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UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

SCHEDULE 14A

PROXY STATEMENT PURSUANT TO SECTION 14(a) OF THE

SECURITIES EXCHANGE ACT OF 1934

 

 

Filed by the Registrant  ☒

Filed by a party other than the Registrant  ☐

Check the appropriate box:

 

Preliminary Proxy Statement

 

Confidential, for Use of the Commission Only (as permitted by Rule 14a-6(e)(2))

 

Definitive Proxy Statement

 

Definitive Additional Materials

 

Soliciting Material under §240.14a-12

NIELSEN HOLDINGS PLC

(Name of Registrant as Specified In Its Charter)

(Name of Person(s) Filing Proxy Statement, if other than the Registrant)

Payment of Filing Fee (Check the appropriate box):

 

No fee required.

 

Fee paid previously with preliminary materials.

 

Fee computed on table in exhibit required by Item 25(b) of Schedule 14A (17 CFR 240.14a-101) per Item 1 of this Schedule and Exchange Act Rules 14c-5(g) and 0-11.

 

 

 


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PRELIMINARY PROXY STATEMENT—SUBJECT TO COMPLETION, DATED MAY 19, 2022

 

 

LOGO

Nielsen Holdings plc

675 Avenue of the Americas

New York, NY 10010

[], 2022

Proposed Acquisition of Nielsen—Your vote is very important

Dear Fellow Nielsen Shareholder:

As previously announced, on March 28, 2022, Nielsen Holdings plc, a public limited company formed under the laws of England and Wales with registration number 09422989, whose registered office is at 5th Floor Endeavour House, 189 Shaftesbury Avenue, London, WC2H 8JR, United Kingdom (the “Company” or “Nielsen”), entered into a Transaction Agreement (the “Transaction Agreement”) with Neptune Intermediate Jersey Limited, a private limited company formed under the laws of the Bailiwick of Jersey (“Parent”), and Neptune BidCo US Inc., a corporation formed under the laws of Delaware and a wholly owned subsidiary of Parent (“Purchaser”) (collectively, the “Purchasing Entities”), pursuant to which Purchaser will acquire the entire issued and to be issued share capital of Nielsen (other than (i) certain Nielsen ordinary shares held in the name of or beneficially owned by Parent, Purchaser, as well as Elliott Associates, L.P., Elliott International, L.P., Brookfield Asset Management Inc. and Brookfield Capital Partners VI L.P. (collectively, the “Equity Investors”) and their respective affiliates or any subsidiary undertaking of Parent, Purchaser or their respective affiliates (but excluding the Nielsen ordinary shares in the name of or beneficially owned by Purple Green Investment Pte. Ltd. and its affiliates immediately prior to the Scheme Record Time (as defined in the proxy statement)) and (ii) any Nielsen ordinary shares held in treasury (the “Excluded Shares”)) in accordance with the provisions of U.K. court-sanctioned scheme of arrangement (the “Scheme”) under Part 26 of the U.K. Companies Act 2006 (the “Companies Act”), further details of which are set out in the proxy statement that follows this letter (the “proxy statement”). The Excluded Shares (other than any Nielsen ordinary shares held in treasury) will be contributed to Purchaser by the relevant affiliates of Purchaser or the Equity Investors.

Approval of the Acquisition (as defined in the Transaction Agreement) requires Nielsen shareholder approval and the sanction of the High Court of Justice in England and Wales (the “U.K. Court”). Before the U.K. Court’s sanction can be sought for the Scheme, the Scheme requires the approval of Nielsen shareholders at two shareholder meetings. The purpose of the Scheme is to provide for Purchaser to acquire all of the issued and to be issued Nielsen ordinary shares other than the Excluded Shares. This is to be achieved by means of an automatic transfer of all of the outstanding Nielsen ordinary shares subject to the Scheme, the consideration for which will be $28.00 per Nielsen ordinary share in cash, without interest (the “Offer Consideration”), less any required tax withholdings and any dividend or other distributions and other return of capital (other than Permitted Dividends (as defined in the Transaction Agreement)) proposed, announced, authorized, declared, paid or made by Nielsen with a record date falling prior to the Effective Time.

You are cordially invited to attend two special meetings of Nielsen shareholders in connection with the Acquisition. The first shareholder meeting, which is convened by the U.K. Court, the “Court Meeting,” will be held on [●], 2022, at [●] Eastern time. The second shareholder meeting, which is referred to as the “Special Meeting,” will be held on [●], 2022, at [●] Eastern time (or as soon thereafter as the Court Meeting shall have been concluded, adjourned or postponed). You may attend both meetings online at www.virtualshareholdermeeting.com/[●], by telephone or in person at 675 Avenue of the Americas, New York, NY 10010. To participate virtually in the Court Meeting and the Special Meeting, you must enter the 16-digit control number included in your proxy card or voting instruction form. Online access to the Court Meeting and the Special Meeting will open approximately 15 minutes prior to the start of each meeting.

 

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At the Court Meeting, you will be asked to consider and vote upon the Scheme. At the Special Meeting, you will be asked to consider and vote on the following resolutions, each of which shall be conditional upon the Scheme having been approved by the requisite majorities at the Court Meeting (together, the “Company Proposals”): (i) a proposal to (a) authorize the members of the Board of Directors of Nielsen (the “Board”) to take necessary actions for carrying the Scheme into effect, (b) amend Nielsen’s articles of association, (c) direct the Board to deliver the order of the U.K. Court sanctioning the Scheme under Section 899(1) of the Companies Act (once obtained) to the Registrar of Companies for England and Wales in accordance with the provisions of the Scheme and the laws of England and Wales and (d) direct the Board that it need not undertake a Company Adverse Recommendation Change in connection with an Intervening Event or a Company Superior Proposal or cause the Company to terminate the Transaction Agreement in order to enter into a definitive agreement relating to a Company Superior Proposal following the time at which the Company Shareholder Approval is obtained (capitalized terms in this clause (d) having the meanings set forth in the Transaction Agreement) (the “Articles Amendment and Scheme Implementation Proposal”) and (ii) a proposal to approve, on an advisory (non-binding) basis, the compensation that may be paid or become payable to Nielsen’s named executive officers that is based on or otherwise related to the Transaction Agreement and the transactions contemplated by the Transaction Agreement (the “Compensation Proposal”).

Pursuant to the Transaction Agreement, and subject to the terms and conditions set forth therein, at the effective time of the Scheme (the “Effective Time”), all outstanding ordinary shares of Nielsen, €0.07 nominal value per share (the “Nielsen ordinary shares”) except the Excluded Shares, will be transferred from the Company’s shareholders to Purchaser and/or its nominee(s) in accordance with the provisions of the Scheme and the laws of England and Wales, and the Scheme Shareholders (as defined in the Scheme) will receive the consideration of $28.00 per Nielsen ordinary share in cash, without interest (the “Offer Consideration”), less any required tax withholdings and any dividend or other distributions and other return of capital (other than Permitted Dividends) proposed, announced, authorized, declared, paid or made by Nielsen with a record date falling prior to the Effective Time.

The Board, after considering the factors more fully described in the enclosed proxy statement, has unanimously: (i) determined that the transactions contemplated by the Transaction Agreement, including the Acquisition, would be most likely to promote the success of the Company for the benefit of its shareholders as a whole, (ii) approved the execution, delivery and performance of the Transaction Agreement and the consummation of the transactions contemplated thereby, including the Acquisition, (iii) resolved to recommend that Nielsen shareholders vote in favor of the Scheme at the Court Meeting and the Company Proposals at the Special Meeting, and (iv) directed that the Scheme be submitted for approval by Nielsen shareholders at the Court Meeting.

Accordingly, the Board unanimously recommends that you vote “FOR” the Scheme and “FOR” both of the Company Proposals presented in the proxy statement.

The Scheme must be approved by a majority in number of the Shareholders of Record (as defined in the proxy statement) as of the Voting Record Time (as defined in the proxy statement) representing 75% or more in value of the Nielsen ordinary shares at the Voting Record Time, in each case, present and voting, either in person or by proxy at the Court Meeting. The Articles Amendment and Scheme Implementation Proposal requires at least 75% of the votes cast at the Special Meeting to be voted in favor thereof, whereas the Compensation Proposal requires a simple majority of the votes cast at the Special Meeting to be voted in favor thereof.

The enclosed proxy statement provides detailed information about the Court Meeting, the Special Meeting, the Transaction Agreement, the Scheme and the Acquisition and the approvals required and conditions to be satisfied or waived in order for the Acquisition to be completed. A copy of the Transaction Agreement is attached as Annex A to the proxy statement.

The proxy statement also describes the actions and determinations of the Board in connection with its evaluation of the Transaction Agreement and the Acquisition. You should carefully read and consider the entire

 

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enclosed proxy statement and its annexes, including, but not limited to, the Transaction Agreement, as they contain important information about, among other things, the Acquisition and how it affects you. In considering the recommendation of the Board, you should be aware that certain directors and executive officers of Nielsen may be impacted by the Acquisition in ways which are different from or additional to those of Nielsen shareholders generally—see the proxy statement for more details.

Shareholders of Record

Shareholders whose names appear in the Nielsen register of members are referred to in the proxy statement as “Shareholders of Record.” Shareholders of Record entitled to vote at each of the Court Meeting and the Special Meeting may vote online, by telephone or in person at the applicable meeting or may appoint another person or persons, whether Nielsen shareholder or not, as their proxy or proxies, to exercise all or any of their rights to attend, speak and/or vote at the Court Meeting and the Special Meeting, as applicable. Because the proxy statement relates to two separate Nielsen shareholder meetings, Shareholders of Record will receive two proxy cards—one proxy card labeled “Court Meeting Proxy Card” for use in respect of the Court Meeting and one card labeled “Special Meeting Proxy Card” for use in respect of the Special Meeting. If Shareholders of Record do not expect to attend the meetings online, by telephone or in person, it is important that their shares be represented by proxy. Nielsen urges Shareholders of Record to vote and submit their proxy electronically over the Internet or by telephone or by signing, dating and returning BOTH of the enclosed proxy cards in the accompanying reply envelope as soon as possible and so as to be received by [] by not later than []. If you are a Shareholder of Record and you decide to attend the meetings whether in person, by telephone or online, you will be able to vote yourself, even if you have previously submitted your proxy.

Beneficial Owners

Shareholders who own Nielsen ordinary shares for which Cede & Co. is the registered holder (as nominee for the Depository Trust Company) or whose interests in Nielsen ordinary shares are held in “street name” by a broker, bank, trust or other nominee, are referred to in the proxy statement as “Beneficial Holders.” If you are a Beneficial Holder of Nielsen ordinary shares, only your broker, bank, trust or other nominee can vote or give instructions as to the voting of your Nielsen ordinary shares, and the vote cannot be cast unless you either (i) provide voting instructions to your broker, bank, trust or other nominee or (ii) obtain a legal proxy by contacting your broker, bank, trust or other nominee, which entitles you to vote the Nielsen ordinary shares as proxy for the Shareholder of Record. Because the proxy statement relates to two separate Nielsen shareholder meetings, Beneficial Holders will receive instructions regarding how to vote in respect of the Court Meeting and the Special Meeting. If you are a Beneficial Holder of Nielsen ordinary shares, please send your voting instructions to your broker, bank, trustee or nominee as soon as possible.

Your vote at each of the Court Meeting and the Special Meeting is very important, regardless of the number of Nielsen ordinary shares that you own. The proposed Acquisition cannot be completed unless the Scheme is approved at the Court Meeting and the Articles Amendment and Scheme Implementation Proposal is approved at the Special Meeting.

IN ORDER THAT THE U.K. COURT CAN BE SATISFIED THAT VOTES CAST AT THE COURT MEETING CONSTITUTE A FAIR AND REASONABLE REPRESENTATION OF THE OPINION OF THE SCHEME SHAREHOLDERS (AS DEFINED IN THE SCHEME), IT IS IMPORTANT THAT AS MANY VOTES AS POSSIBLE ARE CAST AT THE COURT MEETING.

For a list of important dates related to the Court Meeting and the Special Meeting, including the record dates for Beneficial Holders and Shareholders of Record and the date by which proxy cards or voting instructions must be returned, please see the “Expected Timetable of Principal Events” in the Summary section of the proxy statement.

 

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If you have any questions or need assistance voting your Nielsen ordinary shares, please contact our proxy solicitor:

INNISFREE M&A INCORPORATED

 

 

LOGO

501 Madison Avenue, 20th Floor

New York, NY 10022

Stockholders May Call:

(877) 750-8269 (TOLL-FREE from the U.S. and Canada) or

+1 (412) 232-3651 (from other locations)

On behalf of the Board, I thank you for your support and appreciate your consideration of these matters.

Sincerely,

                                                             

James A. Attwood Jr.

Chairperson of the Board of Nielsen

Neither the U.S. Securities and Exchange Commission, any state securities commission nor the U.K. Financial Conduct Authority has approved or disapproved the Acquisition, passed upon the merits or fairness of the Acquisition or passed upon the adequacy or accuracy of the disclosure in this document. Any representation to the contrary is a criminal offense. For the avoidance of doubt, the proxy statement is not intended to be, and is not, a prospectus for the purposes of the Prospectus Rules made under Part 6 of the UK Financial Services and Markets Act 2000 (as set out in the U.K. Financial Conduct Authority’s Handbook).

The accompanying proxy statement is dated [●], 2022 and, together with the enclosed form of proxy cards, is first being [mailed/ sent to] Shareholders of Record and Beneficial Holders on or about [●], 2022. The proxy statement comprises an explanatory statement in compliance with Section 897 of the Companies Act.

 

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PRELIMINARY PROXY STATEMENT—SUBJECT TO COMPLETION, DATED MAY 19, 2022

 

 

LOGO

Nielsen Holdings plc

675 Avenue of the Americas

New York, NY 10010

[], 2022

NOTICE OF COURT MEETING

TO BE HELD ON [], 2022

 

IN THE HIGH COURT OF JUSTICE    CLAIM NO. CR[]

BUSINESS AND PROPERTY COURTS

OF ENGLAND AND WALES

COMPANIES COURT (ChD)

[NAME OF JUDGE]

IN THE MATTER OF NIELSEN HOLDINGS PLC

AND

IN THE MATTER OF THE COMPANIES ACT 2006

NOTICE IS HEREBY GIVEN that by an order dated [●] 2022 made in the above matters, the High Court of Justice in England and Wales (the “U.K. Court”) has given permission for a meeting (the “Court Meeting”) to be convened of the holders of Scheme Shares as of the Voting Record Time (each as defined in the Scheme (defined below)) for the purpose of considering and, if thought fit, approving (with or without modification) a scheme of arrangement proposed to be made pursuant to Part 26 of the Companies Act 2006 between (i) Nielsen Holdings plc (“Nielsen” or the “Company”) and (ii) the holders of Scheme Shares (the “Scheme”), and that the Court Meeting will be held at [●] on [●] 2022 at [●] [a.m./p.m.] Eastern time.

A copy of the Scheme and the explanatory statement required to be furnished pursuant to Part 26 of the Companies Act 2006 are incorporated in the proxy statement of which this notice forms part.

The Scheme will be subject to the subsequent sanction of the U.K. Court.

By the said order, the U.K. Court has appointed [●] or, failing him, [●] or, failing him, any other director of the Company to act as Chair of the Court Meeting and has directed the Chair to report the result of the Court Meeting to the Court.

Shareholders of Record and Beneficial Holders

Shareholders whose names appear in the register of members of the Company are referred to in this notice, and in the attached proxy statement, as “Shareholders of Record.” Shareholders of Record at the Voting Record Time are entitled to attend and vote at the Court Meeting and may vote online, by telephone or in person at the Court Meeting or they may appoint another person or persons, whether a shareholder of the Company or not, as their proxy or proxies, to exercise all or any of their rights to attend, speak and vote at the Court Meeting.

 

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Shareholders who own Nielsen ordinary shares for which Cede & Co. is the registered holder (as nominee for The Depository Trust Company (“DTC”)) or that otherwise are held in “street name” by a broker, bank, trust or other nominee, are referred to in this notice and in the attached proxy statement as “Beneficial Holders.” If you are a Beneficial Holder, only your broker, bank, trust or other nominee can vote your Nielsen ordinary shares, and the vote cannot be cast unless you either (i) provide voting instructions to your broker, bank, trust or other nominee or (ii) obtain a legal proxy by contacting your broker, bank, trust or other nominee, which entitles you to vote the Nielsen ordinary shares as proxy for the Shareholder of Record.

All Shareholders of Record and Beneficial Holders at the close of business on [●], 2022 and all Shareholders of Record at the Voting Record Time (as defined in the Scheme) will receive notice of the Court Meeting.

Right to Appoint a Proxy and Procedure for Appointment

A proxy card labeled “Court Meeting Proxy Card,” for use at the Court Meeting, has been provided with this Notice to Shareholders of Record. To be valid, Court Meeting Proxy Cards should be completed and returned in accordance with the instructions set out on the proxy card. It is requested that the Court Meeting Proxy Card (together with any power of attorney or other authority, under which it is signed, or a duly certified copy thereof) be returned in the prepaid envelope provided or that you submit your proxy by telephone or through the Internet as soon as possible, and not later than [●] [a.m./p.m.] (Eastern time) on [●], 2022. However, if not so lodged by the relevant time, Court Meeting Proxy Cards (together with any such authority, if applicable) may be completed and handed to the chair of the Court Meeting or to the Registrars of the meeting, on behalf of the chair of the Court Meeting, before the start of the Court Meeting.

A space has been included in the Court Meeting Proxy Card to allow Shareholders of Record to specify the number of Nielsen ordinary shares in respect of which that proxy is to be appointed. A proxy need not be a Shareholder of Record, but such proxy must attend the Court Meeting to represent a Shareholder of Record. A separate proxy card should be used for each proxy appointment. If you require additional proxy cards, please contact [●]. If your Nielsen ordinary shares are held for you by a bank, broker, trust or other nominee, you should call your bank, broker, trust or other nominee.

Completion and return of a proxy card, or the appointment of a proxy by telephone or through the Internet, will not prevent a Shareholder of Record at the Voting Record Time from attending, speaking and voting in person, by telephone or through the Internet at the Court Meeting, or any adjournment or postponement thereof, if such Shareholder of Record wishes and is entitled to do so as described in the attached proxy statement.

Beneficial Holders will receive instructions on how to vote from their broker, bank, trust or other nominee for the Court Meeting. Beneficial Holders should follow the directions provided by their broker, bank, trust or other nominee regarding how to instruct such person to vote their Nielsen ordinary shares. Please note that holders of Nielsen ordinary shares through a broker, bank, trust or other nominee may be required to submit voting instructions to their applicable broker, bank, trust or nominee at or prior to the deadline applicable for the submission by Shareholders of Record and such holders should, therefore, follow the separate instructions that will be provided by such person.

If you are a Beneficial Holder then, as a matter of English law, your name is not entered in the Nielsen register of members. Accordingly, if you wish to attend and vote directly (i.e., in your own name) at the Court Meeting, you must become a Shareholder of Record by arranging for the completion of a stock transfer form by the applicable Shareholder of Record in respect of the Nielsenordinary shares that you wish to be transferred into your name, pay any related UK stamp duty, if applicable, and send the completed stock transfer form and related documentation to the transfer agent, Computershare Trust Company, N.A., prior to the Voting Record Time. Beneficial Holders who wish to attend and vote directly at the Court Meeting should take care to send such stock transfer form in respect of their Nielsen ordinary shares to permit processing to be completed by Computershare Trust Company, N.A. prior to the Voting Record Time. You may only vote Nielsen ordinary shares held as a Beneficial Holder in person at the Court Meeting (provided such Nielsen ordinary shares are not Excluded Shares) if you obtain a “legal proxy” from your broker, bank, trust or other nominee.

 

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If you are a Shareholder of Record or a Beneficial Holder who has obtained a legal proxy and you wish to attend the Court Meeting in person, you must have a government-issued photo identification along with either your admission ticket (which is included in your Notice or proxy card) or proof of ownership of Nielsen ordinary shares as of the Voting Record Time. Proof of ownership may be any of the following:

 

   

A brokerage statement or letter from a bank or broker indicating ownership as of the Voting Record Time;

 

   

A printout of the proxy distribution email (if you received your materials electronically); or

 

   

A voting instruction form.

For directions to attend the Court Meeting in person, go to: ir.nielsen.com or contact our Company Secretary at company.secretary@nielsen.com. We will be unable to admit anyone who does not present valid identification or refuses to comply with our security procedures. Cameras, videotaping equipment and other recording devices and large packages, banners, placards and signs will not be permitted at the Court Meeting.

Even if you plan to attend the Court Meeting, to ensure that your Nielsen ordinary shares will be represented, we encourage you to sign, date and return the enclosed proxy cards in the accompanying prepaid reply envelope or grant your proxies electronically over the Internet or by telephone (in accordance with the instructions detailed in the section of this proxy statement captioned “The Court Meeting and the Special Meeting—Voting at the Court Meeting and the Special Meeting”). If you attend the Court Meeting and vote by ballot, your vote will revoke any proxy previously submitted.

Voting Record Time

The entitlement of Shareholders of Record to attend, speak and vote at the Court Meeting or any adjournment or postponement thereof and the number of votes that may be cast at the Court Meeting will be determined by reference to the register of members of Nielsen at [●] [a.m./p.m.] (Eastern time) on [●] 2022 or, if the Court Meeting is adjourned or postponed for more than ten (10) business days, at [●] [a.m./p.m.] (Eastern time) on the date which is ten (10) business days before the date fixed for reconvening the adjourned or postponed meeting. Changes to the register of members after the relevant time shall be disregarded in determining the rights of any person to attend, speak and vote at the Court Meeting.

Beneficial Holder Record Date

Only Beneficial Holders as of the close of business on [●], 2022, will be entitled to instruct their broker, bank, trust or other nominee how to vote their Nielsen ordinary shares at the Court Meeting.

Joint Holders

In the case of joint holders, the vote of the senior holder who tenders a vote, whether in person, through the Internet, by telephone or by proxy will be accepted to the exclusion of the votes of the other joint holders. For this purpose, seniority will be determined by the order in which the names stand in the register of members.

If you hold Nielsen ordinary shares through Nielsen’s 401(k) plan, the plan trustee, Fidelity Management Trust Company, will vote according to the voting instructions received from you provided that your voting instructions are received by [●] [a.m./p.m.] (Eastern time) on [●], 2022. Your voting instructions cannot be changed or revoked after that time, and the Nielsen ordinary shares you hold through the 401(k) plan cannot be voted online at the Court Meeting.

Unless you hold Nielsen ordinary shares through Nielsen’s 401(k) plan, you may revoke a previously delivered proxy at any time prior to the Court Meeting. You may vote online if you attend the Court Meeting online, and such online vote will be deemed to revoke any previously delivered proxy.

 

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Pursuant to the rules of the U.S. Securities and Exchange Commission (the “SEC”), the accompanying proxy statement and related information prepared in connection with the Nielsen special meeting are available at: www.proxyvote.com and www.ir.nielsen.com. You will need the 16-digit control number included on your Notice of Internet Availability or proxy card in order to access the proxy or voting instruction materials on www.proxyvote.com. These proxy or voting instruction materials will be available free of charge.

You may not use any electronic address provided in this Notice of the Court Meeting of Nielsen Shareholders or any related documentation to communicate with Nielsen for any purposes other than as expressly stated.

Corporate Representatives

As an alternative to appointing a proxy, under section 323 of the Companies Act 2006 any holder of Scheme Shares (as defined in the Scheme) which is a corporation may appoint one or more corporate representatives who may exercise on its behalf all its powers as a member, provided that if two or more corporate representatives purport to vote in respect of the same shares, if they purport to exercise the power in the same way as each other, the power is treated as exercised in that way, and in other cases the power is treated as not exercised.

Voting on a Poll

In accordance with the Company’s articles of association and the directions of the U.K. Court, the vote on the Scheme will be taken on a poll. Voting on a poll means that each share represented in person or by proxy will be counted in the vote. As soon as practicable after the Court Meeting, the results of the voting at the Court Meeting and the number of votes cast for and against in respect of each resolution will be made available online at [●].

YOUR VOTE IS IMPORTANT

Your vote at the Court Meeting is very important. It is important that, for the Court Meeting in particular, as many votes as possible are cast so that the U.K. Court may be satisfied that there is a fair and reasonable representation of the opinion of holders of the Scheme Shares (as defined in the Scheme). You are encouraged to submit your votes as instructed in the Court Meeting Proxy Card or voting instructions for the Court Meeting as soon as possible.

DATED: [●] 2022

Clifford Chance LLP

10 Upper Bank Street

London E14 5JJ

Solicitors for the Company

 

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PRELIMINARY PROXY STATEMENT—SUBJECT TO COMPLETION, DATED MAY 19, 2022

 

 

LOGO

Nielsen Holdings plc

675 Avenue of the Americas

New York, NY 10010

[], 2022

NOTICE OF SPECIAL MEETING

TO BE HELD ON [], 2022

Notice is hereby given that a general meeting of Nielsen Holdings plc (“Nielsen” or the “Company”) will be held on [], 2022 at [] [a.m./p.m.] (Eastern time) (or as soon thereafter as the Court Meeting shall have been concluded or adjourned or postponed) (such meeting, the “Special Meeting”). Holders of ordinary shares, nominal value €0.07 per share (the “Nielsen ordinary shares”), of Nielsen (the “Nielsen shareholders”) will be asked to consider and, if thought fit, pass the following resolutions (the “Proposals”) each of which shall be conditional upon the Scheme having been approved by the requisite majorities at the Court Meeting:

SPECIAL RESOLUTION: ARTICLES AMENDMENT AND SCHEME IMPLEMENTATION PROPOSAL

To consider and, if thought fit, (i) authorize, for the purpose of giving effect to the scheme of arrangement (the “Scheme”) between Nielsen and the holders of the Scheme Shares (as defined in the Scheme), the directors of Nielsen (or a duly authorized committee of the directors) to take all such actions as they may consider necessary or appropriate for carrying the Scheme into effect, (ii) amend the articles of association of Nielsen as set forth in the Articles Amendment and Scheme Implementation Proposal, (iii) direct the Company to deliver the Court Order to Companies House if the Court Sanction is obtained and provided that no injunction or other Order by any court or other tribunal of competent jurisdiction shall have been entered and shall continue to be in effect and no Law shall have been adopted that remains in effect or effective, in each case that prevents, enjoins, prohibits or makes illegal the consummation of the Acquisition and (iv) direct the Board of Directors of the Company that it need not undertake a Company Adverse Recommendation Change in connection with an Intervening Event or a Company Superior Proposal or cause the Company to terminate the Transaction Agreement in order to enter into a definitive agreement relating to a Company Superior Proposal following the time at which the Company Shareholder Approval is obtained (capitalized terms in this resolution having the meanings set forth in the Transaction Agreement) (the “Articles Amendment and Scheme Implementation Proposal”).

ORDINARY RESOLUTION: COMPENSATION PROPOSAL

To consider and, if thought fit, approve, in accordance with Section 14A of the Securities Exchange Act of 1934, as amended, on an advisory, non-binding basis, the compensation to be paid or which may become payable to named executive officers in connection with the Acquisition and the agreements and understandings pursuant to which such compensation may be paid or become payable as more fully described in the proxy statement accompanying this notice (the “Compensation Proposal”).

The Articles Amendment and Scheme Implementation Proposal will be proposed as a special resolution, which under applicable law means that the affirmative vote of at least 75% of the votes cast at the Special Meeting. The Compensation Proposal will be proposed as an ordinary resolution, which under applicable law means that the resolution must be passed by a simple majority of votes cast at the Special Meeting, whether in person, through the Internet, by telephone or by proxy.

 

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These matters are more fully described (and the full text of each proposal is set out) in the sections of the proxy statement that follow this notice captioned “Articles Amendment and Scheme Implementation Proposal” and “Compensation Proposal”, which shall be deemed to form part of this notice. The Board believes that each of the Proposals being put to the shareholders would promote the success of Nielsen for the benefit of its shareholders as a whole. The Board unanimously recommends that you vote “FOR” each of the Proposals.

In accordance with Nielsen’s articles of association, all resolutions will be taken on a poll. Voting on a poll means that each share represented online or by proxy will be counted in the vote. The results of the polls taken on the Proposals at the Special Meeting and any other information required by the Companies Act will be made available on Nielsen’s website as soon as reasonably practicable following the Special Meeting and for a period of two years thereafter.

Shareholders of Record and Beneficial Holders

Shareholders whose names appear in the register of members of Nielsen are referred to in this notice, and in the attached proxy statement, as “Shareholders of Record.” Only Shareholders of Record at [●] (Eastern time) on [●], 2022 (the “Voting Record Time”), are entitled to attend and vote at the Special Meeting, and they may vote in person, electronically or by telephone at the Special Meeting or they may appoint another person or persons, whether a Nielsen shareholder or not, as their proxy or proxies, to exercise all or any of their rights to attend, speak and vote at the Special Meeting. If the Special Meeting is adjourned or postponed for more than ten (10) business days, the Voting Record Time will be at [●] (Eastern time) on the date which is ten (10) business days before the date fixed for reconvening the adjourned or postponed meeting. Changes to entries on the Nielsen register of members after the Voting Record Time will be disregarded in determining the rights of any person to attend or vote at the Special Meeting.

Shareholders who own Nielsen ordinary shares for which Cede & Co. is the registered holder (as nominee for The Depository Trust Company (“DTC”)) or otherwise are held in “street name” by a broker, bank, trust or other nominee, are referred to in this notice and in the attached proxy statement as “Beneficial Holders.” Only Beneficial Holders as of the close of business on [●], 2022 will be entitled to instruct their broker, bank, trust or other nominee how to vote their Nielsen ordinary shares at the Special Meeting. If you are a Beneficial Holder, only your broker, bank, trust or other nominee can vote your Nielsen ordinary shares and the vote cannot be cast unless you either (i) provide voting instructions to your broker, bank, trust or other nominee or (ii) obtain a legal proxy by contacting your broker, bank, trust or other nominee, which entitles you to vote the Nielsen ordinary shares as proxy for the relevant Shareholder of Record. You should follow the directions provided by your broker, bank, trust or other nominee regarding how to instruct such person to vote your Nielsen ordinary shares.

All Shareholders of Record and Beneficial Holders at the close of business on [●], 2022 and all Shareholders of Record at the Voting Record Time (as defined in the Scheme) will receive notice of the Special Meeting.

Right to Appoint a Proxy and Procedure for Appointment

A proxy card labelled “Special Meeting Proxy Card,” for the Special Meeting, has been provided with this notice to Shareholders of Record. Instructions for its use are set out on the Special Meeting Proxy Card. To be valid, Special Meeting Proxy Cards should be completed and returned in accordance with the instructions set out on the proxy cards. It is requested that the Special Meeting Proxy Card (together with any power of attorney or other authority, under which it is signed, or a duly certified copy thereof) be returned in the prepaid envelope provided or that your proxy be submitted by telephone or through the Internet as soon as possible, and not later than [] (Eastern time) on [], 2022.

A space has been included in the Special Meeting Proxy Card to allow Shareholders of Record to specify the number of Nielsen ordinary shares in respect of which that proxy is to be appointed. A proxy need not be a Shareholder of Record, but such proxy must attend the Special Meeting to represent a Shareholder of Record. A separate proxy card should be used for each proxy appointment. If you require additional proxy cards, please contact [●] at [●].

 

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Completion and return of a proxy card, or the appointment of a proxy through the Internet or by telephone, will not prevent a holder of Nielsen ordinary shares who is a Shareholder of Record at the Voting Record Time from attending, speaking and voting in person or electronically or by telephone at the Special Meeting, or any adjournment or postponement thereof if such holder of Nielsen ordinary shares wishes and is entitled to do so as described in the accompanying proxy statement.

Beneficial Holders will receive instructions on how to vote from their broker, bank, trust or other nominee for the Special Meeting. Beneficial Holders should follow the directions provided by their broker, bank trust or other nominee for the Special Meeting. Please note that holders of Nielsen ordinary shares through a broker, bank, trust or other nominee may be required to submit voting instructions to their applicable broker, bank, trust or nominee at or prior to the deadline applicable for the submission by Shareholders of Record and such holders should, therefore, follow the separate instructions that will be provided by such person.

If you are a Beneficial Holder then, as a matter of English law, your name is not entered in the Company’s register of members. Accordingly, if you wish to attend and vote directly (i.e., in your own name) at the Special Meeting, you must become a Shareholder of Record by arranging for the completion of a stock transfer form by the applicable Shareholder of Record in respect of the Nielsen ordinary shares that you wish to be transferred into your name, pay any related UK stamp duty, if applicable, and send the completed stock transfer form and related documentation to Nielsen’s transfer agent, Computershare Trust Company, N.A., prior to the Voting Record Time. Beneficial Holders who wish to attend and vote directly at the Special Meeting should take care to send such stock transfer form in respect of their Nielsen ordinary shares to permit processing to be completed by Computershare Trust Company, N.A. prior to the Voting Record Time. You may only vote Nielsen ordinary shares held as a Beneficial Holder in person at the Special Meeting if you obtain a “legal proxy” from your broker, bank, trust or other nominee.

If you have returned a proxy card or otherwise voted, you may revoke prior voting instructions and cast your vote by following the procedures described in the accompanying proxy statement.

If you are a Shareholder of Record or a Beneficial Holder who has obtained a legal proxy and you wish to attend the Special Meeting in person, you must have a government-issued photo identification along with either your admission ticket (which is included in your Notice or proxy card) or proof of ownership of Nielsen ordinary shares as of the Voting Record Time. Proof of ownership may be any of the following:

 

   

A brokerage statement or letter from a bank or broker indicating ownership as of the Voting Record Time;

 

   

A printout of the proxy distribution email (if you received your materials electronically); or

 

   

A voting instruction form.

For directions to attend the Special Meeting in person, go to: ir.nielsen.com or contact our Company Secretary at company.secretary@nielsen.com. We will be unable to admit anyone who does not present valid identification or refuses to comply with our security procedures. Cameras, videotaping equipment and other recording devices and large packages, banners, placards and signs will not be permitted at the Special Meeting.

Even if you plan to attend the Special Meeting, to ensure that your Nielsen ordinary shares will be represented, we encourage you to sign, date and return the enclosed proxy cards in the accompanying prepaid reply envelope or grant your proxies electronically over the Internet or by telephone (in accordance with the instructions detailed in the section of this proxy statement captioned “The Court Meeting and the Special Meeting—Voting at the Court Meeting and the Special Meeting”). If you attend the Special Meeting and vote by ballot, your vote will revoke any proxy previously submitted.

