Publication of Offer Document – Offer
discussed at TNT Express EGM on 5 October 2015 – Acceptance Period
ends 30 October 2015, unless extended
This is a joint press release by FedEx Corporation, FedEx
Acquisition B.V. and TNT Express N.V. pursuant to the provisions of
Article 10, paragraph 3 and Article 18, paragraph 3 of the Decree
on Public Takeover Bids (Besluit Openbare Biedingen Wft, the
Decree) in connection with the recommended public offer by
FedEx Acquisition B.V. for all the issued and outstanding ordinary
shares in the capital of TNT Express N.V., including all American
depositary shares representing ordinary shares. This announcement
does not constitute an offer, or any solicitation of any offer, to
buy or subscribe for any securities in TNT Express N.V. Any offer
will be made only by means of the Offer Document, which is
available as of today. Terms not defined in this press release will
have the meaning as set forth in the Offer Document.
This Smart News Release features multimedia.
View the full release here:
http://www.businesswire.com/news/home/20150820006303/en/
Transaction highlights
- The Offer is a public cash offer for
all the issued and outstanding ordinary shares, including ordinary
shares represented by American depositary shares of TNT Express, at
an offer price of € 8.00 (cum dividend) per ordinary share.
- The Executive Board and the Supervisory
Board of TNT Express fully support and unanimously recommend the
Offer to all shareholders for acceptance.
- Positive advice and opinion has been
obtained from, respectively, the Central Works Council and the
European Works Council of TNT Express.
- PostNL N.V., currently holding
approximately 14.7% of the Shares, has irrevocably undertaken to
tender its shares under the Offer.
- The Acceptance Period commences on 24
August 2015 at 9:00 hours, Amsterdam time (3:00 hours, New York
time), and ends on 30 October 2015 at 17:40 hours, Amsterdam time
(11:40 hours, New York time), unless extended.
- TNT Express will hold an extraordinary
general meeting of shareholders at 9:00 hours, Amsterdam time, on 5
October 2015, during which, amongst other things, the Offer will be
discussed.
- The Offer is subject to the fulfillment
of the Offer Conditions as set out in the Offer Document.
- The Offer is subject to a minimum
acceptance level of 95% of the Shares. This level is lowered to 80%
if the shareholders, at the EGM, vote in favour of inter alia the
Asset Sale and Liquidation. As such, adopting the Asset Sale and
Liquidation Resolutions would increase deal certainty.
- The process of obtaining all necessary
approvals and competition clearances is on track and evolving in
line with the previously communicated timetable. The transaction
presents a highly pro-competitive proposition for the provision of
small package delivery services within and outside Europe that will
benefit consumers and SMEs in Europe and beyond.
- The Offer is expected to be completed
in the first half of 2016.
With the publication of the Offer Document today, and with
reference to the joint press release of FedEx Corporation
(FedEx) (NYSE:FDX) and TNT Express N.V. (TNT Express)
on 7 April 2015, FedEx Acquisition B.V. (the Offeror) and
TNT Express hereby jointly announce that the Offeror is making a
public cash offer for all issued and outstanding ordinary shares in
the capital of TNT Express (the Ordinary Shares), including
Ordinary Shares represented by American Depositary Shares (the
ADSs) (Ordinary Shares and ADSs are collectively referred to
as the Shares and each a Share).
“This is an important transaction for FedEx, and the offer
represents positive news for all stakeholders,” said David Binks,
Regional President Europe, FedEx Express. “We believe the
combination will provide significant value to both companies and
both sets of shareholders. FedEx is delighted by the unanimous
support from the Executive Board and the Supervisory Board.”
The Offer
The Offeror is making the Offer on the terms and subject to the
conditions and restrictions contained in the Offer Document dated
21 August 2015 (the Offer Document). Shareholders tendering
their Ordinary Shares under the Offer will be paid in consideration
for each Ordinary Share validly tendered (or defectively tendered
provided that such defect has been waived by the Offeror) for
acceptance pursuant to the Offer prior to or on the Acceptance
Closing Date (each a Tendered Share) an amount in cash of €
8.00 (eight euro) (the Offer Price). Shareholders tendering
their ADSs under the Offer will be paid in consideration for each
ADS validly tendered (or defectively tendered provided that such
defect has been waived by the Offeror) a cash amount equal to the
U.S. dollar equivalent of the Offer Price, calculated by using the
spot market exchange rate for the U.S. dollar against the euro
published on Bloomberg at noon New York Time on the day immediately
prior to the date on which funds are received by Citibank, N.A.
(the ADS Tender Agent), in its capacity as ADS Tender Agent,
to pay for the ADSs following the Unconditional Date upon the terms
and subject to the conditions set out in the Offer Document.
The Offer Price includes any (interim) cash or share dividend or
other distribution on the Shares that is or may be declared by TNT
Express on or prior to the Settlement Date and the record date for
such cash or share dividend or other distribution occurs on or
prior to the Settlement Date. Consequently, if on or prior to the
Settlement Date any cash or share dividend or other distribution is
declared in respect of the Shares and the record date for such cash
or share dividend or other distribution occurs on or prior to the
Settlement Date, the Offer Price will be decreased by an amount per
Share equal to any such cash or share dividend or other
distribution per Share.
