeting on
their behalf, may be affected by the laws of the relevant
jurisdictions in which they are located or to which they are
subject. Any failure to comply with applicable legal or regulatory
requirements of any jurisdiction may constitute a violation of
securities laws in that jurisdiction. To the fullest extent
permitted by applicable law, the companies and persons involved in
the Offer disclaim any responsibility or liability for the
violation of such restrictions by any person.
Unless otherwise determined by Bidco or required by the Code,
and permitted by applicable law and regulation, the Offer shall not
be made available, directly or indirectly, in, into or from a
Restricted Jurisdiction where to do so would violate the laws in
that jurisdiction and no person may vote in favour of the Offer by
any such use, means, instrumentality or form within a Restricted
Jurisdiction or any other jurisdiction if to do so would constitute
a violation of the laws of that jurisdiction.
Copies of this Announcement and any formal documentation
relating to the Offer are not being, and must not be, directly or
indirectly, mailed or otherwise forwarded, distributed or sent in
or into or from any Restricted Jurisdiction or any jurisdiction
where to do so would constitute a violation of the laws of such
jurisdiction and persons receiving such documents (including
custodians, nominees and trustees) must not mail or otherwise
forward, distribute or send them in or into or from any Restricted
Jurisdiction. Doing so may render invalid any related purported
vote in respect of the Offer.
If the Offer is implemented by way of a Takeover Offer (unless
otherwise permitted by applicable law and regulation), the Takeover
Offer may not be made, directly or indirectly, in or into or by use
of the mails or any other means or instrumentality (including,
without limitation, facsimile, e-mail or other electronic
transmission, telex or telephone) of interstate or foreign commerce
of, or any facility of a national, state or other securities
exchange of any Restricted Jurisdiction, and the Offer will not be
capable of acceptance by any such use, means, instrumentality or
facilities or from within any Restricted Jurisdiction.
The availability of the Offer to IMImobile Shareholders who are
not resident in the United Kingdom may be affected by the laws of
the relevant jurisdictions in which they are resident. Persons who
are not resident in the United Kingdom should inform themselves of,
and observe, any applicable requirements. Further details in
relation to IMImobile Shareholders in overseas jurisdictions will
be contained in the Scheme Document.
The Offer will be subject to English law and the applicable
requirements of the Court, the Code, the Panel, the London Stock
Exchange, the AIM Rules and the FCA.
Notice to US investors
The Offer relates to shares of a UK company and is proposed to
be effected by means of a scheme of arrangement under the laws of
England and Wales. A transaction effected by means of a scheme of
arrangement is not subject to the tender offer rules or the proxy
solicitation rules under the US Exchange Act.
Accordingly, the Offer is subject to the disclosure and
procedural requirements applicable in the United Kingdom to schemes
of arrangement which differ from the disclosure requirements of
United States tender offer and proxy solicitation rules.
Furthermore, the payment and settlement procedure with respect to
the Offer will comply with the relevant rules under the Code, which
differ from US payment and settlement procedures, particularly with
regard to the date of payment of consideration.
However, if Bidco were to elect to implement the Offer by means
of a Takeover Offer, such Takeover Offer would be made in
compliance with all applicable United States laws and regulations,
including any applicable exemptions under the US Exchange Act. Such
a Takeover Offer would be made in the United States by Bidco and no
one else, in compliance with US law and regulations, including
Section 14(e) of the US Exchange Act and Regulation 14E
thereunder.
In accordance with normal United Kingdom practice, Cisco, Bidco
or their nominees or their brokers (acting as agents), may from
time to time make certain purchases of, or arrangements to
purchase, shares or other securities of IMImobile outside of the
US, other than pursuant to the Offer, until the date on which the
Offer and/or Scheme becomes effective, lapses or is otherwise
withdrawn, in compliance with applicable law, including the US
Exchange Act. These purchases may occur either in the open market
at prevailing prices or in private transactions at negotiated
prices. Any information about such purchases or arrangements to
purchase shall be disclosed as required in the United Kingdom,
shall be reported to the Regulatory Information Service and shall
be available on the London Stock Exchange website at
www.londonstockexchange.com.
The receipt of consideration by a US holder for the transfer of
its IMImobile Shares pursuant to the Offer will likely be a taxable
transaction for United States federal income tax purposes. Each US
holder of IMImobile Shares is urged to consult their independent
professional adviser immediately regarding the tax consequences of
the Offer applicable to such holder, including under applicable
United States state and local tax laws, as well as overseas and
other tax laws that may be applicable.
Some or all of IMImobile's officers and directors reside outside
the US, and some or all of its assets are or may be located in
jurisdictions outside the US. Therefore, investors may have
difficulty effecting service of process within the US upon those
persons or recovering against IMImobile or its officers or
directors on judgments of US courts, including judgements based
upon the civil liability provisions of the US federal securities
laws. Further, it may be difficult to compel a non-US company and
its affiliates to subject themselves to a US court's judgment. It
may not be possible to sue IMImobile or its officers or directors
in a non-US court for violations of the US securities laws.
Neither the SEC nor any US state securities commission has
approved or disproved or passed judgment upon the fairness or the
merits of the Offer or determined if this Announcement is adequate,
accurate or complete.
Financial information relating to IMImobile included in this
Announcement and the Scheme Document has been or will have been
prepared in accordance with IFRS and may not therefore 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.
Forward-looking statements
This Announcement (including information incorporated by
reference in this Announcement), oral statements made regarding the
Offer, and other information published by IMImobile, any member of
the IMImobile Group, Cisco, Bidco or any other member of the Cisco
Group contain statements which are, or may be deemed to be,
"forward looking statements". 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
words such as, without limitation, "anticipate", "target",
"expect", "estimate", "intend", "plan", "goal", "believe", "aim",
"will", "may", "hope", "continue", "would", "could" or "should" or
other words of similar meaning or the negative thereof.
Forward-looking statements include, but are not limited to,
statements relating to the following: (i) future capital
expenditures, expenses, revenues, economic performance, financial
conditions, dividend policy, losses and future prospects, (ii)
business and management strategies and the expansion and growth of
the operations of IMImobile, any member of the IMImobile Group,
Cisco, Bidco or any other member of the Cisco Group, (iii) the
effects of government regulation on the business of IMImobile, any
member of the IMImobile Group, Cisco, Bidco or any other member of
the Cisco Group, (iv) negative effects relating to this
Announcement and/or status of the Offer, (v) the possibility that
any of the conditions to the Offer will not be satisfied, and (vi)
significant transaction costs (including litigation) or unknown
liabilities. There are many factors which could cause actual
results to differ materially from those expressed or implied in
forward-looking statements. Among such factors are changes in
global, political, economic, business, competitive, market and
regulatory forces, future exchange and interest rates, changes in
tax rates and future business combinations or disposals. Such
statements are qualified in their entirety by the inherent risks
and uncertainties surrounding future expectations.
These forward looking statements are prospective in nature and
are not based on historical facts, but rather on current
expectations and on numerous assumptions regarding the business
strategies and the environment in which IMImobile, any member of
the IMImobile Group, Cisco, Bidco or any member of the Cisco Group
shall operate in the future and are subject to risks and
uncertainties that could cause actual results to differ materially
from those expressed or implied by those statements. By their
nature, these forward-looking statements involve known and unknown
risks, and uncertainties because they relate to events and depend
on circumstances that will occur in the future. The factors
described in the context of such forward-looking statements in this
Announcement may cause the actual results, performance or
achievements of any such person, or industry results and
developments, to be materially different from any results,
performance or achievements expressed or implied by such
forward-looking statements. No assurance can be given that such
expectations will prove to have been correct and persons reading
this Announcement are therefore cautioned not to place undue
reliance on these forward-looking statements which speak only as at
the date of this Announcement. None of IMImobile, any member of the
IMImobile Group, Cisco, Bidco or any other member of the Cisco
Group, or their respective members, directors, officers, employees,
advisers or any person acting on behalf of one or more of them,
provides any representation, assurance or guarantee that the
occurrence of the events expressed or implied in any
forward-looking statements in this Announcement will actually
occur.