Voting Record Time

The entitlement of Shareholders of Record to attend, speak and vote at the Special Meeting or any adjournment or postponement thereof and the number of votes that may be cast at the Special Meeting will be

 

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determined by reference to the register of members of Nielsen at [●] [a.m./p.m.] (Eastern time) on [●], 2022 or, if the Special Meeting is adjourned or postponed for more than ten (10) business days, at [●] [a.m./p.m.] (Eastern time) on the date which is ten (10) business days before the date fixed for reconvening the adjourned or postponed meeting. Changes to the register of members after the relevant time shall be disregarded in determining the rights of any person to attend, speak and vote at the Special Meeting.

Beneficial Holder Record Date

Only Beneficial Holders as of the close of business on [●], 2022 will be entitled to instruct their broker, bank, trust or other nominee how to vote their Nielsen ordinary shares at the Special Meeting.

Joint Holders

In the case of joint holders, the vote of the senior holder who tenders a vote, whether in person, through the Internet, by telephone or by proxy will be accepted to the exclusion of the votes of the other joint holders. For this purpose, seniority will be determined by the order in which the names stand in the register of members.

If you hold Nielsen ordinary shares through Nielsen’s 401(k) plan, the plan trustee, Fidelity Management Trust Company, will vote according to the voting instructions received from you provided that your voting instructions are received by [●] [a.m./p.m.] (Eastern time) on [●], 2022. Your voting instructions cannot be changed or revoked after that time, and the Nielsen ordinary shares you hold through the 401(k) plan cannot be voted online at the Special Meeting.

Unless you hold Nielsen ordinary shares through Nielsen’s 401(k) plan, you may revoke a previously delivered proxy at any time prior to the Special Meeting. You may vote online if you attend the Special Meeting online, and such online vote will be deemed to revoke any previously delivered proxy.

Pursuant to the rules of the U.S. Securities and Exchange Commission (the “SEC”), the accompanying proxy statement and related information prepared in connection with the Nielsen special meeting are available at: www.proxyvote.com and ir.nielsen.com. You will need the 16-digit control number included on your Notice of Internet Availability or proxy card in order to access the proxy or voting instruction materials on www.proxyvote.com. These proxy or voting instruction materials will be available free of charge.

You may not use any electronic address provided in this Notice of the Special Meeting of Nielsen shareholders or any related documentation to communicate with Nielsen for any purposes other than as expressly stated.

Corporate Representatives

As an alternative to appointing a proxy, under section 323 of the Companies Act 2006 any holder of Scheme Shares which is a corporation may appoint one or more corporate representatives who may exercise on its behalf all its powers as a member, provided that if two or more corporate representatives purport to vote in respect of the same Nielsen ordinary shares, if they purport to exercise the power in the same way as each other, the power is treated as exercised in that way, and in other cases the power is treated as not exercised.

YOUR VOTE IS IMPORTANT

Your vote at the Special Meeting is very important. Whether or not you plan to attend the Special Meeting, please submit the Special Meeting Proxy Card or voting instructions for the Special Meeting as soon as possible. For specific instructions on voting, please refer to the proxy statement accompanying this notice of meeting or the proxy cards and voting instructions included with the proxy voting materials.

BY ORDER OF THE BOARD

David Kenny, Chief Executive Officer

 

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YOUR VOTE IS IMPORTANT

WHETHER OR NOT YOU PLAN TO ATTEND THE COURT MEETING OR THE SPECIAL MEETING, WE ENCOURAGE YOU TO SUBMIT YOUR PROXY AS PROMPTLY AS POSSIBLE: (1) BY TELEPHONE; (2) THROUGH THE INTERNET; OR (3) BY SIGNING AND DATING BOTH THE ENCLOSED PROXY CARDS AND RETURNING THEM IN THE POSTAGE-PAID ENVELOPE PROVIDED.

You may revoke your proxy or change your vote at any time before it is voted at the Court Meeting or the Special Meeting. For specific instructions on voting, please refer to the proxy statement accompanying this notice of meeting or the proxy cards and voting instructions included with the proxy voting materials.

 

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TABLE OF CONTENTS

 

SUMMARY

     1  

Parties Involved in the Acquisition

     1  

The Acquisition

     2  

Offer Consideration

     2  

Material U.S. Federal Income Tax Consequences of the Acquisition

     3  

Regulatory Approvals Required for the Acquisition

     3  

Closing Conditions

     4  

Financing of the Acquisition

     4  

The Court Meeting and the Special Meeting

     5  

Required Shareholder Approval

     6  

Recommendation of the Nielsen Board

     7  

Opinion of J.P. Morgan Securities LLC

     8  

Opinion of Allen & Company LLC

     9  

Treatment of Nielsen Equity Awards

     9  

Interests of Nielsen’s Executive Officers and Directors in the Acquisition

     10  

The Go-Shop Period

     10  

Restrictions on Solicitation of Alternative Proposals

     10  

Termination of the Transaction Agreement

     12  

Certain Effects of the Acquisition

     13  

Effect on Nielsen If the Acquisition Is Not Completed

     13  

No Appraisal or Dissenters’ Rights

     13  

Certain Scheme Defined Terms

     14  

Expected Timetable of Principal Events

     15  

QUESTIONS AND ANSWERS

     16  

FORWARD-LOOKING STATEMENTS

     26  

THE COURT MEETING AND THE SPECIAL MEETING

     27  

Date, Time and Place

     27  

Purpose of the Court Meeting and the Special Meeting

     27  

Record Date; Shares Entitled to Vote; Quorum

     28  

Vote Required; Abstentions and Broker Non-Votes

     28  

Stock Ownership and Interests of Certain Persons

     29  

Voting at the Court Meeting and the Special Meeting

     29  

Revocability of Proxies

     30  

Board’s Recommendation

     31  

Solicitation of Proxies

     31  

Anticipated Date of Completion of the Acquisition

     31  

Delisting and Deregistration of Nielsen Ordinary Shares

     31  

Other Matters

     31  

Householding of Special Meeting Materials

     31  

Questions and Additional Information

     32  

COURT SCHEME PROPOSAL

     33  

Scheme

     33  

Sanction of the Scheme by the Court

     33  

Required Vote

     33  

Recommendation of the Board

     34  

 

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ARTICLES AMENDMENT AND SCHEME IMPLEMENTATION PROPOSAL

     35  

Special Resolution to be Proposed at the Special Meeting

     35  

“114. Scheme of Arrangement

     35  

Required Vote

     37  

Recommendation of the Board

     37  

COMPENSATION PROPOSAL

     38  

Advisory Approval of the Compensation Payments to Named Executive Officers

     38  

Required Vote

     38  

Recommendation of the Board

     38  

THE ACQUISITION

     39  

Parties Involved in the Acquisition

     39  

Certain Effects of the Acquisition

     39  

Adoption of Articles of Association

     40  

Effect on Nielsen If the Acquisition Is Not Completed

     40  

Offer Consideration

     41  

Background of the Acquisition

     41  

Recommendation of the Board and Reasons for the Acquisition

     52  

Opinion of J.P. Morgan Securities LLC

     57  

Opinion of Allen & Company LLC

     63  

Management Projections

     70  

Interests of Nielsen’s Executive Officers and Directors in the Acquisition

     72  

Financing of the Acquisition

     76  

No Appraisal Rights

     77  

Material U.S. Federal Income Tax Consequences of the Acquisition

     77  

Regulatory Approvals Required for the Acquisition

     80  

THE TRANSACTION AGREEMENT

     82  

Terms of the Acquisition

     82  

Effective Time and Closing of the Acquisition

     82  

Offer Consideration

     83  

Exchange and Payment Procedures

     83  

Representations and Warranties

     84  

Conduct of Business Pending the Acquisition

     87  

The Go-Shop Period

     90  

Restrictions on Solicitation of Alternative Proposals

     90  

The Board’s Recommendation; Company Adverse Recommendation Change

     92  

Employee Benefits

     94  

Financing Cooperation Efforts

     95  

Indemnification and Insurance

     95  

Other Covenants

     96  

Conditions to the Closing of the Acquisition

     100  

Termination of the Transaction Agreement

     101  

Termination Fees

     103  

Specific Enforcement

     103  

Limitations of Liability

     103  

Costs and Expenses

     104  

Amendments and Waivers

     104  

Governing Law

     104  

 

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SUMMARY

This summary highlights selected information from this proxy statement related to the Acquisition and may not contain all of the information that is important to you with respect to the Acquisition, the Scheme and other matters being considered at the Court Meeting or the Special Meeting. To understand the Acquisition (as defined below) more fully and for a more complete description of the legal terms of the Acquisition, you should carefully read and consider this entire proxy statement and the annexes to this proxy statement, including, but not limited to, the Transaction Agreement (as defined below), along with all of the documents to which we refer in this proxy statement, as they contain important information about, among other things, the Acquisition and how it affects you. You may obtain the information incorporated by reference in this proxy statement without charge by following the instructions under the caption “Where You Can Find More Information.” The Transaction Agreement is attached as Annex A to this proxy statement and the Scheme is attached as Annex B to this proxy statement. You should carefully read and consider the entire Transaction Agreement and the Scheme, which are the legal documents that govern the Acquisition.

Except as otherwise specifically noted in this proxy statement, “Nielsen,” “we,” “our,” “us,” the “Company” and similar words refer to Nielsen Holdings plc. Throughout this proxy statement, we refer to Neptune Intermediate Jersey Limited as “Parent,” Neptune BidCo US Inc. as “Purchaser,” Elliott Investment Management L.P., Evergreen Coast Capital Corporation and their affiliated funds as “Elliott” and Brookfield Business Partners L.P. and affiliates as “Brookfield.” We refer to Parent and Purchaser collectively as the “Purchasing Entities.” We refer to the consortium of private investment funds led by Evergreen, Elliott and Brookfield collectively as the “Consortium.” We refer to Elliott Associates, L.P., Elliott International, L.P., Brookfield Asset Management Inc. and Brookfield Capital Partners VI L.P. collectively as the “Equity Investors.”

In addition, throughout this proxy statement we refer to the Transaction Agreement dated as of March 28, 2022, by and among Nielsen, Parent and Purchaser as the “Transaction Agreement,” our ordinary shares, €0.07 nominal value per share as “Nielsen ordinary shares,” and the holders of Nielsen ordinary shares as “Nielsen shareholders.” Unless indicated otherwise, any other capitalized term used herein but not otherwise defined herein has the meaning assigned to such term in the Transaction Agreement.

Parties Involved in the Acquisition

Nielsen Holdings plc

Nielsen Holdings plc, together with its subsidiaries, serves the world’s media and content ecosystem and is a global leader in audience measurement, data and analytics. Through Nielsen’s understanding of people and their behaviors across all channels and platforms, Nielsen empowers its clients with independent and actionable intelligence so they can connect and engage with their audiences- now and into the future.

Nielsen provides a holistic and objective understanding of the media industry to its various client segments. Nielsen’s data is used by its publishing clients to understand their audiences, establish the value of their advertising inventory and maximize the value of their content. Nielsen’s data is used by its marketer and advertiser agency clients to plan and optimize their spend and is used by its content creator clients to inform decisions and identify trends.

An S&P 500 company, Nielsen has operations in more than 55 countries, with its registered office located in London, the United Kingdom and headquarters located in New York, United States.


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Neptune Intermediate Jersey Limited

Neptune Intermediate Jersey Limited was formed solely for the purpose of engaging in the transactions contemplated by the Transaction Agreement and has not engaged in any business activities other than in connection with the transactions contemplated by the Transaction Agreement and arranging of the equity and debt financing in connection with such transactions.

Neptune BidCo US Inc.

Neptune BidCo US Inc. was formed solely for the purpose of engaging in the transactions contemplated by the Transaction Agreement and has not engaged in any business activities other than in connection with the transactions contemplated by the Transaction Agreement.

The Acquisition

Upon the terms and subject to the conditions of the Transaction Agreement, Purchaser will acquire all of the Company’s issued and to be issued ordinary share capital (other than (i) certain Nielsen ordinary shares held in the name of or beneficially owned by Parent, Purchaser, the Equity Investors and their respective affiliates or any subsidiary undertaking of Parent, Purchaser or their respective affiliates (but excluding the Nielsen ordinary shares in the name of or beneficially owned by Purple Green Investment Pte. Ltd. and its affiliates immediately prior to the Scheme Record Time) and (ii) any Nielsen ordinary shares held in treasury (the “Excluded Shares”)) (the “Acquisition”) by means of a court-sanctioned scheme of arrangement (the “Scheme”) under Part 26 of the Companies Act 2006 (the “Companies Act”) and the laws of England and Wales. The Excluded Shares (other than any Nielsen ordinary shares held in treasury) will be contributed to Purchaser by the relevant affiliates of Purchaser or the Equity Investors as part of the financing for the Acquisition. As a result of the Acquisition, Nielsen ordinary shares will no longer be publicly traded and will be delisted from the NYSE. In addition, Nielsen ordinary shares will be deregistered under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and Nielsen will no longer file periodic reports with the United States Securities and Exchange Commission (the “SEC”). The Effective Time will occur upon the delivery of the order of the High Court of Justice in England and Wales (the “U.K. Court”) sanctioning the Scheme (the “Court Sanction”) under Section 899(1) of the Companies Act (the “Court Order”) to the Registrar of Companies for England and Wales (the “Companies House”) in accordance with the terms of the Scheme, at which time the Scheme will become effective. The terms and conditions of the Acquisition are contained in the Transaction Agreement and the Scheme, which are attached as Annex A and Annex B to this proxy statement, respectively. Please carefully read the Transaction Agreement and the Scheme, as they contain the legal terms that govern the Acquisition.

Offer Consideration

Treatment of Nielsen Ordinary Shares

At the Effective Time, each then outstanding Nielsen ordinary share (other than the Excluded Shares) shall be transferred from the Nielsen shareholders to Purchaser (and/or its nominees) in accordance with the provisions of the Scheme, the Transaction Agreement and the laws of England and Wales. The Nielsen shareholders shall cease to have any rights with respect to the Nielsen ordinary shares except their rights under the Scheme, including the right to receive $28.00 per Nielsen ordinary share, without interest (the “Offer Consideration”), less any required tax withholdings and any dividend or other distributions and other return of capital (other than Permitted Dividends, as defined in the Transaction Agreement) proposed, announced, authorized, declared, paid or made by Nielsen with a record date falling prior to the Effective Time. The Excluded Shares (other than any Nielsen ordinary shares held in treasury) will be contributed to the Purchaser by the relevant affiliates of Purchaser or the Equity Investors.

 

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Treatment of Nielsen Equity Awards

At the Effective Time, each option to purchase Nielsen ordinary shares (a “Nielsen Option”) that is outstanding as of immediately prior to the Effective Time, whether vested or unvested, will be cancelled and converted into the right to receive a cash payment equal to the product of (i) the number of Nielsen ordinary shares subject to such Nielsen Option as of immediately prior to the Effective Time and (ii) the excess, if any, of the Offer Consideration over the exercise price per Nielsen ordinary share subject to such Nielsen Option as of the Effective Time, and each restricted stock unit award in respect of Nielsen ordinary shares, including any award of deferred stock units held by non-employee directors (a “Nielsen RSU Award”) that is outstanding as of immediately prior to the Effective Time will be cancelled and converted into the right to receive a cash payment equal to the product of (i) the number of Nielsen ordinary shares subject to such Nielsen RSU Award as of immediately prior to the Effective Time and (ii) the Offer Consideration. For purposes of clause (i) of the immediately preceding sentence, the number of Nielsen ordinary shares subject to a performance-based Nielsen RSU Award with respect to which the applicable performance period is incomplete as of immediately prior to the Effective Time will be based on target (100%) performance.

Material U.S. Federal Income Tax Consequences of the Acquisition

For U.S. federal income tax purposes, the receipt of cash in exchange for Nielsen ordinary shares pursuant to the Acquisition will be a taxable transaction, and a U.S. Holder (as defined under the section of this proxy statement captioned “The Acquisition—Material U.S. Federal Income Tax Consequences of the Acquisition”) will generally recognize gain or loss in an amount equal to the difference, if any, between (i) the amount of cash that such U.S. Holder receives in the Acquisition and (ii) such U.S. Holder’s adjusted tax basis in the Nielsen ordinary shares surrendered in exchange therefor.

For more information, please see the section of this proxy statement captioned “The Acquisition—Material U.S. Federal Income Tax Consequences of the Acquisition.” You should consult your tax advisor regarding the particular tax consequences to you of the exchange of Nielsen ordinary shares for cash pursuant to the Acquisition in light of your particular circumstances (including the application and effect of any state, local or foreign income and other tax laws).

Regulatory Approvals Required for the Acquisition

HSR Act

Under the Transaction Agreement, the Acquisition cannot be completed until the waiting period applicable to the Acquisition under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the rules and regulations promulgated thereunder (the “HSR Act”), has expired or been terminated. The parties made the filings required under the HSR Act on April 11, 2022, and the waiting period expired on May 11, 2022.

Foreign Regulatory Approvals

Under the Transaction Agreement, the Acquisition is conditioned on the review, clearance, and/or approval of governmental entities pursuant to the competition and/or foreign investment laws of certain other jurisdictions, including, among others, the competition law of the European Union, and the foreign investment laws of Australia and the United Kingdom. Pursuant to the terms of Transaction Agreement, the parties submitted all such filings, or drafts thereof, on or before April 27, 2022.

 

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Closing Conditions

The obligations of the parties to consummate the Acquisition are subject to the satisfaction or waiver of customary conditions, including (among other conditions), the following (the “Closing Conditions”):

 

   

(i) the approval of the Scheme by a majority in number of the Scheme Shareholders (as defined in the Scheme) present and voting, either in person or by proxy, representing three-quarters or more in value of the Scheme Shares (as defined in the Scheme) held by such shareholders; and (ii) the approval of the Articles Amendment and Scheme Implementation Proposal by three-quarters or more of the votes cast at the Special Meeting;

 

   

the absence of any injunction or other order of a court of competent jurisdiction or law prohibiting the consummation of the Acquisition;

 

   

the expiration or termination of the applicable waiting period under the HSR Act, as well as the receipt of certain specified foreign antitrust and foreign investment authorizations, clearances and/or approvals;

 

   

the receipt of the Court Sanction;

 

   

the delivery of the Court Order providing for the Court Sanction to the Companies House;

 

   

the accuracy of the representations and warranties contained in the Transaction Agreement (generally subject to certain materiality qualifiers); and

 

   

the performance and compliance in all material respects by the parties of their respective covenants required by the Transaction Agreement to be performed or complied with by such party.

Financing of the Acquisition

Parent has obtained debt and equity financing commitments for the purpose of financing the Acquisition, including payment of the Offer Consideration, any payments made in respect of equity compensation obligations, the payment of any debt contemplated or required to be repaid or otherwise satisfied in connection with the Acquisition, including the Company’s existing credit agreement (as well as the Company’s existing senior notes, if applicable) and paying related fees, costs and expenses (the “Acquisition Amounts”). The obligation of Parent and Purchaser to consummate the Acquisition is not subject to any financing condition.

Parent has entered into equity and rollover commitment letters (the “Equity Commitment Letters”) with the Equity Investors, pursuant to which the Equity Investors have committed to capitalize Purchaser, immediately prior to the Closing, with an aggregate equity contribution of up to approximately $5.19 billion and a rollover of 16,600,000 Nielsen ordinary shares subject to the terms and conditions set forth in the Equity Commitment Letters. The equity and rollover commitments are several (not joint) obligations of the Equity Investors.

The Equity Investors have executed limited guarantees in favor of Nielsen to guarantee, subject to certain limitations, the payment of the termination fee that may become payable by Parent under the terms of the Transaction Agreement and certain other expense and indemnification obligations of Parent under the Transaction Agreement.

In addition, (i) Bank of America, N.A., BofA Securities, Inc., Barclays Bank PLC, Mizuho Bank, Ltd., Credit Suisse AG, Credit Suisse International, Credit Suisse Loan Funding LLC, Citigroup Global Markets Inc., Citibank, N.A., Citicorp USA, Inc., Citicorp North America, Inc., HSBC Bank USA, National Association, HSBC Securities (USA) Inc., HSBC Bank plc, KKR Capital Markets LLC, KKR Corporate Lending LLC, Nomura Securities International, Inc., Ares Capital Management LLC, Bank of Montreal, BMO Capital Markets Corp., Goldman Sachs Bank USA, Jefferies Finance LLC, Macquarie Capital (USA) Inc., Macquarie Capital

 

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Funding LLC, Morgan Stanley Senior Funding, Inc., Royal Bank of Canada, RBC Capital Markets, LLC, Truist Bank, Truist Securities, Inc., BNP Paribas, BNP Paribas Securities Corp., Canadian Imperial Bank of Commerce, New York Branch, CIBC World Markets Corp., Fifth Third Bank, National Association, MUFG Bank, Ltd., MUFG Union Bank, N.A., and MUFG Securities Americas Inc. (in each case together with, through, and/or on behalf of their applicable affiliates), have committed to provide debt financing for the Acquisition consisting of a $6.35 billion secured term loan facility, $650 million secured revolving facility, and a $2 billion secured bridge facility on the terms set forth in a debt commitment letter, dated as of May 6, 2022 (the “First Lien Debt Commitment Letter”), which amended and restated a debt commitment letter dated as of March 28, 2022, and (ii) Ares Capital Corporation, Ares Capital Management LLC, Carlyle Global Credit Investment Management, L.L.C., PSP Investments Credit USA LLC, Fortress Credit Corp., BC Partners Advisors L.P., BCP Special Opportunities Fund II Holdings LP, Grosvenor Capital Management LP, Oaktree Capital Management, L.P., GoldenTree Asset Management LP, Stone Point Credit Adviser LLC, and T. Rowe Price Associates, Inc. (in each case together with, through, and/or on behalf of their applicable affiliates), have committed to provide debt financing for the Acquisition consisting of a $2.15 billion second lien secured term loan facility on the terms set forth in a debt commitment letter, dated as of May 6, 2022 (the “Second Lien Debt Commitment Letter” and, together with the First Lien Debt Commitment Letter, collectively the “Debt Commitment Letters” and, together with the Equity Commitment Letters, the “Commitment Letters”).

The Court Meeting and the Special Meeting

Date, Time and Location

The Court Meeting will be held on [●], 2022, at [●] Eastern time. The Special Meeting will be held on [●], 2022, at [●] Eastern time (or as soon thereafter as the Court Meeting shall have been concluded or adjourned or postponed). You may attend both meetings electronically at www.virtualshareholdermeeting.com/[●], by telephone or in person at 675 Avenue of the Americas, New York, NY 10010. To participate virtually in the Court Meeting and the Special Meeting, you must enter the 16-digit control number included in your proxy card or voting instruction form. Online access to the Court Meeting and the Special Meeting will open approximately 15 minutes prior to the start of such meetings, respectively. If you encounter any difficulties accessing the Court Meeting or the Special Meeting during the check-in or meeting time, please contact the technical support number that will be posted on the virtual Court Meeting or Special Meeting log-in page. Technical support will be available starting 15 minutes prior to the Court Meeting or Special Meeting. If you have questions about or your control number, please contact the bank, broker or other organization that holds your Nielsen ordinary shares.

Proposals

At the Court Meeting, Nielsen shareholders are being asked to consider and approve the Scheme (the “Court Scheme Proposal”). At the Special Meeting, Nielsen shareholders are being asked to consider and approve the following proposals (together, the “Company Proposals”):

 

  1.

Articles Amendment and Scheme Implementation Proposal: To (i) authorize, for the purpose of giving effect to the Scheme between Nielsen and the holders of the Scheme Shares (as defined in the Scheme), the directors of Nielsen (or a duly authorized committee of the directors) to take all such actions as they may consider necessary or appropriate for carrying the Scheme into effect, (ii) amend the articles of association of Nielsen as set forth in the Articles Amendment and Scheme Implementation Proposal, (iii) direct the Company to deliver the Court Order to Companies House if the Court Sanction is obtained and provided that no injunction or other Order by any court or other tribunal of competent jurisdiction shall have been entered and shall continue to be in effect and no Law shall have been adopted that remains in effect or effective, in each case that prevents, enjoins, prohibits or makes illegal the consummation of the Acquisition and (iv) direct the Board of Directors of the Company that it need not undertake a Company Adverse Recommendation Change in connection with an Intervening

 

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  Event or a Company Superior Proposal or cause the Company to terminate the Transaction Agreement in order to enter into a definitive agreement relating to a Company Superior Proposal following the time at which the Company Shareholder Approval is obtained (capitalized terms in this resolution having the meanings set forth in the Transaction Agreement) (the “Articles Amendment and Scheme Implementation Proposal”); and

 

  2.

Compensation Proposal: To approve, on an advisory (non-binding) basis, the compensation that may be paid or become payable to Nielsen’s named executive officers that is based on or otherwise related to the Transaction Agreement and the transactions contemplated by the Transaction Agreement (the “Compensation Proposal”).

The approval of the Court Scheme Proposal and the Articles Amendment and Scheme Implementation Proposal (the “Company Shareholder Approval”) is, subject to certain exceptions, a condition to the closing of the Acquisition (the “Closing”), and as such the Scheme will not become effective if the Company Shareholder Approval is not received. Completion of the Acquisition is not conditioned on approval of the Compensation Proposal. Because the vote on the Compensation Proposal is advisory in nature only, it will not be binding on the Board. Accordingly, if the Court Scheme Proposal and the Articles Amendment and Scheme Implementation Proposal are approved and the Acquisition is completed, the compensation described in the Compensation Proposal may become payable, subject to only the conditions applicable thereto, regardless of the outcome of the non-binding, advisory vote on the Compensation Proposal.

Required Shareholder Approval

Before the Court Sanction can be sought for the Scheme, the Scheme must be approved by Nielsen shareholders at the Court Meeting. The Court Scheme Proposal must be approved by a majority in number of the Shareholders of Record as of the Voting Record Time representing 75% or more in value of the Nielsen ordinary shares at the Voting Record Time, in each case, present and voting, either in person or by proxy. The Excluded Shares cannot be voted at the Court Meeting.

Nielsen shareholders are also being asked to consider and approve the Articles Amendment and Scheme Implementation Proposal at the Special Meeting. The Articles Amendment and Scheme Implementation Proposal will be proposed as a special resolution, which means, provided that a quorum is present, that such proposal will be approved if at least 75% of the votes cast at the Special Meeting are voted in favor thereof. The Compensation Proposal will be proposed as an ordinary resolution, which means, provided that a quorum is present, such proposal will be approved if a simple majority of the votes cast at the Special Meeting are voted in favor thereof. The Excluded Shares (other than any treasury shares) can be voted at the Special Meeting.

An abstention occurs when a Nielsen shareholder abstains from voting (either in person or by proxy) on one or more of the proposals. Broker non-votes occur when a broker, bank, trust or other nominee returns a proxy but does not have authority to vote on a particular proposal. In connection with the Special Meeting, abstentions and broker non-votes will be considered in determining the presence of a quorum. As abstentions and broker non-votes are not considered votes cast under the Companies Act, for the purposes of determining whether the Court Scheme Proposal and/or the Company Proposals have been approved in accordance with the Companies Act, abstentions and broker non-votes will not be counted in the calculation of the votes “FOR” and “AGAINST” the Court Scheme Proposal and/or the Company Proposals. The votes on each proposal are separate and apart from the votes on any of the other proposals. Accordingly, you may vote to approve certain of the proposals and vote not to approve other proposals.

As of the Beneficial Holder Record Date, our directors and executive officers beneficially owned and were entitled to vote, in the aggregate, [●] Nielsen ordinary shares, representing approximately [●]% of the Nielsen ordinary shares outstanding as of such date.

 

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We currently expect that our directors and executive officers will vote (or instruct to vote) all of their respective Nielsen ordinary shares “FOR” the Court Scheme Proposal and both of the Company Proposals.

Record Date; Shares Entitled to Vote

Shareholders whose name appears in the register of members of Nielsen are referred to in this proxy statement as “Shareholders of Record.” Shareholders of Record at [●] (Eastern time) on [●], 2022 (the “Voting Record Time”) are entitled to vote at the Court Meeting and the Special Meeting. If the Court Meeting or the Special Meeting are adjourned or postponed for more than ten (10) business days, the Voting Record Time will be at such time on the date which is ten (10) business days before the date fixed for reconvening the adjourned or postponed meeting. Changes to entries on Nielsen’s register of members after the Voting Record Time will be disregarded in determining the rights of any person to attend or vote at the Court Meeting and the Special Meeting.

Shareholders who own Nielsen ordinary shares for which Cede & Co. is the registered holder (as nominee for The Depository Trust Company (“DTC”)) or whose interests in Nielsen ordinary shares are held in “street name” by a broker, bank, trust or other nominee, are referred to in this proxy statement as “Beneficial Holders.” Only Beneficial Holders at the close of business on [●], 2022 (the “Beneficial Holder Record Date”) will have the right to instruct their broker, bank, trust or other nominee how to vote their Nielsen ordinary shares at the Court Meeting and the Special Meeting. The Excluded Shares cannot be voted at the Court Meeting.

Shareholders of Record and Beneficial Holders at the close of business on [●], 2022 (the “Notice Record Date”) and all Shareholders of Record at the Voting Record Time will receive notice of the Court Meeting and the Special Meeting. As of [●], 2022, there were [●] Nielsen ordinary shares outstanding, held by [●] Shareholders of Record.

Quorum

For the Court Meeting, the U.K. Court must be satisfied that the votes cast are a fair and reasonable representation of the opinion of the holders of the Scheme Shares (as such term is defined in the Scheme). Two Nielsen shareholders present in person, by way of the Internet, by telephone or by proxy at the Special Meeting and entitled to vote constitute a quorum.

Recommendation of the Nielsen Board

The Board has unanimously: (i) determined that the transactions contemplated by the Transaction Agreement, including the Acquisition, would be most likely to promote the success of the Company for the benefit of its shareholders as a whole; (ii) approved the execution, delivery and performance of the Transaction Agreement and the consummation of the transactions contemplated thereby, including the Acquisition; (iii) resolved to recommend that Nielsen shareholders vote in favor of the Scheme at the Court Meeting and the Company Proposals at the Special Meeting; and (iv) directed that the Scheme be submitted for approval by Nielsen shareholders at the Court Meeting.

Accordingly, the Board unanimously recommends that you vote “FOR” the Court Scheme Proposal and both of the Company Proposals.

Prior to the receipt of the Court Sanction (or in certain circumstances, prior to the receipt of the Company Shareholder Approval), under certain circumstances, the Board may change, qualify, modify, withhold, rescind or withdraw the foregoing recommendation under certain circumstances in response to an Intervening Event or in connection with a Company Superior Proposal (each as defined in the section of this proxy statement captioned

 

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“The Transaction Agreement—The Board’s Recommendation; Company Adverse Recommendation Change”). However, the Board cannot effect a Company Adverse Recommendation Change (as defined in the section of this proxy statement captioned “The Transaction Agreement—The Board’s Recommendation; Company Adverse Recommendation Change”) unless it complies with certain procedures in the Transaction Agreement, including, but not limited to, negotiating with Parent and its representatives in good faith over a four-business day period, after which the Board shall have (i) in the case of a Company Adverse Recommendation Change in connection with an Intervening Event, determined in good faith, after consultation with its outside legal counsel and outside financial advisors, that the failure of the Board to make a Company Adverse Recommendation Change would reasonably be expected to be inconsistent with the Board’s fiduciary duties under applicable law, and (ii) in the case of a Company Adverse Recommendation Change in connection with a Company Superior Proposal, determined that such Company Superior Proposal would continue to constitute a Company Superior Proposal. The termination of the Transaction Agreement by Parent in the event of a Company Adverse Recommendation Change, or by Nielsen in order to enter into a definitive agreement providing for a Company Superior Proposal, will result in the payment by Nielsen of a termination fee of $102 million. For more information, please see the section of this proxy statement captioned “The Transaction Agreement—The Board’s Recommendation; Company Adverse Recommendation Change.”

Shareholders should also note that, if the Articles Amendment and Scheme Implementation Proposal is approved by Nielsen shareholders at the Special Meeting, the Board need not undertake a Company Adverse Recommendation Change in connection with an Intervening Event or a Company Superior Proposal or cause the Company to terminate the Transaction Agreement in order to enter into a definitive agreement relating to a Company Superior Proposal following the time at which the relevant Company Shareholder Approval is obtained (capitalized terms in this paragraph having the meanings set forth in the Transaction Agreement), as described in the “Articles Amendment and Scheme Implementation Proposal.”

Opinion of J.P. Morgan Securities LLC

Pursuant to an engagement letter, Nielsen retained J.P. Morgan Securities LLC (“J.P. Morgan”) as its financial advisor in connection with the proposed Acquisition.

At a meeting of the Board on March 28, 2022, J.P. Morgan rendered its oral opinion to the Board that, as of such date and based upon and subject to the assumptions made, procedures followed, matters considered and limitations on the review undertaken by J.P. Morgan in preparing its opinion, the consideration to be paid to the Scheme Shareholders in the proposed Acquisition was fair, from a financial point of view, to the Scheme Shareholders. J.P. Morgan has confirmed its March 28, 2022 oral opinion by delivering its written opinion to the Board, dated March 28, 2022, that, as of such date, the consideration to be paid to the Scheme Shareholders in the proposed Acquisition was fair, from a financial point of view, to the Scheme Shareholders.

The full text of the written opinion of J.P. Morgan, dated March 28, 2022, which sets forth, among other things, the assumptions made, procedures followed, matters considered and limitations on the review undertaken by J.P. Morgan in preparing its opinion, is attached as Annex C to this proxy statement and is incorporated herein by reference. The summary of the opinion of J.P. Morgan set forth in this proxy statement is qualified in its entirety by reference to the full text of such opinion. Nielsen shareholders are urged to read the opinion in its entirety.

J.P. Morgan’s written opinion was addressed to the Board (in its capacity as such) in connection with and for the purposes of its evaluation of the proposed Acquisition, was directed only to the consideration to be paid to the Scheme Shareholders in the proposed Acquisition and did not address any other aspect of the proposed Acquisition. J.P. Morgan expressed no opinion as to the fairness of the consideration to the holders of any class of securities, creditors or other constituencies of Nielsen or as to the underlying decision by Nielsen to engage in

 

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the proposed Acquisition. The issuance of J.P. Morgan’s opinion was approved by a fairness committee of J.P. Morgan. The summary of the opinion of J.P. Morgan set forth in this proxy statement is qualified in its entirety by reference to the full text of J.P. Morgan’s written opinion. The opinion does not constitute a recommendation to any Nielsen shareholder as to how such shareholder should vote with respect to the proposed Acquisition or any other matter.