The Offer values 100% of the Shares at € 4.4 billion (USD 4.8
billion). FedEx has confirmed in a press release dated 13 May 2015
that it will be able to finance the aggregate consideration of the
Offer.
Rationale for the Offer
By combining their businesses (the Combination), TNT
Express and FedEx have the intention to create a leading global
player in providing logistics, transportation, express delivery and
related business services, drawing on the considerable strengths of
both TNT Express and FedEx.
Key elements of the strategic rationale for, and the strength
of, the Combination include:
a. the Combination's customers would enjoy
access to a considerably enhanced, integrated global network. This
network would benefit from the combined strength of TNT Express'
strong European road platform and Liege hub and FedEx’s strength in
other regions globally, including North America and Asia;
b. TNT Express' customers would benefit from
the Combination’s comprehensive transportation solutions, such as
express, global freight forwarding, contract logistics and surface
transportation capabilities;
c. FedEx would strengthen TNT Express with
investment capacity, sector expertise and global scope;
d. the strong balance sheet of the
Combination is expected to support deploying additional capital to
TNT Express' business and support the growth of (the business of)
TNT Express;
e. a strong cultural fit, as both FedEx and
TNT Express focus on customer service, operational excellence and
good corporate citizenship; and
f. the Combination would offer exciting new
prospects and career opportunities to FedEx and TNT Express
employees as part of a global, growing and highly respected
organisation.
Governance of TNT Express post
completion
Supervisory Board
After successful completion of the Offer, the Supervisory Board
will be composed of three new members selected by FedEx (being
David Cunningham, Christine Richards and David Bronczek, who will
act as chairman) and two persons qualifying as independent within
the Dutch Corporate Governance Code (the Independent
Members) (being Margot Scheltema and Shemaya Levy Chocron, both
members of the current Supervisory Board). The Independent Members
will continue to serve on the Supervisory Board for at least three
years as of the commencement of the Offer. They will be charged
particularly with monitoring the compliance with the non-financial
covenants in relation to the Offer and will have certain veto
rights with respect to the non-financial covenants and post-Offer
restructuring that could lead to dilution or unequal treatment of
minority shareholders.
Executive Board
As from the Settlement Date, David Binks, currently Regional
President Europe, FedEx Express, will join the TNT Express
Executive Board as Chief Executive Officer. Mark Allen, Senior Vice
President - Legal International, FedEx Express, will then also join
the Executive Board. Maarten de Vries will remain in office as
Chief Financial Officer for a period of six months following the
Settlement Date.
In good consultation, Tex Gunning, FedEx and the Supervisory
Board of TNT Express, have agreed that Mr. Gunning will resign as
CEO and as member of the TNT Express Executive Board on the
Settlement Date.
Both Mr. Gunning and Mr. De Vries will continue to serve on the
integration committee for a period of six months following the
Settlement Date.
In line with the remuneration policy of TNT Express as published
in its Annual Report since 2003, both Mr. Gunning and Mr. De Vries
will receive a change of control severance payment.
Mr. Gunning and Mr. De Vries will not receive a special bonus
related to the Offer and/or the completion of it. The existing
rights to performance shares of the members of the Executive Board,
as published in TNT Express’ Annual Reports, are subject to a pro
rata parte vesting and settlement with respect to rights granted in
2015. Rights granted in 2014 will vest and be settled in full. The
statutory claw-back regulation will be applied. This will result in
a deduction of the cash value of these performance shares.
With regard to his transitional role as CFO and continued
responsibility as Executive Board Member and member of the
Integration Committee, Mr. De Vries will receive a one-time
retention payment instead of his variable short- and long-term
incentive for the six month period following Settlement Date. This
one-time payment is subject to shareholder approval at the EGM.
Integration committee
The integration of the Combination will be the responsibility of
FedEx and the Boards. In order to facilitate such integration, an
integration committee will be established for a minimum period of
two years as of the Settlement Date consisting of four members, two
of which will be executives of TNT Express and two of which will be
executives of FedEx. The chairman of the integration committee will
be a FedEx representative and will have a casting vote. The
integration committee will determine an integration plan and submit
it to FedEx and the Boards, monitor its implementation and do all
things necessary to assist and optimise the integration of the
Combination.
The initial members of the integration committee will be Mr.
Gunning, Mr. De Vries, Mr. Cunningham and Robert Henning. Mr.
Gunning and Mr. De Vries have agreed to serve on the integration
committee for a period of six months after the Settlement Date.
When either Mr. Gunning or Mr. De Vries resigns from the
integration committee, his seat will be taken up by another
executive of TNT Express.
Non-financial covenants
FedEx has provided certain non-financial covenants with regard
to strategy, governance, employees and employee representation,
organisation, the TNT Express brand, as well as other matters. The
non-financial covenants are set out in detail in the Offer Document
and will apply for three years following commencement of the
Offer.
The Combination offers a unique opportunity to strengthen the
resource base of both companies, thereby offering prospects for
employees of the combined companies. FedEx has a long-standing
history of developing leaders from within its organization,
providing best-in-class training and development opportunities.
FedEx will continue to respect existing work councils’, trade
unions' and employee rights and benefits (including pension
rights).