None of IMImobile, any member of the IMImobile Group, Cisco,
Bidco or any other member of the Cisco Group, or their respective
members, directors, officers, employees, advisers or any person
acting on behalf of one or more of them, has any intention or
accepts any obligation to update publicly or revise any
forward-looking statement, whether as a result of new information,
future events or otherwise, except to the extent legally required.
All subsequent oral or written forward-looking statements
attributable to IMImobile, any member of the IMImobile Group,
Cisco, Bidco or any other member of the Cisco Group or any persons
acting on their behalf are expressly qualified in their entirety by
the cautionary statement above.
No profit forecasts or estimates
Save in relation to the statements made by IMImobile at
paragraph 9 of this Announcement, no statement in this Announcement
is intended as a profit forecast or estimate for Cisco, Bidco or
IMImobile for any period and no statement in this Announcement
should be interpreted to mean that cash flow from operations,
earnings, or earnings per share or income of those persons (where
relevant) for the current or future financial years would
necessarily match or exceed the historical published cash flow from
operations, earnings, earnings per share or income of those persons
(as appropriate) .
Publication on a website
A copy of this Announcement and the documents required to be
published pursuant to Rule 26.1 and Rule 26.2 of the Code will be
made available (subject to certain restrictions relating to persons
resident in Restricted Jurisdictions), free of charge, on
IMImobile's website at
https://investors.imimobile.com/regulatory-announcements/recommended-cash-offer
and on Cisco's website at
http://investor.cisco.com/Recommended-cash-offer by no later than
12 noon on the Business Day following the date of this
Announcement.
Neither the content of these websites nor the content of any
other website accessible from hyperlinks on such websites is
incorporated into, or forms part of, this Announcement.
Requesting hard copy documents
In accordance with Rule 30.3 of the Code, a person so entitled
may request a copy of this Announcement (and any information
incorporated into it by reference to another source) in hard copy
form free of charge. A person may also request that all future
documents, announcements and information sent to that person in
relation to the Offer should be in hard copy form. For persons who
have received a copy of this Announcement in electronic form or via
a website notification, a hard copy of this Announcement will not
be sent to you unless you have previously notified IMImobile' s
registrar, Link Group, that you wished to receive all documents in
hard copy form or unless requested in accordance with the procedure
set out below.
If you would like to request a hard copy of this Announcement
from IMImobile please contact IMImobile' s registrar, Link Group,
on 0371 664 0300 (from within the UK) or on +44 371 664 0300 (from
outside the UK), or by writing to Link Group, 34 Beckenham Road,
Beckenham, Kent BR3 4TU. Calls are charged at 12 pence per minute
and will vary by provider. Calls are charged at the standard
geographic rate and will vary by provider. Calls outside the United
Kingdom will be charged at the applicable international rate. Link
Group is open between 09:00 and 17:30, Monday to Friday, excluding
public holidays in England and Wales. Please note that Link Group
cannot provide any financial, legal or tax advice and calls may be
recorded and monitored for security and training purposes.
Information relating to IMImobile Shareholders
Please be aware that addresses, electronic addresses and certain
other information provided by IMImobile Shareholders, persons with
information rights and other relevant persons for the receipt of
communications from IMImobile may be provided to Bidco during the
Offer Period as required under section 4 of Appendix 4 to the
Code.
Rounding
Certain figures included in this Announcement have been
subjected to rounding adjustments. Accordingly, figures shown for
the same category presented in different tables may vary slightly
and figures shown as totals in certain tables may not be an
arithmetic aggregation of the figures that precede them.
Disclosure requirements of the Code
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 securities exchange 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 securities exchange 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
securities exchange 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 securities exchange offeror is first
identified. Relevant persons who deal in the relevant securities of
the offeree company or of a securities exchange 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 securities exchange
offeror must make a Dealing Disclosure if the person deals in any
relevant securities of the offeree company or of any securities
exchange 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 securities exchange
offeror(s), 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
securities exchange 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 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 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.
You should contact the Panel's Market Surveillance Unit on +44
(0)20 7638 0129 if you are in any doubt as to whether you are
required to make an Opening Position Disclosure or a Dealing
Disclosure.
Rule 2.9 of the Code
For the purposes of Rule 2.9 of the Code, IMImobile confirms
that, as at the Last Practicable Date, it had 82,470,795 ordinary
shares of 10 pence each in issue and admitted to trading on AIM.
The International Securities Identification Number for IMImobile
Shares is GB00BLBP4Y22.
General
If you are in any doubt about the contents of this Announcement
or the action you should take, you are recommended to seek your own
independent financial advice immediately from your stockbroker,
bank manager, solicitor, accountant or independent financial
adviser duly authorised under FSMA if you are resident in the
United Kingdom or, if not, from another appropriately authorised
independent financial adviser.
Time
All times shown in this Announcement are London times, unless
otherwise stated.
Appendix 1
Conditions to and further terms of the offer
The Offer will be subject to the Conditions and further terms
set out in this Appendix 1 and in the Scheme Document.
Part A
Conditions to the Offer
1. The Offer will be conditional upon the Scheme becoming
unconditional and becoming Effective, subject to the Code, by no
later than 11.59 p.m. on the Long Stop Date.
Scheme approval
2. The Scheme will be conditional upon:
(a)
(i) its approval by a majority in number of Scheme Shareholders
who are present and vote (and who are entitled to vote), whether in
person or by proxy, at the Court Meeting and at any separate class
meeting which may be required by the Court, representing not less
than 75 per cent. in value of the Scheme Shares in issue at the
Voting Record Time voted by such Scheme Shareholders; and
(ii) the Court Meeting and any separate class meeting which may
be required by the Court being held on or before the 22nd day after
the expected date of the Court Meeting to be set out in the Scheme
Document in due course (or such later date, if any, as Bidco and
IMImobile may agree and the Court may allow);
(b)
(i) all resolutions necessary to implement the Scheme being duly
passed by the requisite majority or majorities at the General
Meeting; and
(ii) the General Meeting being held on or before the 22nd day
after the expected date of the General Meeting to be set out in the
Scheme Document in due course (or such later date, if any, as Bidco
and IMImobile may agree and the Court may allow); and
(c)
(i) the sanction of the Scheme by the Court with or without
modification (but subject to any such modification being acceptable
to Bidco and IMImobile); and
(ii) the Sanction Hearing being held on or before the 22nd day
after the expected date of the Sanction Hearing to be set out in
the Scheme Document in due course (or such later date, if any, as
Bidco and IMImobile may agree and the Court may allow).
3. In addition, Bidco and IMImobile have agreed that, subject to
the requirements of the Panel and in accordance with the Code, the
Offer will also be conditional upon the following Conditions and,
accordingly, the necessary actions to make the Scheme Effective
will not be taken unless the following Conditions (as amended if
appropriate) have been satisfied or, where relevant, waived:
Regulatory approvals
Austria
(a) the Offer having been cleared by the Austrian Competition
Authorities (Federal Competition Authority, Federal Cartel
Prosecutor and the Cartel Court). This Condition shall be deemed
satisfied if:
(i) the Federal Competition Authority as well as the Federal
Cartel Prosecutor have not issued a request for an in-depth
investigation of the Offer within the necessary timeframe;
(ii) the Federal Competition Authority as well as the Federal
Cartel Prosecutor have jointly and formally waived their right to
apply for an in-depth investigation pursuant to Section 11(4) of
the Austrian Cartel Act (KartG);
(iii) the Cartel Court or the Supreme Cartel Court has issued a
decision terminating the in-depth investigation, holding that the
Offer is (a) not a notifiable concentration (Section 12(1) no 1
KartG) or (b) not prohibited and is compatible with the applicable
merger control provisions (Section 12(1) no 3 KartG), whether
unconditionally or subject to commitments, and either of such
decisions has become final and binding; or
(iv) the proceedings are terminated by the Austrian Cartel Court
pursuant to Section 14(1) KartG (because the statutory time period
of the in-depth investigation lapsed without a decision taken or
all requests for in-depth review have been withdrawn).