For more information, see the section of this proxy statement titled “The Acquisition—Opinion of J.P. Morgan Securities LLC.”

Opinion of Allen & Company LLC

Nielsen has engaged Allen & Company LLC (“Allen & Company”) as a financial advisor to Nielsen in connection with the Acquisition. In connection with this engagement, Allen & Company delivered a written opinion, dated March 28, 2022, to the Board as to the fairness, from a financial point of view and as of the date of such opinion, of the Offer Consideration to be paid to holders of Nielsen ordinary shares (other than, as applicable, Parent, Purchaser, Consortium members of such entities, and their respective affiliates) pursuant to the Transaction Agreement. The full text of Allen & Company’s written opinion, dated March 28, 2022, which describes the assumptions made, procedures followed, matters considered and qualifications and limitations on the review undertaken, is attached to this proxy statement as Annex D and is incorporated by reference herein in its entirety. The description of Allen & Company’s opinion set forth in this proxy statement is qualified in its entirety by reference to the full text of Allen & Company’s opinion. Allen & Company’s opinion and advisory services were intended for the benefit and use of the Board (in its capacity as such) in connection with its evaluation of the Offer Consideration from a financial point of view and did not address any other terms, aspects or implications of the Acquisition. Allen & Company’s opinion did not constitute a recommendation as to the course of action that Nielsen (or the Board or any committee thereof) should pursue in connection with the Acquisition or otherwise address the merits of the underlying decision by Nielsen to engage in the Acquisition, including in comparison to other strategies or transactions that might be available to Nielsen or which Nielsen might engage in or consider. Allen & Company’s opinion does not constitute advice or a recommendation to any securityholder or other person as to how to vote or act on any matter relating to the Acquisition or otherwise.

Treatment of Nielsen Equity Awards

Each option to purchase Nielsen ordinary shares (a “Nielsen Option”) that is outstanding as of immediately prior to the Effective Time, whether vested or unvested, will be cancelled and converted into the right to receive a cash payment equal to the product of (1) the number of Nielsen ordinary shares subject to such Nielsen Option as of immediately prior to the Effective Time and (2) the excess, if any, of the Offer Consideration over the exercise price per Nielsen ordinary share subject to such Nielsen Option as of the Effective Time.

Each restricted stock unit award, including any award of deferred stock units held by non-employee directors, in respect of Nielsen ordinary shares (a “Nielsen RSU Award”) that is outstanding as of immediately prior to the Effective Time will be cancelled and converted into the right to receive a cash payment equal to the product of (1) the number of Nielsen ordinary shares subject to such Nielsen RSU Award as of immediately prior to the Effective Time and (2) the Offer Consideration. For purposes of clause (1) of the immediately preceding sentence, the number of Nielsen ordinary shares subject to a performance-based Nielsen RSU Award with respect to which the applicable performance period is incomplete as of immediately prior to the Effective Time will be based on target (100%) performance.

 

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Interests of Nielsen’s Executive Officers and Directors in the Acquisition

When considering the recommendation of the Board that you vote to approve the proposal to adopt the Transaction Agreement, Nielsen shareholders should be aware that Nielsen’s directors and executive officers may have interests in the Acquisition that are or may be different from, or in addition to, Nielsen shareholders more generally. In (1) evaluating and negotiating the Transaction Agreement, (2) approving the Transaction Agreement and the Acquisition and (3) recommending that the Transaction Agreement be adopted by Nielsen shareholders, the Board was aware of and considered these interests, among other matters, to the extent that these interests existed at the time. These interests include:

 

   

at the Effective Time, each Nielsen Option and Nielsen RSU Award held by an executive officer or director will receive the treatment described in the section of this proxy statement captioned “The Acquisition—Interests of Nielsen’s Executive Officers and Directors in the Acquisition”;

 

   

eligibility of Nielsen’s executive officers to receive severance payments and benefits under the Nielsen severance policy, as described in more detail in the section of this proxy statement captioned “The Acquisition—Interests of Nielsen’s Executive Officers and Directors in the Acquisition”;

 

   

certain executive officers may enter into arrangements providing that, in the event that an executive officer receives any payments or benefits that are subject to tax under Section 4999 of the Code, the executive officer will receive a payment that puts the executive officer in the same after-tax position as though the tax under Section 4999 of the Code did not apply (“The Acquisition—Interests of Nielsen’s Executive Officers and Directors in the Acquisition”); and

 

   

continued indemnification and directors’ and officers’ liability insurance. (“The Acquisition—Interests of Nielsen’s Executive Officers and Directors in the Acquisition”).

The Go-Shop Period

Pursuant to the Transaction Agreement and subject to the conditions therein, during the period from the date of the Transaction Agreement and continuing until 11:59 p.m. (Eastern time) on May 12, 2022 (the “No-Shop Period Start Date” and such period, the “Go-Shop Period”), Nielsen had the right to, among other things: (i) solicit, initiate, propose or induce the making, submission or announcement of, or knowingly encourage, facilitate or assist, any proposal or inquiry that constitutes, could constitute or is reasonably expected to lead to, a bona fide proposal or offer for a merger, business combination or similar transaction involving the Company or the acquisition of more than 20% of Nielsen ordinary shares or consolidated assets (a “Company Takeover Proposal”); (ii) provide non-public or other information relating to the Company to a third party, subject to the entry into one or more acceptable confidentiality agreements; (iii) continue, enter into, maintain, participate or engage in discussions or negotiations with third parties and prospective debt and equity financing with respect to a Company Takeover Proposal; and (iv) cooperate with or assist or participate in or facilitate any such proposals, inquiries, offers, discussions or negotiations or any effort or attempt to make any Company Takeover Proposal.

The Go-Shop Period expired on May  12, 2022 without any party submitting a Company Takeover Proposal.

Restrictions on Solicitation of Alternative Proposals

Beginning on the No-Shop Period Start Date, with the exception of any “Excluded Party” (defined as a third party that submitted a Company Takeover Proposal that the Board determined prior to the end of the Go-Shop Period was or would reasonably be expected to lead to a Company Superior Proposal (defined as a Company Takeover Proposal with 50% substituted for the 20% threshold in the definition thereof which the Board determines in good faith after consultation with counsel to be more favorable to the Company and its

 

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shareholders than the transactions contemplated by the Transaction Agreement)), Nielsen may not: (i) solicit, initiate, propose or induce the making, submission or announcement of, or knowingly encourage, facilitate or assist, any proposal or inquiry that constitutes, could constitute or is reasonably expected to lead to, a Company Takeover Proposal; (ii) participate in any discussions or negotiations regarding, or furnish to any other person any information in connection with or for the purpose of encouraging or facilitating, any inquiry, proposal or offer that constitutes, or could reasonably be expected to lead to, a Company Takeover Proposal; (iii) enter into any letter of intent, agreement or agreement in principle relating to or providing for a Company Takeover Proposal; or (iv) publicly approve, endorse or recommend any proposal that constitutes, or could reasonably be expected to lead to, a Company Takeover Proposal.

Notwithstanding the foregoing restrictions, prior to the receipt of the Court Sanction, or if the Articles Amendment and Scheme Implementation Proposal is approved by Nielsen shareholders at the Special Meeting, prior to the receipt of the Company Shareholder Approval, if Nielsen receives a written Company Takeover Proposal from any person, and if the Board determines in good faith, after consultation with its counsel and advisors, that such Company Takeover Proposal constitutes or would reasonably be expected to lead to a Company Superior Proposal, then Nielsen and its representatives may (i) furnish, pursuant to an acceptable confidentiality agreement, information with respect to Nielsen and its subsidiaries to the person making such Company Takeover Proposal (provided that Parent is also provided any such non-public information which it has not already received on a substantially concurrent basis) and (ii) engage in or otherwise participate in discussions or negotiations with the person making such Company Takeover Proposal and its representatives regarding the Company Takeover Proposal; provided, that it will promptly (and in any event within 24 hours) notify Parent of its taking any such actions in the foregoing clauses (i)-(ii). For more information, please see the section of this proxy statement captioned “The Transaction Agreement—The Go-Shop Period.”

Prior to the receipt of the Court Sanction, or if the Articles Amendment and Scheme Implementation Proposal is approved by the Nielsen shareholders at the Special Meeting, prior to the receipt of the Company Shareholder Approval, Nielsen is entitled to make a Company Adverse Recommendation Change (as defined in the section of this proxy statement captioned “The Transaction Agreement—The Board’s Recommendation; Company Adverse Recommendation Change”) or cause the Company to terminate the Transaction Agreement for the purpose of entering into a definitive agreement relating to a Company Superior Proposal if it complies with certain procedures in the Transaction Agreement, including, but not limited to, giving Parent at least four (4) business days’ prior written notice of its intention to make a Company Adverse Recommendation Change and negotiating with Parent in good faith during the notice period to make amendments to the terms and conditions of the Transaction Agreement that would obviate the need to effect such Company Adverse Recommendation Change. For more information, please see the section of this proxy statement captioned “The Transaction Agreement—The Board’s Recommendation; Company Adverse Recommendation Change.”

The termination of the Transaction Agreement by Nielsen in connection with the Board’s authorization for Nielsen to enter into a definitive agreement in connection with a Company Superior Proposal will result in the payment by Nielsen of a termination fee of $102 million. For more information, please see the sections of this proxy statement captioned “The Transaction Agreement—The Board’s Recommendation; Company Adverse Recommendation Change” and “The Transaction Agreement—Termination Fees.”

Switching to an Offer

The Transaction Agreement contains a right for Nielsen, Parent and Purchaser, at any time prior to the Effective Time, to mutually agree to implement the Acquisition by way of a takeover offer as described in Section 974 of the Companies Act made by or on behalf of Purchaser to acquire all of the issued and to be issued Nielsen ordinary shares other than the Excluded Shares (an “Offer”) rather than the Scheme. In the event of a switch to an Offer (a “Switch”), as soon as practicable on the date the Offer is first commenced (within the

 

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meaning of Rule 14d-2 promulgated under the Exchange Act), Parent and Purchaser will prepare a tender offer statement on Schedule TO with respect to the Offer, as well as any required accompanying documents, and Nielsen will file, concurrently with the Schedule TO, a Schedule 14D-9 pertaining to the Offer. Each of Nielsen, Parent and Purchaser will also take other actions required to implement the Offer in accordance with the Transaction Agreement. In the event of a Switch, Purchaser will commence the Offer within ten (10) business days following the Switch, and will offer to purchase all of the Nielsen ordinary shares to which the Offer relates at not less than the Offer Consideration.

The Offer will be subject to no conditions other than: (a) the condition that prior to the expiration at the Offer, there have been validly tendered and not validly withdrawn in accordance with the terms of the Offer a number of Nielsen ordinary shares that, upon consummation of the Offer, together with the Nielsen ordinary shares owned by Parent and Purchaser would represent not less than 90% in value of the Nielsen ordinary shares to which the Offer relates, or such lower percentage (but not less than 50% of the Nielsen ordinary shares in issue plus one (1) Nielsen ordinary share) as Parent may determine in its sole discretion (the “Minimum Condition”); and (b) the satisfaction of the Closing Conditions (other than receipt of the Court Sanction and delivery of the Court Order to Companies House).

In the event of any Switch, each of Nielsen, Parent and Purchaser agree that, unless the Offer is extended, it will expire at 12:00 midnight (Eastern time) on the date that is twenty (20) business days after the date the Offer is first commenced. Unless Parent receives the prior written consent of Nielsen: (i) Purchaser will extend the Offer for any period required by law, the SEC or NYSE to the extent necessary to resolve any SEC comments; (ii) in the event that any of the Offer conditions (other than the Minimum Condition) have not been satisfied or waived prior to the then-scheduled expiration of the Offer, Purchaser will extend the Offer for successive ten (10) business day periods in order to permit the satisfaction or valid waiver of such Offer conditions; and (iii) if at any then-scheduled expiration of the Offer each condition (other than the Minimum Condition) has been satisfied, Purchaser may (and at Nielsen’s request, will) extend the Offer for successive ten (10) business day periods, provided that in no event will Purchaser or Parent be required to extend the offer more than twice pursuant to this (iii). Neither Parent nor Purchaser will terminate or withdraw the Offer prior to the then-scheduled Expiration of the Offer unless the Transaction Agreement is validly terminated, in which case Purchaser will irrevocably and unconditionally terminate the Offer promptly after the termination of the Transaction Agreement.

Termination of the Transaction Agreement

The Transaction Agreement contains certain termination rights, including, among others:

 

   

the right of the parties to terminate the Transaction Agreement by mutual written consent;

 

   

the right of either party to terminate the Transaction Agreement if (a) the Effective Time has not occurred within six months of the date of the Transaction Agreement, which may in certain circumstances be extended up to twelve (12) months from the date of the Transaction Agreement, (b) a governmental entity has issued a final non-appealable order prohibiting the Acquisition, (c) the Company Shareholder Approval is not obtained at the shareholder meetings convened for such purpose or (d) the other party breaches its representations, warranties or covenants in the Transaction Agreement in a manner that would result in a failure of the applicable Closing Condition to be satisfied, subject in certain cases, to the right of the breaching party to cure the breach;

 

   

the right of Nielsen to terminate the Transaction Agreement (a) following the satisfaction of conditions to Parent and Purchaser’s obligations to consummate the Closing if (i) Parent and Purchaser fail to consummate the Closing within the time period required under the Transaction Agreement, (ii) Nielsen has provided irrevocable and unconditional notice to Parent five (5) business days prior to such

 

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termination that it is ready, willing and able to consummate the Closing and solely for purposes of consummating the Closing, all conditions to Nielsen’s obligation to consummate the Closing have been satisfied or that it is willing to waive any unsatisfied conditions, and (iii) Parent and Purchaser fail to consummate the Acquisition within five (5) business days after delivery of such notice; or (b) in order to enter into a definitive agreement providing for a Company Superior Proposal in certain circumstances; and

 

   

the right of Parent to terminate the Transaction Agreement (a) if the Board makes a Company Adverse Recommendation Change or (b) if it is ultimately determined that Nielsen is subject to the United Kingdom City Code on Takeovers and Mergers (the “Takeover Code”) and the United Kingdom Panel on Takeovers and Mergers (the “Panel”) is able to assert jurisdiction over the Acquisition, provided that such termination right described in (b) must be exercised within five (5) business days of such ultimate determination.

Under some circumstances, (i) Nielsen is required to pay Parent a termination fee equal to $102 million; and (ii) Parent is required to pay Nielsen a termination fee equal to $511 million. Please see the section of this proxy statement captioned “The Transaction Agreement—Termination Fees” for more information.

Certain Effects of the Acquisition

Upon the terms and subject to the conditions of the Transaction Agreement and the Scheme, at the Effective Time, Purchaser will directly or indirectly acquire all of the issued and to be issued Nielsen ordinary shares (other than the Excluded Shares). As a result of the Acquisition, Nielsen will become a direct or indirect wholly owned subsidiary of Purchaser. Purchaser will de-list the Nielsen ordinary shares and de-register under the Exchange Act as soon as reasonably practicable following the Effective Time and, following such time, no longer will be a publicly traded company and no longer will file periodic reports or other materials with the SEC. If the Acquisition is consummated, you will not own any Nielsen ordinary shares, and instead will only be entitled to receive the Offer Consideration described in the section of this proxy statement captioned “The Transaction Agreement—Offer Consideration.”

The Acquisition will be effective when an order from the U.K. Court sanctioning the Scheme is delivered to the Companies House, which will only occur following the satisfaction or waiver of all of the conditions to Closing.

Effect on Nielsen If the Acquisition Is Not Completed

If the Company Shareholder Approval is not received, or if the Acquisition is not completed for any other reason:

 

  i.

Nielsen shareholders will not be entitled to, nor will they receive, any payment for their respective Nielsen ordinary shares pursuant to the Transaction Agreement;

 

  ii.

(a) Nielsen will remain an independent public company; (b) Nielsen ordinary shares will continue to be listed and traded on the NYSE and registered under the Exchange Act; and (c) Nielsen will continue to file periodic reports with the SEC; and

 

  iii.

under certain specified circumstances, Nielsen will be required to pay Parent a termination fee of $102 million. For more information, please see the section of this proxy statement captioned “The Transaction Agreement—Termination Fees.”

No Appraisal or Dissenters’ Rights

Nielsen shareholders are not entitled to appraisal or dissenters’ rights in connection with the Acquisition.

 

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When the Court Sanction is sought for the Scheme, the U.K. Court will consider matters including whether the Scheme has been implemented in accordance with the Companies Act, whether the Nielsen shareholders were fairly represented at the Court Meeting, whether the majority of the Nielsen shareholders are acting in a bona fide fashion and not coercing the minority and whether the Scheme is one that a reasonable shareholder would approve. Scheme Shareholders (defined below) are entitled to attend the Court Meeting and to make submissions to oppose the Scheme on the basis that the aforementioned requirements have not been satisfied. However, if and when the Court Sanction is received and the Court Order is delivered to the Companies House, all Scheme Shareholders will be bound by the terms of the Scheme regardless of whether, or how, they voted at the Court Meeting.

Certain Scheme Defined Terms

In the Scheme, unless inconsistent with the subject or context, the following expressions shall bear the following meanings:

 

“Court Hearing”    the hearing of the U.K. Court (or any adjournment thereof) to sanction the Scheme under section 899 of the Companies Act, at which the Court will be requested to grant the Court Order;
“Court Order”    the order of the U.K. Court sanctioning the Scheme under Part 26 of the Companies Act;
“Excluded Shares”    (i) any Nielsen ordinary shares in the name of or beneficially owned by Parent, Purchaser, the Equity Investors or their respective Affiliates, or any subsidiary undertaking of Parent, Purchaser or their respective Affiliates but excluding the Purple Green Excluded Shares; and (ii) any ordinary shares held in treasury by the Company;
“Scheme”    this scheme of arrangement proposed to be made under Part 26 of the Companies Act between Nielsen and the Scheme Shareholders, in its present form with or subject to any modification, addition or condition approved or imposed by the Court and agreed to by Nielsen, Parent and Purchaser;
“Scheme Record Time”    6 p.m. New York time on the date of the Court Hearing;
“Scheme Shareholders”    holders of Scheme Shares whose names appear in the register of members of the Company as at the Scheme Record Time;
“Scheme Shares”   

Nielsen ordinary shares:

 

(i) in issue at the date of this document;

 

(ii)  (if any) issued after the date of this document but prior to the Voting Record Time; and

 

(iii)  (if any) issued on or after the Voting Record Time but before the Scheme Record Time in respect of which the original or any subsequent holders thereof shall or shall by such time have agreed in writing to be, bound by this Scheme,

 

in each case, remaining in issue at the Scheme Record Time but excluding the Excluded Shares;

 

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“Voting Record Time”    [●] [a.m./p.m.] on [●] or, if the Court Meeting is adjourned or postponed for more than ten (10) business days, [●] [a.m./p.m.] [on the [tenth] business day before the date of such adjourned or postponed meeting],

Expected Timetable of Principal Events

 

Action    Time/date

Latest time for lodging Forms of Proxy for the:

  

Court Meeting

   [●]

Special Meeting

   [●]
Beneficial Holder Record Date    [●]
Voting Record Time for Court Meeting and Special Meeting    [●]
Court Meeting    [●]
Special Meeting    [●]
Court Hearing to sanction the Scheme (“Day D”)    A date following the receipt of applicable regulatory approvals and expiry of applicable waiting periods.
Scheme Record Time / Disablement of Nielsen ordinary shares held in DTC    Expected to be 6 p.m. (New York time) on Day D.
Delivery of Court Order / Effective Date/ Closing Date    Day D + 1 business day.
Deposit of aggregate Offer Consideration with Paying Agent    At or prior to the Effective Time (or, in the event that the Effective Time occurs later than 3.00 p.m. U.K. time on any date (or such later time as Parent and the Company may agree to), then no later than the first business day following such date).
Suspension of trading of Nielsen ordinary shares on the New York Stock Exchange    Depending on Effective Time, may occur (i) before market opens on the Closing Date or (ii) after the close of business on the Closing Date.
Payment of Offer Consideration by the Paying Agent to shareholders    Not later than the 14th day following the Closing Date.
End Date    11.59 p.m. (London time) on 28 September 2022 (or such later date as may be extended in accordance with Section 6.1(a)(ii) of the Transaction Agreement), or such later date, if any, as the Company and Purchaser may agree and, if required, the U.K. Court may allow.

 

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QUESTIONS AND ANSWERS

The following questions and answers address some commonly asked questions regarding the Acquisition, the Transaction Agreement, the Court Meeting and the Special Meeting. These questions and answers may not address all questions that are important to you. You should carefully read and consider the more detailed information contained elsewhere in this proxy statement and the annexes to this proxy statement, including, but not limited to, the Transaction Agreement, along with all of the documents we refer to in this proxy statement, as they contain important information about, among other things, the Acquisition and how it affects you. You may obtain the information incorporated by reference in this proxy statement without charge by following the instructions under the caption “Where You Can Find More Information.”

Q:    Why am I receiving these materials?

A:    The Board is furnishing this proxy statement and forms of proxy cards to the Nielsen shareholders in connection with the solicitation of proxies to be voted at the Court Meeting and the Special Meeting.

Q:    Why are there two Nielsen shareholder meetings?

A:    The Acquisition is to be implemented by means of a U.K. Court-sanctioned scheme of arrangement between Nielsen and its shareholders who are Scheme Shareholders on the Nielsen register of members at the Scheme Record Time (as defined in the Transaction Agreement) under Part 26 of the Companies Act. The procedure requires approval of the Scheme by Nielsen shareholders at a meeting that is convened by the Court, which we refer to as the Court Meeting. The Nielsen shareholders will vote on the Court Scheme Proposal at the Court Meeting as described in the section of this proxy statement captioned “Court Scheme Proposal.”

The Acquisition also requires the approval of the Articles Amendment and Scheme Implementation Proposal to carry the Scheme into effect. These proposals will not be presented at the Court Meeting. Therefore, Nielsen is also holding a Special Meeting at which Nielsen shareholders will vote on the Company Proposals.

Q:    When and where is the Court Meeting?

A:     The Court Meeting will be held on [●], 2022, at [●] Eastern time. You may attend both the Court Meeting and the Special Meeting online at www.virtualshareholdermeeting.com/[●], by telephone or in person at 675 Avenue of the Americas, New York, NY 10010.

Q:     When and where is the Special Meeting?

A:    The Special Meeting will be held on [●], 2022, at [●] Eastern time (or as soon thereafter as the Court Meeting shall have been concluded or adjourned or postponed). You may attend both the Court Meeting and the Special Meeting online at www.virtualshareholdermeeting.com/[●], by telephone or in person at 675 Avenue of the Americas, New York, NY 10010.

Q:    What am I being asked to vote on at the Court Meeting?

A:    You are being asked to vote on the Court Scheme Proposal to approve the Scheme, as described in the “Court Scheme Proposal.”

Q:    What am I being asked to vote on at the Special Meeting?

A:    You are being asked to vote on the following proposals:

 

   

to adopt the Articles Amendment and Scheme Implementation Proposal to (i) authorize, for the purpose of giving effect to the Scheme between Nielsen and the holders of the Scheme Shares (as

 

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defined in the Scheme), the directors of Nielsen (or a duly authorized committee of the directors) to take all such actions as they may consider necessary or appropriate for carrying the Scheme into effect, (ii) amend the articles of association of Nielsen as set forth in the Articles Amendment and Scheme Implementation Proposal, (iii) direct the Company to deliver the Court Order to Companies House if the Court Sanction is obtained and provided that no injunction or other Order by any court or other tribunal of competent jurisdiction shall have been entered and shall continue to be in effect and no Law shall have been adopted that remains in effect or effective, in each case that prevents, enjoins, prohibits or makes illegal the consummation of the Acquisition and (iv) direct the Board of Directors of the Company that it need not undertake a Company Adverse Recommendation Change in connection with an Intervening Event or a Company Superior Proposal or cause the Company to terminate the Transaction Agreement in order to enter into a definitive agreement relating to a Company Superior Proposal following the time at which the Company Shareholder Approval is obtained, as described in the section of this proxy captioned “The Articles Amendment and Scheme Implementation Proposal;” and

 

   

to approve, on an advisory (non-binding) basis, the Compensation Proposal in accordance with Section 14A of the Exchange Act, the compensation to be paid or become payable to Nielsen’s named executive officers in connection with the Acquisition and the agreements and understandings pursuant to which such compensation may be paid or become payable, as described in the section of this proxy captioned “The Compensation Proposal.”

As more particularly described in the section of this proxy statement captioned “The Court Meeting and the Special Meeting,” the Acquisition is to be implemented by means of a Court-sanctioned scheme of arrangement between Nielsen and the Nielsen shareholders who are Scheme Shareholders on the Nielsen register of members at the Scheme Record Time under Part 26 of the Companies Act. The procedure requires approval by the Scheme Shareholders at the Court Meeting and the sanction of the Scheme by the Court.

Court Meeting: The purpose of the Scheme is to provide for Purchaser to acquire all of the issued and to be issued Nielsen ordinary shares, other than the Excluded Shares. This is to be achieved by the automatic transfer of all of the outstanding Scheme Shares at the Scheme Record Time to Purchaser, in consideration of which Purchaser will pay the consideration for the transfer of the Scheme Shares on the basis set out in the Scheme. Before the Court’s sanction can be sought for the Scheme, the Court Scheme Proposal must be approved by Nielsen shareholders at the Court Meeting. The resolution must be approved by a majority in number of the holders of Scheme Shares who are Shareholders of Record as of the Voting Record Time representing 75% or more in value of the Nielsen ordinary shares at the Voting Record Time, in each case, present and voting (and entitled to vote), either in person or by proxy. The Excluded Shares cannot be voted at the Court Meeting. The approval of the Court Scheme Proposal is a condition to the Closing of the Acquisition, so if the Court Scheme Proposal is not approved, the Acquisition cannot be completed.

Special Meeting: Nielsen shareholders are also being asked to consider and approve the Articles Amendment and Scheme Implementation Proposal and the Compensation Proposal. The Articles Amendment and Scheme Implementation Proposal will be proposed as a special resolution, which means, provided that a quorum is present, such proposal will be approved if at least 75% of the votes cast at the Special Meeting are cast in favor thereof. The approval of the Articles Amendment and Scheme Implementation Proposal is, subject to certain exceptions, a condition to the Closing of the Acquisition, so if it is not approved, the Acquisition cannot be completed. The Compensation Proposal will be proposed as an ordinary resolution, which means, provided that a quorum is present, such proposal will be approved if a simple majority of the votes cast are in favor thereof. In addition, as the Compensation Proposal is advisory and non-binding, the vote will not require the Board to take any action. Accordingly, if the Court Scheme Proposal and the Articles Amendment and Scheme Implementation Proposal are approved and the Acquisition is completed, the compensation described in the Compensation Proposal may become payable, subject to the conditions applicable thereto, regardless of the outcome of the non-binding, advisory vote. The Excluded Shares can be voted at the Special Meeting.

 

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Q:    Why am I receiving two proxy cards or voting instructions for two meetings?

A:    As described above, Nielsen shareholders are being asked to consider and approve resolutions at both the Court Meeting and the Special Meeting. Each copy of this document mailed to Shareholders of Record is accompanied by two proxy cards with instructions for voting. The proxy card labeled “Court Meeting Proxy Card” corresponds to the Court Meeting, and the proxy card labeled “Special Meeting Proxy Card” corresponds to the Special Meeting.

Beneficial Holders will receive instructions regarding how to vote from their broker, bank, trust or other nominee. Beneficial Holders will only receive one voting instruction form, but this form will cover how to vote for both meetings.

Your vote is very important. It is important that, for the Court Meeting in particular, as many votes as possible are cast, so that the U.K. Court may be satisfied that there is a fair and reasonable representation of the opinion of the holders of the Scheme Shares at the Court Meeting. You are encouraged to submit a proxy card or voting instructions for both the Court Meeting and the Special Meeting as soon as possible.

Q:     How does the Board recommend that Nielsen shareholders vote?

A:    The Board has unanimously: (i) determined that the transactions contemplated by the Transaction Agreement, including the Acquisition, would be most likely to promote the success of the Company for the benefit of its shareholders as a whole, (ii) approved the execution, delivery and performance of the Transaction Agreement and the consummation of the transactions contemplated thereby, including the Acquisition, (iii) resolved to recommend that Nielsen shareholders vote in favor of the Scheme at the Court Meeting and the Company Proposals at the Special Meeting, and (iv) directed that the Scheme be submitted for approval by Nielsen shareholders at the Court Meeting.

The Board accordingly recommends that you vote “FOR” the Court Scheme Proposal at the Court Meeting and “FOR” both of the Company Proposals at the Special Meeting. For a more complete description of the recommendation of the Board with respect to these proposals, please see the section of this proxy statement captioned “The Acquisition—Recommendation of the Board and Reasons for the Acquisition.”

Q:     Who is entitled to receive notice of, attend and vote at the Court Meeting and the Special Meeting?

A:    Each Shareholder of Record or Beneficial Holder as of the Notice Record Date and each Shareholder of Record at the Voting Record Time will receive notice of the Court Meeting and the Special Meeting.

Only Shareholders of Record at the Voting Record Time will be entitled to attend and vote on the resolutions to be put to the Nielsen shareholders at the Court Meeting and the Special Meeting. Each Beneficial Holder as of the Beneficial Holder Record Date will be entitled to instruct his or her broker, bank, trust or other nominee how to vote such Nielsen ordinary shares on the proposals to be put to the Nielsen shareholders at the Court Meeting and the Special Meeting. At the Beneficial Holder Record Date, there were [●] Nielsen ordinary shares outstanding and entitled to vote at each of the Court Meeting and the Special Meeting. If either meeting is adjourned or postponed for more than ten (10) business days, only those Shareholders of Record at [●] on the date which is ten (10) business days before the date fixed for reconvening the adjourned or postponed meeting will be entitled to attend and vote. No Excluded Shares shall be voted at the Court Meeting (or any adjournment or postponement thereof).

Shareholders of Record and Beneficial Holders may attend online at www.virtualshareholdermeeting.com/[●], by telephone or in person at 675 Avenue of the Americas, New York, NY 10010. To participate virtually in the Court Meeting and the Special Meeting, you must enter the 16-digit control number included in your proxy

 

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card or voting instruction form. Online access to the Court Meeting and the Special Meeting will open approximately 15 minutes prior to the start of such meetings, respectively. If you encounter any difficulties accessing the Court Meeting or the Special Meeting during the check-in or meeting time, please contact the technical support number that will be posted on the virtual Court Meeting or Special Meeting log-in page. Technical support will be available starting 15 minutes prior to the Court Meeting or Special Meeting. If you have questions about or your control number, please contact the bank, broker or other organization that holds your Nielsen ordinary shares.

If you are a Shareholder of Record or a Beneficial Holder who has obtained a legal proxy and you wish to attend the Court Meeting or the Special Meeting in person, you must have a government-issued photo identification along with either your admission ticket (which is included in your Notice or proxy card) or proof of ownership of Nielsen ordinary shares as of the Voting Record Time. Proof of ownership may be any of the following:

 

   

A brokerage statement or letter from a bank or broker indicating ownership as of the Voting Record Time;

 

   

A printout of the proxy distribution email (if you received your materials electronically); or

 

   

A voting instruction form.

For directions to attend the Court Meeting or the Special Meeting in person, go to: ir.nielsen.com or contact our Company Secretary at company.secretary@nielsen.com. We will be unable to admit anyone who does not present valid identification or refuses to comply with our security procedures. Cameras, videotaping equipment and other recording devices and large packages, banners, placards and signs will not be permitted at the Court Meeting or the Special Meeting.

Even if you plan to attend the Court Meeting and the Special Meeting, to ensure that your Nielsen ordinary shares will be represented, we encourage you to sign, date and return the enclosed proxy cards in the accompanying prepaid reply envelope or grant your proxies electronically over the Internet or by telephone (in accordance with the instructions detailed in the section of this proxy statement captioned “The Court Meeting and the Special Meeting—Voting at the Court Meeting and the Special Meeting”). If you attend the Court Meeting or the Special Meeting and vote by ballot, your vote will revoke any proxy previously submitted.

Q:    If my Nielsen ordinary shares are held in “street name” by my broker, bank, trust or other nominee, will my broker, bank, trust or other nominee vote my Nielsen ordinary shares for me?

A:     If your Nielsen ordinary shares are registered in the name of Cede & Co. (as nominee for DTC) or are held in “street name’ through a broker, bank, trustee or other nominee as custodian, you are referred to in this proxy statement as a “Beneficial Holder.” Only Beneficial Holders as of the Beneficial Holder Record Date may instruct their broker, bank, trust or other nominee how to vote at the Special Meeting and Court Meeting. Please follow the voting instructions provided by your broker, bank, trust or other nominee. Please note that you may not vote Nielsen ordinary shares held as a Beneficial Holder by returning a proxy card or voting instructions directly to Nielsen. You may only vote Nielsen ordinary shares held as a Beneficial Holder in person at the Special Meeting or, where such shares are not Excluded Shares, at the Court Meeting if you obtain a “legal proxy” from your broker, bank, trust or other nominee.

Unless a Beneficial Holder directs his or her broker, bank trust or other nominee how to vote his or her Nielsen ordinary shares, such Nielsen ordinary shares will NOT be voted on any of the proposals presented at the Court Meeting or Special Meeting.

Q:    What are the effects of abstentions and broker non-votes at the meetings?

A:    An abstention occurs when a Nielsen shareholder abstains from voting (either in person, through the Internet, by telephone or by proxy) on one or more of the proposals. Broker non-votes occur when a broker,

 

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bank, trust or other nominee returns a proxy but does not have the authority to vote on a particular proposal. Brokers, banks, trust and other nominees will not have discretionary authority to vote on any of the proposals at the Court Meeting or Special Meeting, so they will only be able to vote their Nielsen ordinary shares for which they have received voting instructions from the Beneficial Holders. If you are a Beneficial Holder, you should therefore provide your broker, bank, trust or other nominee with instructions as to how to vote your Nielsen ordinary shares for each proposal.

In connection with the Court Meeting, abstentions and broker non-votes will not be considered votes cast and will, therefore, not be counted in the calculation of the votes “FOR” and “AGAINST” the Court Scheme Proposal.

In connection with the Special Meeting, abstentions and broker non-votes will be considered in determining the presence of a quorum but will not be considered as votes cast. Abstentions and broker non-votes will not be counted in the calculation of the votes “FOR” and “AGAINST” the Company Proposals.