The combined companies will cooperate to avoid any significant
redundancies in the global or Dutch work forces. The combined
companies will foster a culture of excellence, where qualified
employees will be offered attractive training and national and
international career progression based on available
opportunities.
Recognizing the significant value of TNT Express' operations,
infrastructure, people and expertise in Europe, Amsterdam/Hoofddorp
will become the European regional headquarters of the combined
companies. Liege will be maintained as a significant operation for
the group going forward. In addition, TNT Express’ operations as a
European air carrier will be divested to address applicable airline
ownership regulations. Where permitted by regulation, FedEx intends
to transition TNT Express’ intercontinental air operations to
FedEx.
FedEx will allow the combined companies to continue their
leadership in sustainable development. The brand name of TNT
Express will be maintained for an appropriate period. FedEx and TNT
Express will ensure that the TNT Express group will remain
prudently financed, including with respect to the level of debt, to
safeguard business continuity and to support the success of the
business.
Unanimous recommendation of the
Executive Board and Supervisory Board of TNT Express
After having given due and careful consideration to the
strategic rationale and the financial and social aspects and
consequences of the proposed transactions, the Boards have reached
the conclusion that the Offer, provides a fair price to its
shareholders and the Offer, including the Asset Sale and
Liquidation, is in the best interests of TNT Express and all its
stakeholders. With reference to the Position Statement, the Boards
fully support the Offer and the Asset Sale, unanimously recommend
to the shareholders to accept the Offer and to tender their Shares
pursuant to the Offer, and unanimously recommend voting in favour
of all resolutions relating to the Offer and the Asset Sale and
Liquidation that will be proposed at the EGM.
On 6 April 2015, Goldman Sachs International issued an opinion
to the Boards and Lazard issued an opinion to the Supervisory
Board, in each case as to the fairness, as of such date, and based
upon and subject to the factors and assumptions set forth in each
fairness opinion, that (i) the € 8.00 per Share in cash to be paid
to the Shareholders pursuant to the Merger Protocol was fair from a
financial point of view to the Shareholders, and (ii) the purchase
price to be paid to TNT Express for the entire TNT Express business
under the Asset Sale (as described below) was fair from a financial
point of view to TNT Express. The full text of such fairness
opinions, each of which sets forth the assumptions made, procedures
followed, matters considered and limitations on the review
undertaken in connection with each such opinion, are included in
the Position Statement. The opinion of Goldman Sachs International
and Lazard is not a recommendation as to whether or not any
Shareholder should tender such Shares in connection with the Offer
or any other matter.
Extraordinary general meeting of
shareholders
TNT Express will hold an extraordinary general meeting of
shareholders (the EGM) to discuss the Offer. The EGM will be
held at the TNT Centre, Taurusavenue 111, 2132 LS Hoofddorp, the
Netherlands at 9:00 hours, Amsterdam time, on 5 October 2015.
At the EGM, the Offer, among other matters, will be discussed in
accordance with the Decree. In connection with the Offer, the
shareholders are being asked to adopt resolutions to amend the
articles of association of TNT Express and change the composition
of the Executive Board and the Supervisory Board. At the EGM, the
shareholders will also be asked to vote in favour of the Asset Sale
and Liquidation Resolutions.
A position statement providing further information to the
shareholders as required pursuant to Article 18, paragraph 2 of the
Decree (the Position Statement), including the agenda for
the EGM (and explanatory notes thereto), is made available by TNT
Express as of today.
Central Works Council and European
Works Council of TNT Express
The Central Works Council has given a positive advice and the
European Works Council has given a positive opinion in respect of
(i) the Offer and (ii) the Asset Sale and Liquidation, and
Conversion (as defined in the Offer Document).
The secretariat of the Social Economic Council (Sociaal
Economische Raad) and the relevant trade unions have also been
notified of the Offer, in accordance with the Merger Code (SER
Fusiegedragsregels 2000).
Competition clearances and indicative
timetable
The Offer is conditional on obtaining competition approval from
the relevant antitrust authorities in the EU, Brazil, China and, to
the extent applicable, the United States of America.
FedEx and TNT Express are on track to obtain all necessary
approvals and competition clearances. Based on the required steps
and subject to the necessary approvals, FedEx and TNT Express
anticipate that the Offer will close in the first half of calendar
year 2016. The formal notification for EU competition clearance was
filed on 26 June 2015. The European Commission has initiated a
Phase II review in connection with the Offer and on 13 August 2015
announced on its website that it extended its deadline for the
completion of its Phase II review by 20 working days to 13 January
2016. The Phase II review is the next step in the process where the
European Commission conducts an in-depth analysis under the EU
Merger Regulation before coming to a decision on whether to grant
anti-trust approval. The transaction is also being reviewed by
other antitrust agencies, including the Ministry of Commerce
(MOFCOM) in China and Conselho Administrativo de Defesa Econômica
(CADE) in Brazil. The Combination presents a highly pro-competitive
proposition for the provision of small package delivery services
within and outside Europe. The networks of TNT Express and FedEx
are largely complementary, given that FedEx’s strength is providing
US domestic and extra-EEA international services, while TNT
Express' focus is on providing intra-European services. The
Combination would allow the parties to sell a more competitive
e-commerce offering in the market, which should benefit consumers
and SMEs in Europe and beyond.