Germany
(b) the German Federal Cartel Office (FCO, Bundeskartellamt)
having notified Bidco in writing or by e-mail that it has no
jurisdiction to review the Offer, or having cleared the Offer by:
(i) notifying Bidco within the one-month period under Sec. 40 para.
1 of the German Act against Restraints of Competition (Gesetz gegen
Wettbewerbsbeschränkungen, GWB) that the conditions for a
prohibition according to Sec. 36 para. 1 of the GWB are not met;
(ii) clearing the Offer within the four month period under Sec. 40
para. 2 clause 2 of the GWB or within the extended waiting period
under Sec. 40 para. 2 clause 4 no. 1 of the GWB; or (iii)
permitting the time limits according to Sec. 40 para.1 or 2 of the
GWB to expire without having served the relevant notices or
decisions respectively;
South Africa
(c) the approval of the Offer by the South African Competition
Authorities under the Competition Act, No. 89 of 1998 on terms
satisfactory to Bidco;
United Kingdom
(d) the CMA:
(i) deciding, on terms reasonably satisfactory to Bidco, not to
make a Phase 2 CMA Reference; or
(ii) as at the date on which all other Conditions (with the
exception of sanction of the Scheme by the Court pursuant to
paragraph 2(c) above) of the Offer are satisfied or waived (i) not
having requested submission of a Merger Notice or commenced a phase
1 review by indicating that the Initial Period has begun, or (ii)
having responded to a briefing paper in writing that it has no
further questions in relation to the Offer (and has not otherwise
opened an inquiry, or implied that it is still investigating
whether to open an inquiry);
(e) to the extent that, in the reasonable opinion of Bidco, the
Offer or any matter arising from or related to the Offer requires
notification to or approval by any Relevant Authority in the United
Kingdom under laws relating to national security, all necessary
notifications or filings having been made and all appropriate
waiting periods (including any extensions thereof) having expired,
lapsed or been terminated, or all necessary clearances or approvals
being granted (or being deemed in accordance with the relevant law
to have been granted), or the receipt by Bidco of notification that
no further action will be taken by the Relevant Authority in
relation to the Offer, in each case on terms satisfactory to
Bidco;
Other
(f) if, in the reasonable opinion of Bidco, approval from a
Relevant Authority is required for, or a Relevant Authority decides
to review, the Offer or any matter arising from or related to the
Offer, it being established in terms satisfactory to Bidco that
such Relevant Authority approves (or is deemed to approve) or will
permit the Offer to proceed on terms satisfactory to Bidco;
General Third Party clearances
(g) the waiver (or non--exercise within any applicable time
limits) by any relevant government or governmental,
quasi--governmental, supranational, statutory, regulatory,
administrative, environmental, professional or investigative body,
court, trade agency, association, institution, any entity owned or
controlled by any relevant government or state, or any other body
or person whatsoever in any jurisdiction (each a Third Party) of
any termination right, right of pre-emption, first refusal or
similar right arising as a result of or in connection with the
Offer including, without limitation, its implementation and
financing or the proposed direct or indirect acquisition of any
shares or other securities in, or control of, IMImobile by Bidco or
any member of the Bidco Group;
(h) no Third Party having decided to take, institute, implement
or threaten any action, proceeding, suit, investigation, enquiry or
reference, or enacted, made or proposed any statute, regulation,
decision or order, or having taken any other steps which would or
might reasonably be expected to (in any case which is material in
the context of the Offer):
(i) require, prevent or delay the divestiture, or alter the
terms envisaged for any proposed divestiture by any member of the
Wider Bidco Group or any member of the Wider IMImobile Group of all
or any portion of their respective businesses, assets or property
or impose any limitation on the ability of any of them to conduct
their respective businesses (or any of them) or to own, control or
manage any of their respective assets or properties or any part
thereof;
(ii) require, prevent or delay, or alter the terms envisaged
for, any proposed divestiture by any member of the Wider Bidco
Group of any shares or other securities in IMImobile;
(iii) impose any limitation on, or result in a delay in, the
ability of any member of the Wider Bidco Group directly or
indirectly to acquire or to hold or to exercise effectively,
directly or indirectly, all or any rights of ownership in respect
of shares or loans or securities convertible into shares or any
other securities (or the equivalent) in any member of the Wider
IMImobile Group or to exercise management control over any such
member;
(iv) otherwise adversely affect the business, assets, profits or
prospects of any member of the Wider Bidco Group or of any member
of the Wider IMImobile Group;
(v) make the Offer or its implementation or the acquisition or
proposed acquisition by Bidco or any member of the Wider Bidco
Group of any shares or other securities in, or control of IMImobile
void, illegal, and/or unenforceable under the laws of any relevant
jurisdiction, or otherwise, directly or indirectly, restrain,
restrict, prohibit, delay or otherwise adversely interfere with the
same, or impose additional conditions or obligations with respect
thereto, or otherwise challenge or interfere therewith;
(vi) require (save as envisaged in the Offer or sections 974 to
991 (inclusive) of the Companies Act) any member of the Wider Bidco
Group or the Wider IMImobile Group to offer to acquire any shares
or other securities (or the equivalent) or interest in any member
of the Wider IMImobile Group or the Wider Bidco Group owned by any
third party;
(vii) impose any limitation on or result in any delay in the
ability of any member of the Wider Bidco Group to integrate or
co-ordinate its business, or any part of it, with the businesses or
any part of the businesses of any other member of the Wider
IMImobile Group which is materially adverse in the context of the
Wider IMImobile Group or the Wider Bidco Group; or
(viii) result in any member of the Wider IMImobile Group ceasing
to be able to carry on business under any name under which it
presently does so,
and all applicable waiting and other time periods (including
extensions thereof) during which any such Third Party could
institute, implement or threaten any action, proceeding, suit,
investigation, enquiry or reference or any other step under the
laws of any jurisdiction in respect of the Offer or the acquisition
or proposed acquisition of any IMImobile Shares having expired,
lapsed or been terminated;
(i) all material filings, applications and/or notifications
which are necessary or considered appropriate by Bidco (acting
reasonably) having been made in connection with the Offer and all
relevant waiting periods and other time periods (including any
extensions thereof) under any applicable legislation or regulation
of any jurisdiction having expired, lapsed or been terminated and
all material statutory or regulatory obligations in any
jurisdiction having been complied with in connection with the Offer
or the acquisition by any member of the Wider Bidco Group of any
shares or other securities in, or control or management of,
IMImobile or any member of the Wider IMImobile Group or the
carrying on by any member of the Wider IMImobile Group of its
business;
(j) all material authorisations, orders, recognitions, grants,
consents, licences, confirmations, clearances, permissions and
approvals for the proposed acquisition of any shares or other
securities in, or control of, IMImobile by any member of the Wider
Bidco Group having been obtained in terms and in a form reasonably
satisfactory to Bidco from all necessary Third Parties or persons
with whom any member of the Wider IMImobile Group has entered into
contractual arrangements or other material business relationships,
and all such authorisations, orders, recognitions, grants,
consents, licences, confirmations, clearances, permissions and
approvals together with all authorisations orders, recognitions,
grants, licences, confirmations, clearances, permissions and
approvals necessary or appropriate to carry on the business of any
member of the Wider IMImobile Group, remaining in full force and
effect and all material filings necessary for such purpose have
been made and there being no notice or intimation of any intention
to revoke, suspend, restrict, modify or not to renew any of the
same at the time at which the Offer becomes otherwise unconditional
and all necessary statutory or regulatory obligations in any
jurisdiction having been complied with;
Certain matters arising as a result of any arrangement,
agreement etc.