If you sign and submit your proxy card or proxy cards without giving specific voting instructions, this will be construed as an instruction to vote your Nielsen ordinary shares as recommended by the Board for purposes of the Special Meeting, so your Nielsen ordinary shares will be voted “FOR” both of the Company Proposals and in accordance with the discretion of the holders of the proxies with respect to any other matters that may be voted on.

Q:    What will I receive if the Acquisition is completed?

A:    Upon completion of the Acquisition, you will be entitled to receive the Offer Consideration, consisting of $28.00 in cash, less any required tax withholdings and any dividend or other distributions and other return of capital (other than Permitted Dividends) proposed, announced, authorized, declared, paid or made by Nielsen with a record date falling prior to the Effective Time, for each Nielsen ordinary share that you own immediately prior to the Effective Time. For example, if you own 100 Nielsen ordinary shares, you will receive $2,800.00 in cash in exchange for your Nielsen ordinary shares, less any required tax withholdings and any dividend or other distributions and other return of capital (other than Permitted Dividends) proposed, announced, authorized, declared, paid or made by Nielsen with a record date falling prior to the Effective Time.

Q:    May the structure of the Acquisition be changed?

A:    The parties may, at any time prior to the Effective Time, mutually agree to implement the Acquisition by way of a takeover offer to acquire all issued and to be issued Nielsen ordinary shares other than the Nielsen ordinary shares held by Purchaser (an “Offer”) rather than the Scheme. In the event of a switch to an Offer, the parties will file a tender offer statement on Schedule TO and a Schedule 14D-9 pertaining to the Offer, which will contain more information regarding the Offer. For more information, please see the section of this proxy statement captioned “The Transaction Agreement—Other Covenants—Switching to an Offer.”

Q:    What are the material U.S. federal income tax consequences of the Acquisition?

A:    For U.S. federal income tax purposes, the receipt of cash in exchange for Nielsen ordinary shares pursuant to the Acquisition will be a taxable transaction, and a U.S. Holder (as defined under the section of this proxy statement captioned “The Acquisition—Material U.S. Federal Income Tax Consequences of the Acquisition”) will generally recognize gain or loss in an amount equal to the difference, if any, between (i) the amount of cash that such U.S. Holder receives in the Acquisition and (ii) such U.S. Holder’s adjusted tax basis in the Nielsen ordinary shares surrendered in exchange therefor.

For more information, please see the section of this proxy statement captioned “The Acquisition—Material U.S. Federal Income Tax Consequences of the Acquisition.” You should consult your tax advisor regarding the

 

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particular tax consequences to you of the exchange of Nielsen ordinary shares for cash pursuant to the Acquisition in light of your particular circumstances (including the application and effect of any state, local or foreign income and other tax laws).

Q:     What happens if the Acquisition is not completed?

A:    If either the Court Scheme Proposal or the Articles Amendment and Scheme Implementation Proposal, subject to certain exceptions, is not approved or if the Acquisition is not completed for any other reason, Nielsen shareholders will not receive any payment for their Nielsen ordinary shares. Instead, Nielsen will remain an independent public company, Nielsen ordinary shares will continue to be listed and traded on the NYSE and registered under the Exchange Act, and Nielsen will continue to file periodic reports with the SEC.

Under specified circumstances, Nielsen will be required to pay Parent a termination fee of $102 million, upon the termination of the Transaction Agreement, as described in the section of this proxy statement captioned “The Transaction Agreement—Termination Fees.”

Q:    Why are the Nielsen shareholders being asked to cast an advisory (non-binding) vote to approve the Compensation Proposal?

A:    The Exchange Act and applicable SEC rules thereunder require Nielsen to seek an advisory (non-binding) vote with respect to certain payments that could become payable to its named executive officers in connection with the Acquisition.

Q:    What will happen if the Nielsen shareholders do not approve the Compensation Proposal at the Special Meeting?

A:    Approval of the Compensation Proposal is not a condition to the completion of the Acquisition. The vote with respect to the Compensation Proposal is an advisory vote and will not be binding on Nielsen. Accordingly, if the Court Scheme Proposal and the Articles Amendment and Scheme Implementation Proposal are approved and the Acquisition is completed, the compensation may become payable, subject to the conditions applicable thereto, regardless of the outcome of the non-binding, advisory vote.

Q:    What do I need to do now?

A:    You should carefully read and consider this entire proxy statement and the annexes to this proxy statement, including, but not limited to, the Transaction Agreement, along with all of the documents that we refer to in this proxy statement, as they contain important information about, among other things, the Acquisition and how it affects you. If you are a Shareholder of Record, please sign, date and return, as promptly as possible, both of the enclosed proxy cards in the accompanying reply envelope. If you are a Beneficial Holder, please refer to your voting instructions or the information forwarded by your broker, bank or trust or other nominee to see which voting options are available to you. For additional information, please see the instructions detailed in the sections of this proxy statement captioned “The Court Meeting and the Special Meeting—Voting at the Court Meeting and the Special Meeting.”

If you are a Shareholder of Record at the Voting Record Time, neither the submission of a proxy or voting instructions, nor the method by which you submit a proxy or voting instructions, will in any way limit your right to vote at the Court Meeting or Special Meeting if you later decide to attend the meeting in person, by telephone or online. If you are a Beneficial Holder as of the Beneficial Holder Record Date, you must obtain a legal proxy, executed in your favor, from your broker, bank, trust or other nominee, to be able to vote yourself at the Court Meeting and the Special Meeting.

 

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Q:    What is the difference between holding Nielsen ordinary shares as a Shareholder of Record and as a Beneficial Holder?

A:    Shareholders whose names appear in the Nielsen register of members are referred to in this proxy statement as “Shareholders of Record.” Shareholders of Record entitled to vote at each of the Court Meeting and the Special Meeting may vote in person at the applicable meeting or may appoint another person or persons, whether a Nielsen shareholder or not, as their proxy or proxies, to exercise all or any of their rights to attend, speak or vote at the Court Meeting and the Special Meeting, as applicable. Because this proxy statement relates to two separate Nielsen shareholder meetings, Shareholders of Record will receive two proxy cards – one proxy card labeled “Court Meeting Proxy Card” and for use in respect of the Court Meeting and one card labeled “Special Meeting Proxy Card” for use in respect of the Special Meeting; provided always that Excluded Shares are not entitled to be voted at the Court Meeting.

Shareholders who own Nielsen ordinary shares for which Cede & Co. is the registered holder (as nominee for the DTC) or whose interests in Nielsen ordinary shares are held in “street name” by a broker, bank, trust or other nominee, are referred to in this proxy statement as “Beneficial Holders.” If you are a Beneficial Holder of Nielsen ordinary shares, only your broker, bank, trust or other nominee can vote your ordinary shares, and the vote cannot be cast unless you either (i) provide voting instructions to your broker, bank, trust or other nominee or (ii) obtain a legal proxy by contacting your broker, bank, trust or other nominee, which entitles you to vote the Nielsen ordinary shares as proxy for the Shareholder of Record. Because this proxy statement relates to two separate Nielsen shareholder meetings, Beneficial Holders will receive one voting instruction form that covers both the Court Meeting and the Special Meeting. If you are a Beneficial Holder of Nielsen ordinary shares, please vote in accordance with the instructions sent to you by your broker, bank, trustee or nominee as soon as possible; provided always that Excluded Shares are not entitled to be voted at the Court Meeting.

Q:    How may I vote?

On the Day of the Court Meeting and the Special Meeting

A:    If you are a Shareholder of Record, there are three (3) ways to vote on the day of the Court Meeting and the Special Meeting:

 

   

In person: You can vote in person at the Court Meeting and the Special Meeting by coming to 675 Avenue of the Americas, New York, NY 10010. Check-in in person will begin at [●] (Eastern time). For directions to attend the Court Meeting and the Special Meeting in person, go to: [●].

 

   

By ballot at the Court Meeting and the Special Meeting: To vote during the Court Meeting and the Special Meeting, visit www.virtualshareholdermeeting.com/[●] enter the 16-digit control number included in your proxy card. Online access to the Court Meeting and the Special Meeting will open approximately 15 minutes prior to the start of each meeting. If you encounter any difficulties accessing the virtual Court Meeting or Special Meeting during the check-in or meeting time, please call the technical support number that will be posted on the virtual Court Meeting or Special Meeting log-in page for such meetings. Technical support will be available starting 15 minutes prior to each meeting. If you have questions about your control number, please contact the bank, broker or other organization that holds your Nielsen ordinary shares.

 

   

By telephone: [●]

By Proxy

If you are a Shareholder of Record, there are three (3) ways to vote by proxy:

 

   

Internet: Vote at [●] in advance of the Special Meeting. The Internet voting system is available 24 hours a day until 11:59 p.m. Eastern time on [●], 2022. Once you enter the internet voting system,

 

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you can record and confirm (or change) your voting instructions. If you have any questions about www.proxyvote.com, please contact the bank, broker, or other organization that holds your Nielsen ordinary shares.

 

   

Telephone: Use the telephone number shown on your proxy card. The telephone voting system is available 24 hours a day in the United States until 11:59 p.m. Eastern time on [●], 2022. Once you enter the telephone voting system, a series of prompts will tell you how to record and confirm (or change) your voting instructions.

 

   

Mail: If you received a proxy card, mark your voting instructions on the card and sign, date and return it in the postage-paid envelope provided. For your mailed proxy card to be counted, we must receive it before 9:30 a.m. Eastern time on [●], 2022.

If you are a Beneficial Holder, you should contact your bank, broker, trust or other nominee for instructions on how to vote.

Whether or not you plan to attend the Court Meeting and the Special Meeting, we urge you to vote in advance by proxy to ensure your vote is counted.

Q:    May I change my vote after I have mailed my signed and dated proxy card?

A:    Yes. If you are a Shareholder of Record you can do this in the following ways:

 

   

You may send a written notice that you are revoking your proxy to Nielsen’s Company Secretary at 675 Avenue of the Americas, New York, NY 10010, provided such written notice is received before the deadline for the receipt of proxy cards for such meeting;

 

   

You may complete, sign and date another proxy card and return it by mail to the address listed on the proxy card in time to be received before the deadline for the receipt of proxy cards for the Court Meeting and Special Meeting, or by submitting a later-dated proxy via the Internet or telephone, in which case your later-submitted proxy will be recorded and your earlier proxy revoked; or

 

   

You may attend the Court Meeting and the Special Meeting and vote by ballot. Simply attending such meetings, will not, by itself, revoke your proxy.

If you are a Beneficial Holder, you should contact your bank, broker or other nominee for instructions on how to do so.

If you have any questions about how to vote or change your vote, you should contact our proxy solicitor:

INNISFREE M&A INCORPORATED

 

LOGO

501 Madison Avenue, 20th Floor

New York, NY 10022

Stockholders May Call:

(877) 750-8269 (TOLL-FREE from the U.S. and Canada) or

+1 (412) 232-3651 (from other locations)

 

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Q:    What is a proxy?

A:    A proxy is the legal designation of another person by a Shareholder of Record to vote its Nielsen ordinary shares. The written document describing the matters to be considered and voted on at the Court Meeting and the Special Meeting is called a “proxy statement.” The document used to designate a proxy to vote the Nielsen ordinary shares of the relevant Shareholder of Record is called a “proxy card.” David Kenny, Linda Zukauckas, George D. Callard and Jennifer Meschewski are the proxy holders for the Special Meeting, with full power of substitution and re-substitution.

Q:    If a Nielsen shareholder gives a proxy, how are the Nielsen ordinary shares voted?

A:    Regardless of the method you choose to vote, the individuals named on the enclosed proxy cards, or your proxies, will vote your Nielsen ordinary shares in the way that you indicate. When completing the Internet or telephone process or the proxy cards, you may specify whether your Nielsen ordinary shares should be voted for or against or to abstain from voting on all, some or none of the specific items of business to come before the Special Meeting.

If you properly sign your proxy cards but do not mark the boxes showing how your Nielsen ordinary shares should be voted on a matter, the shares represented by your properly signed proxies will be voted: (1) “FOR” the Court Scheme Proposal and (2) “FOR” the Company Proposals.

Q:    What should I do if I receive more than one (1) set of voting materials?

A:    This means you own Nielsen ordinary shares that are registered under different names or are in more than one account. For example, you may own some Nielsen ordinary shares directly as a Shareholder of Record and other Nielsen ordinary shares as a Beneficial Holder. In these situations, you will receive multiple sets of proxy or voting instruction materials. You must vote, sign and return both of the proxy cards or follow the voting instructions for any alternative voting procedure on each of the materials that you receive in order to vote all of the Nielsen ordinary shares you own. Each proxy card you receive comes with its own prepaid return envelope. If you submit your proxy by mail, make sure you return each proxy card in the return envelope that accompanies that proxy card.

Q:    Where can I find the voting results of the Court Meeting and the Special Meeting?

A:    Nielsen intends to publish final voting results in a Current Report on Form 8-K to be filed with the SEC within four (4) business days following the Court Meeting and the Special Meeting. All reports that Nielsen files with the SEC are publicly available when filed. For more information, please see the section of this proxy statement captioned “Where You Can Find More Information.”

Q:    When do you expect the Acquisition to be completed?

A:    We currently expect to complete the Acquisition in the second half of 2022. However, the exact timing of completion of the Acquisition cannot be predicted because the Acquisition is subject to the Closing Conditions specified in the Transaction Agreement and summarized in this proxy statement, certain of which are outside of our control.

Q:    Will I be entitled to appraisal rights if I oppose the Acquisition?

A:    No, under U.K. law, Nielsen shareholders are not entitled to appraisal or dissenters’ rights in connection with the Acquisition. When the Court Sanction is sought for the Scheme, the U.K. Court will consider matters including whether the Scheme has been implemented in accordance with the Companies Act, whether the Nielsen shareholders were fairly represented at the Court Meeting, whether the majority of the Nielsen shareholders are acting in a bona fide fashion and not coercing the minority and whether the Scheme is one that a reasonable shareholder would approve. Scheme Shareholders are entitled to attend the Court Meeting and to make submissions to oppose the Scheme on the basis that the aforementioned requirements have not been

 

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satisfied. However, if and when the Court Sanction is received and the Court Order is delivered to the Companies House, all Scheme Shareholders will be bound by the terms of the Scheme regardless of whether or how they voted at the Court Meeting or the Special Meeting.

Q:    How can I obtain additional information about Nielsen?

A:    Nielsen will provide copies of this proxy statement, documents incorporated by reference and its 2021 Annual Report to Shareholders, including its Annual Report on Form 10-K for the fiscal year ended December 31, 2021, without charge to any shareholder who makes a written request to our Company Secretary at 675 Avenue of the Americas, New York, NY 10010. Nielsen’s Annual Report on Form 10-K and other SEC filings may also be accessed at www.sec.gov or on Nielsen’s Investor website at www.ir.Nielsen.com/. The information provided on or accessible through our website is not part of this proxy statement and is not incorporated in this proxy statement by this or any other reference to our website provided in this proxy statement.

Q:    How many copies of this proxy statement and related voting materials should I receive if I share an address with another Nielsen shareholder?

A:    The SEC’s proxy rules permit companies and intermediaries, such as brokers, to satisfy delivery requirements for proxy statements with respect to two or more shareholders sharing the same address by delivering a single proxy statement to those shareholders. This process, which is commonly referred to as “householding,” potentially provides extra convenience for shareholders and cost savings for companies. Nielsen and some brokers may be householding our proxy or voting instruction materials by delivering a single set of proxy or voting instruction materials to multiple shareholders who request a copy and share an address, unless contrary voting instructions have been received from the affected shareholders. If, at any time, you no longer wish to participate in householding and would prefer to receive a separate proxy statement, or if your household is receiving multiple copies of these documents and you wish to request that future deliveries be limited to a single copy, please notify your broker if your Nielsen ordinary shares are held in a brokerage account or Nielsen if you are a Shareholder of Record by sending a written request to our Company Secretary at 675 Avenue of the Americas, New York, NY 10010. In addition, Nielsen will promptly deliver, upon written or oral request to the address or telephone number above, a separate copy of this proxy statement.

Q:    Who can help answer my questions?

A:    If you have any questions concerning the Acquisition, the Court Meeting, the Special Meeting or this proxy statement, would like additional copies of the accompanying proxy statement or need help voting your Nielsen ordinary shares, please contact our proxy solicitor:

INNISFREE M&A INCORPORATED

 

LOGO

501 Madison Avenue, 20th Floor

New York, NY 10022

Stockholders May Call:

(877) 750-8269 (TOLL-FREE from the U.S. and Canada) or

+1 (412) 232-3651 (from other locations)

 

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FORWARD-LOOKING STATEMENTS

This proxy statement, and any document to which Nielsen refers in this proxy statement, includes information that could constitute forward-looking statements made pursuant to the safe harbor provision of the Private Securities Litigation Reform Act of 1995. These statements include those set forth above relating to the proposed transaction as well as those that may be identified by words such as “will,” “intend,” “expect,” “anticipate,” “should,” “could” and similar expressions. These statements are subject to risks and uncertainties, and actual results and events could differ materially from what presently is expected, including regarding the proposed transaction and Nielsen ONE. Factors leading thereto may include, without limitation, the risks related to Ukraine conflict or the COVID-19 pandemic on the global economy and financial markets, the uncertainties relating to the impact of the Ukraine conflict or the COVID-19 pandemic on Nielsen’s business, the failure of Nielsen’s new business strategy in accomplishing Nielsen’s objectives, economic or other conditions in the markets Nielsen is engaged in, impacts of actions and behaviors of customers, suppliers and competitors, technological developments, as well as legal and regulatory rules and processes affecting Nielsen’s business, the timing, receipt and terms and conditions of any required governmental and regulatory approvals of the proposed transaction that could reduce anticipated benefits or cause the parties to abandon the proposed transaction, the occurrence of any event, change or other circumstances that could give rise to the termination of the Transaction Agreement, the possibility that Nielsen shareholders may not approve the proposed transaction, the risk that the parties to the Transaction Agreement may not be able to satisfy the conditions to the proposed transaction in a timely manner or at all, risks related to disruption of management time from ongoing business operations due to the proposed transaction, the risk that any announcements relating to the proposed transaction could have adverse effects on the market price of Nielsen ordinary shares, the risk of any unexpected costs or expenses resulting from the proposed transaction, the risk of any litigation relating to the proposed transaction, the risk that the proposed transaction and its announcement could have an adverse effect on the ability of Nielsen to retain customers and retain and hire key personnel and maintain relationships with customers, suppliers, employees, shareholders and other business relationships and on its operating results and business generally, the risk the pending proposed transaction could distract management of Nielsen, and other specific risk factors that are outlined in Nielsen’s other disclosure filings and materials, which you can find on www.nielsen.com/investors, such as its 10-K, 10-Q and 8-K reports that have been filed with the Securities and Exchange Commission. Please consult these documents for a more complete understanding of these risks and uncertainties. This list of factors is not intended to be exhaustive. Such forward-looking statements only speak as of the date of these materials, and Nielsen assumes no obligation to update any written or oral forward-looking statement made by Nielsen or on its behalf as a result of new information, future events or other factors, except as required by law.

 

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THE COURT MEETING AND THE SPECIAL MEETING

The enclosed proxies are solicited on behalf of the Board for use at the Court Meeting and the Special Meeting.

Date, Time and Place

Court Meeting

The Court Meeting will be held on [●], 2022, at [●] Eastern time. You may attend the Court Meeting online at www.virtualshareholdermeeting.com/[●], by telephone or in person at 675 Avenue of the Americas, New York, NY 10010. To participate virtually in the Court Meeting, you must enter the 16-digit control number included in your proxy card or voting instruction form. Online access to the Court Meeting will open approximately 15 minutes prior to the start of the Court Meeting. If you encounter any difficulties accessing the virtual Court Meeting during the check-in or meeting time, please call the technical support number that will be posted on the virtual Court Meeting log-in page. Technical support will be available starting 15 minutes prior to the Court Meeting. If you have questions about your control number, please contact the bank, broker or other organization that holds your Nielsen ordinary shares.

Special Meeting

The Special Meeting will be held on [●], 2022, at [●] Eastern time (or as soon thereafter as the Court Meeting shall have been concluded or adjourned or postponed). You may attend the Special Meeting online at www.virtualshareholdermeeting.com/[●], by telephone or in person at 675 Avenue of the Americas, New York, NY 10010. To participate virtually in the Special Meeting, you must enter the 16-digit control number included in your proxy card or voting instruction form. Online access to the Special Meeting will open approximately 15 minutes prior to the start of the Special Meeting. If you encounter any difficulties accessing the virtual Special Meeting during the check-in or meeting time, please call the technical support number that will be posted on the virtual Special Meeting log-in page. Technical support will be available starting 15 minutes prior to the Special Meeting. If you have questions about your control number, please contact the bank, broker or other organization that holds your Nielsen ordinary shares.

Purpose of the Court Meeting and the Special Meeting

Court Meeting

The Court Meeting is being held to allow Nielsen shareholders to consider and, if thought fit, approve the Scheme. Before the Court’s sanction can be sought for the Scheme, the Court Scheme Proposal must be approved by Nielsen shareholders at the Court Meeting.

Special Meeting

The Special Meeting is being held to allow Nielsen shareholders to consider and, if thought fit, approve the Articles Amendment and Scheme Implementation Proposal and the Compensation Proposal.

 

  1.

Articles Amendment and Scheme Implementation Proposal: To (i) authorize the Board to take all such action as they may consider necessary or appropriate for carrying the Scheme into effect, (ii) to amend the articles of association of Nielsen as set forth in the Articles Amendment and Scheme Implementation Proposal, (iii) direct the Board to deliver the Court Order to the Companies House if the Court Sanction is obtained and provided that no injunction or other Order by any court or other tribunal of competent jurisdiction shall have been entered and shall continue to be in effect and no Law shall have been adopted that remains in effect or effective, in each case that prevents, enjoins, prohibits or makes illegal the consummation of the Acquisition (capitalized terms in this resolution having the

 

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  meanings set forth in the Transaction Agreement) and (iv) direct the Board that it need not undertake a Company Adverse Recommendation Change in connection with an Intervening Event or Company Superior Proposal or cause the Company to terminate the Transaction Agreement in order to enter into a definitive agreement relating to a Company Superior Proposal following the time at which the Company Shareholder Approval is obtained (capitalized terms in this resolution having the meanings set forth in the Transaction Agreement) (as described in “Articles Amendment and Scheme Implementation Proposal”); and

 

  2.

Compensation Proposal: To approve, on an advisory (non-binding) basis, the compensation that may be paid or become payable to Nielsen’s named executive officers that is based on or otherwise related to the Transaction Agreement and the transactions contemplated by the Transaction Agreement (as described in “Compensation Proposal”).

The approval of the Articles Amendment and Scheme Implementation Proposal is, subject to certain exceptions, a condition to the Closing, so if it is not approved, the Acquisition cannot be completed. The Articles Amendment and Scheme Implementation Proposal will be proposed as a special resolution, which means, provided that a quorum is present, such proposal will be approved if at least 75 percent of the votes cast are in favor thereof. The Compensation Proposal will be proposed as an ordinary resolution, which means, provided that a quorum is present, such proposal will be approved if a simple majority of the votes cast are in favor thereof. In addition, as the Compensation Proposal is advisory and non-binding, the vote will not require the Board to take any action. Accordingly, if the Court Scheme Proposal and the Articles Amendment and Scheme Implementation Proposal are approved and the Acquisition is completed, the compensation may become payable, subject to the conditions applicable thereto, regardless of the outcome of the non-binding, advisory vote.

Record Date; Shares Entitled to Vote; Quorum

Each Shareholder of Record and each Beneficial Holder as of the close of business on the Notice Record Date ([●], 2022) will receive notice of the Court Meeting and the Special Meeting. Each Shareholder of Record at the Voting Record Time ([●] on [●], 2022) will be entitled to attend and vote on all resolutions to be put to the Nielsen shareholders at the Court Meeting and the Special Meeting or they may appoint another person or persons, whether a Nielsen shareholder or not, as their proxy or proxies, to exercise all or any of their rights to attend, speak and vote at the Court Meeting and the Special Meeting. If either meeting is adjourned or postponed for more than ten (10) business days, only those Shareholders of Record at [●] on the date which is ten (10) business days before the reconvening of the adjourned or postponed meeting will be entitled to attend and vote. The Excluded Shares are not entitled to be voted at the Court Meeting but can be voted at the Special Meeting.

Two Nielsen shareholders present virtually or by proxy at the Special Meeting and entitled to vote constitute a quorum. For the Court Meeting, the U.K. Court must be satisfied that the votes cast are a fair and reasonable representation of the opinion of the holders of the Scheme Shares (as such term is defined in the Scheme).

Voting at both the Court Meeting and the Special Meeting will be by way of poll and each Shareholder of Record present in person, via telephone, through the Internet or by proxy at the relevant meeting will be entitled to one vote for each Nielsen ordinary shared held by such Shareholder of Record as of the Voting Record Time, except that the Excluded Shares may not be voted at the Court Meeting.

Vote Required; Abstentions and Broker Non-Votes

At the Court Meeting, the Court Scheme Proposal must be approved by a majority in number of the Shareholders of Record as of the Voting Record Time representing 75% or more in value of the Nielsen ordinary shares at the Voting Record Time, in each case, present and voting (and entitled to vote), either in person, through the Internet, by telephone or by proxy. The Excluded Shares cannot be voted at the Court Meeting. The approval of the Court Scheme Proposal is a condition to the Closing, so if the Court Scheme Proposal is not approved, the Acquisition cannot be completed.

 

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At the Special Meeting, the Articles Amendment and Scheme Implementation Proposal will be proposed as a special resolution, which means, provided that a quorum is present, such proposal will be approved if at least 75% of the votes cast at the Special Meeting are cast in favor thereof. The approval of the Articles Amendment and Scheme Implementation Proposal is, subject to certain exceptions, a condition to the Closing, so if it is not approved, the Acquisition cannot be completed. The Compensation Proposal will be proposed as an ordinary resolution, which means, provided that a quorum is present, such proposal will be approved if a simple majority of the votes cast are in favor thereof. In addition, as the Compensation Proposal is advisory and non-binding, the vote will not require the Board to take any action. Accordingly, if the Court Scheme Proposal and the Articles Amendment and Scheme Implementation Proposal are approved and the Acquisition is completed, the compensation may become payable, subject to the conditions applicable thereto, regardless of the outcome of the non-binding, advisory vote.

In connection with the Court Meeting, abstentions and broker non-votes will not be considered votes cast and will, therefore, not be counted in the calculation of the votes “FOR” and “AGAINST” the Court Scheme Proposal.

In connection with the Special Meeting, abstentions and broker non-votes will be considered in determining the presence of a quorum but will not be considered as votes cast. Abstentions and broker non-votes will not be counted in the calculation of the votes “FOR” and “AGAINST” the Company Proposals.

If you sign and submit your proxy card or proxy cards without giving specific voting instructions, this will be construed as an instruction to vote your Nielsen ordinary shares as recommended by the Board for purposes of the Special Meeting, so your Nielsen ordinary shares will be voted “FOR” both of the Company Proposals and in accordance with the discretion of the holders of the proxies with respect to any other matters that may be voted on.

Stock Ownership and Interests of Certain Persons

Nielsen Ordinary Shares Held by Nielsen’s Directors and Executive Officers

As of the Record Date, our executive officers and directors beneficially owned and were entitled to vote, in the aggregate, [●] Nielsen ordinary shares, representing approximately [●]% of the Nielsen ordinary shares outstanding on the Record Date.

We currently expect that our executive officers and directors will vote all of their respective Nielsen ordinary shares “FOR” the Court Scheme Proposal and the Company Proposals.

Voting at the Court Meeting and the Special Meeting

On the Day of the Special Meeting and the Court Meeting

If you are a Shareholder of Record, there are three (3) ways to vote on the day of the Special Meeting and the Court Meeting:

 

   

In person: You can vote in person at the Court Meeting and the Special Meeting by coming to 675 Avenue of the Americas, New York, NY 10010. Check-in in person will begin at [●] (Eastern time). For directions to attend the Court Meeting and the Special Meeting in person, go to: [●].

 

   

By ballot at the Court Meeting and the Special Meeting: To vote during the Court Meeting and the Special Meeting, visit www.virtualshareholdermeeting.com/[●] enter the 16-digit control number included in your proxy card. Online access to the Court Meeting and the Special Meeting will open approximately 15 minutes prior to the start of each meeting. If you encounter any difficulties accessing the virtual Court Meeting or Special Meeting during the check-in or meeting time, please call the

 

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technical support number that will be posted on the virtual Special Meeting log-in page for such meetings. Technical support will be available starting 15 minutes prior to each meeting. If you have questions about your control number, please contact the bank, broker or other organization that holds your Nielsen ordinary shares.

 

   

By telephone: [●]

By Proxy

If you are a Shareholder of Record, there are three (3) ways to vote by proxy:

 

   

Internet: Vote at [●] in advance of the Special Meeting. The Internet voting system is available 24 hours a day until 11:59 p.m. Eastern time on [●], 2022. Once you enter the internet voting system, you can record and confirm (or change) your voting instructions. If you have any questions about www.proxyvote.com, please contact the bank, broker, or other organization that holds your Nielsen ordinary shares.

 

   

Telephone: Use the telephone number shown on your proxy card. The telephone voting system is available 24 hours a day in the United States until 11:59 p.m. Eastern time on [●], 2022. Once you enter the telephone voting system, a series of prompts will tell you how to record and confirm (or change) your voting instructions.

 

   

Mail: If you received a proxy card, mark your voting instructions on the card and sign, date and return it in the postage-paid envelope provided. For your mailed proxy card to be counted, we must receive it before 9:30 a.m. Eastern time on [●], 2022.

If you are a Beneficial Holder, you should contact your bank, broker, trust or other nominee for instructions on how to vote. Whether or not you plan to attend the Court Meeting and the Special Meeting, we urge you to vote in advance by proxy to ensure your vote is counted.

You may also authorize the persons named as proxies on the proxy card to vote your Nielsen ordinary shares by returning the proxy card in advance by mail, through the Internet, or by telephone. Although Nielsen offers other voting methods, Nielsen encourages you to vote over the Internet or by telephone as Nielsen believes they are the most cost-effective methods. We also recommend that you vote as soon as possible, even if you are planning to attend the Court Meeting and/or the Special Meeting, so that the vote count will not be delayed. Both the Internet and the telephone provide convenient, cost-effective and reliable alternatives to returning your proxy card by mail. If you choose to vote your Nielsen ordinary shares over the Internet or by telephone, there is no need for you to mail back your proxy card.

Revocability of Proxies

Any proxy given by a Nielsen shareholder may be revoked at any time before it is voted at the Court Meeting or the Special Meeting. If you are a Shareholder of Record you can do this in the following ways:

 

   

You may send a written notice that you are revoking your proxy to Nielsen’s Company Secretary at 675 Avenue of the Americas, New York, NY 10010, provided such written notice is received before the deadline for the receipt of proxy cards for such meeting;

 

   

You may complete, sign and date another proxy card and return it by mail in time to be received before the deadline for the receipt of proxy cards for the Court Meeting and Special Meeting, or by submitting a later-dated proxy via the Internet or telephone, in which case your later-submitted proxy will be recorded and your earlier proxy revoked; or

 

   

You may attend the Court Meeting and the Special Meeting and vote by ballot. Simply attending such meetings, will not, by itself, revoke your proxy.

 

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If you are a Beneficial Holder, you should contact your bank, broker or other nominee for instructions regarding how to change your vote.

Any adjournment, postponement or other delay of the Court Meeting or the Special Meeting will allow Nielsen shareholders who have already sent in their proxies to revoke them at any time prior to their use at the Court Meeting or the Special Meeting, as applicable, each as adjourned, postponed or delayed. If you have any questions about how to vote or change your vote, you should contact our proxy solicitor.

Board’s Recommendation

The Board has unanimously: (i) determined that the transactions contemplated by the Transaction Agreement, including the Acquisition, would be most likely to promote the success of the Company for the benefit of its shareholders as a whole, (ii) approved the execution, delivery and performance of the Transaction Agreement and the consummation of the transactions contemplated thereby, including the Acquisition, (iii) resolved to recommend that Nielsen shareholders vote in favor of the Scheme at the Court Meeting and the Company Proposals at the Special Meeting, and (iv) directed that the Scheme be submitted for approval by Nielsen shareholders at the Court Meeting.

The Board accordingly unanimously recommends that you vote “FOR” the Court Scheme Proposal at the Court Meeting and “FOR” the Company Proposals at the Special Meeting.

Solicitation of Proxies

The Board is soliciting your proxies, and Nielsen will bear the cost of soliciting proxies. Innisfree M&A Incorporated (“Innisfree”) has been retained to assist with the solicitation of proxies. Innisfree will be paid approximately $[●] and will be reimbursed for its reasonable out-of-pocket expenses for these and other advisory services in connection with the Court Meeting and the Special Meeting. Solicitation initially will be made by mail and email. Forms of proxies and proxy or voting instruction materials may also be distributed through brokers, custodians and other like parties to the beneficial owners of shares of Nielsen ordinary shares, in which case these parties will be reimbursed for their reasonable out-of-pocket expenses. Proxies may also be solicited in person or by telephone, facsimile, electronic mail, or other electronic medium by Innisfree or, without additional compensation, by Nielsen or Nielsen’s directors, officers and employees.

Anticipated Date of Completion of the Acquisition

Assuming timely satisfaction of necessary Closing conditions, including the approval by Nielsen shareholders of the Scheme and the Articles Amendment and Scheme Implementation Proposal (subject to certain exceptions), we currently anticipate that the Acquisition will be consummated in the second half of 2022.

Delisting and Deregistration of Nielsen Ordinary Shares

If the Acquisition is completed, the Nielsen ordinary shares will be delisted from the NYSE and deregistered under the Exchange Act, and Nielsen ordinary shares will no longer be publicly traded.

Other Matters

At this time, we know of no other matters to be voted on at the Court Meeting or the Special Meeting. If any other matters properly come before the Court Meeting or the Special Meeting, your Nielsen ordinary shares will be voted in accordance with the discretion of the appointed proxy holders.

Householding of Special Meeting Materials

Unless we have received contrary voting instructions, we may send a single copy of this proxy statement to any household at which two (2) or more Nielsen shareholders reside if we believe the Nielsen shareholders are

 

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members of the same family. Each Nielsen shareholder in the household will continue to receive a separate proxy card. This process, known as “householding,” reduces the volume of duplicate information received at your household and helps to reduce our expenses.

If you would like to receive your own set of our disclosure documents, please contact us using the instructions set forth below. Similarly, if you share an address with another Nielsen shareholder and together both of you would like to receive only a single set of our disclosure documents, please contact us using the instructions set forth below.