Irrevocable from PostNL N.V. and
Mr. Vollebregt
PostNL, currently holding approximately 14.7% of the Shares, has
irrevocably undertaken to tender all Shares currently held or to be
acquired by it prior to the Acceptance Closing Date in the Offer
under the same terms and conditions as stated in the Offer
Document.
The irrevocable undertaking contains customary terms and
conditions, including that the irrevocable undertaking shall
terminate (as a consequence of which PostNL will not be obliged to
tender its Shares and/or shall be entitled to withdraw its
acceptance of the Offer) in the event inter alia a Superior Offer
(as defined in the Offer Document) is made and FedEx has not made a
Matched Offer (as defined in the Offer Document) and, as a
consequence, the Boards have withdrawn or modified their
recommendation.
Mr. Vollebregt, currently holding 10,052 Shares, has irrevocably
undertaken to tender all his Shares under the Offer, under the same
terms and conditions as the other shareholders, subject to the
condition that the Offer is made and the condition that the Boards
continue to support and recommend the Offer.
Neither PostNL nor Mr. Vollebregt have received any information
relevant for a shareholder in connection with the Offer that is not
included in the Offer Document and will tender their Shares under
the Offer, under the same terms and conditions as the other
shareholders.
Acceptance period
The Acceptance Period will commence at 9:00 hours, Amsterdam
time (3:00 hours, New York time), on 24 August 2015 and will expire
at 17:40 hours, Amsterdam time (11:40 hours, New York time) on 30
October 2015 (the Acceptance Closing Date), unless the
Acceptance Period is extended, in which case the Acceptance Closing
Date shall be the date on which the extended Acceptance Period
expires. The Offeror has agreed that it will accept valid book
entry tenders of ADSs up until 17:00 hours, New York time, on the
Acceptance Closing Date.
Shares tendered on or prior to the Acceptance Closing Date may
not be withdrawn, subject to the right of withdrawal of any tender
of Shares during the Acceptance Period in accordance with the
provisions of Article 5b, paragraph 5, Article 15, paragraphs 3 and
8 and Article 15a paragraph 3 of the Decree. In case of extension
of the Acceptance Period, any Shares previously tendered and not
withdrawn will remain subject to the Offer.
Acceptance by
shareholders
Shareholders who hold their Ordinary Shares through an
institution admitted to Euronext Amsterdam (an Admitted
Institution) are requested to make their acceptance known
through their custodian, bank or stockbroker no later than 17:40
hours CET, on 30 October 2015, unless the Acceptance Period is
extended. The custodian, bank or stockbroker may set an earlier
deadline for communication by shareholders in order to permit the
custodian, bank or stockbroker to communicate acceptances to ING
Bank N.V. (the Settlement Agent) in a timely manner.
Admitted Institutions may tender Ordinary Shares for acceptance
only to the Settlement Agent and only in writing. In submitting the
acceptance, the Admitted Institutions are required to declare that
(i) they have the Tendered Shares in their administration, (ii)
each shareholder who accepts the Offer irrevocably represents and
warrants that the Tendered Shares are being tendered in compliance
with the restrictions set out in Section 2 (Restrictions) and
Section 3 (Important Information) of the Offer Document and the
securities and other applicable laws and/or regulations of the
jurisdiction(s) to which such shareholder is subject, and no
registration, approval or filing with any regulatory authority of
such jurisdiction is required in connection with the Tendered
Shares, and (iii) they undertake to transfer (leveren) these
Tendered Shares to the Offeror prior to or on the Settlement Date,
provided the Offeror declares the Offer unconditional (gestand
wordt gedaan).
Acceptance by holders of
ADSs
Holders of ADSs in registered form, either in American
depositary receipt (ADR) form or in uncertificated form
through the Direct Registration System (a system administered by
the DTC pursuant to which Citibank, N.A., the depositary for the
ADSs (the U.S. Depositary), may register the ownership of
uncertificated ADSs in its books), may accept the Offer and tender
ADSs to the ADS Tender Agent by delivering to the ADS Tender Agent
a properly completed and duly executed ADS Letter of Transmittal,
with any applicable signature guarantees from an Eligible
Institution, together with the ADRs representing the ADSs specified
on the face of the ADS Letter of Transmittal, if applicable, prior
to the Acceptance Closing Time.
Holders of ADSs in book-entry form, all of which are held
through the facilities of the Depository Trust Company
(DTC), must instruct the financial intermediary through
which such shareholders own their ADSs to arrange for a DTC
participant holding the ADSs in its DTC account to tender such ADSs
to the DTC account of the ADS Tender Agent through the book-entry
transfer facilities of DTC, together with an Agent’s Message, no
later than 11:40 hours, New York time, on the Acceptance Closing
Date. DTC has informed the Offeror that it can only cut off
book-entry tenders at the end of a business day, New York time, and
the Offeror has agreed that it will accept valid book-entry tenders
of ADSs up until 17:00 hours, New York time, on the Acceptance
Closing Date.
If the procedure for registered or book-entry tender cannot be
completed on a timely basis, holders of ADSs may follow the
guaranteed delivery procedures described in the Offer Document.