(k) except as Disclosed, there being no provision of any
agreement, arrangement, licence, permit or other instrument to
which any member of the Wider IMImobile Group is a party or by or
to which any such member or any of its assets are or may be bound,
entitled or subject, which, in each case as a consequence of the
Offer or the proposed acquisition of any shares or other securities
in IMImobile or because of a change in the control or management of
IMImobile or otherwise, would or would reasonably be expected to
result in:
(i) any monies borrowed by or any other indebtedness or
liabilities (actual or contingent) of, or grant available to any
such member, being or becoming repayable or capable of being
declared repayable immediately or earlier than their or its stated
maturity date or repayment date or the ability of any such member
to borrow monies or incur any indebtedness being withdrawn or
inhibited or being capable of becoming or being withdrawn or
inhibited;
(ii) any such agreement, arrangement, licence, permit or
instrument or the rights, liabilities, obligations or interests of
any such member thereunder being terminated or adversely affected
or any onerous obligation or liability arising or any action being
taken or arising thereunder;
(iii) any assets or interests of any such member being or
falling to be disposed of or charged or ceasing to be available to
any such member or any right arising under which any such asset or
interest could be required to be disposed of or charged or could
cease to be available to any such member other than in the ordinary
course of business;
(iv) the creation or enforcement of any mortgage, charge or
other security interest over the whole or any part of the business,
property or assets of any such member or any such mortgage, charge
or other security interest (whenever arising or having arisen)
becoming enforceable;
(v) the rights, liabilities, obligations or interests of any
such member in, or the business of any such member with, any
person, firm or body (or any arrangement or arrangements relating
to any such interest or business) being terminated, adversely
modified or affected;
(vi) the value of any such member or its financial or trading
position or prospects being prejudiced or adversely affected;
(vii) any such member ceasing to be able to carry on business
under any name under which it presently does so;
(viii) the creation of any liability, actual or contingent, by
any such member, other than trade creditors or other liabilities
incurred in the ordinary course of business; or
(ix) any requirement on any such member to acquire, subscribe,
pay up or repay any shares or other securities (or the
equivalent),
and no event having occurred which, under any provision of any
agreement, arrangement, licence, permit or other instrument to
which any member of the Wider IMImobile Group is a party or by or
to which any such member or any of its assets may be bound,
entitled or subject, would or might reasonably be expected to
result in any of the events or circumstances as are referred to in
sub-paragraphs (i) to (ix) of this Condition;
No material transactions, claims or changes in the conduct of
the business of the IMImobile Group
(l) except as Disclosed, no member of the Wider IMImobile Group
having, since 31 March 2020:
(i) save as between IMImobile and the Wider IMImobile Group,
issued, agreed to issue, authorised or proposed the issue of
additional shares of any class or securities convertible into
shares of any class or rights, warrants or options to subscribe
for, or acquire, any such shares or convertible securities;
(ii) other than to another member of the Wider IMImobile Group,
sold (or agreed to transfer or sell) any treasury shares;
(iii) other than to another member of the IMImobile Group,
recommended, declared, paid or made or proposed to recommend,
declare, pay or make any bonus, dividend or other distribution
whether payable in cash or otherwise;
(iv) save for intra-IMImobile Group transactions, authorised or
implemented any merger or demerger with any body corporate or
acquired or disposed of or transferred, mortgaged or charged or
created any security interest over any assets or any right, title
or interest in any asset (including shares and trade investments)
or authorised or proposed or announced any intention to propose any
merger, demerger, acquisition or disposal, transfer, mortgage,
charge or security interest, in each case, other than in the
ordinary course of business;
(v) save for intra-IMImobile Group transactions, made or
authorised or proposed or announced an intention to propose any
change in its loan capital or issued or authorised the issue of any
debentures or incurred or increased any indebtedness or contingent
liability;
(vi) issued, authorised or proposed the issue of any debentures
or (save for intra-IMImobile Group transactions), save in the
ordinary course of business, incurred or increased any indebtedness
or become subject to any liability (actual or contingent);
(vii) purchased, redeemed or repaid or announced any proposal to
purchase, redeem or repay any of its own shares or other securities
or reduced or, save in respect to the matters mentioned in
sub-paragraph (i) above, made any other change to any part of its
share capital;
(viii) implemented, or authorised, proposed or announced its
intention to implement, any reconstruction, amalgamation, scheme,
commitment or other transaction or arrangement otherwise than in
the ordinary course of business or entered into or changed the
terms of any contract with any director or senior executive;
(ix) entered into or varied or authorised, proposed or announced
its intention to enter into or vary any contract, transaction or
commitment (whether in respect of capital expenditure or otherwise)
which is of a long term, onerous or unusual nature or magnitude or
which is or could be restrictive on the businesses of any member of
the Wider IMImobile Group or the Wider Bidco Group or which
involves an obligation of such a nature or magnitude or which is
other than in the ordinary course of business;
(x) been unable or deemed unable, or admitted in writing that it
is unable, to pay its debts as they fall due or having stopped or
suspended (or threatened to stop or suspend) payment of its debts
generally or ceased or threatened to cease carrying on all or a
substantial part of its business;
(xi) (other than in respect of a member of the Wider IMImobile
Group which is dormant and was solvent at the relevant time) taken
any corporate action or had any legal proceedings started or
threatened against it for its winding---up (voluntary or
otherwise), dissolution or reorganisation or for the appointment of
a receiver, administrative receiver, administrator, trustee or
similar officer of all or any of its assets or revenues or any
analogous proceedings in any jurisdiction or had any such person
appointed;
(xii) commenced negotiations with any of its creditors or taken
any step with a view to rescheduling or restructuring any of its
indebtedness or entered into a composition, compromise, assignment
or arrangement with any of its creditors whether by way of a
voluntary arrangement, scheme of arrangement, deed of compromise or
otherwise;
(xiii) entered into any contract, transaction or arrangement
which would be restrictive on the business of any member of the
Wider IMImobile Group or the Wider Bidco Group other than to a
nature and extent which is normal in the context of the business
concerned;
(xiv) waived, settled, abandoned or compromised any claim or
admitted any dispute, claim or counter-claim whether made or
potential and whether by or against any member of the Wider
IMImobile Group (otherwise than in the ordinary course of
business);
(xv) entered into any contract, commitment, arrangement or
agreement otherwise than in the ordinary course of business or
passed any resolution or made any offer (which remains open for
acceptance) with respect to or announced any intention to, or to
propose to, effect any of the transactions, matters or events
referred to in this condition;
(xvi) made any alteration to its constitutional documents;
(xvii) having made or agreed or consented to any change to:
(A) the terms of the trust deeds constituting the pension
scheme(s) established by any member of the Wider IMImobile Group
for its directors, employees or their dependents;
(B) the contributions payable to any such scheme(s) or to the
benefits which accrue or to the pensions which are payable
thereunder;
(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, valued or made;
(xviii) 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 IMImobile Group; or
(xix) having taken (or agreed or proposed to take) any action
which requires, or would require, the consent of the Panel or the
approval of IMImobile Shareholders in a general meeting in
accordance with, or as contemplated by, Rule 21.1 of the Code;
No adverse change, litigation or regulatory enquiry
(m) except as Disclosed, since 31 March 2020:
(i) no material adverse change or deterioration having occurred
in the business, assets, financial or trading position or profits
or prospects of any member of the Wider IMImobile Group;
(ii) no litigation, arbitration proceedings, prosecution or
other legal or regulatory proceedings to which any member of the
Wider IMImobile Group is or may become a party (whether as a
plaintiff, defendant or otherwise) and no investigation by any
Third Party against or in respect of any member of the Wider
IMImobile Group having been instituted, announced or threatened by
or against or remaining outstanding in respect of any member of the
Wider IMImobile Group;
(iii) no contingent or other liability having arisen or become
apparent to Bidco which would be reasonably likely to materially