If you are a Shareholder of Record, you may contact us by writing to Nielsen at 675 Avenue of the Americas, New York, NY 10010. Eligible Shareholders of Record receiving multiple copies of this proxy statement can request householding by contacting us in the same manner. If you are a Beneficial Holder, please contact your bank, broker or other nominee directly.

Questions and Additional Information

If you have any questions concerning the Acquisition, the Court Meeting, the Special Meeting or this proxy statement, would like additional copies of this proxy statement or need help voting your Nielsen ordinary shares, please contact our proxy solicitor:

INNISFREE M&A INCORPORATED

 

 

LOGO

501 Madison Avenue, 20th Floor

New York, NY 10022

Stockholders May Call:

(877) 750-8269 (TOLL-FREE from the U.S. and Canada) or

+1 (412) 232-3651 (from other locations)

 

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COURT SCHEME PROPOSAL

Scheme

The following section of this proxy statement explains, among other things, the effect of the Scheme and, together with the further information contained elsewhere in this proxy statement, constitutes the explanatory statement in respect of the Scheme as required by section 897 of the Companies Act. Accordingly, in addition to the information contained in the following section of this proxy statement, your attention is drawn to the further information contained elsewhere in this proxy statement and you are advised to read this proxy statement in full.

The Acquisition is to be implemented by means of a Court-sanctioned scheme of arrangement between the Company and the Scheme Shareholders, under Part 26 of the Companies Act. Implementation of the Scheme requires (amongst others) approval of the Scheme by Nielsen shareholders at the Court Meeting (the Court Scheme Proposal) and the approval of the Articles Amendment and Scheme Implementation Proposal as a special resolution by shareholders at the Special Meeting, subject to certain exceptions. The Scheme also requires the sanction of the U.K. Court following these approvals. The Scheme is set out in full as Annex B to this proxy statement.

The purpose of the Scheme is to provide for Purchaser to acquire all of the issued and to be issued Nielsen ordinary shares (other than (i) certain Nielsen ordinary shares held in the name of or beneficially owned by Parent, Purchaser, the Equity Investors and their respective affiliates or any subsidiary undertaking of Parent, Purchaser or their respective affiliates (but excluding the Nielsen ordinary shares in the name of or beneficially owned by Purple Green Investment Pte. Ltd. and its Affiliates immediately prior to the Scheme Record Time (as defined in the proxy statement)) and (ii) any Nielsen ordinary shares held in treasury (the “Excluded Shares”)). This is to be achieved by means of an automatic transfer of all Scheme Shares outstanding at the Scheme Record Time to Purchaser or its subsidiary or a DR Nominee, in consideration for which Purchaser will pay the Consideration on the basis set out in the Scheme.

Sanction of the Scheme by the Court

Under the Companies Act, the Scheme also requires the sanction of the U.K. Court. The Court Hearing to sanction the Scheme is expected to be scheduled following the satisfaction or waiver of the other conditions to the Closing, which are summarized in the section of this proxy statement captioned “The Transaction Agreement—Conditions to the Acquisition,” other than those that are by their terms to be satisfied at the Closing. Scheme Shareholders are entitled to attend the Court Hearing, should they wish to do so, in person or through counsel.

Following sanction of the Scheme by the U.K. Court, the Scheme will become effective in accordance with its terms upon a copy of the Court Order being delivered to the Companies House for registration. This is presently expected to occur on the U.K. business day following the Court Hearing.

Upon the Scheme becoming effective, it will be binding on all Scheme Shareholders at the Scheme Record Time (including all Beneficial Holders at the Scheme Record Time), irrespective of whether or not they attended or voted in favor of, or against, the Scheme at the Court Meeting or in favor of, or against, or abstained from voting on the special resolution at the Special Meeting.

If the Scheme does not become effective on or prior to the End Date (or such later date as may be agreed by the Company and Purchaser and as the U.K. Court may approve (if such approval is required)), the Scheme will not become effective.

Required Vote

The Court Scheme Proposal must be approved by a majority in number of the Shareholders of Record as of the Voting Record Time ([●] (Eastern time) on [●], 2022), representing 75% or more in value of the Nielsen

 

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ordinary shares at the Voting Record Time, in each case, present and voting (and entitled to vote), either in person or by proxy.

Approval of the Court Scheme Proposal is required for the consummation of the Acquisition.

Recommendation of the Board

The Board has unanimously: (i) determined that the transactions contemplated by the Transaction Agreement, including the Acquisition, would be most likely to promote the success of the Company for the benefit of its shareholders as a whole, (ii) approved the execution, delivery and performance of the Transaction Agreement and the consummation of the transactions contemplated thereby, including the Acquisition, (iii) resolved to recommend that Nielsen shareholders vote in favor of the Scheme at the Court Meeting and the Company Proposals at the Special Meeting, and (iv) directed that the Scheme be submitted for approval by Nielsen shareholders at the Court Meeting. The Board accordingly unanimously recommends that the Nielsen shareholders vote “FOR” the Court Scheme Proposal. See the section of this proxy statement captioned “The Acquisition—Recommendation of the Board and Reasons for the Acquisition” for a more detailed discussion of the recommendation of the Board.

When considering the recommendation of the Board that you vote “FOR” the Court Scheme Proposal, you should be aware that certain of the Nielsen directors and executive officers have interests in the Acquisition that may be different from, or in addition to, your interests as a Nielsen shareholder generally. The Board was also aware of those interests in, among others, recommending that you vote “FOR” the Court Scheme Proposal. Those interests are described in more detail in the section of this proxy statement labeled “The Acquisition—Interests of Nielsen’s Executive Officers and Directors in the Transaction.”

 

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ARTICLES AMENDMENT AND SCHEME IMPLEMENTATION PROPOSAL

It is proposed, pursuant to the Articles Amendment and Scheme Implementation Proposal, that:

 

  1.

the articles of association of Nielsen be amended to ensure that any Nielsen ordinary shares issued after the Voting Record Time in respect of the Court Meeting and on or prior to the Scheme Record Time will be subject to the Scheme. It is also proposed to amend the articles of association so that any Nielsen ordinary shares issued to any person other than Purchaser or its nominees after the Scheme Record Time will be automatically acquired by Purchaser on the same terms of the Acquisition (other than terms as to timings and formalities). These provisions will avoid any person (other than Purchaser or its nominees) being left with Nielsen ordinary shares after the Scheme becomes effective;

 

  2.

the Company be directed to deliver the Court Order to Companies House if the Court Sanction is obtained and provided that no injunction or other Order by any court or other tribunal of competent jurisdiction shall have been entered and shall continue to be in effect and no Law shall have been adopted that remains in effect or be effective, in each case that prevents, enjoins, prohibits or makes illegal the consummation of the Acquisition (capitalized terms as defined in the section of this proxy statement captioned “The Transaction Agreement—The Board’s Recommendation; Company Adverse Recommendation Change”); and

 

  3.

the Board be directed that it need not undertake a Company Adverse Recommendation Change in connection with an Intervening Event or a Company Superior Proposal or cause the Company to terminate the Transaction Agreement in order to enter into a definitive agreement relating to a Company Superior Proposal following the time at which the Company Shareholder Approval is obtained.

Special Resolution to be Proposed at the Special Meeting

For the reasons described above, Nielsen is requesting its shareholders adopt the following resolution at the Special Meeting, which is a special resolution:

RESOLVED THAT, for the purpose of giving effect to the scheme of arrangement dated 2022 (as amended or supplemented) between the Company and the holders of Scheme Shares (as defined in such scheme of arrangement), a print of which has been produced to this meeting and for the purposes of identification signed by the chair of this meeting, in its original form or subject to any modification, addition, or condition as may be agreed between the Company and Purchaser and approved or imposed by the Court (the Scheme):

(A) the directors of the Company (or a duly authorized committee of the directors) be and are hereby authorized to take all such action as they may consider necessary or appropriate for carrying the Scheme into effect; and

(B) with effect from the passing of this resolution, the articles of association of the Company be and are hereby amended by the adoption and inclusion of the following new article 114:

“114. Scheme of Arrangement

114.1 In this article 114, references to the “Scheme” are to the scheme of arrangement dated [●], 2022 between the Company and the holders of Scheme Shares (as defined in the Scheme) under Part 26 of the Act in its original form or with or subject to any modification, addition or condition agreed between the Company and Neptune BidCo US Inc. (the “Buyer”) and approved or imposed by the High Court of Justice in England and Wales, and (save as defined in this article 114) terms defined in the Scheme shall have the same meanings in this article 114.

 

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114.2 Notwithstanding any other provision of these articles or the terms of any resolution, whether ordinary or special, passed by the Company in general meeting, if the Company issues or transfers out of treasury any shares (other than to the Buyer, any subsidiary of the Buyer or its nominee(s) (each a “Buyer Party”)) on or after the adoption of this article 114 and prior to the Scheme Record Time, such shares shall be issued or transferred in the name of the relevant person subject to the terms of the Scheme (and shall be Scheme Shares for the purposes thereof) and the original or any subsequent holder or holders of such shares shall be bound by the Scheme accordingly.

114.3 Notwithstanding any other provision of these articles, if any shares in the Company are issued or transferred out of treasury to any person or such person’s nominee (other than a Buyer Party) (a “New Member”) at or after the Scheme Record Time (each a “Post-Scheme Share”) such shares will, provided that the Scheme has become effective, be immediately transferred to the Buyer (or such persons as the Buyer may direct) (the “Purchaser”), who shall be obliged to acquire such Post-Scheme Shares in consideration of and conditional upon payment by or on behalf of the Buyer to the New Member of the same cash consideration per Post-Scheme Share as would have been payable to a holder of the Scheme Shares under the Scheme.

114.4 On any reorganisation of, or material alteration to, the share capital of the Company (including, without limitation, any subdivision and/or consolidation) carried out after the Effective Date, the value of the consideration per Post-Scheme Share to be paid under article 114.3 shall be adjusted by the directors in such manner as the auditors of the Company or an independent investment bank selected by the Company (whichever in their absolute discretion the directors may elect) may determine to be appropriate to reflect such reorganisation or alteration. References in this article 114 to such shares shall, following such adjustment, be construed accordingly.

114.5 Any New Member may, prior to the issue or transfer of any Post-Scheme Shares to them under any Nielsen Share Plans or any other Company option, stock unit award, option equity award or other similar equity award plan, give not less than two Business Day’s written notice to the Company of their intention to transfer some or all of such Post-Scheme Shares to their spouse or civil partner and may, if such notice has been validly given, on such Post-Scheme Shares being issued to them immediately transfer to their spouse or civil partner any such Post-Scheme Shares, provided that such Post-Scheme Shares will then be immediately transferred from that spouse or civil partner to the Purchaser pursuant to article 114.3 above as if the spouse or civil partner were the relevant New Member.

114.6 To give effect to any transfer required by this article 114, the Company may appoint any person as attorney and/or agent for the New Member to transfer the Post-Scheme Shares to the Purchaser and execute and deliver as transferor a form of transfer or other instrument or instruction of transfer on behalf of the New Member (or any subsequent holder or any nominee of such New Member or any such subsequent holder) in favour of the the Purchaser and do all such other things and execute and deliver all such documents as may in the opinion of the attorney and/or agent be necessary or desirable to vest the Post-Scheme Shares in the Purchaser and pending such vesting to exercise all such rights and privileges attaching to the Post-Scheme Shares as the Purchaser may direct. If an attorney and/or agent is so appointed, the New Member shall not thereafter (except to the extent that the attorney and/or agent fails to act in accordance with the directions of the Purchaser) be entitled to exercise any rights or privileges attaching to the Post-Scheme Shares unless so agreed by the Purchaser. The Company may give good receipt for the purchase price of the Post-Scheme Shares and may register the Purchaser as holder thereof and issue to it certificates for the same. The Company shall not be obliged to issue a certificate to the New Member for any Post-Scheme Shares. The Purchaser shall, subject to Relevant Law, settle the consideration due to the New Member pursuant to article 114.30 above by sending a cheque in US dollars drawn on a United States of America clearing bank in favour of the New Member, or any alternative method communicated by the Purchaser to the New Member, for the purchase price of such Post-Scheme Shares no later than 14 days after the date on which the Post-Scheme Shares are issued to the New Member. In the event that the settlement of consideration by the Purchaser pursuant to article 114.3 would constitute a breach of Relevant Law, the Purchaser shall pay such consideration to the Company and the Company shall hold it on trust for

 

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the New Member until such time as the settlement of such consideration would not constitute a breach of Relevant Law.

114.7 Notwithstanding any other provision of these articles, both the Company and the directors shall refuse to register the transfer of any shares between the Scheme Record Time and the Effective Date, other than to the Purchaser pursuant to the Scheme.

114.8 If the Scheme shall not have become effective by the date referred to in (or otherwise set in accordance with) clause 7.2 of the Scheme, this article 114 shall cease to be of any effect.”

(C) the Company be directed to deliver the Court Order to Companies House if the Court Sanction is obtained and provided that no injunction or other Order by any court or other tribunal of competent jurisdiction shall have been entered and shall continue to be in effect and no Law shall have been adopted that remains in effect or be effective, in each case that prevents, enjoins, prohibits or makes illegal the consummation of the Acquisition;

(D) the Board need not undertake a Company Adverse Recommendation Change in connection with an Intervening Event or a Company Superior Proposal or cause the Company to terminate the Transaction Agreement to enter into a definitive agreement relating to a Company Superior Proposal following the time at which the Company Shareholder Approval is obtained.

Required Vote

The Articles Amendment and Scheme Implementation Proposal will be proposed as a special resolution, which means, provided that a quorum is present, such proposal will be approved if at least 75% of the votes cast at the Special Meeting (in person, by telephone, via the Internet or by proxy) are cast in favor thereof.

Recommendation of the Board

The Board has unanimously: (i) determined that the transactions contemplated by the Transaction Agreement, including the Acquisition, would be most likely to promote the success of the Company for the benefit of its shareholders as a whole, (ii) approved the execution, delivery and performance of the Transaction Agreement and the consummation of the transactions contemplated thereby, including the Acquisition, (iii) resolved to recommend that Nielsen shareholders vote in favor of the Scheme at the Court Meeting and the Company Proposals at the Special Meeting, and (iv) directed that the Scheme be submitted for approval by Nielsen shareholders at the Court Meeting. The Board accordingly unanimously recommends that the Nielsen shareholders vote “FOR” the Articles Amendment and Scheme Implementation Proposal. See the section of this proxy statement captioned “The Acquisition—Recommendation of the Board and Reasons for the Acquisition” for a more detailed discussion of the recommendation of the Board.

When considering the recommendation of the Board that you vote “FOR” the Articles Amendment and Scheme Implementation Proposal, you should be aware that certain of Nielsen’s directors and executive officers have interests in the Acquisition that may be different from, or in addition to, your interests as a Nielsen shareholder generally. The Board was also aware of those interests in, among others, recommending that you vote “FOR” the Articles Amendment and Scheme Implementation Proposal. Those interests are described in more detail in the section of the proxy statement captioned “The Acquisition—Interests of Nielsen’s Executive Officers and Directors in the Acquisition.”

 

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COMPENSATION PROPOSAL

Advisory Approval of the Compensation Payments to Named Executive Officers

In accordance with Section 14A of the Exchange Act, Nielsen is providing the Nielsen shareholders with the opportunity to cast an advisory, non-binding vote at the Special Meeting on the compensation that may be paid or become payable to its named executive officers in connection with the Acquisition and the agreements and understandings pursuant to which such compensation may be paid or become payable. For a more detailed summary of the compensation payments, see “The Acquisition—Interests of Nielsen’s Executive Officers and Directors in the Acquisition.” As required by Section 14A of the Exchange Act, Nielsen is asking the Nielsen shareholders to vote on the adoption of the following resolution which is an ordinary resolution:

RESOLVED, that the compensation that may be paid or become payable to Nielsen’s named executive officers in connection with the completion of the Acquisition, as disclosed pursuant to Item 402(t) of Regulation S-K in the section of the proxy statement entitled “The Acquisition—Interests of Nielsen’s Executive Officers and Directors in the Acquisition,” including the associated narrative description, are hereby APPROVED on an advisory (non-binding) basis.

Required Vote

Provided that a quorum is present at the Special Meeting, the Compensation Proposal will be passed if a simple majority of the votes cast at the Special Meeting (in person, by telephone, via the Internet or by proxy) are cast in favor of this proposal.

Completion of the Acquisition is not conditioned on approval of the Compensation Proposal. Because the vote on the Compensation Proposal is advisory in nature only, it will not be binding on the Board. Accordingly, if the Court Scheme Proposal and the Articles Amendment and Scheme Implementation Proposal are approved at the Court Meeting and the Special Meeting, respectively, the compensation may become payable, subject only to the conditions applicable thereto, regardless of the outcome of the non-binding, advisory vote.

Recommendation of the Board

The Board has unanimously: (i) determined that the transactions contemplated by the Transaction Agreement, including the Acquisition, would be most likely to promote the success of the Company for the benefit of its shareholders as a whole, (ii) approved the execution, delivery and performance of the Transaction Agreement and the consummation of the transactions contemplated thereby, including the Acquisition, (iii) resolved to recommend that Nielsen shareholders vote in favor of the Scheme at the Court Meeting and the Company Proposals at the Special Meeting, and (iv) directed that the Scheme be submitted for approval by Nielsen shareholders at the Court Meeting. The Board accordingly unanimously recommends that the Nielsen shareholders vote “FOR” the Compensation Proposal. See the section of this proxy statement captioned “The Acquisition—Recommendation of the Board and Reasons for the Acquisition” for a more detailed discussion of the recommendation of the Board.

When considering the recommendation of the Board that you vote “FOR” the Compensation Proposal, you should be aware that certain of the Nielsen directors and executive officers have interests in the Acquisition that may be different from, or in addition to, your interests as a shareholder generally. The Board was also aware of those interests in, among others, recommending that you vote “FOR” the Compensation Proposal. Those interests are described in more detail in the section of this proxy statement labeled “The Acquisition—Interests of Nielsen’s Executive Officers and Directors in the Acquisition.”

 

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THE ACQUISITION

This discussion of the Acquisition is qualified in its entirety by reference to the Transaction Agreement and the Scheme, which are attached to this proxy statement as Annex A and Annex B, respectively, and incorporated into this proxy statement by reference. You should carefully read and consider the entire Transaction Agreement and Scheme, which are the legal documents that governs the Acquisition, because these documents contain important information about the Acquisition and how it affects you.

Parties Involved in the Acquisition

Nielsen Holdings plc

675 Avenue of the Americas

New York, NY 10010

Nielsen Holdings plc, together with its subsidiaries, serves the world’s media and content ecosystem and is a global leader in audience measurement, data and analytics. Through Nielsen’s understanding of people and their behaviors across all channels and platforms, Nielsen empowers its clients with independent and actionable intelligence so they can connect and engage with their audiences- now and into the future.

Nielsen provides a holistic and objective understanding of the media industry to its various client segments. Nielsen’s data is used by its publishing clients to understand their audiences, establish the value of their advertising inventory and maximize the value of their content. Nielsen’s data is used by its marketer and advertiser agency clients to plan and optimize their spend and is used by its content creator clients to inform decisions and identify trends.

An S&P 500 company, Nielsen has operations in more than 55 countries, with its registered office located in London, the United Kingdom and headquarters located in New York, United States.

Neptune Intermediate Jersey Limited

c/o Elliott Investment Management, L.P.

777 South Flagler Drive, South Tower

West Palm Beach, FL 33401

Neptune Intermediate Jersey Limited was formed solely for the purpose of engaging in the transactions contemplated by the Transaction Agreement and has not engaged in any business activities other than in connection with the transactions contemplated by the Transaction Agreement and arranging of the equity and debt financing in connection with such transactions.

Neptune BidCo US Inc.

c/o Elliott Investment Management, L.P.

777 South Flagler Drive, South Tower

West Palm Beach, FL 33401

Neptune BidCo US Inc. was formed solely for the purpose of engaging in the transactions contemplated by the Transaction Agreement and has not engaged in any business activities other than in connection with the transactions contemplated by the Transaction Agreement.

Certain Effects of the Acquisition

Upon the terms and subject to the conditions of the Transaction Agreement, Purchaser will acquire all of the Company’s issued and to be issued ordinary share capital (other than the Excluded Shares) by means of the

 

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Scheme (provided that the parties reserve the right under the Transaction Agreement to effect the acquisition by means of a takeover offer as defined in section 974 of the Companies Act in certain circumstances). As a result of the Acquisition, Nielsen ordinary shares will no longer be publicly traded and will be delisted from the NYSE. In addition, Nielsen ordinary shares will be deregistered under the Exchange Act, and Nielsen will no longer file periodic reports with the SEC. The Effective Time will occur upon the delivery of the Court Order to the Companies House in accordance with the provisions of the Scheme and the laws of England and Wales. If the Acquisition is consummated, you will no longer own any Nielsen ordinary shares, and instead will only be entitled to receive the Offer Consideration described in “—Offer Consideration.” The terms and conditions of the Acquisition are contained in the Transaction Agreement and the Scheme, which are attached as Annex A and Annex B to this proxy statement, respectively. Please carefully read the Transaction Agreement and the Scheme, as they contain the legal terms that govern the Acquisition.

Adoption of Articles of Association

Subject to and conditional on: (i) the Court Scheme Proposal having been approved by the Nielsen shareholders at the Court Meeting; and (ii) the Articles Amendment and Scheme Implementation Proposal having been approved by the Nielsen shareholders at the Special Meeting, including, in each case, any adjournment or postponement of such meetings, the amendment to the articles of association of Nielsen in the form proposed in the Articles Amendment and Scheme Implementation Proposal shall be adopted with immediate effect, in connection with the Acquisition in place of the existing articles of association of Nielsen.

Effect on Nielsen If the Acquisition Is Not Completed

If the Court Scheme Proposal is not approved by the Nielsen shareholders at the Court Meeting or the Articles Amendment and Scheme Implementation Proposal, subject to certain exceptions, is not approved by the Nielsen shareholders at the Special Meeting, or if the Acquisition is not completed for any other reason:

 

  i.

the Nielsen shareholders will not be entitled to, nor will they receive, any payment for their Nielsen ordinary shares pursuant to the Transaction Agreement;

 

  ii.

(a) Nielsen will remain an independent public company; (b) Nielsen ordinary shares will continue to be listed and traded on the NYSE and registered under the Exchange Act; and (c) Nielsen will continue to file periodic reports with the SEC;

 

  iii.

we anticipate that (a) management will operate the business in a manner similar to that in which it is being operated today and (b) Nielsen shareholders will be subject to similar types of risks and uncertainties as those to which they are currently subject, including, but not limited to, risks and uncertainties with respect to Nielsen’s business, prospects and results of operations, as such may be affected by, among other things, the highly competitive industry in which Nielsen operates and economic conditions;

 

  iv.

the price of Nielsen ordinary shares may decline significantly, and if that were to occur, it is uncertain when, if ever, the price of Nielsen ordinary shares would return to the price at which it trades as of the date of this proxy statement;

 

  v.

the Board will continue to evaluate and review Nielsen’s business operations, strategic direction and capitalization, among other things, and will make such changes as are deemed appropriate; irrespective of these efforts, it is possible that no other transaction acceptable to the Board will be offered or that Nielsen’s business, prospects and results of operations will be adversely impacted; and

 

  vi.

under specified circumstances, Nielsen will be required to pay Parent a termination fee of $102 million, upon the termination of the Transaction Agreement, as described in the section of this proxy statement captioned “The Transaction Agreement—Termination Fees.”

 

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Offer Consideration

Treatment of Nielsen Ordinary Shares

At the Effective Time, each then-outstanding Nielsen ordinary share (other than the Excluded Shares) shall be transferred from the Nielsen shareholders to Purchaser (and/or its nominees) in accordance with the provisions of the Scheme, the Transaction Agreement and the laws of England and Wales. The Nielsen shareholders shall cease to have any rights with respect to the Nielsen ordinary shares except their rights under the Scheme, including the right to receive the Offer Consideration, less any required tax withholdings and any dividend or other distributions and other return of capital (other than Permitted Dividends) proposed, announced, authorized, declared, paid or made by Nielsen with a record date falling prior to the Effective Time.

Treatment of Nielsen Equity Awards

At the Effective Time, each option to purchase Nielsen ordinary shares (a “Nielsen Option”) that is outstanding as of immediately prior to the Effective Time, whether vested or unvested, will be cancelled and converted into the right to receive a cash payment equal to the product of (i) the number of Nielsen ordinary shares subject to such Nielsen Option as of immediately prior to the Effective Time and (ii) the excess, if any, of the Offer Consideration over the exercise price per Nielsen ordinary share subject to such Nielsen Option as of the Effective Time, and each restricted stock unit award in respect of Nielsen ordinary shares, including any award of deferred stock units held by non-employee directors (a “Nielsen RSU Award”), that is outstanding as of immediately prior to the Effective Time will be cancelled and converted into the right to receive a cash payment equal to the product of (a) the number of Nielsen ordinary shares subject to such Nielsen RSU Award as of immediately prior to the Effective Time and (b) the Offer Consideration. For purposes of clause (a) of the immediately preceding sentence, the number of Nielsen ordinary shares subject to a performance-based Nielsen RSU Award with respect to which the applicable performance period is incomplete as of immediately prior to the Effective Time will be based on target (100%) performance.

Background of the Acquisition

The following chronology summarizes certain key events and contacts that led to the execution of the Transaction Agreement. It does not purport to catalogue every conversation among the Board, its members, its committees, members of Nielsen’s management, representatives of Nielsen’s financial and legal advisors, members of the Consortium or their respective representatives, and other parties. Interactions on behalf of Nielsen between members of Nielsen’s management and/or representatives of Nielsen’s financial and legal advisors, on the one hand, and representatives of the Consortium, on the other hand, as described below, were undertaken at the overall direction of the Board.

On July 26, 2018, Nielsen announced the Board’s decision to initiate an in-depth strategic review of Nielsen’s Global Connect business, which strategic review was expanded in scope in September 2018 to include a broad review of strategic alternatives for Nielsen and its businesses, including continuing to operate as a public, independent company, a separation of either its Global Connect business or Global Media business, or a sale of Nielsen, and engaged with several financial sponsors and other industry participants regarding a potential strategic transaction involving some or all of Nielsen and its businesses. J.P. Morgan was engaged as Nielsen’s financial advisor in connection with this strategic review.

On August 13, 2018, Elliott Associates, L.P. and certain of its affiliates (“Elliott”) filed a beneficial ownership report on Schedule 13D (the “Schedule 13D”) disclosing an aggregate beneficial ownership of 5.1% of the outstanding Nielsen ordinary shares, and combined economic exposure equivalent to 8.4% of the outstanding Nielsen ordinary shares.

On August 16, 2019, Elliott filed an amendment to the Schedule 13D, disclosing an aggregate beneficial ownership of 3.9% of the outstanding Nielsen ordinary shares, and combined economic exposure equivalent to 5.1% of the outstanding Nielsen ordinary shares.

 

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On November 7, 2019, Nielsen announced the conclusion of its strategic review process. After a comprehensive review of strategic alternatives, Nielsen received no acceptable proposals to acquire the entire Company, and announced its intention to spin-off its Global Connect business.

On April 29, 2020, Nielsen entered into cooperation and information sharing agreements with Elliott, pursuant to which Nielsen agreed, among other things, to appoint Mr. Jonathan Miller to the Board as an independent non-executive director, and to permit Elliott access to certain confidential information of Nielsen at its request during the cooperation period, subject to an appropriate confidentiality agreement. Nielsen also agreed to establish a Finance Committee of the Board to remain in place at least until the consummation of the previously announced spin-off of Nielsen’s Global Connect business and which committee continues in existence at the date of this proxy statement.

Over the course of the remainder of 2020 and 2021, representatives of Nielsen periodically had discussions with representatives of Elliott and other investors to receive their views on Nielsen and its businesses and strategic alternatives pursuant to appropriate non-disclosure agreements, including, among other things, in relation to its potential spin-off and subsequent sale of its Global Connect business to affiliates of Advent International Corporation, which was consummated in March 2021.

On July 31, 2021, representatives of Elliott contacted David Kenny, Chief Executive Officer and a member of the Board, and expressed an interest in a potential transaction with Nielsen at a “significant premium” to its then-current share price.

On August 31, 2021, representatives of Elliott met with Mr. Kenny and James A. Attwood, Jr., Chairperson of the Board, and further discussed Elliott’s interest in an acquisition of Nielsen at a “significant premium” to its then-current share price.

At a video-conference meeting of the Board held on September 3, 2021, members of Nielsen’s management and representatives of Nielsen’s financial and legal advisors, J.P. Morgan, Allen & Company and Wachtell Lipton, updated the Board on these events. The Board discussed, with members of Nielsen’s management and representatives of Nielsen’s financial and legal advisors, Nielsen’s operations, strategy and current plans, the advisability of considering a potential transaction involving Nielsen at such time, the process that such consideration could entail, and the actions that Elliott might take if the Board were to decide not to permit engagement with respect to a potential transaction involving Nielsen. Representatives of Wachtell Lipton reviewed with the directors their responsibilities in relation to a potential transaction, including reminding them of their statutory and fiduciary duties under UK law based on a presentation previously provided by Nielsen’s UK counsel, Clifford Chance LLP (“Clifford Chance”). The Board authorized Messrs. Attwood and Kenny to seek further information from Elliott, including with respect to potential financing sources and Elliott’s willingness to enter into a more extensive customary non-disclosure agreement with Nielsen, including standstill provisions, in connection with a potential transaction involving Nielsen.

On September 13, 2021, Nielsen received a written non-binding proposal from Elliott in which Elliott proposed to acquire Nielsen at a “significant premium” to its then-current share price, but the proposal did not specify a price or price range. The proposal specified that Elliott expected to finance the acquisition with a combination of cash equity and debt financing from third-party lenders, with the cash equity portion funded by Elliott and select co-investors including certain sovereign wealth funds with which Elliott had partnered on previous transactions. The proposal noted that Elliott was actively discussing whether another private equity sponsor would be an additional value-additive partner in relation to a potential transaction involving Nielsen. The proposal also stated that Elliott was prepared to execute a non-disclosure agreement typical of shareholder bidders for public companies.

On September 21, 2021, in response to a request for additional detail on the terms of the proposal, Nielsen received a revised written non-binding proposal from Elliott in which Elliott reiterated its proposal to acquire

 

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Nielsen at a “significant premium” to its then-current share price. The proposal specified that Elliott expected to finance the acquisition with a combination of cash equity and debt financing from third-party lenders, with the cash equity portion funded by Elliott, select co-investors including certain sovereign wealth funds with which Elliott had partnered on previous transactions, and two leading private equity firms. The proposal noted that the identities of these co-investors had been disclosed to representatives of J.P. Morgan but were omitted from the written proposal because they were not yet engaged in the process.

On October 1, 2021, the Board held a video-conference meeting with members of Nielsen’s management and representatives of J.P. Morgan, Allen & Company and Wachtell Lipton to discuss the events since the last meeting of the Board. The Board discussed the potential transaction with Elliott and potential strategic alternatives. The Board authorized Messrs. Attwood and Kenny to seek further information from Elliott, including a specific proposed price range for a potential transaction involving Nielsen.

On October 4, 2021, representatives of Elliott met with members of Nielsen’s management, who notified representatives of Elliott that the Board requested that Elliott update its proposal with a specific per share price, that a “traditional” control premium would be unlikely to result in further discussions with respect to a potential transaction with Nielsen, and that the Board was primarily focused on the intrinsic value of Nielsen.

On October 11, 2021, Nielsen received a revised written non-binding proposal from Elliott in which Elliott proposed to acquire Nielsen at a price range of $27.00 to $28.00 per Nielsen ordinary share.

At a meeting of the Board held on October 14, 2021, representatives of J.P. Morgan and Allen & Company updated the Board on Elliott’s proposal, as well as conversations between members of Nielsen’s management and representatives of Elliott in connection therewith. Members of Nielsen’s management provided the Board with a summary of Nielsen’s financial performance and management’s financial projections. Representatives of J.P. Morgan and Allen & Company reviewed with the Board certain preliminary financial analyses of J.P. Morgan and Allen & Company relating to Nielsen, including based on management’s financial projections using a range of varying assumptions. Representatives of J.P. Morgan and Allen & Company also discussed with the Board Nielsen’s financial performance and standalone plan and the assumptions underlying the different cases of projections that management prepared. Representatives of J.P. Morgan and Allen & Company additionally provided the Board with certain perspectives of J.P. Morgan and Allen & Company regarding potential strategic alternatives to a potential transaction with Elliott, including standalone strategies such as continuing with the execution of Nielsen’s strategic plan and a return of capital to Nielsen’s shareholders through share repurchases or dividends, as well as potential transaction alternatives such as acquisitions, PIPE financing and pursuing a sale process. Finally, representatives of Wachtell Lipton reviewed with the directors their responsibilities in relation to the potential transaction, including reminding them of their statutory and fiduciary duties under UK law based on a presentation previously provided by Clifford Chance. After discussion, the Board authorized Messrs. Attwood and Kenny to inform Elliott that the Board was not prepared to engage with Elliott regarding a transaction on the basis of its proposed price, which they did on October 19, 2021.

On October 21, 2021, Nielsen received a revised written non-binding proposal from Elliott in which Elliott proposed to acquire Nielsen at a price of $28.50 per Nielsen ordinary share.

Between October 22 and October 23, 2021, representatives of Elliott spoke with Messrs. Attwood and Kenny, and separately with representatives of J.P. Morgan, to discuss the revised proposal. On October 24, 2021, representatives of Elliott provided members of Nielsen’s management with an illustrative timeline for its due diligence review of Nielsen. At a video conference meeting of the Board held on October 28, 2021, members of Nielsen’s management and representatives of J.P. Morgan, Allen & Company and Wachtell Lipton updated the Board on Elliott’s revised proposal, as well as the continued engagement among members of Nielsen’s management, representatives of J.P. Morgan and representatives of Elliott in connection therewith. Representatives of J.P. Morgan and Allen & Company again reviewed with the Board certain preliminary financial analyses of J.P. Morgan and Allen & Company relating to Nielsen, including based on management’s

 

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financial projections using a range of varying assumptions. The Board also discussed with members of Nielsen’s management the feedback that shareholders had provided following Nielsen’s earnings release. After discussion, the Board authorized Messrs. Attwood and Kenny to inform Elliott that the Board was not prepared to engage with Elliott regarding a transaction on the basis of its proposed purchase price, but would be prepared to provide due diligence information to Elliott if Elliott were to increase such price to at least $30.00 per Nielsen ordinary share. The Board also directed Messrs. Attwood and Kenny to make clear that the Board would expect Elliott to offer additional value based on the outcome of such due diligence.