Declaring the Offer
unconditional
The Offer is subject to the satisfaction of the offer conditions
set out in Section 6.6 (Offer Conditions, waiver and satisfaction
of the Offer) of the Offer Document (the Offer Conditions).
The Offer Conditions may be waived, to the extent permitted by law
or by agreement, as set out in Section 6.6 (Offer Conditions,
waiver and satisfaction of the Offer) of the Offer Document.
Extension of the Acceptance Period may in any event occur one time
(extension for more than one period is subject to clearance of the
Dutch Authority for the Financial Markets (the AFM), which
will only be given in exceptional circumstances).
One of the Offer Conditions is a minimum acceptance level of 95%
of Shares. This level is lowered to 80% if the shareholders, at the
EGM, vote in favour of the Asset Sale and Liquidation, and
Conversion.
No later than on the third Business Day following the Acceptance
Closing Date, such date being the Unconditional Date, the
Offeror will determine whether the Offer Conditions have been
satisfied or are to be waived and announce whether (i) the Offer is
declared unconditional, (ii) the Offer will be extended in
accordance with Article 15 of the Decree, or (iii) the Offer is
terminated, as a result of the Offer Conditions not having been
satisfied or waived, all in accordance with Section 6.6.2 (Waiver)
and Section 6.6.3 (Satisfaction) of the Offer Document.
Extension
If one or more of the Offer Conditions is not satisfied or
waived in accordance with Section 6.6.2 (Waiver) of the Offer
Document before the end of the initial Acceptance Period, the
Offeror shall extend the initial Acceptance Period once for a
minimum period of two weeks and a maximum period of 10 weeks so
that the Offer Conditions may be satisfied or, to the extent
legally permitted, waived in accordance with Section 6.6.2 (Waiver)
of the Offer Document.
In addition, the Acceptance Period may be further extended if
the events referred to in article 15 paragraph 5 of the Decree
occur. Further extensions are subject to clearance of the AFM. If
the Offer Condition with respect to Competition Clearances is not
satisfied or, to the extent legally permitted, waived in accordance
with Section 6.6.2 (Waiver) of the Offer Document before the end of
the (extended) Acceptance Period, the Offeror shall (subject to
receipt of an exemption granted by the AFM) extend the Acceptance
Period until such time as the Offeror and TNT Express reasonably
believe is necessary to cause such Offer Condition to be
satisfied.
In view of the extended deadline of the European Commission for
the completion of its Phase II review to 13 January 2016, it seems
likely that the Offeror will need to extend the Acceptance Period
beyond an initial extension.
If the Offeror extends the Offer past the initial Acceptance
Closing Time, all references in the Offer Document to the
"Acceptance Closing Time", "Acceptance Closing Date" or "17:40
hours CET, on 30 October 2015" or “11:40 hours New York Time, on 30
October 2015” shall, unless the context requires otherwise, be
changed, as applicable, to the latest time and date to which the
Offer has been so extended.
If the Acceptance Period is extended, so that the obligation
pursuant to Article 16 of the Decree to announce whether the Offer
is declared unconditional (gestand wordt gedaan) is postponed, a
public announcement to that effect will be made ultimately on the
third Business Day following the Acceptance Closing Date in
accordance with the provisions of Article 15, paragraph 1 and
paragraph 2 of the Decree. If the Offeror extends the Acceptance
Period, the Offer will expire on the latest time and date to which
the Offeror extends the Acceptance Period.
During an extension of the Acceptance Period, any Shares
previously tendered and not withdrawn will remain subject to the
Offer, subject to the right of each shareholder to withdraw the
Shares he or she has already tendered in accordance with Article
15, paragraph 3 of the Decree and subject to any withdrawal rights
available pursuant to Article 5b, paragraph 5, Article 15,
paragraph 8 and Article 15a, paragraph 3 of the Decree.
Post-Closing Acceptance
Period
If and when the Offer is declared unconditional (gestand wordt
gedaan), the Offeror will publicly announce, in accordance with
Article 17 of the Decree, a Post-Closing Acceptance Period (as
defined in the Offer Document) to enable shareholders that did not
tender their Shares during the Acceptance Period to tender their
Shares under the same terms and conditions applicable to the
Offer.
Settlement
In the event that the Offeror announces that the Offer is
declared unconditional (gestand wordt gedaan), the Offeror will
accept transfer (levering) of all Tendered Shares on the terms of
the Offer and as soon as practically possible, but in any event on
the Settlement Date, transfer the Offer Price in respect of each
Tendered Share. The Settlement Date shall be no later than five
Business Days after the Unconditional Date.
Asset Sale and
Liquidation
- The Asset Sale and Liquidation (as
defined in the Offer Document) may only be implemented, to be
decided by FedEx, if and after the
Offer is declared unconditional, after
the Post-Closing Acceptance Period and after completion of a Minority Exit Opportunity
(as defined below).
- The Asset Sale and Liquidation will
not be implemented if the acceptance
level of the Offer after the Post-Closing Acceptance Period is
equal to or higher than 95%.
- Before the Asset Sale and Liquidation
will be implemented, the minority shareholders will be offered an
exit for a consideration equal to the Offer Price, without interest
and subject to withholding tax and other taxes (i.e. the
Minority Exit Opportunity).