adversely affect any member of the Wider IMImobile Group, taken as
a whole;
(iv) no steps having been taken which might reasonably be
expected to result in the withdrawal, cancellation, termination or
modification of any licence held by any member of the Wider
IMImobile Group which is necessary for the proper carrying on of
its business; and
(v) no member of the Wider IMImobile Group having conducted its
business in breach of any applicable laws and regulations;
No discovery of certain matters
(n) except as Disclosed, Bidco not having discovered:
(i) that any financial, business or other information concerning
the Wider IMImobile Group as contained in the information publicly
disclosed before the date of this Announcement at any time by or on
behalf of any member of the Wider IMImobile Group is misleading,
contains a misrepresentation of fact or omits to state a fact
necessary to make that information not misleading and which was not
subsequently corrected before the date of this Announcement by
disclosure by or on behalf of the Wider IMImobile Group through the
publication of an announcement via the Regulatory Information
Service or otherwise; or
(ii) that any member of the Wider IMImobile Group is subject to
any liability (actual or contingent) which is not disclosed in the
annual report and accounts of IMImobile for the financial year
ended 31 March 2020;
(o) except as Disclosed, Bidco not having discovered that:
(i) any past or present member of the Wider IMImobile Group has
failed to comply in any material respect with any and/or all
applicable legislation or regulations, of any jurisdiction with
regard to the use, storage, carriage, disposal, spillage, release,
discharge, leak or emission of any waste or hazardous substance or
any substance likely to impair materially the environment
(including property) or harm human health or animal health or
otherwise relating to environmental matters or the health and
safety of humans, or that there has otherwise been any such
storage, carriage, disposal, spillage, release, discharge, leak or
emission (whether or not the same constituted a non-compliance by
any person with any such legislation or regulations, and wherever
the same may have taken place) any of which storage, carriage,
disposal, spillage, release, discharge, leak or emission would be
likely to give rise to any material liability (actual or
contingent) on the part of any member of the Wider IMImobile
Group;
(ii) there is, or is likely to be, for that or any other reason
whatsoever, any material liability (actual or contingent) of any
past or present member of the Wider IMImobile Group to make good,
repair, reinstate or clean up any property now or previously owned,
occupied, operated or made use of or controlled by any such past or
present member of the Wider IMImobile Group, under any
environmental legislation, regulation, notice, circular or order of
any government, governmental, quasi-governmental, state or local
government, supranational, statutory or other regulatory body,
agency, court, association or any other person or body in any
jurisdiction;
Anti-corruption, sanctions and criminal property
(p) except as Disclosed, Bidco not having discovered that:
(i) any past or present member, director, officer or employee of
the IMImobile Group is or has at any time engaged in any activity,
practice or conduct which would constitute an offence under the
Bribery Act 2010, the US Foreign Corrupt Practices Act of 1977 or
any other applicable anti-corruption legislation or any person that
performs or has performed services for or on behalf of the Wider
IMImobile Group is or has at any time engaged in any activity,
practice or conduct in connection with the performance of such
services which would constitute an offence under the Bribery Act
2010, the US Foreign Corrupt Practices Act of 1977 or any other
applicable anti-corruption legislation; or
(ii) any asset of any member of the Wider IMImobile Group
constitutes criminal property as defined by section 340(3) of the
Proceeds of Crime Act 2002 (but disregarding paragraph (b) of that
definition); or
(iii) any past or present member, director, officer or employee
of the IMImobile Group, or any other person for whom any such
person may be liable or responsible, has engaged in any business
with, made any investments in, made any funds or assets available
to or received any funds or assets from: (a) any government, entity
or individual in respect of which US or European Union persons, or
persons operating in those territories, are prohibited from
engaging in activities or doing business, or from receiving or
making available funds or economic resources, by US or European
Union laws or regulations, including the economic sanctions
administered by the US Office of Foreign Assets Control, or HM
Treasury in the UK; or (b) any government, entity or individual
targeted by any of the economic sanctions of the United Nations,
the US, the European Union or any of its member states; or
(iv) any member of the IMImobile Group has been engaged in any
transaction which would cause Bidco to be in breach of any law or
regulation upon its acquisition of IMImobile, including the
economic sanctions of the US Office of Foreign Assets Control, or
HM Treasury in the UK, or any government, entity or individual
targeted by any of the economic sanctions of the United Nations,
the US, the European Union or any of its member states.
Part B
Waiver and invocation of the Conditions
1. Subject to the requirements of the Panel in accordance with
the Code, Bidco reserves the right to waive, in whole or in part,
all or any of the Conditions in Part A above, except for Conditions
1, 2(a)(i), 2(b)(i) and 2(c)(i), which cannot be waived.
2. The Offer will be subject to the satisfaction (or waiver, if
permitted) of the Conditions in Part A above, and to certain
further terms set out in Part D below, and to the full terms and
conditions which will be set out in the Scheme Document.
3. Conditions 2(a), 2(b) and 3(a) to 3(p) (inclusive) must be
fulfilled, or waived (to the extent capable of waiver) by, no later
than the appointed time of the Sanction Hearing. The Offer will
lapse if it does not become Effective by 11.59 p.m. on the Long
Stop Date. Bidco shall be under no obligation to waive or treat as
satisfied any of the Conditions which are capable of waiver by a
date earlier than the latest date specified above for the
fulfilment or waiver thereof, notwithstanding that the other
Conditions to the Offer may at such earlier date have been waived
or fulfilled and that there are at such earlier date no
circumstances indicating that any of such Conditions may not be
capable of fulfilment.
4. Under Rule 13.5(a) of the Code, Bidco may not invoke any
Condition so as to cause the Offer not to proceed, to lapse or to
be withdrawn unless the circumstances which give rise to the right
to invoke the Condition are of material significance to Bidco in
the context of the Offer. The Conditions contained in paragraphs 1
and 2 of Part A and, if applicable, the acceptance condition
referred to in Part C (in the event the Offer is implemented by way
of a Takeover Offer), are not subject to this provision of the
Code.
Part C
Implementation by way of a Takeover Offer
1. Subject to obtaining the consent of the Panel and the terms
of the Co-operation Agreement, Bidco reserves the right to elect to
implement the Offer by way of a Takeover Offer as an alternative to
the Scheme.
2. In such event, such Takeover Offer will be implemented on the
same terms and conditions, so far as applicable, as those which
would apply to the Scheme subject to appropriate amendments to
reflect the change in method of effecting the Takeover Offer,
including (without limitation) the inclusion of an acceptance
condition set at a level of 90 per cent. (or as otherwise agreed
under the Co-operation Agreement (if applicable)) of the IMImobile
Shares to which the Takeover Offer relates, (or such lesser
percentage as may be determined by Bidco after consultation with
the Panel (if necessary), being, in any case, Bidco having acquired
or agreed to acquire (either pursuant to the Offer or otherwise)
IMImobile Shares holding more than 50 per cent. of the voting
rights normally exercisable at a general meeting of IMImobile,
including, for this purpose, any such voting rights attaching to
IMImobile Shares that are issued before the Takeover Offer becomes
or is declared unconditional as to acceptances, whether pursuant to
the exercise of any outstanding subscription or conversion rights
or otherwise). Further, if sufficient acceptances of the Takeover
Offer are received and/or sufficient IMImobile Shares are otherwise
acquired, it is the intention of Bidco to apply the provisions of
Chapter 3 of Part 28 of the Companies Act to compulsorily acquire
any outstanding IMImobile Shares to which such Takeover Offer
relates.
Part D
Certain further terms of the Offer
1. If Bidco is required by the Panel to make an offer for
IMImobile Shares under the provisions of Rule 9 of the Code, Bidco
may make such alterations to any of the above Conditions and terms
of the Offer as are necessary to comply with the provisions of that
Rule.
2. The Offer shall lapse if:
(a) in so far as the Offer constitutes, or is deemed to
constitute, a concentration with an EU dimension within the scope
of the EU Merger Regulation, the European Commission either
initiates proceedings under Article 6(1)(c) of the EU Merger
Regulation or makes a referral to the CMA under Article 9(1) of the
EU Merger Regulation and then the Offer or matter arising from or
relating to it becomes subject to a CMA Phase 2 Reference; or
(b) the Offer or any matter arising from or relating to it
becomes subject to a CMA Phase 2 Reference,
in each case before the date of the Court Meeting.