On November 1, 2021, Nielsen received a revised written non-binding proposal from Elliott in which Elliott proposed to acquire Nielsen at a price of $30.00 per Nielsen ordinary share.

On November 18, 2021, Nielsen entered into a non-disclosure agreement with Elliott, which included a customary standstill provision restricting Elliott from taking certain actions with respect to Nielsen and its securities, but that permitted Elliott to make confidential proposals to the Board, and included customary “fall-away” and “don’t ask, don’t waive” provisions.

Between November 19 and November 22, 2021, Nielsen entered into non-disclosure agreements with Brookfield and certain other potential members of the Consortium, each of which included a customary standstill provision restricting such member from taking certain actions with respect to Nielsen and its securities, but that permitted such member to make confidential proposals to the Board, as well as customary “fall-away” and “don’t ask, don’t waive” provisions.

From November 22, 2021 through December 2021, representatives of Nielsen provided extensive non-public due diligence information to Elliott and the other potential members of the Consortium, as well as their respective advisors, and members of Nielsen’s management made presentations to representatives of Elliott and the other potential members of the Consortium in connection with their due diligence process.

At a meeting of the Finance Committee of the Board (the “Finance Committee”) held on December 15, 2021, members of Nielsen’s management updated the Finance Committee on the status of the due diligence process with the potential members of the Consortium, and also provided a summary of the financial projections prepared by Nielsen’s management and provided to the potential members of the Consortium in connection with the potential transaction (the “Management Case”). Members of Nielsen’s management and representatives of J.P. Morgan and Allen & Company also discussed next steps with respect to the potential transaction with the Finance Committee, including the due diligence timeline and outstanding due diligence requests.

At a meeting of the Board held on December 16, 2021, members of Nielsen’s management and representatives of J.P. Morgan and Allen & Company updated the Board on discussions with Elliott and the other potential members of the Consortium, including regarding such parties’ due diligence efforts. Members of Nielsen’s management and representatives of J.P. Morgan and Allen & Company also discussed next steps with respect to the potential transaction with the Board, including the due diligence timeline and the timeline for the Consortium’s submission of a revised proposal and potential entry into a definitive agreement in connection with a mutually agreeable transaction.

Between January 5 and January 13, 2022, members of Nielsen’s management and representatives of J.P. Morgan and Allen & Company spoke to representatives of the potential members of the Consortium to discuss the submission of a revised proposal based on the due diligence information that Nielsen had provided, and to state that while the Board had permitted the Consortium to conduct due diligence on the basis of the Consortium’s previous proposal of $30.00 per Nielsen ordinary share, the Board continued to believe that the intrinsic value of Nielsen was over $30.00 per Nielsen ordinary share and that the non-public due diligence information provided to the Consortium should substantiate that view.

On January 13, 2022, The WindAcre Partnership LLC (“WindAcre”), a significant Nielsen shareholder with aggregate beneficial ownership at that time of 9.63% of the outstanding Nielsen ordinary shares, sent a private

 

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letter to the Board encouraging the Board to maximize the intrinsic value of the Nielsen ordinary shares through proactive capital allocation decisions, including significant share repurchases or special dividends. WindAcre also provided a summary of several illustrative forecasted financial cases based on different assumptions, with WindAcre’s base operating and capital allocation case reflecting an intrinsic value of $44.00 to $57.00 per Nielsen ordinary share, premised on distributing substantially all cash flow to shareholders in the form of dividends and/or share repurchases.

On January 14, 2022, Nielsen received a revised written non-binding proposal from Elliott, Brookfield and another potential member of the Consortium in which such members confirmed their interest in acquiring Nielsen at a price of $30.00 per Nielsen ordinary share. The revised proposal specified that the Consortium expected to finance the acquisition with a combination of cash equity and debt financing from third-party lenders, with approximately $5 billion of the equity from members of the Consortium, along with their limited partners and co-investors, and requesting permission from Nielsen to engage with certain potential lenders and preferred equity financing sources, as well as specific additional potential investors, including WindAcre.

On January 17, 2022, representatives of J.P. Morgan and Allen & Company discussed certain aspects of the revised proposal with representatives of Elliott and Brookfield.

On January 18, 2022, Messrs. Attwood and Kenny discussed certain aspects of the revised proposal with representatives of Elliott.

At a video-conference meeting of the Board held on January 19, 2022, members of Nielsen’s management and representatives of J.P. Morgan, Allen & Company and Wachtell Lipton (with representatives of Clifford Chance also in attendance) updated the Board on the revised proposal received from Elliott on January 14, 2022, and discussions with Elliott and the other potential members of the Consortium, including regarding such parties’ due diligence efforts. Mr. Kenny and Linda Zukauckas, the Chief Financial Officer of Nielsen, discussed with the Board the management projections, including an updated Management Case and an “Alternative Case” moderating certain Management Case assumptions, in each case described in the section of this proxy statement captioned “—Management Projections.” Representatives of J.P. Morgan and Allen & Company again reviewed with the Board certain preliminary financial analyses of J.P. Morgan and Allen & Company relating to Nielsen, including based on the Management Case and the Alternative Case. Members of Nielsen’s management and representatives of J.P. Morgan and Allen & Company also discussed next steps with respect to the potential transaction with the Board, including providing the Consortium feedback on its revised proposal and seeking an increase in price. The Board also discussed the Consortium’s request to speak with WindAcre, and the advisability of contacting other potential interested parties for a pre-signing market check or relying on a post-signing “go-shop” period. After discussion, the Board authorized Messrs. Attwood and Kenny to seek an increase in price from the Consortium.

On January 21, 2022, Messrs. Attwood and Kenny informed representatives of Elliott that the Board would only be willing to consider a potential transaction at a price above $30.00 per Nielsen ordinary share, and that the members of the Consortium would need to enter into binding commitments with respect to the entire amount of the equity financing for the potential transaction. Messrs. Attwood and Kenny also informed representatives of Elliott that the Board was continuing to consider the Consortium’s request to speak with WindAcre about the possibility of WindAcre joining the Consortium. Representatives of Elliott conveyed to Messrs. Attwood and Kenny that the Consortium would not increase its proposed acquisition price.

At a video-conference meeting of the Board held on January 24, 2022 attended by members of Nielsen’s management and representatives of Nielsen’s financial and legal advisors, Messrs. Attwood and Kenny updated the Board on discussions with representatives of the potential members of the Consortium, noting that during the January 21, 2022 discussions, the Consortium firmly stated its position that the Consortium would not increase its proposed acquisition price of $30.00 per Nielsen ordinary share. Messrs. Attwood and Kenny also relayed that representatives of the potential members of the Consortium had repeated their request to speak with

 

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representatives of WindAcre about the possibility of WindAcre joining the Consortium. The Board asked Messrs. Attwood and Kenny to request that the Consortium provide a revised proposal with further details regarding the equity financing for such proposal.

On January 31, 2022, Nielsen received a revised written non-binding proposal from Elliott, Brookfield and another potential member of the Consortium in which such members proposed to acquire Nielsen at a price of $30.00 per Nielsen ordinary share. The revised proposal further specified that the Consortium members and another potential co-investor would provide commitments for the entire amount of the equity financing for the potential transaction, and continued to request permission from Nielsen to engage with certain potential lenders and preferred equity financing sources, as well as specific additional investors, including WindAcre.

At a video-conference meeting of the Board held on February 2, 2022, Messrs. Attwood and Kenny updated the Board on discussions with representatives of the potential members of the Consortium, and on the Consortium’s due diligence process. The Board discussed with representatives of Wachtell Lipton and Clifford Chance the alternatives of a pre-signing market check or a post-signing “go-shop” period with respect to a potential transaction, concluding that a post-signing “go-shop” period was preferable given that Nielsen had publicly announced and conducted a strategic review process in 2019, the likelihood that a pre-signing market check would be disruptive and increase the risk of market rumors regarding the potential transaction, and the fact that a post-signing “go-shop” process would adequately permit Nielsen to test if there were potential acquirers at a higher price. Representatives of Clifford Chance reviewed with the Board their responsibilities in relation to the potential transaction, including reminding them of their statutory and fiduciary duties under UK law.

Beginning on February 3, 2022, representatives of Gibson Dunn & Crutcher LLP (“Gibson Dunn”), counsel to Elliott, and Wachtell Lipton began discussions regarding the Consortium’s request to engage with WindAcre to gauge WindAcre’s potential interest in participating with the Consortium in the potential transaction.

At a video-conference meeting of the Board held on February 6, 2022, members of Nielsen’s management and representatives of Wachtell Lipton and Clifford Chance discussed with the Board the Consortium’s request to engage with WindAcre, noting that doing so could increase closing certainty for a potential transaction with the Consortium. The Board determined to permit the potential members of the Consortium to engage with WindAcre, subject to WindAcre’s entry into an acceptable non-disclosure agreement with Nielsen, and authorized Messrs. Attwood and Kenny to contact WindAcre.

On February 7, 2022, Ms. Zukauckas spoke with representatives of WindAcre and informed them of a potential strategic opportunity, but could not provide any additional information about the potential opportunity unless WindAcre was willing to enter into a non-disclosure agreement. Following this conversation, counsel for WindAcre had conversations with representatives of Wachtell Lipton about the terms of a possible non-disclosure agreement.

At a video-conference meeting of the Finance Committee held on February 9, 2022, members of Nielsen’s management provided an update on potential acquisition targets and future capital allocation options, including a potential share repurchase program. In addition, representatives of J.P. Morgan and Allen & Company relayed an update from representatives of the Consortium regarding potential financing sources for the Consortium and the status of the Consortium’s due diligence process.

At a video-conference meeting of the Board held on February 10, 2022, representatives of Wachtell Lipton updated the Board on the status of discussions with WindAcre regarding entry into a non-disclosure agreement with Nielsen. Members of Nielsen’s management provided an update on the draft of the Transaction Agreement and related documentation with respect to a potential transaction with the Consortium, and representatives of J.P. Morgan and Allen & Company relayed an update from representatives of the Consortium regarding potential financing sources for the Consortium and the status of the Consortium’s due diligence process.

 

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On February 11, 2022, representatives of Wachtell Lipton circulated a draft of the Transaction Agreement to representatives of Gibson Dunn.

Also on February 11, 2022, Nielsen entered into a non-disclosure agreement with WindAcre, which did not include a standstill provision restricting WindAcre from taking certain actions with respect to Nielsen and its securities but included an acknowledgment from WindAcre that WindAcre would not be able to trade in Nielsen securities on the basis of material non-public information. Thereafter, representatives of Nielsen informed representatives of WindAcre about the potential transaction with the Consortium and that the Consortium had requested permission to discuss with WindAcre the possibility of WindAcre joining the Consortium. They also informed the representatives of WindAcre that if WindAcre was interested in joining the Consortium and receiving confidential information about Nielsen as part of that process, WindAcre would be required to execute a further non-disclosure agreement that would include a customary standstill provision. Representatives of Nielsen also informed representatives of Elliott, Brookfield and another potential member of the Consortium that WindAcre was granted permission to discuss with the Consortium the possibility of WindAcre participating with the Consortium in a potential transaction.

On February 17, 2022, representatives of WindAcre informed representatives of Nielsen that on the basis of preliminary discussions with the Consortium, WindAcre believed that the Consortium’s proposed price was below the intrinsic value of Nielsen ordinary shares and that WindAcre was not likely to join the Consortium (although discussions between WindAcre and the Consortium were still ongoing) and that WindAcre would likely oppose a sale of Nielsen to the Consortium at $30.00 per Nielsen ordinary share. The representatives of WindAcre disclosed to the representatives of Nielsen that in addition to WindAcre’s beneficial ownership of approximately 9.6% of the outstanding Nielsen ordinary shares, WindAcre also held derivative securities giving WindAcre economic exposure equivalent to an additional 14.4% of the outstanding Nielsen ordinary shares. WindAcre also expressed interest in an opportunity to address the Board with respect to WindAcre’s view of Nielsen’s intrinsic value.

At a video-conference meeting of the Board held on February 23, 2022, at the invitation of the Board, representatives of WindAcre presented to the Board their view on Nielsen’s intrinsic value, which they indicated could range from $35.00 to $90.00 per Nielsen ordinary share in certain scenarios. The representatives of WindAcre reiterated that if Nielsen were to enter into a transaction with the Consortium at a price of $30.00 per Nielsen ordinary share, WindAcre expected to oppose such transaction. After the representatives of WindAcre left the meeting, the Board discussed WindAcre’s presentation with Nielsen’s management and with representatives of Nielsen’s financial advisors in the context of their respective preliminary financial analyses.

At a video-conference meeting of the Board held on February 26, 2022, the Board discussed with representatives of J.P. Morgan, Allen & Company, Wachtell Lipton and Clifford Chance the timeline for a potential transaction with the Consortium, and determined to give the Consortium a deadline of March 21, 2022 for its final proposal and the potential execution of definitive agreements with respect to a transaction. Representatives of Wachtell Lipton and Clifford Chance provided the Board with a summary of the applicable voting requirements if the potential transaction were structured as a scheme of arrangement under UK law. The Board also discussed illustrative shareholder composition and voting projections assuming WindAcre did not support the potential transaction, which were prepared by Innisfree M&A Incorporated, Nielsen’s proxy solicitor for the Acquisition. The Board also approved a $1 billion share repurchase authorization, to be implemented in the event that Nielsen did not reach a definitive agreement on a transaction with the Consortium.

On March 4, 2022, representatives of Gibson Dunn circulated a revised draft of the Transaction Agreement to representatives of Wachtell Lipton, reflecting the Consortium’s comments on the draft of the Transaction Agreement sent by Wachtell Lipton.

At a video-conference meeting of the Board held on March 9, 2022 attended by members of Nielsen’s management and representatives of Nielsen’s financial and legal advisors, the Board discussed again with

 

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members of Nielsen’s management the Management Case and the Alternative Case, including management’s assessments and the underlying assumptions for each case, and the weighting that the financial advisors should apply in their respective financial analyses. Based on management’s assessments regarding the likelihood of achieving the financial results reflected in such cases, the Board instructed J.P. Morgan and Allen & Company to apply a 50% weighting to the results of the Management Case and a 50% weighting to the results of the Alternative Case,. Representatives of Wachtell Lipton also provided the Board with an update regarding WindAcre’s beneficial ownership of and derivative positions in Nielsen ordinary shares.

On March 10, 2022, representatives of Wachtell Lipton, Clifford Chance, Gibson Dunn, Herbert Smith Freehills LLP (“HSF”), UK counsel to Elliott, and Davis Polk & Wardwell LLP (“Davis Polk”), counsel to Brookfield, discussed various UK law aspects of the potential structures for implementing the Acquisition.

On March 11, 2022, representatives of Wachtell Lipton circulated a revised draft of the Transaction Agreement to representatives of Gibson Dunn, responding to the comments reflected in the draft sent by Gibson Dunn. Also on March 11, 2022, representatives of Gibson Dunn circulated a draft of the forms of equity commitment letter and limited guarantee that the potential members of the Consortium proposed to enter into in connection with the potential transaction.

On March 13, 2022, representatives of Wachtell Lipton, Clifford Chance, Gibson Dunn, HSF and Davis Polk discussed various aspects of the Transaction Agreement, including closing mechanics, termination fees, the regulatory efforts covenant, Nielsen’s representations and warranties and the issuances of equity awards in the interim period between signing and closing.

On March 14, 2022, news articles were published stating that Nielsen was in advanced talks with a consortium of private equity firms with respect to the acquisition of Nielsen, “according to people familiar with the matter.”

Later on March 14, 2022, WindAcre and certain of its affiliates filed a beneficial ownership report on Schedule 13D disclosing an aggregate beneficial ownership of 9.61% of the outstanding Nielsen ordinary shares, and derivative securities giving WindAcre economic exposure equivalent to an additional 14.44% of the outstanding Nielsen ordinary shares.

On March 15, 2022, representatives of Gibson Dunn circulated a revised draft of the Transaction Agreement to representatives of Wachtell Lipton, responding to the comments reflected in the draft sent by Wachtell Lipton.

At a video-conference meeting of the Board held on March 16, 2022, members of Nielsen’s management and representatives of J.P. Morgan, Allen & Company, Wachtell Lipton and Clifford Chance updated the Board on negotiations with the potential members of the Consortium and their advisors and discussed a range of potential alternative scenarios depending on WindAcre’s potential course of action. Representatives of Wachtell Lipton also discussed with the Board the key open points in the Transaction Agreement. Representatives of J.P. Morgan and Allen & Company also discussed with the Board an illustrative overview of the post-signing “go-shop” process and a preliminary list of potential strategic and financial counterparties that could be approached to solicit interest in an alternative acquisition in the event Nielsen signed a definitive agreement with the Consortium and a “go-shop” process commenced. Representatives of Clifford Chance reviewed with the directors their responsibilities in relation to the potential transaction, including reminding them of their statutory and fiduciary duties under UK law.

Also on March 16, 2022, representatives of Wachtell Lipton and Gibson Dunn discussed certain open points in the Transaction Agreement, including with respect to termination rights, termination fees, the reimbursement of the Consortium’s expenses in the event that the potential transaction was not approved by Nielsen’s shareholders, the go-shop and non-solicitation covenants and certain other covenants.

 

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Also on March 16, 2022, representatives of J.P. Morgan received a draft of the Consortium’s debt commitment letter from representatives of Gibson Dunn.

On March 17, 2022, representatives of Wachtell Lipton, Clifford Chance, Gibson Dunn, HSF and Davis Polk, discussed various UK law aspects of the draft Transaction Agreement.

Also on March 17, 2022, representatives of Wachtell Lipton circulated a revised draft of the Transaction Agreement to representatives of Gibson Dunn, responding to the comments reflected in the draft sent by Gibson Dunn.

On March 19, 2022, representatives of WindAcre informed members of Nielsen’s management that WindAcre had discontinued discussions with the Consortium and would seek to block the potential transaction if a definitive agreement was signed.

Also on March 19, 2022, representatives of the Consortium informed members of Nielsen’s management that the Consortium planned to submit a revised proposal later that day reflecting a reduced price of $25.40 per Nielsen ordinary share, citing the increased cost of financing in light of market conditions and other factors for the price reduction. The representatives of the Consortium emphasized that $25.40 per Nielsen ordinary share was still a substantial premium to the unaffected trading price of Nielsen ordinary shares.

At a video-conference meeting of the Board held on March 19, 2022, members of Nielsen’s management and representatives of J.P. Morgan, Allen & Company, Wachtell Lipton and Clifford Chance updated the Board on discussions with the Consortium and its advisors, including the substantial price reduction proposed by the Consortium. The Board determined to wait for a formal revised proposal from the Consortium before reaching a decision.

After the meeting of the Board, on March 19, 2022, Nielsen received a revised written non-binding proposal from Elliott and Brookfield in which the Consortium proposed to acquire Nielsen at a price of $25.40 per Nielsen ordinary share. The revised proposal included debt and equity commitment letters for the full purchase price, and a draft of the Transaction Agreement that the Consortium was prepared to execute, and stated that the proposal would automatically expire at 11:59 p.m. on March 20, 2022, unless accepted by Nielsen at or prior to such time.

At a video-conference meeting of the Board held on March 20, 2022, members of Nielsen’s management and representatives of J.P. Morgan and Allen & Company updated the Board on the revised proposal received from the Consortium. Representatives of Clifford Chance reviewed with the directors their statutory and fiduciary duties under UK law in connection with the decision to accept or reject the Consortium’s revised proposal. The Board then determined to reject the revised proposal and to have Nielsen issue a press release announcing the Board’s decision and stating that Nielsen intended to commence share repurchases following the release of its earnings for the fiscal quarter ended March 31, 2022. The Board directed members of Nielsen’s management and representatives of J.P. Morgan and Allen & Company to inform the Consortium of the Board’s decision and its reasons for such decision.

Later that evening on March 20, 2022, Messrs. Attwood and Kenny spoke with representatives of Elliott to inform them that the Board had rejected the revised proposal and that Nielsen had authorized the issuance of a press release announcing such rejection. The representatives of Elliott asked that Nielsen not issue a press release and indicated orally that the Consortium may potentially be prepared to revise its proposed price to $27.00 per Nielsen ordinary share.

After that conversation on March 20, 2022, Nielsen issued a press release disclosing the $25.40 per Nielsen ordinary share proposal received from the Consortium and the Board’s decision to reject such proposal based on its comprehensive review of the proposal, with the assistance of its independent financial and legal advisors, and discussions with WindAcre under a confidentiality agreement. Nielsen also announced its intention to commence share repurchases under its previously approved $1 billion share repurchase authorization following the release of its earnings for the fiscal quarter ended March 31, 2022.

 

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Following the issuance of Nielsen’s press release on March 20, 2022, WindAcre issued a press release announcing its support for the Board’s decision to reject the Consortium’s proposal of $25.40 per Nielsen ordinary share, stating that it believed that the proposed offer price significantly undervalued Nielsen, that it had informed the Board that it intended to accumulate additional Nielsen ordinary shares to block any such potential transaction were Nielsen to enter into a transaction, and that it was confident in its ability to do so.

Also on March 20, 2022, following the issuance of Nielsen’s press release, Nielsen received a revised written non-binding proposal from Elliott and Brookfield in which the Consortium proposed to acquire Nielsen at a purchase price of $27.00 per Nielsen ordinary share. The revised proposal included debt and equity commitment letters for the full purchase price, and a draft of the Transaction Agreement that the Consortium was prepared to execute, and stated that the proposal would automatically expire at 11:59 a.m. on March 21, 2022 unless accepted by Nielsen at or prior to such time.

Subsequently on March 20, 2022, representatives of J.P. Morgan and Allen & Company spoke with representatives of Elliott regarding the Board’s reasons for rejecting the Consortium’s proposal of $25.40 per Nielsen ordinary share and the likelihood that the Board would not be in a position to respond to the Consortium’s revised proposal of $27.00 per Nielsen ordinary share prior to the expiration of that proposal the next morning.

Between March 20, 2022 and March 23, 2022, Messrs. Attwood and Kenny discussed the revised proposal with the Consortium. The Consortium indicated that it was considering submitting a further revised proposal, and Messrs. Attwood and Kenny advised the representatives of the Consortium that, if the Consortium was to submit a further revised proposal, such proposal should reflect the best and final price the Consortium was willing to pay and the Board would then review such proposal. Messrs. Attwood and Kenny also had further discussions with WindAcre, in which WindAcre stated again its belief that Nielsen should remain independent, increase leverage and engage in substantial share repurchases.

At a video-conference meeting of the Board held on March 23, 2022, attended by representatives of Nielsen’s financial and legal advisors, Messrs. Attwood and Kenny and members of Nielsen’s management provided the Board with an update on discussions with the Consortium, WindAcre and other significant shareholders.

On March 25, 2022, Nielsen received a revised written non-binding proposal from Elliott and Brookfield in which the Consortium proposed to acquire Nielsen at a price of $28.00 per Nielsen ordinary share. The revised proposal included debt and equity commitment letters for the full purchase price, and a draft of the Transaction Agreement that the Consortium was prepared to execute, and stated that the proposal would expire at 4:59 p.m. on April 1, 2022, being the stated expiration date of the debt commitment letter, if not accepted prior to that time.

Also on March 25, 2022, Nielsen received a letter from Elliott detailing its rationale for its belief that the Consortium’s revised proposal represented the best outcome for Nielsen’s shareholders and Nielsen as a business.

Also on March 25, 2022, representatives of Wachtell Lipton, Clifford Chance, Gibson Dunn and HSF discussed the Consortium’s plan for addressing WindAcre’s potential opposition, including the proposed ability to structure the potential transaction as a tender offer instead of a scheme of arrangement in the event that WindAcre acquired sufficient Nielsen ordinary shares to block shareholder approval of a scheme of arrangement.

At a video-conference meeting of the Board held on March 26, 2022, members of Nielsen’s management and representatives of J.P. Morgan and Allen & Company updated the Board on discussions with the Consortium and its advisors. Representatives of J.P. Morgan and Allen & Company updated the Board on the revised proposal received from the Consortium and reviewed with the Board J.P. Morgan’s and Allen & Company’s respective preliminary financial analyses, including based on a 50% weighting to the results of the Management

 

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Case and a 50% weighting to the results of the Alternative Case as directed by the Board. The Board also discussed with its advisors a range of alternative scenarios if they determined to accept or reject the Consortium’s proposal. Representatives of Clifford Chance reviewed with the directors their statutory and fiduciary duties under UK law in connection with the Consortium’s proposal and discussed the possibility of switching the transaction structure from a scheme of arrangement to a tender offer. The Board determined to meet again the next day to continue discussion of the Consortium’s revised proposal.

Following the meeting of the Board, Messrs. Attwood and Kenny informed representatives of Elliott that the Board was still deliberating with respect to the Consortium’s revised proposal and would need more time to reach a decision.

Also on March 26, 2022, representatives of Wachtell Lipton sent a revised draft of the Transaction Agreement to representatives of Gibson Dunn. Representatives of Wachtell Lipton, Clifford Chance, Gibson Dunn, HSF and Davis Polk continued to exchange drafts of the transaction documents and discuss open items in the Transaction Agreement and related documentation, including with respect to termination rights, the ability of the parties to structure the potential transaction as a tender offer instead of a scheme of arrangement, as well as certain employee benefits matters.

At a video-conference meeting of the Board held on March 27, 2022, members of Nielsen’s management and representatives of J.P. Morgan, Allen & Company, Wachtell Lipton and Clifford Chance updated the Board on discussions with the Consortium and its advisors. Representatives of J.P. Morgan and Allen & Company provided the Board with an illustrative overview of potential scenarios in the event the Board accepted or rejected the Consortium’s proposal, including certain perspectives of J.P. Morgan and Allen & Company regarding potential movements in the price of the Nielsen ordinary shares and reactions from investors and other stakeholders, and the potential effect of the failure to receive shareholder approval for an announced transaction. Representatives of Wachtell Lipton updated the Board on the status of negotiations of the Transaction Agreement with the Consortium and remaining open points. Representatives of Clifford Chance reviewed with the directors their responsibilities in relation to the potential transaction, including reminding them of their statutory and fiduciary duties under UK law. The Board determined to defer its decision on the Consortium’s proposal until the next day to allow the directors to deliberate further.

Following the meeting of the Board, Messrs. Attwood and Kenny informed representatives of Elliott that the Board was still deliberating the Consortium’s revised proposal and that another meeting had been scheduled for the following day. They indicated that if the Consortium was willing to increase its price, the Consortium should do so prior to the next meeting of the Board. Representatives of Elliott indicated that the Consortium would not increase its price above $28.00 per Nielsen ordinary share.

At a video-conference meeting of the Board held on March 28, 2022, Nielsen’s management and representatives of J.P. Morgan, Allen & Company, Wachtell Lipton and Clifford Chance updated the Board on discussions with the Consortium and its advisors. Representatives of Wachtell Lipton summarized the terms of the proposed Transaction Agreement and other transaction documents and answered questions from the Board regarding the transaction documents and the proposed transaction. Representatives of J.P. Morgan and Allen & Company reviewed with the Board J.P. Morgan’s and Allen & Company’s respective financial analyses of the Offer Consideration, including such analyses based on a 50% weighting to the results of the Management Case and a 50% weighting to the results of the Alternative Case as directed by the Board, and answered questions from the Board. At the request of the Board, representatives of J.P. Morgan and Allen & Company separately rendered to the Board the respective oral opinions of J.P. Morgan and Allen & Company, confirmed by delivery of a written opinion dated the same date, to the effect that, as of the date of such opinion and based upon the assumptions, limitations, qualifications and other matters as set forth in such opinion, (i) in the case of J.P. Morgan’s opinion, the Offer Consideration to be paid to the Scheme Shareholders pursuant to the Transaction Agreement was fair, from a financial point of view, to such holders, and (ii) in the case of Allen & Company’s opinion, the Offer Consideration to be paid to holders of Nielsen ordinary shares (other than, as applicable, Parent, Purchaser, consortium members of such entities, and their respective affiliates) pursuant to the

 

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Transaction Agreement was fair, from a financial point of view, to such holders. Prior to this meeting, the Board also was provided with certain information from each of J.P. Morgan and Allen & Company regarding their respective material relationships with Nielsen, Parent and certain other Consortium members during the preceding two-year period. Representatives of Wachtell Lipton and Clifford Chance once again reviewed with the directors their responsibilities in relation to the potential transaction, including once again reminding them of their statutory and fiduciary duties under UK law.

After further discussion and deliberation, the Board unanimously determined that the transactions contemplated by the Transaction Agreement, including the Acquisition, would be most likely to promote the success of Nielsen for the benefit of its shareholders as a whole, approved the execution, delivery and performance of the Transaction Agreement and the consummation of the transactions contemplated thereby, including the Acquisition, resolved to recommend that the holders of Nielsen ordinary shares vote in favor of the Scheme at the Court Meeting and vote in favor of the Company Proposals at the Special Meeting and directed that the Scheme be submitted for approval by the Nielsen shareholders at the Court Meeting.

Following the meeting of the Board, representatives of Wachtell Lipton, Clifford Chance, Gibson Dunn, HSF and Davis Polk finalized the terms of the Transaction Agreement and the other transaction documents, in accordance with the terms approved by the Board, and Nielsen, Parent, Purchaser and the applicable counterparties executed the Transaction Agreement and the other transaction documents.

On March 29, 2022, Nielsen and the Consortium issued a joint press release announcing the Acquisition and the execution of the Transaction Agreement and related transaction documents.

On or about March 29, 2022, in accordance with the go-shop provisions in the Transaction Agreement, representatives of J.P. Morgan and Allen & Company began contacting parties on behalf of Nielsen to gauge their interest in making a Company Takeover Proposal. Representatives of J.P. Morgan and Allen & Company ultimately contacted 32 parties, including 18 financial parties and 14 strategic parties. Of such contacted parties, one private equity firm executed a non-disclosure agreement with Nielsen, which did not include a standstill provision. At 11:59 p.m. Eastern time on May 12, 2022, the Go-Shop Period ended without any party submitting a Company Takeover Proposal.

Recommendation of the Board and Reasons for the Acquisition

Recommendation of the Board

The Board has unanimously: (i) determined that the transactions contemplated by the Transaction Agreement, including the Acquisition, would be most likely to promote the success of the Company for the benefit of its shareholders as a whole, (ii) approved the execution, delivery and performance of the Transaction Agreement and the consummation of the transactions contemplated thereby, including the Acquisition, (iii) resolved to recommend that Nielsen shareholders vote in favor of the Scheme at the Court Meeting and the Company Proposals at the Special Meeting, and (iv) directed that the Scheme be submitted for approval by Nielsen shareholders at the Court Meeting.

The Board accordingly unanimously recommends that you vote “FOR” the Court Scheme Proposal and both of the Company Proposals.