- The Asset Sale and Liquidation
structure (which, if approved, includes an acceptance level
threshold of 80%) increases the likelihood of the Offer being
declared unconditional. This, in turn, is beneficial to the
continuity and enhances the business of TNT Express, and is
therefore beneficial to its stakeholders, as it diminishes the
uncertainty on whether or not the Combination will become
effective.
- Each of the Boards is of the opinion
that it is their fiduciary duty to propose the Asset Sale and
Liquidation to the shareholders as the Offeror’s willingness to pay
the Offer Price and to pursue the Offer is predicated on the
Offeror’s ability to integrate TNT Express within FedEx after
completion of the Offer.
- The Asset Sale and Liquidation will be
proposed at the EGM by the Boards, but
the shareholders must ultimately vote on whether or not to
pass the Asset Sale and Liquidation
Resolutions.
- The Central Works Council has rendered
positive advice and the European Works Council a positive opinion
in respect of the Asset Sale and Liquidation as they see the merits
of the Offer being successfully consummated.
- Full transparency to the shareholders
is important to each of the Boards, hence the detailed information
in the Offer Document, the Position Statement and all other
documentation in respect of the Asset Sale and Liquidation.
- The Asset Sale and Liquidation would
lead to minimal disruption to TNT Express’ business and
operations.
- The Boards have the right to
re-evaluate the terms and conditions of the Asset Sale and
Liquidation if fewer than 80% of the
Shares are held by the Offeror and its Affiliates after the
Post-Closing Acceptance Period, and in that event the Boards will
not be obliged to cooperate with
implementing the Asset Sale and Liquidation.
- Transactions with a similar effect have
been proposed/implemented in the past (among others Exact/Eiger,
Corio/Klépierre, Ziggo/Liberty Global, DE Master Blenders 1753/JAB,
Super de Boer/Jumbo and Crucell/Johnson & Johnson).
As further described in the Offer Document, the Offeror and TNT
Express have agreed in principle to certain arrangements to
facilitate the Offeror acquiring 100% of the Shares and/or full
ownership of TNT Express as soon as practically possible after
completion of the Offer and upon the fulfilment of certain
conditions. One of these arrangements is the Asset Sale and
Liquidation.
In summary, the Asset Sale and Liquidation consists of the
following steps:
- Pursuant to the Asset Sale Agreement,
the business of TNT Express would be transferred from TNT Express
to the Offeror against payment by the Offeror to TNT Express of an
amount equal to the Offer Price per Share multiplied by the total
number of Shares issued and outstanding immediately prior to
completion of such transaction.
- Subsequently, TNT Express would be
dissolved (ontbonden) and liquidated (vereffend). The liquidation
of TNT Express, including one or more intended advance liquidation
distributions, would result in the payment of an amount equal to
the Offer Price per Share, without interest and subject to
withholding and other taxes.
If the Offeror elects to pursue the Asset Sale and Liquidation,
a shareholder that did not tender its Shares under the Offer will
receive an amount equal to the amount that it would have received
had it tendered its Shares under the Offer. The withholding taxes
and other taxes, if any, imposed on such shareholder may be
different from, and greater than, the taxes imposed upon a
shareholder that tenders its Shares under the Offer. Consequently,
if the Asset Sale is pursued, the net amount received by a
shareholder for Shares that are not tendered under the Offer (and
who remains a shareholder up to and including the time of the Asset
Sale and any subsequent liquidation) will depend upon such
shareholder's individual tax circumstances and the amount of any
required withholding or other taxes. With respect to the
Shareholder Distribution, Dutch dividend withholding tax will be
due at a rate of 15% to the extent that Shareholder Distributions
exceed the average paid-in capital of those Shares as recognised
for purposes of Dutch dividend withholding tax.
The Asset Sale and Liquidation can only be implemented if after
the Acceptance Period, the Post-Closing Acceptance Period, and
completion of a Minority Exit Opportunity, a statutory buy-out
procedure cannot be used.
The Boards unanimously recommend the shareholders to vote in
favour of the Asset Sale and Liquidation Resolutions at the EGM.
The motivation of the Boards is explained in detail in Section 9 of
the Position Statement.
Liquidity, delisting and
post-settlement restructuring and future legal
structure
The acquisition of Shares by the Offeror pursuant to the Offer
will reduce the number of shareholders, as well as the number of
Shares that might otherwise be traded publicly.
Should the Offer be declared unconditional (gestand wordt
gedaan), the Offeror intends to procure the delisting of the Shares
on Euronext Amsterdam as soon as possible. This may further
adversely affect the liquidity and market value of any Shares not
tendered under the Offer. In addition, the Offeror may initiate any
of the procedures set out in Section 6.16 (Post-Settlement
Restructuring and future legal structure) of the Offer
Document.
If the Offeror and/or its Affiliates acquire 95% or more of the
Shares, the Offeror will be able to procure delisting of the Shares
from Euronext Amsterdam in accordance with its policy rules. The
listing of the Shares on Euronext Amsterdam can also be terminated
after a successful Asset Sale followed by Liquidation (see Section
6.16.3 (Asset Sale and Liquidation) of the Offer Document) or
Statutory Merger (see Section ý6.16.5 (Statutory Merger) of the
Offer Document).