3. The availability of the Offer to persons resident in, or
citizens of, or otherwise subject to, jurisdictions outside the
United Kingdom may be affected by the laws of the relevant
jurisdictions. Such persons should inform themselves of, and
observe, any applicable requirements of their jurisdiction.
IMImobile Shareholders who are in any doubt about such matters
should consult an appropriate independent professional adviser in
the relevant jurisdiction without delay and observe any applicable
requirements. Further details in relation to overseas shareholders
will be contained in the Scheme Document.
4. If any dividend, other distribution or return of capital is
declared, made or paid in respect of the IMImobile Shares on or
after the date of this Announcement and with a record date prior to
the Effective Date, Bidco reserves the right to reduce the
consideration payable in respect of each IMImobile Share by the
amount of all or part of any such dividend, other distribution or
return of capital, except where IMImobile Shares are or will be
acquired pursuant to the Scheme on a basis which entitles Bidco to
receive such any dividend, other distribution or return of capital
and retain it. If Bidco exercises this right or makes such a
reduction in respect of a dividend or other distribution, IMImobile
Shareholders will be entitled to receive and retain that dividend,
other distribution or return of capital. Any exercise by Bidco of
its rights referred to in this paragraph shall be the subject of an
announcement and, for the avoidance of doubt, shall not be regarded
as constituting any revision or variation of the terms of the
Scheme.
5. The Scheme Shares will be acquired by Bidco fully paid and
free from all liens, equitable interests, charges, encumbrances,
rights of pre-emption and any other third party rights or interests
whatsoever and together with all rights existing at the date of
this Announcement or thereafter attaching thereto, including
(without limitation) voting rights and the right to receive and
retain, in full, all dividends and other distributions (if any)
declared, made or paid or any other return of capital (whether by
way of reduction of share capital or share premium account or
otherwise) made, in each case, by reference to a record date
falling on or after the Effective Date.
6. Bidco reserves the right for any other entity directly or
indirectly owned by Bidco from time to time to implement the
Offer.
7. Unless otherwise determined by Bidco or required by the Code,
the Offer is not being made, directly or indirectly, in or into, or
by use of the mails or any other means or instrumentality
(including, without limitation, facsimile, e-mail or other
electronic transmission, telex or telephone) of interstate or
foreign commerce of, or any facility of a national, state or other
securities exchange of, any Restricted Jurisdiction and shall not
be capable of acceptance by any such use, means, instrumentality or
facility or from within any Restricted Jurisdiction.
8. Each of the Conditions shall be regarded as a separate
Condition and shall not be limited by reference to any other
Condition.
9. The Scheme will be governed by the laws of England and Wales
and will be subject to the jurisdiction of the Court and to the
conditions and further terms set out in this Appendix 1 and to be
set out in the Scheme Document. The Offer will also be subject to
and will comply with the applicable requirements of the Companies
Act, the Court, the Panel, the FCA, the AIM Rules and the Code.
This Announcement does not constitute, or form part of, an offer or
invitation to purchase IMImobile Shares or any other
securities.
Appendix 2
Sources of information and bases of calculation
1. As at close of business on the Last Practicable Date,
IMImobile had 82,470,795 IMImobile Shares in issue.
2. The fully diluted share capital of IMImobile of 91,313,527
IMImobile Shares is calculated on the basis of: (a) the number of
issued IMImobile Shares set out in paragraph 1 above; and (b) an
additional 8,842,732 IMImobile Shares which may be issued on or
after the date of this Announcement on the exercise of options
under the IMImobile Share Plans.
3. The value attributed to the entire issued and to be issued
ordinary share capital of IMImobile is based upon the consideration
of 595 pence for each Scheme Share, multiplied by the fully diluted
share capital of IMImobile set out in paragraph 2 above.
4. Unless otherwise stated, all prices quoted for IMImobile Shares are Closing Prices.
5. Volume-weighted average prices have been derived from
Bloomberg and have been rounded to the nearest pence.
6. The premium calculations to the price for each IMImobile
Share have been calculated by reference to:
(a) the Closing Price of 393 pence per IMImobile Share on 2
November 2020 (being the last Business Day before Cisco's first
approach to IMImobile);
(b) the Closing Price of 403 pence per IMImobile Share on 4
December 2020 (being the last Business Day before the date of this
Announcement); and
(c) the six-month volume weighted average price of 373 pence as
at 4 December 2020 (being the last Business Day before the date of
this Announcement).
7. IMImobile's net cash as of 30 September 2020 is GBP2.0
million and is calculated as cash and cash equivalents net of bank
borrowings (excluding capitalised borrowing costs).
8. The exchange rate used for the conversion of GBP into USD is
1.3438, derived from Bloomberg, as at 4.00 p.m. on 4 December
2020.
9. Unless otherwise stated, annual financial information
relating to IMImobile has been extracted from IMImobile's annual
report and accounts for the year ended 31 March 2020 and half-year
financial information has been extracted from IMImobile's interim
results for the six months ended 30 September 2020.
Appendix 3
Irrevocable undertakings and letters of intent
1. IMImobile Directors' irrevocable undertakings
The following IMImobile Directors have each given an irrevocable
undertaking to vote (or procure the voting) in favour of the Scheme
at the Court Meeting and in favour of the Resolutions to be
proposed at the General Meeting (or, in the event that the Offer is
implemented by way of a Takeover Offer, to accept, or procure the
acceptance of, the Takeover Offer) in relation to the following
IMImobile Shares in which they are beneficially interested:
Number of IMImobile Shares in respect of which
undertaking is given as at the Last
Practicable Percentage of IMImobile's issued share capital
Name Date as at the Last Practicable Date (%)
Jay Patel 3,632,500 4.4
----------------------------------------------- ------------------------------------------------
Viswanatha Alluri 6,296,457 7.6
----------------------------------------------- ------------------------------------------------
Shyamprasad Bhat 470,012 0.6
----------------------------------------------- ------------------------------------------------
John Allwood 20,000 <0.1
----------------------------------------------- ------------------------------------------------
Michael Jefferies 13,424 <0.1
----------------------------------------------- ------------------------------------------------
Total 10,432,393 12.6
----------------------------------------------- ------------------------------------------------
These irrevocable undertakings also extend to any further
IMImobile Shares acquired by the IMImobile Directors, including as
a result of the vesting of awards or the exercise of options under
the IMImobile Share Plans.
These irrevocable undertakings remain binding in the event a
higher competing offer is made for IMImobile and will only cease to
be binding if:
(a) Bidco announces, with the consent of the Panel, that it does
not intend to proceed with the Offer;
(b) if a competing offer for IMImobile becomes or is declared
unconditional in all respects (if implemented by way of a takeover
offer) or otherwise becoming effective in accordance with its terms
(if implemented by way of a scheme of arrangement); or
(c) on the earlier of: (a) the Long Stop Date; or (b) the date
on which the Offer, if made, lapses, is withdrawn or otherwise
terminates in accordance with its terms, as the case may be, or, if
applicable, the Scheme does not become Effective.
These irrevocable undertakings will prevent each of the
individuals listed above from: (i) exercising any right of
withdrawal of any acceptance of the Offer where such a right is
otherwise exercisable under the Code; or (ii) otherwise selling all
or any part of their respective IMImobile Shares into the
market.
2. IMImobile Shareholder's irrevocable undertaking
Liontrust has given an irrevocable undertaking to vote (or
procure the voting) in favour of the Scheme at the Court Meeting
and in favour of the Resolutions to be proposed at the General
Meeting (or, in the event that the Offer is implemented by way of a
Takeover Offer, to accept, or procure the acceptance of, the
Takeover Offer) in relation to 15,412,321 IMImobile Shares,
representing approximately 18.7 per cent. of the issued ordinary
share capital of IMImobile as at the Last Practicable Date.