Reasons for the Acquisition

In the course of evaluating the Acquisition, the Board consulted with Nielsen’s management and financial and legal advisors. In addition, in reaching its determination and recommendation, the Board considered its statutory and fiduciary duties under UK law and a number of factors, including those below (which are not listed in any relative order of importance), all of which it viewed as generally supporting its (i) determination that the

 

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transactions contemplated by the Transaction Agreement, including the Acquisition, would be most likely to promote the success of Nielsen for the benefit of Nielsen shareholders as a whole, (ii) approval of the execution, delivery and performance of the Transaction Agreement and the consummation of the transactions contemplated thereby, including the Acquisition, and (iii) resolution to recommend that the Nielsen shareholders vote in favor of the Scheme at the Court Meeting and the Company Proposals at the Special Meeting:

 

   

the current and historical market prices of Nielsen ordinary shares, including the market performance of Nielsen ordinary shares relative to those of other participants in Nielsen’s industry and general market indices, and the fact that the Offer Consideration constituted a premium of 60% over Nielsen’s unaffected trading price of $17.51 on March 11, 2022 (the trading day prior to media speculation about a potential sale of Nielsen);

 

   

risks associated with continuing to operate Nielsen as a standalone public company, including risks related to Nielsen’s long-term strategic plan and incremental investments in the execution of Nielsen ONE in order to realize its expected benefits, industry trends and changes in laws and regulations affecting Nielsen, and the inherent challenges of executing on such strategic plan as a public company;

 

   

the Board’s belief that, as a result of having engaged in an extensive and lengthy review of potential strategic alternatives in 2018 to 2019, with the assistance of Nielsen’s management and advisors, Nielsen had previously explored solicited and unsolicited interest in potential transactions, including with those parties that were believed to be the most able and willing to transact, as more fully described above under the section of this proxy statement captioned “—Background of the Acquisition”;

 

   

the fact that the pool of potential acquirors of Nielsen could continue to decrease due to industry consolidation trends and the potential for continuing regulatory constraints;

 

   

the view of the Board, based upon the course of negotiations with the Consortium (as more fully described above under the section of this proxy statement captioned “—Background of the Transaction”), that the Offer Consideration represents the highest price that the Consortium was willing to pay and that the terms of the Transaction Agreement include the most favorable terms to Nielsen, in the aggregate, to which the Consortium was willing to agree;

 

   

the view of the Board as to the timing and likelihood of the consummation of the Acquisition, in light of the required regulatory approvals, the commitments made by Parent and Purchaser to obtain such approvals (including the fact that Parent and Purchaser are required to use reasonable best efforts to take action in order to obtain the required regulatory approvals of the Acquisition, as more fully described in the section of this proxy statement captioned “The Transaction Agreement—Other Covenants—Efforts to Consummate the Transaction”) and the conditions to Closing contained in the Transaction Agreement;

 

   

the view of the Board that the Offer Consideration was more favorable to Nielsen shareholders on a risk-adjusted basis than the potential value that might result from other alternatives reasonably available to Nielsen, based upon the Board’s extensive knowledge of Nielsen’s business, assets, financial condition and results of operations, its competitive position and historical and projected financial performance, and the belief that the Offer Consideration represented an attractive and comparatively certain value for Nielsen shareholders;

 

   

the financial analysis presentation and the oral fairness opinion of J.P. Morgan, subsequently confirmed by delivery of a written opinion, to the effect that, as of March 28, 2022, and based upon and subject to the various factors, qualifications, limitations and assumptions set forth therein, the Offer Consideration to be paid to the Scheme Shareholders in the proposed Acquisition was fair, from a financial point of view, to such holders, as more fully described below under the section of this proxy statement captioned “—Opinion of J.P. Morgan Securities LLC,” which full text of the written opinion is attached as Annex C to this proxy statement and is incorporated by reference in this proxy statement in its entirety;

 

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the financial presentation and opinion, dated March 28, 2022, of Allen & Company to the Board as to the fairness, from a financial point of view and as of such date, of the Offer Consideration to be paid to holders of Nielsen ordinary shares (other than, as applicable, Parent, Purchaser, Consortium members of such entities, and their respective affiliates) pursuant to the Transaction Agreement, which opinion was based on and subject to the various assumptions made, procedures followed, matters considered and qualifications and limitations on the review undertaken as set forth in such opinion and is more fully described below in the section captioned “—Opinion of Allen & Company LLC;”

 

   

the terms and conditions of the Transaction Agreement and the other transaction documents, including the following:

 

   

the right of Nielsen, pursuant to a 45-day “go-shop” period, to solicit Company Takeover Proposals, as defined under the section of this proxy statement captioned “The Transaction Agreement—Restrictions on Solicitation of Alternative Proposals” from, and participate in discussions and negotiations with, third parties regarding any Company Takeover Proposal;

 

   

Nielsen’s ability to terminate the Transaction Agreement in order to accept a Company Superior Proposal (as defined herein), subject to certain requirements contained in the Transaction Agreement and paying Parent the Company Termination Fee of $102 million, as more fully described below under the section of this proxy statement captioned “The Transaction Agreement—Termination Fees,” an amount which the Board believed, with input from Nielsen’s financial and legal advisors based on similar transactions, would be unlikely to deter third parties from making Company Takeover Proposals;

 

   

the conditions to Closing contained in the Transaction Agreement, which are limited in number and scope, and which, in the case of the condition related to the accuracy of Nielsen’s representations and warranties, is generally subject to a Material Adverse Effect (as defined in the section of this proxy statement captioned “The Transaction Agreement—Representations and Warranties”) qualification and the commitments made by Parent and Purchaser to obtain such approvals (including the fact that Parent and Purchaser are required to use reasonable best efforts to take action in order to obtain the required regulatory approvals of the Acquisition, as more fully described in the section of this proxy statement captioned “The Transaction Agreement—Other Covenants—Efforts to Consummate the Transaction”);

 

   

the requirement that the Scheme be approved by the Nielsen shareholders at the Court Meeting and that the Company Proposals (other than the Compensation Proposal) be approved at the Special Meeting, and that the Scheme be sanctioned by the UK Court, in order for the Closing to occur;

 

   

the ability of Nielsen, Parent and Purchaser to mutually agree to implement the Acquisition by way of an Offer rather than the Scheme, as more fully described in the section of this proxy statement captioned “The Transaction Agreement—Other Covenants—Switching to an Offer”;

 

   

the fact that Nielsen has sufficient operating flexibility to conduct its business prior to the consummation of the Acquisition;

 

   

the provision of the Transaction Agreement allowing the Board to effect a Company Adverse Recommendation Change and to terminate the Transaction Agreement, in certain circumstances relating to the presence of a Company Superior Proposal (or to effect a Company Adverse Recommendation Change in response to an Intervening Event) subject to the applicable procedures, terms and conditions set forth in the Transaction Agreement (including, if applicable, payment of the Company Termination Fee) (for more information, see the sections of this proxy statement captioned “The Transaction Agreement—The Board’s Recommendation; Company Adverse Recommendation Change,” “The Transaction Agreement—Termination of the Transaction Agreement” and “The Transaction Agreement—Termination Fees”);

 

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the absence of a financing condition in the Transaction Agreement;

 

   

the provision for the Effective Time to occur within six months of the date of the Transaction Agreement, with the ability to extend to twelve (12) months from the date of the Transaction Agreement under certain circumstances (as more fully described in the section of this proxy statement captioned “The Transaction Agreement—Termination of the Transaction Agreement”) allowing for sufficient time to complete the Transaction;

 

   

that Parent and Purchaser have obtained commitments for the Debt Financing for the transaction from reputable financial institutions and the committed Equity Financing for the transaction from reputable financing sources that together provide funding of an amount sufficient to cover the aggregate Offer Consideration, all fees and expenses payable by Parent, Purchaser or Nielsen and the repayment or refinancing of any indebtedness required to be repaid or refinanced;

 

   

the obligation of Parent and Purchaser to use their reasonable best efforts to consummate the Debt Financing and the Equity Financing and the limited number and nature of the conditions to the Debt Financing and the Equity Financing;

 

   

Nielsen’s ability, under circumstances specified in the Transaction Agreement, to specifically enforce Parent’s obligation to enforce the Equity Financing and to cause Parent to cause the Equity Investors to fund their respective contributions as contemplated by the Transaction Agreement and the Equity Commitment Letter, as more fully described under the section of this proxy statement captioned “—Financing of the Acquisition—Equity Financing”; and

 

   

the requirement that, in the event of a failure of the Acquisition to be consummated under specified limited circumstances, Parent will pay the Company a termination fee of $511 million, as more fully described under the section of this proxy statement captioned “The Transaction Agreement—Termination Fees;”

 

   

the fact that, in the absence of the Acquisition, Nielsen would continue to incur significant expenses by remaining a public company, including legal, accounting, transfer agent, printing and filing fees, and that those expenses could adversely affect Nielsen’s financial performance and the value of the Nielsen ordinary shares;

 

   

the fact that the Offer Consideration is fixed and that the Offer Consideration will not fluctuate based upon changes in the market price of the Nielsen ordinary shares;

 

   

that the Transaction Agreement was unanimously approved by the Board, which is composed of a majority of independent directors (9 of 10) who are not employees of Nielsen, and which retained and received assistance from Nielsen’s outside financial and legal advisors in evaluating and negotiating the terms of the Transaction Agreement;

 

   

the fact that the Transaction Agreement permits Nielsen to continue to pay to the Nielsen shareholders regular quarterly cash dividends in an amount not to exceed $0.06 per Nielsen ordinary share per quarter (with record dates consistent with the record dates customarily used by Nielsen for the payment of quarterly cash dividends); and

 

   

the fact that none of Nielsen’s prior discussions regarding potential transactions with other interested parties resulted in a transaction, that the publicly reported rumors of a transaction with the Consortium did not generate any additional proposals and that discussions following announcement of the Acquisition, including during the Go-Shop Period, did not generate a Company Superior Proposal.

The Board was also aware of and considered a number of risks and other factors concerning the Acquisition as generally negative or unfavorable, including the following (which risks and factors are not necessarily presented in order of relative importance):

 

   

the fact that Nielsen would no longer exist as an independent, publicly traded company, and the Nielsen shareholders would no longer participate in any future earnings or growth and would not benefit from any potential future appreciation in value of the Nielsen ordinary shares;

 

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the risks and costs to Nielsen if the Acquisition is not completed in a timely manner or at all, including the potential adverse effect on Nielsen’s ability to attract and retain key personnel, the diversion of Nielsen’s management and employee attention and the potential disruptive effect on Nielsen’s day-to-day operations and Nielsen’s relationships with customers, suppliers and other third parties, any or all of such risks and costs, among other things, could adversely affect Nielsen’s overall competitive position and the trading price of the Nielsen ordinary shares;

 

   

the ability of Parent to terminate the Transaction Agreement in certain circumstances if it is ultimately determined that Nielsen is subject to the Takeover Code and the Panel is able to assert jurisdiction over the Acquisition, as more fully described under the section of this proxy statement captioned “The Transaction Agreement—Termination of the Transaction Agreement”;

 

   

the requirement that Nielsen pay Parent a termination fee in certain circumstances in connection with the termination of the Transaction Agreement, including if the Transaction Agreement is terminated by Nielsen in order to enter into a Company Superior Proposal or by Parent because the Board effects a Company Adverse Recommendation Change;

 

   

if Parent fails to complete the Acquisition for the certain reasons more fully described below under the section of this proxy statement captioned “The Transaction Agreement—Limitations of Liability,” remedies may be limited to the Maximum Liability Amount, which may be inadequate to compensate Nielsen for the damage caused, that such Maximum Liability Amount may not be available in all instances in which the Acquisition is not consummated and, even if available, rights and remedies may be expensive and difficult to enforce, and the success of any such action may be uncertain;

 

   

the restrictions on the conduct of Nielsen’s business prior to the consummation of the Acquisition, which may delay or prevent Nielsen from undertaking business opportunities that may arise before the completion of the Acquisition and that, absent the Transaction Agreement, Nielsen might have pursued;

 

   

that an all-cash transaction would be taxable to Nielsen shareholders who are subject to taxation for U.S. federal income tax purposes;

 

   

the fact that under the terms of the Transaction Agreement, Nielsen is unable to solicit other Company Takeover Proposals after the end of the Go-Shop Period;

 

   

the significant costs involved in connection with entering into the Transaction Agreement and completing the Acquisition (many of which are payable whether or not the Acquisition is consummated) and the substantial time and effort of Nielsen’s management required to complete the Acquisition, which may disrupt its business operations and have a negative effect on its financial results;

 

   

the risk that the Acquisition might not be completed and the effect of the resulting public announcement of termination of the Transaction Agreement on the trading price of Nielsen ordinary shares;

 

   

the fact that the completion of the Acquisition requires certain regulatory clearances and consents, including under applicable antitrust laws and foreign investment laws, which clearances and consents could subject the Acquisition to unforeseen delays and risks;

 

   

the possibility that, even if the required regulatory approvals and approvals of the Nielsen shareholders are obtained, other conditions could be imposed which would result in a material delay in, or the abandonment of, the Acquisition, or otherwise have an adverse effect on Nielsen;

 

   

the fact that the completion of the Acquisition is also subject to approval by the Nielsen shareholders at the Court Meeting and of the Company Proposals (other than the Compensation Proposal) at the Special Meeting, including the fact that the Court Scheme Proposal must be approved by a majority in number of the Shareholders of Record as of the Voting Record Time representing 75% or more in

 

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value of the Nielsen ordinary shares at the Voting Record Time, in each case, present and voting, either in person or by proxy, and the fact that each of the Company Proposals (other than the Compensation Proposal) must be approved by at least 75% of the votes cast at the Special Meeting;

 

   

the risk that Nielsen might not be able to obtain the Company Shareholder Approval at the Court Meeting and the Special Meeting, given the high approval threshold as stated above and the legal and/or beneficial ownership of approximately 27.29% in aggregate of the outstanding Nielsen ordinary shares (as of the date of this proxy statement) by WindAcre, which has publicly indicated that it does not intend to support the Acquisition;

 

   

the fact that Nielsen’s directors and officers may have interests in the Acquisition that may be different from, or in addition to, those of Nielsen’s shareholders generally (as more fully described above under the section of this proxy statement captioned “—Interests of Nielsen’s Executive Officers and Directors in the Transaction”);

 

   

the possibility that Parent will be unable to obtain all or a portion of the Debt Financing; and

 

   

the possible loss of key management or other personnel of Nielsen during the pendency of the Acquisition.

The foregoing discussion of reasons for the Board’s approval of the Transaction Agreement and recommendation that shareholders vote in favor of the Scheme at the Court Meeting and vote in favor of the Company Proposals at the Special Meeting is not meant to be exhaustive but addresses the material information and factors considered by the Board in consideration of its approval and recommendation. In view of the wide variety of factors considered by the Board in connection with its evaluation of the Acquisition and the complexity of these matters, the Board did not find it practicable to, and did not, quantify or otherwise assign relative weights to the specific factors considered in reaching its approval and recommendation. Rather, in considering the information and factors described above, individual members of the Board each applied his or her own personal business judgment to the process and may have given differing weights to differing factors. The Board based its unanimous approval and recommendation on the totality of the information presented. The explanation of the factors and reasoning set forth above contain forward-looking statements that should be read in conjunction with the section of this proxy statement captioned “Forward-Looking Statements.”

Opinion of J.P. Morgan Securities LLC

Pursuant to an engagement letter, Nielsen retained J.P. Morgan as a financial advisor in connection with the proposed Acquisition.

At the meeting of the Board on March 28, 2022, J.P. Morgan rendered its oral opinion to the Board that, as of such date and based upon and subject to the assumptions made, procedures followed, matters considered and limitations on the review undertaken by J.P. Morgan in preparing its opinion, the consideration to be paid to the Scheme Shareholders in the proposed Acquisition was fair, from a financial point of view, to the Scheme Shareholders. J.P. Morgan has confirmed its March 28, 2022 oral opinion by delivering its written opinion to the Board, dated March 28, 2022, that, as of such date, the consideration to be paid to the Scheme Shareholders in the proposed Acquisition was fair, from a financial point of view, to the Scheme Shareholders.

The full text of the written opinion of J.P. Morgan, dated March 28, 2022, which sets forth, among other things, the assumptions made, procedures followed, matters considered and limitations on the review undertaken by J.P. Morgan in preparing its opinion, is attached as Annex C to this proxy statement and is incorporated herein by reference. The summary of the opinion of J.P. Morgan set forth in this proxy statement is qualified in its entirety by reference to the full text of such opinion. Nielsen shareholders are urged to read the opinion in its entirety. J.P. Morgan’s written opinion was addressed to the Board (in its capacity as such) in connection with and for the purposes of its evaluation of the proposed Acquisition, was directed only to the consideration to be paid to the Scheme Shareholders in the proposed Acquisition and did not address any other aspect of the

 

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Acquisition. J.P. Morgan expressed no opinion as to the fairness of the consideration to the holders of any class of securities, creditors or other constituencies of Nielsen or as to the underlying decision by Nielsen to engage in the proposed Acquisition. The issuance of J.P. Morgan’s opinion was approved by a fairness committee of J.P. Morgan. The summary of the opinion of J.P. Morgan set forth in this proxy statement is qualified in its entirety by reference to the full text of such opinion. The opinion does not constitute a recommendation to any Nielsen shareholder as to how such shareholder should vote with respect to the proposed Acquisition or any other matter.

In arriving at its opinion, J.P. Morgan, among other things:

 

   

reviewed a draft dated March 27, 2022 of the Transaction Agreement, including the Form of Scheme annexed thereto;

 

   

reviewed certain publicly available business and financial information concerning Nielsen and the industries in which it operates;

 

   

compared the proposed financial terms of the Acquisition with the publicly available financial terms of certain transactions involving companies J.P. Morgan deemed relevant and the consideration paid for such companies;

 

   

compared the financial and operating performance of Nielsen with publicly available information concerning certain other companies J.P. Morgan deemed relevant and reviewed the current and historical market prices of the Nielsen ordinary shares and certain publicly traded securities of such other companies;

 

   

reviewed certain internal financial analyses and forecasts prepared by Nielsen management relating to its business, including the forecasts identified for J.P. Morgan as the Management Case and the Alternative Case (which are summarized under the section of this proxy statement entitled “Management Projections”); and

 

   

performed such other financial studies and analyses and considered such other information as J.P. Morgan deemed appropriate for the purposes of its opinion.

In addition, J.P. Morgan held discussions with certain members of Nielsen management with respect to certain aspects of the Acquisition, and the past and current business operations of Nielsen, the financial condition and future prospects and operations of Nielsen, and certain other matters J.P. Morgan believed necessary or appropriate to its inquiry.

In giving its opinion, J.P. Morgan relied upon and assumed the accuracy and completeness of all information that was publicly available or was furnished to or discussed with J.P. Morgan by Nielsen or otherwise reviewed by or for J.P. Morgan, and J.P. Morgan did not independently verify (and did not assume responsibility or liability for independently verifying) any such information or its accuracy or completeness. J.P. Morgan did not conduct and was not provided with any valuation or appraisal of any assets or liabilities, nor did J.P. Morgan evaluate the solvency of Nielsen under any applicable laws relating to bankruptcy, insolvency or similar matters. In relying on financial analyses and forecasts provided to J.P. Morgan or derived therefrom, J.P. Morgan assumed that they were reasonably prepared based on assumptions reflecting the best currently available estimates and judgments by management as to the expected future results of operations and financial condition of Nielsen to which such analyses or forecasts relate. As discussed in the section of this proxy statement entitled “Background of the Acquisition,” for purposes of J.P. Morgan’s opinion and financial analyses, the Board instructed J.P. Morgan to apply a 50% weighting to the results of the Management Case and a 50% weighting to the results of the Alternative Case. J.P. Morgan expressed no view as to such analyses or forecasts, the assumptions on which they were based or as to such probabilities. J.P. Morgan also assumed that the Acquisition and the other transactions contemplated by the Transaction Agreement will be consummated as described in the Transaction Agreement, and that the definitive Transaction Agreement would not differ in any material respects from the draft thereof provided to J.P. Morgan. J.P. Morgan also assumed that the representations and warranties made by Nielsen, Parent, Purchaser and the Equity Investors in the Transaction Agreement and the related agreements were and will be true and correct in all respects material to its analysis. J.P. Morgan is not a legal,

 

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regulatory or tax expert and relied on the assessments made by advisors to Nielsen with respect to such issues. J.P. Morgan further assumed that all material governmental, regulatory or other consents and approvals necessary for the consummation of the Acquisition will be obtained without any adverse effect on Nielsen or on the contemplated benefits of the Acquisition.

The Cases (as defined below) furnished to J.P. Morgan were prepared by Nielsen’s management. Nielsen does not publicly disclose internal management forecasts of the type provided to J.P. Morgan in connection with J.P. Morgan’s analysis of the proposed Acquisition, and such Cases were not prepared with a view toward public disclosure. These Cases were based on numerous variables and assumptions that are inherently uncertain and may be beyond the control of Nielsen’s management, including, without limitation, factors related to general economic and competitive conditions and prevailing interest rates. Accordingly, actual results could vary significantly from those set forth in such Cases. For more information regarding the use of the Cases and other forward-looking statements, please refer to the sections entitled “Management Projections” and “Forward-Looking Statements.”

J.P. Morgan’s opinion was necessarily based on economic, market and other conditions as in effect on, and the information made available to J.P. Morgan as of, the date of such opinion. J.P. Morgan’s opinion noted that subsequent developments may affect J.P. Morgan’s opinion, and that J.P. Morgan does not have any obligation to update, revise, or reaffirm such opinion. J.P. Morgan’s opinion is limited to the fairness, from a financial point of view, of the consideration to be paid to the Scheme Shareholders in the proposed Acquisition, and J.P. Morgan has expressed no opinion as to the fairness of any consideration paid in connection with the proposed Acquisition to the holders of any other class of securities, creditors or other constituencies of Nielsen or the underlying decision by Nielsen to engage in the Acquisition. Furthermore, J.P. Morgan expressed no opinion with respect to the amount or nature of any compensation to any officers, directors, or employees of any party to the proposed Acquisition, or any class of such persons relative to the consideration to be paid to the Scheme Shareholders in the proposed Acquisition or with respect to the fairness of any such compensation. J.P. Morgan expressed no opinion as to the price at which the Nielsen ordinary shares will trade at any future time.

J.P. Morgan was not authorized to and did not solicit any expressions of interest from any other parties with respect to the sale of all or any part of Nielsen or any other alternative transaction.

The terms of the Transaction Agreement, including the consideration to be paid in the proposed Acquisition, were determined through arm’s-length negotiations between Nielsen and the Consortium, and the decision to enter into the Transaction Agreement was solely that of the Board. J.P. Morgan’s opinion and financial analyses were only one of the many factors considered by the Board in its evaluation of the proposed Acquisition and should not be viewed as determinative of the views of the Board or Nielsen’s management with respect to the proposed Acquisition or the consideration to be paid to the Scheme Shareholders.

In accordance with customary investment banking practice, J.P. Morgan employed generally accepted valuation methodologies in rendering its opinion to the Board on March 28, 2022 and in preparing the financial analyses presented to the Board on such date in connection with the rendering of such opinion. The following is a summary of the material financial analyses utilized by J.P. Morgan in connection with rendering its opinion to the Board and does not purport to be a complete description of the analyses or data presented by J.P. Morgan. Estimated ranges of implied equity value per Nielsen ordinary share derived from such financial analyses were rounded to the nearest $0.25. Some of the summaries of the financial analyses include information presented in tabular format. The tables are not intended to stand alone, and in order to more fully understand the financial analyses used by J.P. Morgan, the tables must be read together with the full text of each summary. Considering the data set forth below without considering the full narrative description of the financial analyses, including the methodologies and assumptions underlying the analyses, could create a misleading or incomplete view of J.P. Morgan’s analyses.

Public Trading Multiples. Using publicly available information, J.P. Morgan compared selected financial data of Nielsen with similar data for selected publicly traded companies engaged in businesses which J.P.

 

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Morgan judged to be sufficiently analogous to those engaged in by Nielsen. The companies selected by J.P. Morgan were as follows:

Ad Agency Companies

 

   

Omnicom Group Inc.

 

   

WPP plc

 

   

Publicis Groupe SA

 

   

The Interpublic Group of Companies, Inc.

 

   

Dentsu Group Inc.

These companies (“Selected Companies”) were selected, among other reasons, because they are publicly traded companies with operations and businesses that, for purposes of J.P. Morgan’s analysis, may be considered similar to those of Nielsen based on business sector participation and financial metrics. However, none of the Selected Companies reviewed is identical to Nielsen, and the Selected Companies may have financial characteristics that are materially different from those of Nielsen.

Using publicly available information, J.P. Morgan calculated the multiple of firm value to adjusted EBITDA (calculated as earnings before interest, taxes, depreciation and amortization) after stock-based compensation for calendar year 2022 (“FV/CY2022E Adj. EBITDA”) for Nielsen on an unaffected basis as of March 11, 2022, the date prior to news reports regarding the proposed Acquisition, and for each Selected Company as of March 24, 2022, based on published equity research consensus estimates that J.P. Morgan obtained from FactSet Research Systems and company filings.

Based on the results of this analysis and other factors that J.P. Morgan considered appropriate based on J.P. Morgan’s experience, J.P. Morgan selected a multiple reference range for FV/CY 2022E Adj. EBITDA of 8.0x-10.0x. This multiple range was then applied to Nielsen’s estimated adjusted EBITDA after stock-based compensation for calendar year 2022 as provided by management, which indicated an implied equity value per Nielsen ordinary share of $18.75 to $27.25.

Selected Transaction Analysis. Using publicly available information, J.P. Morgan examined selected transactions involving target companies engaged in businesses which J.P. Morgan judged to be sufficiently analogous to Nielsen’s business (or aspects thereof) based on J.P. Morgan’s experience and its familiarity with the industries in which Nielsen operates.

None of the selected transactions reviewed was identical to the proposed Acquisition. Certain of these transactions may have characteristics that are materially different from those of the proposed Acquisition. However, the selected transactions were chosen because certain aspects of the transactions, for purposes of J.P. Morgan’s analysis, may be considered similar to the proposed Acquisition. The analyses necessarily involve complex considerations and judgments concerning differences in financial and operational characteristics of the companies involved and other factors that could affect the transactions differently than they would affect the proposed Acquisition.

 

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For each of the selected transactions, J.P. Morgan calculated the firm value implied for the target company in such transaction as a multiple of the estimates for the target company’s adjusted EBITDA (calculated as earnings before interest, taxes, depreciation and amortization) after stock-based compensation based on company filings, proxy statements, information obtained from MergerMarket and CapIQ and public news sources for the 12-month period prior to the announcement of the applicable transaction (“FV/LTM Adj. EBITDA”). The transactions considered by J.P. Morgan were as follows:

 

Month/Year Announced    Target    Acquirer

December 2012

  

Arbitron Inc.

  

Nielsen Holdings N.V.

February 2014

  

Catalina Marketing Corp.

  

Berkshire Partners LLC

June 2014

  

Advantage Sales & Marketing LLC

  

Leonard Green & Partners, L.P. & CVC Capital Partners

September 2015

  

Solera Holdings, Inc.

  

Vista Equity Partners

April 2016

  

TiVo Inc.

  

Rovi Corporation

July 2016

  

Intellectual Property & Science business of Thomson Reuters Corporation

  

Onex Corporation & Baring Private Equity Asia

December 2016

  

GfK SE

  

KKR & Co., L.P.

December 2016

  

Neustar Inc.

  

Golden Gate Capital

May 2017

  

Havas S.A.

  

Vivendi SE

January 2018

  

Refinitiv – Thomson Reuters’ Financial & Risk business

  

Blackstone Inc., Canada Pension Plan Investment Board & GIC

July 2018

  

Acxiom Marketing Solutions

  

The Interpublic Group of Companies, Inc.

August 2018

  

The Dun & Bradstreet Corp.

  

CC Capital Partners, LLC , Cannae Holdings, Inc., & Thomas H. Lee Partners, L.P.

April 2019

  

Epsilon Data Management, LLC

  

Publicis Groupe SA

July 2019

  

The Kantar Group Ltd.

  

Bain Capital

November 2020

  

Nielsen’s Global Connect business

  

Advent International Corporation

February 2021

  

CoreLogic, Inc.

  

Stone Point Capital & Insight Partners

Based on the results of this analysis and other factors that J.P. Morgan considered appropriate based on J.P. Morgan’s experience, J.P. Morgan selected a multiple reference range for FV/LTM Adj. EBITDA of 9.0x-12.0x. This multiple range was then applied to Nielsen’s adjusted EBITDA after stock-based compensation for the 12-month period ending December 31, 2021, which indicated an implied equity value per Nielsen ordinary share of $21.00 to $33.25.

Discounted Cash Flow Analysis. J.P. Morgan conducted two discounted cash flow analyses for the purpose of determining the implied equity value per Nielsen ordinary share. J.P. Morgan used the unlevered free cash flows that Nielsen is expected to generate during fiscal years 2022 through 2025 based upon each of the Management Case and the Alternative Case. J.P. Morgan also calculated a range of terminal values of Nielsen at the end of fiscal year 2025 by applying a perpetual growth rate ranging from (a) 1.5% to 2.5% for the Management Case and (b) 0.5% to 1.5% for the Alternative Case to the unlevered free cash flow of Nielsen in fiscal year 2025. For both analyses, the unlevered free cash flows and the range of terminal values were then discounted to present values using a range of discount rates from 8.5% to 9.5%, which were chosen by J.P. Morgan based upon an analysis of the weighted average cost of capital of Nielsen. The present value of the unlevered free cash flows and the range of terminal values were then adjusted for Nielsen’s estimated 2021 fiscal year-end excess cash, minority interest, finance leases and total debt. Based on the foregoing, the discounted cash flow analyses indicated a range of implied equity value per Nielsen ordinary share of $28.75 to $41.75 for the Management Case and $18.25 to $26.00 for the Alternative Case. J.P. Morgan then applied a 50% weighting to the results of the Management Case and a 50% weighting to the results of the Alternative Case, which indicated a range of implied equity value per Nielsen ordinary share of $23.50 to $34.00.

 

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Miscellaneous. The foregoing summary of certain material financial analyses does not purport to be a complete description of the analyses or data presented by J.P. Morgan. The preparation of a fairness opinion is a complex process and is not necessarily susceptible to partial analysis or summary description. J.P. Morgan believes that the foregoing summary and its analyses must be considered as a whole and that selecting portions of the foregoing summary and these analyses, without considering all of its analyses as a whole, could create an incomplete view of the processes underlying the analyses and its opinion. As a result, the ranges of valuations resulting from any particular analysis or combination of analyses described above were merely utilized to create points of reference for analytical purposes and should not be taken to be the view of J.P. Morgan with respect to the actual value of Nielsen. The order of analyses described does not represent the relative importance or weight given to those analyses by J.P. Morgan. In arriving at its opinion, J.P. Morgan did not attribute any particular weight to any analyses or factors considered by it and did not form an opinion as to whether any individual analysis or factor (positive or negative), considered in isolation, supported or failed to support its opinion. Rather, J.P. Morgan considered the totality of the factors and analyses performed in determining its opinion.

Analyses based upon forecasts of future results are inherently uncertain, as they are subject to numerous factors or events beyond the control of the parties and their advisors. Accordingly, forecasts and analyses used or made by J.P. Morgan are not necessarily indicative of actual future results, which may be significantly more or less favorable than suggested by those analyses. Moreover, J.P. Morgan’s analyses are not and do not purport to be appraisals or otherwise reflective of the prices at which businesses actually could be acquired or sold. None of the selected companies reviewed as described in the above summary is identical to Nielsen, and none of the selected transactions reviewed was identical to the Acquisition. However, the companies selected were chosen because they are publicly traded companies with operations and businesses that, for purposes of J.P. Morgan’s analysis, may be considered similar to those of Nielsen. The transactions selected were similarly chosen because their participants, size and other factors, for purposes of J.P. Morgan’s analysis, may be considered similar to the Acquisition. The analyses necessarily involve complex considerations and judgments concerning differences in financial and operational characteristics of the companies involved and other factors that could affect the companies compared to Nielsen and the transactions compared to the Acquisition.

As a part of its investment banking business, J.P. Morgan and its affiliates are continually engaged in the valuation of businesses and their securities in connection with mergers and acquisitions, investments for passive and control purposes, negotiated underwritings, secondary distributions of listed and unlisted securities, private placements, and valuations for corporate and other purposes. J.P. Morgan was selected to advise Nielsen and deliver an opinion to the Board with respect to the Acquisition on the basis of, among other things, such experience and its qualifications and reputation in connection with such matters and its familiarity with Nielsen and the industries in which it operates.

For financial advisory services rendered in connection with the Acquisition and the delivery of its opinion, Nielsen has agreed to pay J.P. Morgan a fee of approximately $65 million, $5 million of which was paid and the remainder of which is contingent and payable upon the consummation of the proposed Acquisition. In addition, Nielsen has agreed to reimburse J.P. Morgan for its expenses incurred in connection with its services, including the fees and disbursements of counsel, and will indemnify J.P. Morgan against certain liabilities arising out of J.P. Morgan’s engagement. During the two years preceding the date of J.P. Morgan’s opinion, J.P. Morgan and its affiliates have had commercial or investment banking relationships with Nielsen and the Consortium for which J.P. Morgan and such affiliates have received or will receive customary compensation. Such services during such period have included acting as joint lead arranger and joint bookrunner on credit facilities of Nielsen in June 2020 and July 2020, as joint lead bookrunner on offerings of debt securities of a subsidiary of Nielsen in September 2020 and May 2021 and as financial advisor to Nielsen in connection with the sale of its Global Connect business in March 2021. During the two years preceding the date of J.P. Morgan’s opinion, J.P. Morgan and its affiliates have had commercial or investment banking relationships with Elliott, an affiliate of Purchaser, for which J.P. Morgan and such affiliates have received customary compensation. Such services during such period have included providing debt financing services to portfolio companies of Evergreen Coast Capital Corp., an Elliott subsidiary. During the two years preceding the date of J.P. Morgan’s opinion, J.P. Morgan and its

 

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affiliates have had commercial or investment banking relationships with Brookfield, a co-investor with Elliott in the Acquisition, for which J.P. Morgan and such affiliates have received customary compensation. Such services during such period have included acting as sole lead arranger on a credit facility of a Brookfield subsidiary in June 2021, as joint lead bookrunner on offerings of debt securities of Brookfield in February 2020, October 2020 and November 2021, and as joint lead bookrunner on an offering of debt securities of a Brookfield subsidiary in February 2021, and providing debt syndication, debt underwriting and financial advisory services to select Brookfield portfolio companies. In addition, a commercial banking affiliate of J.P. Morgan is an agent bank and a lender under some of the outstanding credit facilities of Brookfield and some of its portfolio companies for which it receives customary compensation or other financial benefits. J.P. Morgan and its affiliates hold, on a proprietary basis, less than 1% of the outstanding common stock of each of Nielsen and Brookfield. In the ordinary course of their businesses, J.P. Morgan and its affiliates may actively trade the debt and equity securities or financial instruments (including derivatives, bank loans or other obligations) of Nielsen or Brookfield for their own accounts or for the accounts of customers and, accordingly, they may at any time hold long or short positions in such securities or other financial instruments.

During the two year period preceding the date of J.P. Morgan’s opinion, the aggregate fees recognized by J.P. Morgan from Nielsen were approximately $38 million, from Brookfield were approximately $43 million and from Elliott were approximately $7 million.

Opinion of Allen & Company LLC

Nielsen has engaged Allen & Company as a financial advisor to Nielsen in connection with the Acquisition. In connection with this engagement, Nielsen requested that Allen & Company render an opinion to the Board regarding the fairness, from a financial point of view, of the Offer Consideration to be paid to holders of Nielsen ordinary shares (other than, as applicable, Parent, Purchaser, Consortium members of such entities, and their respective affiliates) pursuant to the Transaction Agreement. On March 28, 2022, at a meeting of the Board held to evaluate the Acquisition, Allen & Company rendered an oral opinion, which was confirmed by delivery of a written opinion dated March 28, 2022, to the Board to the effect that, as of that date and based on and subject to the assumptions made, procedures followed, matters considered and qualifications and limitations on the review undertaken described in its opinion, the Offer Consideration to be paid to Nielsen shareholders (other than, as applicable, Parent, Purchaser, Consortium members of such entities, and their respective affiliates) pursuant to the Transaction Agreement was fair, from a financial point of view, to such Nielsen shareholders.

The full text of Allen & Company’s written opinion, dated March 28, 2022, which describes the assumptions made, procedures followed, matters considered and qualifications and limitations on the review undertaken, is attached to this proxy statement as Annex D and is incorporated by reference herein in its entirety. The description of Allen & Company’s opinion set forth in this proxy statement is qualified in its entirety by reference to the full text of Allen & Company’s opinion. Allen & Company’s opinion and advisory services were intended for the benefit and use of the Board (in its capacity as such) in connection with its evaluation of the Offer Consideration from a financial point of view and did not address any other terms, aspects or implications of the Acquisition. Allen & Company’s opinion did not constitute a recommendation as to the course of action that Nielsen (or the Board or any committee thereof) should pursue in connection with the Acquisition or otherwise address the merits of the underlying decision by Nielsen to engage in the Acquisition, including in comparison to other strategies or transactions that might be available to Nielsen or which Nielsen might engage in or consider. Allen & Company’s opinion does not constitute advice or a recommendation to any securityholder or other person as to how to vote or act on any matter relating to the Acquisition or otherwise.

Allen & Company’s opinion reflected and gave effect to Allen & Company’s general familiarity with Nielsen and the industry in which Nielsen operates as well as information that Allen & Company received during the course of its assignment, including information provided by the management of Nielsen in the course of discussions relating to the Acquisition as more fully described below. In arriving at its opinion, Allen &

 

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Company neither conducted a physical inspection of the properties or facilities of Nielsen or any other entity nor made or obtained any evaluations or appraisals of the assets or liabilities (contingent, accrued, derivative, off-balance sheet or otherwise) of Nielsen or any other entity, or conducted any analysis concerning the solvency or fair value of Nielsen or any other entity. Allen & Company did not investigate, and expressed no opinion or view regarding, any actual or potential litigation, proceedings or claims involving or impacting Nielsen or any other entity and Allen & Company assumed, with Nielsen’s consent, that there would be no developments with respect to any such matters that would be meaningful in any respect to its analyses or opinion. In connection with its engagement, Allen & Company was not requested to, and did not, undertake on behalf of Nielsen a third-party solicitation process for the acquisition of all or a portion of Nielsen; however, at the direction of the Board, Allen & Company was requested to solicit third-party indications of interest on behalf of Nielsen following public announcement of the Acquisition as contemplated by the go-shop provisions of the Transaction Agreement.