Announcements
Any further announcements in relation to the Offer will be
issued by press release. Any joint press release issued by the
Offeror and TNT Express will be made available on the websites of
FedEx (http://investors.fedex.com) and TNT Express (www.tnt.com).
Subject to any applicable requirements of the applicable rules and
without limiting the manner in which the Offeror may choose to make
any public announcement, the Offeror will have no obligation to
communicate any public announcement other than as described
above.
Offer Document, Position Statement and
further information
The Offeror is making the Offer on the terms and subject to the
conditions and restrictions contained in the Offer Document, dated
21 August 2015, which is available as of today. In addition, as of
today, TNT Express makes available the Position Statement,
containing the information required by Article 18, paragraph 2 and
Annex G of the Decree in connection with the Offer.
This announcement contains selected, condensed information
regarding the Offer and does not replace the Offer Document and/or
the Position Statement. The information in this announcement is not
complete and additional information is contained in the Offer
Document and the Position Statement.
Terms not defined herein shall have the meaning as set out in
the Offer Document.
Shareholders are advised to review the Offer Document and the
Position Statement in detail and to seek independent advice where
appropriate in order to reach a reasoned judgment in respect of the
Offer and the content of the Offer Document and the Position
Statement. In addition, shareholders may wish to consult with their
tax advisors regarding the tax consequences of tendering their
Shares under the Offer.
Digital copies of the Offer Document are available on the
website of TNT Express at www.tnt.com and on the website of FedEx
at http://investors.fedex.com. Such websites do not constitute a
part of, and are not included or referred to in, the Offer
Document. Copies of this Offer Document are also available free of
charge from TNT Express, the Settlement Agent, ADS Tender Agent and
the Information Agent at the addresses mentioned below.
TNT Express:
TNT EXPRESS N.V.Address: Taurusavenue
111, 2132 LS Hoofddorp, P.O. box 13000, 1100 KG Amsterdam, The
NetherlandsTelephone: +31 88 393 9500Fax: +31 88 393 3000E-mail:
investor.relations@tnt.com
The Settlement Agent:
ING BANK N.V.Address: Foppingadreef 7,
1102 BD Amsterdam, The NetherlandsTelephone: + 31 20 563 6619 and
+31 20 563 6546Fax: + 31 20 563 6959E-mail: iss.pas@ing.nl
The ADS Tender Agent:
CITIBANK, N.A.Address: c/o Voluntary
Corporate Actions, P.O. Box 43011, Providence, RI 02940-3011,
United States of AmericaTelephone: +1 800 308 7887
The Information Agent:
GEORGESON EUROPEAddress: Westplein 11,
3016 BM Rotterdam, The NetherlandsTelephone:European Toll Free
Helpline: 00800-3915-3915American Toll Free Helpline: +1 800 561
2871Email: tnt@georgeson.com
Advisors
In connection with the transaction, FedEx's financial advisor is
J.P. Morgan Securities LLC, and its legal advisors are NautaDutilh
N.V. and Baker & McKenzie. On behalf of TNT Express, Goldman
Sachs International and Lazard are acting as financial advisors and
Allen & Overy LLP is acting as legal advisor.
About FedEx Corp.
FedEx provides customers and businesses worldwide with a broad
portfolio of transportation, e-commerce and business services. With
annual revenues of $47 billion, the company offers integrated
business applications through operating companies competing
collectively and managed collaboratively, under the respected FedEx
brand. Consistently ranked among the world's most admired and
trusted employers, FedEx inspires its more than 325,000 team
members to remain "absolutely, positively" focused on safety, the
highest ethical and professional standards and the needs of their
customers and communities.
For more information, please visit www.fedex.com.
About TNT Express
TNT Express is one of the world’s largest express delivery
companies. On a daily basis, TNT Express delivers close to one
million consignments ranging from documents and parcels to
palletised freight. The company operates road and air
transportation networks in Europe, the Middle East and Africa,
Asia-Pacific and the Americas. TNT Express made €6.7 billion in
revenue in 2014.
For more information, please visit www.tnt.com/corporate.
Notice to US holders of TNT Express
Shares
The Offer will be made for the securities of TNT Express, a
public limited liability company incorporated under Dutch Law, and
is subject to Dutch disclosure and procedural requirements, which
are different from those of the United States. The Offer will be
made in the United States in compliance with Section 14(e) of the
U.S. Securities Exchange Act of 1934, as amended (the U.S.
Exchange Act), and the rules and regulations promulgated
thereunder, including Regulation 14E, and is subject to the
exemptions provided by Rule 14d-1 (d) under the U.S. Exchange Act
and otherwise in accordance with the requirements of Dutch law.
Accordingly, the Offer will be subject to certain disclosure and
other procedural requirements, including with respect to the Offer
timetable and settlement procedures that are different from those
applicable under U.S. domestic tender offer procedures and
laws.
The receipt of cash pursuant to the Offer by a U.S. holder of
TNT Express Shares may be a taxable transaction for U.S. federal
income tax purposes and under applicable state and local, as well
as foreign and other tax laws. Each holder of TNT Express Shares is
urged to consult his or her independent professional advisor
immediately regarding the tax consequences of acceptance of the
Offer.