This irrevocable undertaking will cease to be binding if:
(a) Bidco announces, with the consent of the Panel, that it does
not intend to proceed with the Offer;
(b) if a competing offer for IMImobile becomes or is declared
unconditional in all respects (if implemented by way of a takeover
offer) or otherwise becoming effective in accordance with its terms
(if implemented by way of a scheme of arrangement);
(c) if a competing offer to acquire IMImobile is announced,
however structured, under which the value of the consideration
payable to IMImobile Shareholders for each IMImobile Share
represents at least 10 per cent. or more than that payable pursuant
to the Offer; if any competing offer includes non-cash
consideration, such as shares or other securities, the value of the
consideration offered shall be as determined by the IMImobile
Directors (acting reasonably), having taken advice from IMImobile's
financial adviser; or
(d) on the earlier of: (a) the Long Stop Date; or (b) the date
on which the Offer, if made, lapses, is withdrawn or otherwise
terminates in accordance with its terms, as the case may be, or, if
applicable, the Scheme does not become Effective.
The undertakings given by Liontrust in the irrevocable
undertaking shall not apply to the extent that Liontrust is unable
to comply with them as a result of a loss of mandate in respect of
managed accounts or as a result of redemptions in the funds managed
by Liontrust.
The irrevocable undertaking given by Liontrust will prevent it
from: (i) exercising any right of withdrawal of any acceptance of
the Offer where such a right is otherwise exercisable under the
Code; or (ii) subject to certain exceptions, otherwise selling the
number of IMImobile Shares in respect of which the irrevocable
undertaking is given into the market.
3. Letters of intent
The following IMImobile Shareholders have each given a
non-binding letter of intent to vote (or procure the voting) in
favour of the Scheme at the Court Meeting and in favour of the
Resolutions to be proposed at the General Meeting:
Number of IMImobile Shares in respect of
which the letter of intent is given as at the
Last Percentage of IMImobile's issued share capital
Name Practicable Date as at the Last Practicable Date (%)
Hargreave Hale* 7,983,038 9.7
---------------------------------------------- -----------------------------------------------
Octopus Investments 11,117,618 13.5
---------------------------------------------- -----------------------------------------------
Total 19,100,656 23.2
---------------------------------------------- -----------------------------------------------
* on behalf of Marlborough UK Micro-cap Growth Fund, Marlborough
Special Situations Fund and Marlborough Technology Fund
Appendix 4
Definitions
The following definitions apply throughout this Announcement
unless the context otherwise requires:
AIM AIM, the market of that name operated by the London Stock
Exchange;
AIM Rules the AIM Rules for Companies published by the London Stock
Exchange from time to time;
Announcement this announcement made in accordance with Rule 2.7 of the
Code, including its Appendices;
API an application programming interface;
Appendices the appendices to this Announcement and Appendix has a
corresponding meaning;
associated undertaking shall be construed in accordance with paragraph 19 of
Schedule 6 to The Large and Medium--sized
Companies and Groups (Accounts and Reports) Regulations
2008 (SI 2008/410) but for this purpose
ignoring paragraph 19(1)(b) of Schedule 6 to those
regulations;
Barclays Barclays Bank PLC, acting through its Investment Bank;
Bidco Cisco Systems Holdings UK Limited, a company incorporated
in England and Wales with registered
number 08126561;
Bidco Group Bidco and its subsidiary undertakings from time to time;
Business Day a day, not being a public holiday, Saturday or Sunday, on
which banks in London are open for
normal business;
Cisco Cisco Systems, Inc. a company organised under the laws of
the State of California with tax
identification number 77-0059951;
Closing Price the closing middle market price of an IMImobile Share as
derived from the Daily Official List
published by the London Stock Exchange on any particular
date;
CMA the Competition and Markets Authority of the United
Kingdom (or any successor body or bodies
carrying out the same functions in the United Kingdom from
time to time);
CMA Phase 2 Reference a reference pursuant to sections 22, 33, 45 or 62 of the
Enterprise Act 2002 (as amended)
of the Offer to the chair of the CMA for the constitution
of a group under Schedule 4 to the
Enterprise and Regulatory Reform Act 2013;
Code the City Code on Takeovers and Mergers;
Companies Act the Companies Act 2006, as amended from time to time;
Conditions the conditions to the Offer, as set out in Part A of
Appendix 1, and to be set out in the
Scheme Document;
Confidentiality Agreement has the meaning given to it in paragraph 14.1 of this
Announcement;
Co-operation Agreement has the meaning given to it in paragraph 14.3 of this
Announcement;
Court the High Court of Justice of England and Wales;
Court Meeting the meeting or meetings of the Scheme Shareholders to be
convened by order of the Court pursuant
to section 896 of the Companies Act, notice of which will
be set out in the Scheme Document,
for the purposes of considering, and if thought fit,
approving the Scheme (with or without
amendment), including any adjournment, postponement or
reconvention thereof;
Court Order the order of the Court sanctioning the Scheme under
section 899 of the Companies Act;
CPaaS Communications Platform as a Service;
CREST the system for the paperless settlement of trades in
securities and the holding of uncertificated
securities operated by Euroclear in accordance with the
relevant system (as defined in the
CREST Regulations) of which Euroclear is the Operator (as
defined in the CREST Regulations);
CREST Regulations the Uncertificated Securities Regulations 2001 (SI
2001/3755));
CXaaS Customer Experience as a Service;
Dealing Disclosure has the same meaning as in Rule 8 of the Code;
Disclosed the information which has been fairly disclosed:
(a) by or on behalf of IMImobile to Bidco or Cisco (or
their officers, employees, agents or
advisers) before the date of this Announcement;
(b) in the annual report and accounts of IMImobile for the
financial year ended 31 March 2020;
(c) in this Announcement; or
(d) in any other public announcement made by IMImobile via
a Regulatory Information Service
prior to the date of this Announcement;
EBITDA earnings before interest, tax, depreciation and
amortisation;
Effective in the context of the Offer: (a) if the Offer is
implemented by way of the Scheme, the Scheme
having become effective pursuant to its terms, upon the
delivery of the Court Order to the
Registrar of Companies for registration; or (b) if the
Offer is implemented by way of the
Takeover Offer, the Takeover Offer having been declared or
having become unconditional in
all respects in accordance with the requirements of the
Code;
Effective Date the date on which the Offer becomes Effective;
EU Merger Regulation Council Regulation (EC) No. 139/2004;
Euroclear Euroclear UK & Ireland Limited, a company incorporated in
England and Wales with registered
number 02878738;
Excluded Shares any IMImobile Shares registered in the name of or
beneficially owned by Bidco or its nominees
or any member of the Bidco Group or held in treasury at
the Scheme Record Time;
Executive IMImobile Directors Jay Patel, Michael Jefferies and Shyamprasad Bhat;
FCA the Financial Conduct Authority or its successor from time
to time;
Flexera Confidentiality Agreement has the meaning given to it in paragraph 14.2 of this
Announcement;
Forms of Proxy the forms of proxy in connection with each of the Court
Meeting and the General Meeting, which
will accompany the Scheme Document;
FSMA the Financial Services and Markets Act 2000 (as amended
from time to time);
General Meeting the general meeting of IMImobile Shareholders (including
any adjournment, postponement or
reconvention thereof) to be convened for the purpose of
considering and, if thought fit, approving
the Resolutions, notice of which shall be contained in the
Scheme Document;
Hargreave Hale Hargreave Hale Limited;
IFRS International Financial Reporting Standards, as adopted by
the European Union;
IMImobile IMImobile PLC, a company incorporated in England and Wales
with registered number 08802718;
IMImobile Articles the articles of association of IMImobile from time to
time;
IMImobile Directors the directors of IMImobile as at the date of this
Announcement or, where the context so requires,
the directors of IMImobile from time to time;
IMImobile Group IMImobile and its subsidiary undertakings from time to
time and, where the context permits,
each of them;
IMImobile Profit Forecast the profit forecast of IMImobile referred to in paragraph
9 of this Announcement;
IMImobile Shareholders holders of IMImobile Shares;
IMImobile Share Plans the IMImobile 2014 Unapproved Group Option Plan, the