It may be difficult for U.S. holders of TNT Express Shares to
enforce their rights and claims arising out of the U.S. federal
securities laws, since TNT Express is located in a country other
the United States, and some or all of its officers and directors
may be residents of a country other than the United States. U.S.
holders of TNT Express Shares may not be able to sue a non-U.S.
company or its officers or directors in a non-U.S. court for
violations of U.S. securities laws. Further, it may be difficult to
compel a non-U.S. company and its affiliates to subject themselves
to a U.S. court's judgment.
To the extent permissible under applicable law or regulation,
including Rule 14e-5 of the U.S. Exchange Act, in accordance with
normal Dutch practice, FedEx and its affiliates or brokers (acting
as agents for FedEx or its affiliates, as applicable) may from time
to time after the date hereof, and other than pursuant to the
Offer, directly or indirect purchase, or arrange to purchase,
ordinary shares of TNT Express that are the subject of the Offer or
any securities that are convertible into, exchangeable for or
exercisable for such shares. These purchases may occur either in
the open market at prevailing prices or in private transactions at
negotiated prices. In no event will any such purchases be made for
a price per share that is greater than the Offer Price. To the
extent information about such purchases or arrangements to purchase
is made public in The Netherlands, such information will be
disclosed by means of a press release or other means reasonably
calculated to inform U.S. shareholders of TNT Express of such
information. No purchases will be made outside the Offer in the
United States by or on behalf of FedEx. In addition, financial
advisors to FedEx may also engage in ordinary course trading
activities in securities of TNT Express, which may include
purchases or arrangements to purchase such securities.
Restrictions
The distribution of this press release may, in some countries,
be restricted by law or regulation. Accordingly, persons who come
into possession of this document should inform themselves of and
observe these restrictions. To the fullest extent permitted by
applicable law, FedEx and TNT Express disclaim any responsibility
or liability for the violation of any such restrictions by any
person. Any failure to comply with these restrictions may
constitute a violation of the securities laws of that jurisdiction.
Neither FedEx, nor TNT Express, nor any of their advisors assumes
any responsibility for any violation by any of these restrictions.
Any TNT Express shareholder who is in any doubt as to his or her
position should consult an appropriate professional advisor without
delay.
The information in the press release is not intended to be
complete, for further information reference is made to the Offer
Document. This announcement is for information purposes only and
does not constitute an offer or an invitation to acquire or dispose
of any securities or investment advice or an inducement to enter
into investment activity. In addition, the Offer made pursuant to
the Offer Document is not being made in any jurisdiction in which
the making or acceptance thereof would not be in compliance with
the securities or other laws or regulations of such jurisdiction or
would require any registration, approval or filing with any
regulatory authority not expressly contemplated by the terms of the
Offer Document.
Forward Looking
Statements
Certain statements in this press release may be considered
“forward-looking statements,” such as statements relating to the
impact of this transaction on FedEx and TNT Express.
Forward-looking statements include those preceded by, followed by
or that include the words “anticipated,” “expected” or similar
expressions. These forward-looking statements speak only as of the
date of this release. Although FedEx and TNT Express believe that
the assumptions upon which their respective financial information
and their respective forward-looking statements are based are
reasonable, they can give no assurance that these forward-looking
statements will prove to be correct. Forward-looking statements are
subject to risks, uncertainties and other factors that could cause
actual results to differ materially from historical experience or
from future results expressed or implied by such forward-looking
statements. Potential risks and uncertainties include, but are not
limited to, receipt of regulatory approvals without unexpected
delays or conditions, FedEx’s ability to successfully operate TNT
Express without disruption to its other business activities,
FedEx’s ability to achieve the anticipated results from the
acquisition of TNT Express, the effects of competition (in
particular the response to the transaction in the marketplace),
economic conditions in the global markets in which FedEx and TNT
Express operate, and other factors that can be found in FedEx’s and
its subsidiaries’ and TNT Express’ press releases and public
filings.
Neither FedEx, nor any of its advisors, accepts any
responsibility for any financial information contained in this
press release relating to the business, results of operations or
financial condition of the other or their respective groups. FedEx
expressly disclaims any obligation or undertaking to disseminate
any updates or revisions to any forward-looking statements
contained herein to reflect any change in the expectations with
regard thereto or any change in events, conditions or circumstances
on which any such statement is based.
View source
version on businesswire.com: http://www.businesswire.com/news/home/20150820006303/en/
FedEx Corp.Media:Patrick Fitzgerald,
+1-901-818-7300patrick.fitzgerald@fedex.comorMedia Contacts –
Europe:Citigate First FinancialUneke Dekkers/Vivian ten Have,
+31 20 575 40 10Mobile: +31 6 50261626 / +31 6 46233900orFedEx
Investor Relations:Mickey Foster,
+1-901-818-7468mickey.foster@fedex.comorTNT
ExpressMedia:Cyrille Gibot, +31 88 393 9390Mobile: +31 65
113 3104cyrille.gibot@tnt.comorInvestor Relations:Gerard
Wichers, +31 88 393 9500gerard.wichers@tnt.com
FedEx (NYSE:FDX)
Historical Stock Chart
From Aug 2024 to Sep 2024
FedEx (NYSE:FDX)
Historical Stock Chart
From Sep 2023 to Sep 2024