IMImobile Company Share Option Plan,
the IMImobile Employees Stock and Shares Plan 2011
(pursuant to which exchanged options are
held), the IMImobile Global SAYE Plan and the IMImobile
Europe Limited Flowering Share Plan;
IMImobile Shares the ordinary shares of 10 pence each in the capital of
IMImobile;
Independent IMImobile Directors or Independent Directors the IMImobile Directors as at the date of this
Announcement other than the Executive IMImobile
Directors;
Initial Period the statutory review period in which the CMA has to decide
whether to make a Phase 2 CMA Reference
under section 34ZA Enterprise Act 2002;
INR the lawful currency of the Republic of India from time to
time;
Investec Investec Bank plc;
Irrevocable Undertakings the irrevocable undertakings to vote or procure votes in
favour of the Scheme at the Court
Meeting and the Resolutions to be proposed at the General
Meeting (or, in the event that the
Offer is implemented by way of a Takeover Offer, to accept
or procure acceptance of the Takeover
Offer), as detailed in Appendix 3 to this Announcement;
Last Practicable Date 4 December 2020, being the last practicable date prior to
publication of this Announcement;
Liontrust Liontrust Investment Partners LLP;
London Stock Exchange The London Stock Exchange plc or its successor;
Long Stop Date 31 August 2021 or such later date (if any) as Bidco and
IMImobile may agree, with the consent
of the Panel, and which (if required) the Court may allow;
Merger Notice a notice to the CMA in the prescribed form as contemplated
by section 96 Enterprise Act 2002;
N+1 Singer Nplus1 Singer Advisory LLP;
Octopus Investments Octopus Investments Nominees Ltd;
Offer the recommended cash acquisition being made by Bidco to
acquire the entire issued and to be
issued share capital of IMImobile to be implemented by
means of the Scheme (or by a Takeover
Offer, under certain circumstances as described in this
Announcement), on the terms and subject
to the Conditions set out in this Announcement and to be
set out in the Scheme Document (or
the Offer Document, as applicable), and, where the context
admits, any subsequent revision,
variation, extension or renewal thereof;
Offer Document if the Offer is implemented by means of a Takeover Offer,
the document to be sent or made
available to IMImobile Shareholders and persons with
information rights containing, among
other things, the full terms and conditions of the Offer;
Offer Period the period commencing on the date of this Announcement and
ending on: (a) the earlier of the
date on which the Scheme becomes Effective and/or the date
on which the Scheme lapses or is
withdrawn (or such other date as the Panel may decide); or
(b) the earlier of the date on
which the Takeover Offer has become or has been declared
unconditional as to acceptances and/or
the date on which the Takeover Offer lapses or is
withdrawn (or such other date as the Panel
may decide), other than (in the case of (a)) where such
lapsing or withdrawal is a result
of Bidco exercising its right to implement the Offer by
way of a Takeover Offer;
Opening Position Disclosure has the same meaning as in Rule 8 of the Code;
Panel the UK Panel on Takeovers and Mergers;
PRA the Prudential Regulation Authority or its successor from
time to time;
RCS Rich Communication Services;
Registrar of Companies the registrar of companies in England and Wales;
Regulatory Information Service an information service authorised from time to time by the
London Stock Exchange for the purposes
of disseminating regulatory announcements;
Relevant Authority any central bank, ministry, governmental,
quasigovernmental, supranational (including the
European Union), statutory, regulatory or investigative
body, authority or tribunal (including
any national or supranational antitrust, competition or
merger control authority, any sectoral
ministry or regulator and any foreign or national security
investment review body), national,
state, municipal or local government (including any
subdivision, court, tribunal, administrative
agency or commission or other authority thereof), any
entity owned or controlled by them,
any private body exercising any regulatory, taxing,
importing or other authority, trade agency,
association, institution or professional or environmental
body in any jurisdiction;
relevant securities shall be construed in accordance with the Code;
Resolutions the special resolution to be proposed by IMImobile at the
General Meeting in connection with,
among other things, the amendment of the IMImobile
Articles and such other matters as may
be necessary to implement the Scheme;
Restricted Jurisdiction(s) any jurisdiction where local laws or regulations may
result in a significant risk of civil,
regulatory or criminal exposure if information concerning
the Offer is sent or made available
to IMImobile Shareholders in that jurisdiction;
Sanction Hearing the hearing of the Court to sanction the Scheme under
section 899 of the Companies Act;
Scheme the proposed Court-sanctioned scheme of arrangement
between IMImobile and Scheme Shareholders
pursuant to which the Offer is to be made under Part 26 of
the Companies Act, upon the terms
and subject to the conditions set out in this Announcement
and to be set out in the Scheme
Document (with or subject to any modification, addition or
condition which Bidco and IMImobile
may agree and the Court may impose or, if required,
approve);
Scheme Document means the document to be sent or made available to
IMImobile Shareholders and persons with
information rights containing, among other things, the
Scheme, the full terms and conditions
of the Scheme and notices convening the Court Meeting and
the General Meeting;
Scheme Record Time the record date and time for the Scheme, as specified in
the Scheme Document, by reference
to which the entitlements of Scheme Shareholders under the
Scheme will be determined, expected
to be 6:00 p.m. on the Business Day immediately prior to
the Effective Date;
Scheme Shareholder(s) the holder of Scheme Shares from time to time;
Scheme Shares the IMImobile Shares:
(a) in issue at the date of the Scheme Document;
(b) if any, issued after the date of the Scheme Document
and before the Voting Record Time;
and
(c) if any, issued at or after the Voting Record Time and
before the Scheme Record Time, either
on terms that the original or any subsequent holders of
such shares are to be bound by the
Scheme or in respect of which their holders are, or shall
have agreed in writing to be, bound
by the Scheme,
but, in each case, other than Excluded Shares;
SEC US Securities and Exchange Commission;
Significant Interest in relation to an undertaking, a direct or indirect
interest of 20 per cent. or more of: (a)
the total voting rights conferred by the equity share
capital (as defined in section 548 of
the Companies Act) of such undertaking; or (b) the
relevant partnership interest;
subsidiary, subsidiary undertaking and undertaking shall be construed in accordance with the Companies Act;
Third Party has the meaning given to it in paragraph 3(g) of Part A of
Appendix 1 to this Announcement;
United Kingdom or UK the United Kingdom of Great Britain and Northern Ireland;
United States or US the United States of America, its territories and
possessions, any state of the United States
and the District of Columbia;
USD the lawful currency of the United States of America from
time to time;
US Exchange Act the US Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated
thereunder;
VAS Segment IMImobile's Operator Value Added Services and Mobile
Payments business;
Voting Record Time the time and date by reference to which entitlement to
vote on the Scheme will be determined,
as specified in the Scheme Document;
Wider Bidco Group Bidco and its parent undertakings and its and such parent
undertakings' subsidiary undertakings,
Cisco and their respective associated undertakings, and
any other body corporate, partnership,
joint venture or person in which Bidco and all such
undertakings (aggregating their interests)
have a Significant Interest;
Wider IMImobile Group IMImobile and its subsidiaries, subsidiary undertakings,
associated undertakings (excluding
any member of the Wider Bidco Group) and any other body
corporate, partnership, joint venture
or person in which IMImobile and all such undertakings
(aggregating their interests) have
a Significant Interest; and
GBP or pence the lawful currency of the United Kingdom from time to
time.
All references in this Announcement to the singular include the
plural and vice versa.
All references in this Announcement to any statutory provision
or law or to any order or regulation shall be construed as a
reference to that provision, law, order or regulation as extended,
modified, replaced or re-enacted from time to time and all
statutory instruments, regulations and orders from time to time
made thereunder or deriving validly therefrom.
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END
OFFEAFAXEDLEFEA
(END) Dow Jones Newswires
December 07, 2020 02:02 ET (07:02 GMT)
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