In arriving at its opinion, Allen & Company, among other things:

 

   

reviewed the financial terms of a draft, provided to Allen & Company on March 28, 2022, of the Transaction Agreement;

 

   

reviewed certain publicly available historical business and financial information relating to Nielsen, including public filings of Nielsen, and historical market prices for Nielsen ordinary shares;

 

   

reviewed certain financial information relating to Nielsen, including certain internal financial forecasts, estimates and other financial and operating data relating to Nielsen, provided to or discussed with Allen & Company by the management of Nielsen, and discussed with such management its views as to the probability of achieving the financial results reflected in such financial forecasts, estimates and other financial and operating data;

 

   

held discussions with the management of Nielsen relating to the operations, financial condition and prospects of Nielsen;

 

   

reviewed and analyzed certain publicly available information, including certain stock market data and financial information, relating to selected companies with businesses that Allen & Company deemed generally relevant in evaluating Nielsen;

 

   

reviewed and analyzed certain publicly available financial information relating to selected transactions that Allen & Company deemed generally relevant in evaluating the Acquisition; and

 

   

conducted such other financial analyses and investigations as Allen & Company deemed necessary or appropriate for purposes of its opinion.

In rendering its opinion, Allen & Company relied upon and assumed, with Nielsen’s consent and without independent verification, the accuracy and completeness of all of the financial, legal, regulatory, tax, accounting and other information available to Allen & Company from public sources, provided to or discussed with Allen & Company by the management and other representatives of Nielsen or otherwise reviewed by Allen & Company. With respect to the financial forecasts, estimates and other financial and operating data relating to Nielsen (including the assessments of the management of Nielsen regarding the probability of achieving the financial results reflected therein) that Allen & Company was directed to utilize for purposes of its analyses and opinion, Allen & Company was advised by the management of Nielsen and Allen & Company assumed, at Nielsen’s direction, that such financial forecasts, estimates and other financial and operating data were reasonably prepared in good faith on bases reflecting the best currently available estimates and judgments of such management as to, and were a reasonable basis upon which to evaluate, the future financial and operating performance of Nielsen taking into account the assessments of the management of Nielsen as to the probability of achieving the financial results reflected therein and the other matters covered thereby. Allen & Company expressed no opinion or view as to any financial forecasts, estimates or other financial or operating data or the assumptions or probability assessments on which they were based.

 

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Allen & Company relied, at Nielsen’s direction, upon the assessments of the management of Nielsen as to, among other things, (i) the potential impact on Nielsen of certain market, competitive, macroeconomic, seasonal, cyclical and other conditions, trends and developments in and prospects for, and governmental, regulatory and legislative policies and matters relating to or otherwise affecting, the media and content industry and the geographic regions in which Nielsen operates, (ii) the technologies and intellectual property (including associated risks) utilized in Nielsen’s business, (iii) implications for Nielsen and its operations of the global COVID-19 pandemic, and (iv) existing and future agreements and arrangements involving, and the ability to attract, retain and/or replace, key customers, employees, third-party providers and data suppliers, partners and other commercial relationships of Nielsen. With Nielsen’s consent, Allen & Company assumed that there would be no developments with respect to any such matters or any alternative transaction structures for effecting the Acquisition as permitted under the Transaction Agreement that would have an adverse effect on Nielsen or the Acquisition or that otherwise would be meaningful in any respect to its analyses or opinion.

Further, Allen & Company’s opinion was necessarily based on economic, monetary, market and other conditions as in effect on, and the information made available to Allen & Company as of, the date of its opinion. It should be understood that subsequent developments may affect the conclusion expressed in Allen & Company’s opinion and that Allen & Company assumed no responsibility for advising any person of any change in any matter affecting Allen & Company’s opinion or for updating or revising its opinion based on circumstances or events occurring after the date of such opinion. As the Board was aware, the credit, financial and stock markets, the industry in which Nielsen operates and the securities of Nielsen have experienced and may continue to experience volatility and Allen & Company expressed no opinion or view as to any potential effects of such volatility on Nielsen or the Acquisition.

Allen & Company assumed, with Nielsen’s consent, that the Acquisition would be consummated in accordance with its terms and in compliance with all applicable laws, documents and other requirements, without waiver, modification or amendment of any material term, condition or agreement, and that, in the course of obtaining the necessary governmental, regulatory or third party approvals, consents, releases, waivers, decrees and agreements for the Acquisition, no delay, limitation, restriction or condition, including any divestiture or other requirements or remedies, amendments or modifications, would be imposed or occur that would have an adverse effect on Nielsen or the Acquisition or that otherwise would be meaningful in any respect to Allen & Company’s analyses or opinion. In addition, Allen & Company assumed, with Nielsen’s consent, that the final executed Transaction Agreement would not differ from the draft reviewed by Allen & Company in any respect meaningful to its analyses or opinion.

Allen & Company’s opinion was limited to the fairness, from a financial point of view and as of the date of such opinion, of the Offer Consideration (to the extent expressly specified in such opinion), without regard to individual circumstances of holders of Nielsen ordinary shares (whether by virtue of control, voting, liquidity, contractual arrangements or otherwise) that may distinguish such holders or the securities of Nielsen held by such holders, and Allen & Company’s opinion did not in any way address proportionate allocation or relative fairness. Allen & Company’s opinion also did not address any other terms, aspects or implications of the Acquisition, including, without limitation, the form or structure of the Acquisition, any guaranty, debt repayment or similar transaction, or other agreements, arrangements or understandings entered into in connection with, related to or contemplated by the Acquisition or otherwise. Allen & Company expressed no opinion or view as to the fairness, financial or otherwise, of the amount, nature or any other aspect of any compensation or other consideration payable to any officers, directors or employees of any party to the Acquisition or any related entities, or any class of such persons or any other party, relative to the Offer Consideration or otherwise. Allen & Company did not express any opinion or view as to the prices at which Nielsen ordinary shares or any other securities of Nielsen may trade or otherwise be transferable at any time, including following announcement or consummation of the Acquisition. In addition, Allen & Company expressed no opinion or view with respect to accounting, tax, regulatory, legal or similar matters, including, without limitation, as to tax or other consequences of the Acquisition or otherwise or changes in, or the impact of, accounting standards, tax and other laws, regulations and governmental and legislative policies affecting Nielsen or the Acquisition, and Allen & Company

 

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relied, at Nielsen’s direction, upon the assessments of representatives of Nielsen as to such matters. Allen & Company’s opinion did not constitute a recommendation as to the course of action that Nielsen (or the Board or any committee thereof) should pursue in connection with the Acquisition or otherwise address the merits of the underlying decision by Nielsen to engage in the Acquisition, including in comparison to other strategies or transactions that might be available to Nielsen or which Nielsen might engage in or consider.

In connection with its opinion, Allen & Company performed a variety of financial and comparative analyses, including those described below. The summary of the analyses below and certain factors considered is not a comprehensive description of all analyses undertaken or factors considered by Allen & Company. The preparation of a financial opinion or analysis is a complex process involving various determinations as to the most appropriate and relevant methods of financial analysis and the application of those methods to the particular circumstances and, therefore, a financial opinion and analyses are not readily susceptible to summary description. Allen & Company arrived at its opinion based on the results of all analyses undertaken and assessed as a whole, and did not draw, in isolation, conclusions from or with regard to any one factor or method of analysis. Accordingly, Allen & Company believes that the analyses and factors summarized below must be considered as a whole and in context. Allen & Company further believes that selecting portions of the analyses and factors or focusing on information presented in tabular format, without considering all analyses and factors or the narrative description of the analyses and factors, could create a misleading or incomplete view of the processes underlying Allen & Company’s analyses and opinion.

In performing its financial analyses, Allen & Company considered industry performance, general business and economic, market and financial conditions and other matters existing as of the date of its opinion, many of which are beyond the control of Nielsen. No company, business or transaction reviewed is identical or directly comparable to Nielsen, its businesses or the Acquisition and an evaluation of these analyses is not entirely mathematical; rather, the analyses involve complex considerations and judgments concerning financial and operating characteristics and other factors that could affect the public trading, acquisition or other values of the companies, businesses or transactions reviewed. The assumptions and estimates of the future performance of Nielsen in or underlying Allen & Company’s analyses and the implied reference ranges derived from any particular analysis are not necessarily indicative of actual values or actual future results, which may be significantly more or less favorable than those estimates or those suggested by such analyses. These analyses were prepared solely as part of Allen & Company’s analysis of the fairness, from a financial point of view, of the Offer Consideration and were provided to the Board in connection with the delivery of Allen & Company’s opinion. The analyses do not purport to be appraisals or to reflect the prices at which a company might actually be sold or the prices at which any securities have traded or may trade at any time in the future. Accordingly, the assumptions and estimates used in, and the reference ranges resulting from, any particular analysis described below are inherently subject to substantial uncertainty and should not be taken as the views of Allen & Company regarding the actual value of Nielsen.

Allen & Company did not recommend that any specific consideration constituted the only appropriate consideration in the Acquisition. The type and amount of consideration payable in the Acquisition was determined through negotiations between Nielsen and Consortium members, rather than by any financial advisor, and was approved by the Board. The decision to enter into the Transaction Agreement was solely that of the Board. Allen & Company’s opinion and analyses were only one of many factors considered by the Board in its evaluation of the Acquisition and the Offer Consideration and should not be viewed as determinative of the views of the Board or management with respect to the Acquisition or the consideration payable in the Acquisition.

Financial Analyses

The summary of the financial analyses described in this section titled “—Financial Analyses” is a summary of the material financial analyses provided by Allen & Company in connection with its opinion, dated March 28, 2022, to the Board. The summary set forth below is not a comprehensive description of all analyses undertaken by Allen & Company in connection with its opinion, nor does the order of the analyses in the summary below indicate that any analysis was given greater weight than any other analysis. The financial

 

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analyses summarized below include information presented in tabular format. In order to fully understand the financial analyses performed by Allen & Company, the tables must be read together with the text of each summary. The tables alone do not constitute a complete description of the financial analyses performed by Allen & Company. Considering the data set forth in the tables below without considering the full narrative description of the financial analyses, including the methodologies and assumptions underlying the analyses, could create a misleading or incomplete view of the financial analyses performed by Allen & Company. Future results may differ from those described and such differences may be material. For purposes of the financial analyses described below, the term “adjusted EBITDA” means earnings before interest, taxes, depreciation and amortization, after stock-based compensation expense and adjusted for certain non-recurring, non-cash and other items (as applicable). Approximate implied per share equity value reference ranges derived from such financial analyses were rounded to the nearest $0.25. The approximate implied per share equity value reference range from the discounted cash flow analysis described below was derived by applying, at the direction of the Board and Nielsen management, a 50% weighting to the results from each of the Management Case and the Alternative Case reflecting the views of the management of Nielsen as to the probability of achieving the financial results reflected in such cases.

Selected Public Companies Analysis. Allen & Company reviewed certain publicly available financial and stock market information relating to Nielsen and the following five selected publicly traded advertising agencies that Allen & Company considered generally relevant for purposes of analysis, collectively referred to in this section as the “selected companies:”

 

   

Dentsu Group Inc.

 

   

Omnicom Group Inc.

 

   

Publicis Groupe S.A.

 

   

The Interpublic Group of Companies, Inc.

 

   

WPP plc

Allen & Company reviewed, among other information, enterprise values, calculated as implied equity values based on closing stock prices on March 24, 2022 plus total debt and non-controlling interests (as applicable) and less cash and cash equivalents and unconsolidated assets, as a multiple of calendar year 2022 estimated adjusted EBITDA. Financial data of the selected companies were based on publicly available Wall Street research analysts’ estimates, public filings and other publicly available information. Financial data of Nielsen was based on public filings and financial forecasts and other estimates of Nielsen management.

The overall low to high calendar year 2022 estimated adjusted EBITDA multiples observed for the selected companies was 4.4x to 8.0x (with a mean of 6.6x and median of 6.5x). Allen & Company then applied selected ranges of calendar year 2022 estimated adjusted EBITDA multiples derived from the selected companies of 8.0x to 10.0x to corresponding data of Nielsen. This analysis indicated the following approximate implied equity value per share reference range for Nielsen, as compared to the Offer Consideration:

 

Implied Equity Value Per Share Reference Range

   Offer Consideration

$18.75 - $27.25

   $28.00

 

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Selected Precedent Transactions Analysis. Using publicly available information, Allen & Company reviewed financial data relating to the following 16 selected transactions involving target companies in the advertising and data provider industries that Allen & Company considered generally relevant for purposes of analysis, collectively referred to in this section as the “selected transactions:”

 

Announcement Date

 

Acquiror

 

Target

February 2021

  Stone Point Capital LLC / Insight Partners   CoreLogic, Inc.

November 2020

  Advent International Corporation   Nielsen Holdings plc (Nielsen Global Connect Business)

July 2019

  Bain Capital, LP   WPP plc (Kantar Business)

April 2019

  Publicis Groupe S.A.   Alliance Data Systems Corporation (Epsilon Business)

August 2018

  Investor Group (Led by CC Capital, Cannae Holdings, Inc. and Thomas H. Lee Partners, L.P.)   Dun & Bradstreet Holdings, Inc.

July 2018

  The Interpublic Group of Companies, Inc.   Acxiom Corporation

January 2018

  Blackstone Inc. / Canada Pension Plan Investment Board / GIC Private Limited   Thomson Reuters Corporation (Refinitiv Financial & Risk Business)

May 2017

  Vivendi S.E.   Havas S.A.

December 2016

  Golden Gate Capital   Neustar, Inc.

December 2016

  KKR & Co. Inc.   GfK SE

July 2016

  Onex Corporation / Baring Private Equity Asia   Thomson Reuters Corporation (Intellectual Property & Science Business)

April 2016

  Rovi Corporation   TiVo Inc.

September 2015

  Vista Equity Partners   Solera Holdings, Inc.

June 2014

  Leonard Green & Partners, L.P./CVC Capital Partners   Advantage Sales & Marketing LLC

February 2014

  Berkshire Partners LLC   Catalina Marketing Corporation

December 2012

  Nielsen Holdings N.V.   Arbitron Inc.

Allen & Company reviewed, among other information, transaction values of the selected transactions, calculated based on the consideration paid or payable in the selected transactions, as a multiple of the latest 12 months adjusted EBITDA of the target company or business as of the announcement date of the applicable selected transaction. Financial data for the selected transactions were based on publicly available Wall Street research analysts’ estimates, public filings and other publicly available information. Financial data of Nielsen was based on public filings and management estimates.

The overall low to high latest 12 months adjusted EBITDA multiples observed for the selected transactions was 6.5x to 15.5x. Allen & Company then applied a selected range of latest 12 months adjusted EBITDA multiples derived from the selected transactions of 9.0x to 12.0x to Nielsen’s latest 12 months (as of December 31, 2021) adjusted EBITDA. This analysis indicated the following approximate implied equity value per share reference range for Nielsen, as compared to the Offer Consideration:

 

Implied Equity Value Per Share Reference Range

   Offer Consideration

$21.00 - $33.25

   $28.00

Discounted Cash Flow Analysis. Allen & Company performed a discounted cash flow analysis of Nielsen by calculating the estimated present value (as of December 31, 2021) of the standalone unlevered, after-tax free cash flows that Nielsen was forecasted to generate during the fiscal years ending December 31, 2022 through December 31, 2025 based on financial forecasts (probability-weighted as per the direction of the Board and

 

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Nielsen management) and other estimates of Nielsen management. For purposes of this analysis, stock-based compensation was treated as a cash expense. Allen & Company calculated implied terminal values for Nielsen by applying to Nielsen’s normalized unlevered, after-tax free cash flows for the fiscal year ending December 31, 2025 a selected range of perpetuity growth rates of 1.5% to 2.5% utilizing the Management Case and 0.5% to 1.5% utilizing the Alternative Case. The present values (as of December 31, 2021) of the cash flows and terminal values were then calculated using a selected range of discount rates of 8.25% to 9.25%. This analysis indicated approximate implied equity value per share reference ranges for Nielsen of $28.50 to $42.50 based on the Management Case and $17.75 to $26.50 based on the Alternative Case. After applying, at the direction of the Board and Nielsen management, a 50% weighting to the results derived from each case, this analysis indicated the following approximate implied equity value per share reference range for Nielsen, as compared to the Offer Consideration:

 

Implied Equity Value Per Share Reference Range

   Offer Consideration

$23.25 - $34.50

   $28.00

Certain Additional Information

Allen & Company observed certain additional information that was not considered part of its financial analyses for its opinion but was noted for informational reference, including the following:

 

   

historical closing prices of Nielsen ordinary shares during the 52-week period ended March 24, 2022, which indicated low to high closing prices of Nielsen ordinary shares during such period of $16.61 per share to $28.10 per share; and

 

   

publicly available forward Wall Street research analysts’ price targets for Nielsen ordinary shares, which indicated an overall low to high target price range for Nielsen ordinary shares of $15.00 to $34.00 per share (with a mean of $23.17 per share).

Miscellaneous

Nielsen selected Allen & Company as its financial advisor in connection with the Acquisition based on, among other things, Allen & Company’s reputation, experience and familiarity with Nielsen and the industry in which Nielsen operates. Allen & Company, as part of its investment banking business, is regularly engaged in the valuation of businesses and their securities in connection with mergers and acquisitions, private placements and related financings, negotiated underwritings, secondary distributions of listed and unlisted securities, and valuations for corporate and other purposes. As the Board was aware, during the approximately two-year period prior to the date of its opinion, Allen & Company provided certain brokerage services to GIC Private Limited, which Allen & Company was advised is a Consortium member of Parent and/or Purchaser, for which services Allen & Company received during such two-year period aggregate brokerage commissions of less than $65,000. As the Board was aware, although as of the date of its opinion Allen & Company was not providing, and during the two-year period prior to the date of its opinion had not provided, investment banking services to Nielsen unrelated to the Acquisition or to Parent, Purchaser or other parties identified to Allen & Company as Consortium members of such entities for which Allen & Company received compensation, Allen & Company in the future may provide such services, for which Allen & Company would expect to receive compensation. In the ordinary course, Allen & Company as a broker-dealer and certain of Allen & Company’s affiliates, directors and officers have invested or may invest, hold long or short positions and may trade, either on a discretionary or non-discretionary basis, for their own or beneficiaries’ accounts or for those of Allen & Company’s clients, in the debt and equity securities (or related derivative securities) of Nielsen, Parent, Purchaser, Consortium members and/or their respective affiliates. The issuance of Allen & Company’s opinion was approved by Allen & Company’s opinion committee.

For Allen & Company’s financial advisory services, Nielsen has agreed to pay Allen & Company an aggregate cash fee currently estimated to be approximately $22 million, of which a portion was payable upon delivery of Allen & Company’s opinion and approximately $19 million is payable contingent upon

 

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consummation of the Acquisition. Nielsen also has agreed to reimburse Allen & Company’s reasonable expenses and to indemnify Allen & Company and related parties against certain liabilities, including liabilities under U.S. federal securities laws, arising out of its engagement.

Management Projections

Except for a financial outlook with respect to the current fiscal year issued in connection with its ordinary course earnings announcements and guidance issued during investor day presentations, Nielsen does not, as a matter of course, publicly disclose long-term forecasts or projections as to future performance, earnings or other results. This is the result of the historically unpredictable nature of Nielsen’s business, including the effect of regulatory, political and macroeconomic factors which are inherently difficult to project. In order to develop a framework for evaluating the potential value of Nielsen, Nielsen’s management prepared four years of non-public, unaudited prospective financial information for Nielsen beginning in the fiscal year ending December 31, 2022 (the “Management Case”) based on, in part, Nielsen’s most recent actual and projected results, including Nielsen’s financial performance. The Management Case was made available to, and approved by, the Board in connection with its evaluation of the Transaction Agreement and the Acquisition. The Management Case was also made available to the Consortium and its affiliates at the Consortium’s request in connection with their due diligence review of a potential transaction with Nielsen.

In addition, at the Board’s request during the course of its evaluation of the Transaction Agreement and the Acquisition, Nielsen’s management also prepared for the consideration of the Board an additional nonpublic, unaudited prospective financial information case for Nielsen reflecting certain varying assumptions (the “Alternative Case” and, together with the Management Case, the “Cases”), which case, together with the Management Case, was made available to, and approved by, the Board. The financial information in these Cases was based on constant currency as of January 2021 exchange rates. The Alternative Case was the same as the Management Case for fiscal year 2022, but otherwise differed from the Management Case by applying the following assumptions for fiscal years 2023 through 2025:

 

   

Revenue: With respect to Nielsen’s revenues, the Alternative Case assumed that the execution of Nielsen ONE, Nielsen’s cross-media solution, would be dampened by pricing pressure in key business segments from cancellation of cable channels, that Nielsen would be unable to capture market share despite an acceleration in its shift to digital content, and that growth in the Outcomes and Content sectors would be lower than expected.

 

   

Adjusted EBITDA: With respect to Nielsen’s Adjusted EBITDA (as defined below), the Alternative Case assumed that Nielsen would experience competitive and industry headwinds, that the suspension of national and local accreditation with the Media Ratings Council and effects of the COVID-19 pandemic would continue through its fiscal year ending December 31, 2023, and that there would be a slower pace of adoption of Nielsen ONE.

 

   

Capital Expenditures: With respect to Nielsen’s capital expenditures, the Alternative Case assumed that Nielsen would require additional investment to drive business performance in later years.

After reviewing and discussing the Cases and management’s assessments regarding the probability of achieving the financial results in the Management Case and the Alternative Case, the Board directed Nielsen’s financial advisors, J.P. Morgan and Allen & Company, to apply a 50% weighting to the results of each of the Management Case and the Alternative Case and to use and rely upon such weighted results for purposes of their respective financial analyses and opinions as summarized in the sections of this proxy statement captioned “The Acquisition—Opinion of J.P. Morgan Securities LLC” and “The Acquisition—Opinion of Allen & Company LLC,” respectively.

 

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The following table presents a summary of the Cases.

 

Revenue                
(in millions)    2022E      2023E      2024E      2025E  

Management Case

   $ 3,676      $ 3,936      $ 4,226      $ 4,503  

Alternative Case

   $ 3,676      $ 3,842      $ 3,995      $ 4,147  

 

Adjusted EBITDA (post-SBC)                
(in millions)    2022E      2023E      2024E      2025E  

Management Case

   $ 1,533      $ 1,656      $ 1,843      $ 2,031  

Alternative Case

   $ 1,533      $ 1,597      $ 1,673      $ 1,753  
Unlevered Free Cash Flow                
(in millions)    2022E      2023E      2024E      2025E  

Management Case

   $ 913      $ 982      $ 1,169      $ 1,336  

Alternative Case

   $ 913      $ 927      $ 981      $ 1,033  

 

(1)

“Adjusted EBITDA (post-SBC)” is a non-GAAP financial measure which is defined as net income or loss from continuing operations of Nielsen’s condensed consolidated statements of operations before net interest expense, income taxes, depreciation and amortization, restructuring charges, impairment of goodwill and other long-lived assets and other non-operating items from Nielsen’s condensed consolidated statements of operations, as well as certain other items that arise outside the ordinary course of Nielsen’s continuing operations.

(2)

“Unlevered Free Cash Flow” is a non-GAAP financial measure which is defined as Adjusted EBITDA (post-SBC) (as shown in the table above) further adjusted by deducting payments made for (i) taxes (estimated cash tax expense), (ii) changes in working capital, (iii) capital expenditures and (iv) certain other cash items.

The Cases were prepared by Nielsen’s management on a standalone basis without giving effect to the Acquisition and the other transactions contemplated by the Transaction Agreement. Furthermore, the Cases do not take into account the effect of any failure of the transactions contemplated by the Transaction Agreement to be completed and should not be viewed as continuing in that context. Although the Cases are presented with numerical specificity, they were based on numerous variables and assumptions made by Nielsen’s management with respect to industry performance, general business, economic, regulatory, market and financial conditions and other future events, as well as matters specific to Nielsen’s business, all of which are difficult or impossible to predict and many of which are beyond Nielsen’s control. The Cases constitute forward-looking information and are subject to many risks and uncertainties that could cause actual results to differ materially from the results forecasted in the Cases, including, but not limited to, Nielsen’s performance, industry performance, general business and economic conditions, customer requirements, staffing levels, competition, adverse changes in applicable laws, regulations or rules, the ability to successfully pursue and complete acquisitions, and the various risks set forth in Nielsen’s reports filed with the SEC. Please also see the section of this proxy statement captioned “Cautionary Statement Regarding Forward-Looking Statements” for other risks and uncertainties that could cause actual results to differ materially from the results forecasted in the Cases. There can be no assurance that the Cases will be realized or that actual results will not be significantly higher or lower than the Cases. The Cases cover four years, and such information by its nature becomes less predictive with each successive year. In addition, the Cases will be affected by Nielsen’s ability to achieve strategic goals, objectives and targets over the applicable periods. The Cases reflect assumptions as to certain business decisions that are subject to change and cannot, therefore, be considered a guarantee of future operating results, and this information should not be relied on as such. The inclusion of the Cases in this proxy statement should not be regarded as an indication that Nielsen, its officers, directors, affiliates, advisors or other representatives or anyone who received this information then considered, or now considers, them necessarily predictive of actual future events, and this information should not be relied upon as such. No representation is made by Nielsen or any other person regarding the Cases or Nielsen’s ultimate performance compared to such information. The Cases should be

 

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evaluated, if at all, in conjunction with the historical financial statements and other information about Nielsen contained in Nielsen’s public filings with the SEC. For more information, please see the section of this proxy statement captioned “Where You Can Find More Information.” In light of the foregoing factors, and the uncertainties inherent in the Cases, Nielsen shareholders are cautioned not to place undue, if any, reliance on the Cases.

The prospective financial information, including the Cases, included in this proxy statement has been prepared by, and is the responsibility of, Nielsen’s management. Ernst & Young LLP has not audited, reviewed, examined, compiled nor applied agreed-upon procedures with respect to such prospective financial information and, accordingly, Ernst & Young LLP does not express an opinion or any other form of assurance with respect thereto. The Ernst & Young LLP report incorporated by reference in this proxy statement relates to Nielsen’s previously issued financial statements. It does not extend to the prospective financial information and should not be read to do so.

Adjusted EBITDA and Unlevered Free Cash Flow are “non-GAAP financial measures.” These non-GAAP financial measures were relied upon by the Board in connection with its evaluation of the Transaction Agreement and the Acquisition and by Nielsen’s financial advisors for purposes of their respective analyses and opinions. The SEC rules, which would otherwise require a reconciliation of prospective non-GAAP financial measure to a GAAP financial measure do not apply to prospective non-GAAP financial measures included in disclosures relating to a proposed business combination such as the Acquisition if the disclosure is included in a document such as this proxy statement. Accordingly, Nielsen has not provided a reconciliation of the prospective financial measures included in the Cases to the relevant GAAP financial measures. Reconciliations of non-GAAP financial measures were not relied upon by the Board in connection with its evaluation of the Acquisition or by Nielsen’s financial advisors in connection with their respective financial analyses and opinions. Furthermore, there are limitations inherent in non-GAAP financial measures because they exclude charges and credits that are required to be included in a GAAP presentation. Non-GAAP financial measures should not be considered in isolated form or as a substitute for financial information presented in accordance with GAAP, and non-GAAP financial measures as used by Nielsen may not be comparable to similarly titled financial measures used by other companies.

The summary of such information above is included solely to give Nielsen shareholders access to the information that was made available to the Board, Nielsen’s financial advisors, and the Consortium and its affiliates, and is not included in this proxy statement in order to influence any Nielsen shareholder to make any investment decision with respect to the Acquisition or the Transaction Agreement, including whether or not to approve the Court Scheme Proposal. In addition, neither the Cases nor any other financial information included in this proxy statement have been updated or revised to reflect information or results after the date on which they were prepared or as of the date of this proxy statement, and except as required by applicable securities laws, Nielsen does not intend to update or otherwise revise the Cases or any other financial information to reflect circumstances existing after the date when made or to reflect the occurrence of future events, even in the event that any or all of the underlying assumptions are shown to be in error.

Interests of Nielsen’s Executive Officers and Directors in the Acquisition

In considering the recommendation of the Board that Nielsen shareholders approve the scheme and vote in favor of the Company Proposals, Nielsen shareholders should be aware that the executive officers and directors of Nielsen have certain interests in the transactions that are or may be different from, or in addition to, the interests of Nielsen shareholders generally. The Board was aware of these interests and considered them, among other matters, in approving the Transaction Agreement and the transactions contemplated by it, including the Acquisition, and in making their recommendation that Nielsen shareholders approve the Transaction Agreement.

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non-binding, advisory vote of Nielsen shareholders, are quantified in the narrative below. See the section of this proxy statement captioned “Compensation Proposal.” The dates used below to quantify these interests have been selected for illustrative purposes only and do not necessarily reflect the dates on which certain events will occur.

For purposes of this disclosure,

 

   

the named executive officers of Nielsen are:

 

   

David Kenny, Chief Executive Officer

 

   

Linda Zukauckas, Chief Financial Officer

 

   

Karthik Rao, Chief Operating Officer

 

   

George D. Callard, Chief Legal and Corporate Affairs Officer

 

   

Laurie Lovett, Chief People Officer

 

   

“qualifying termination” means a termination of employment without cause or for good reason during the two-year period following the occurrence of the Effective Time.

Treatment of Nielsen Equity Awards

Each Nielsen Option that is outstanding as of immediately prior to the Effective Time, whether vested or unvested, will be cancelled and converted into the right to receive a cash payment equal to the product of (1) the number of Nielsen ordinary shares subject to such Nielsen Option as of immediately prior to the Effective Time and (2) the excess, if any, of the Offer Consideration over the exercise price per Nielsen ordinary share subject to such Nielsen Option as of the Effective Time.

Each Nielsen RSU Award that is outstanding as of immediately prior to the Effective Time will be cancelled and converted into the right to receive a cash payment equal to the product of (1) the number of Nielsen ordinary shares subject to such Nielsen RSU Award as of immediately prior to the Effective Time and (2) the Offer Consideration. For purposes of clause (1) of the immediately preceding sentence, the number of Nielsen ordinary shares subject to a performance-based Nielsen RSU Award with respect to which the applicable performance period is incomplete as of immediately prior to the Effective Time will be based on target (100%) performance.

For an estimate of the value of unvested equity awards that would vest assuming that the Acquisition occurs on May 16, 2022 and each of the named executive officers experiences a qualifying termination on that date, see “The AcquisitionQuantification of Payments and Benefits to Nielsen’s Named Executive Officers” below. We estimate that the value of unvested equity awards held by all executive officers, other than the named executive officers, that would vest assuming that the Effective Time occurs on May 16, 2022 and all such executive officers experience qualifying terminations on that date is $409,292. We estimate that the aggregate value of unvested equity awards held by all non-employee directors of Nielsen that would vest assuming that the Acquisition occurs on May 16, 2022 is $1,691,905.

Executive Severance Plan

Each of the Nielsen executives participates in the Nielsen Holdings plc Severance Policy for Section 16 Officers and United States-Based Senior Executives (the “Severance Policy”). The Severance Policy provides that, in the event of a qualifying termination, the executive officer will be entitled to (1) severance equal to a multiple (2x for a named executive officer; 1x for an executive who is not a named executive officer) the sum of the executive’s base salary and the executive’s average annual bonus for the three years preceding the year in which the effective time occurs, payable over the applicable severance period (twenty-four months in the case of a named executive officer; twelve months for an executive who is not an named executive officer) following the qualifying termination, (2) a pro-rata portion of the annual incentive award payable in a lump sum for the year in which the

 

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qualifying termination takes place (based on the greater of actual performance and target performance), (3) reimbursement of the COBRA premiums for the executive officer and his or her covered family members for the twenty-four or twelve-month severance payment period, as applicable and (4) outplacement assistance and support services for one year following the date of the qualifying termination. The foregoing payments are conditional on the executive executing a release of claims agreement with Nielsen. Each of the executive officers is prohibited for a period of two years following termination of employment from competing with Nielsen and soliciting Nielsen’s employees.

For an estimate of the value of the severance payments described above that would be payable to Nielsen’s named executive officers upon a qualifying termination on May 16, 2022, see “Quantification of Payments and Benefits to Nielsen’s Named Executive Officers” below. We estimate that the aggregate value of severance payments that would be payable to all Nielsen executive officers who are not named executive officers, assuming a qualifying termination on May 16, 2022, is $1,518,500.

Bonus for the Year of Closing

Under the Transaction Agreement, all employees who experience a qualifying termination of employment during the year that the closing of the Transaction occurs would be entitled to a full-year annual incentive award (based on the greater of actual performance and target performance). For an estimate of the value of the bonus payments described above that would be payable to Nielsen’s named executive officers upon a qualifying termination on May 16, 2022, see “Quantification of Payments and Benefits to Nielsen’s Named Executive Officers” below. We estimate that the aggregate value of bonus payments that would be payable to all Nielsen executive officers who are not named executive officers, assuming a qualifying termination on May 16, 2022, is $200,000.

Certain Make Whole Arrangements

Certain of Nielsen’s executive officers may be subject to an excise tax on payments they will or may receive in connection with the transactions under Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”). Nielsen has the right to enter into agreements with each of the named executive officers, other than Mr. Kenny, providing that, in the event that an executive officer receives any payments or benefits that are subject to tax under Section 4999 of the Code, the executive officer will receive a payment that puts the executive officer in the same after-tax position as though the tax under Section 4999 of the Code did not apply. Each make whole agreement will require that the executive repay any make whole payment if the executive resigns without good reason or the executive’s employment is terminated for cause during the two-year period following completion of the transactions the occurrence of the Effective Time.

The estimated value of the make whole payment for each named executive officer is set forth below in the table entitled “Golden Parachute Compensation.”

Indemnification and Insurance

Pursuant to the terms of the Transaction Agreement, Nielsen’s directors and executive officers will be entitled to certain ongoing indemnification and coverage for a period of six years following the effective time under directors’ and officers’ liability insurance policies from the surviving corporation. This indemnification and insurance coverage is further described in the section entitled “The Transaction Agreement—Indemnification and Insurance.”

Quantification of Payments and Benefits to Nielsen’s Named Executive Officers

The table below sets forth the amount of payments and benefits that each of Nielsen’s named executive officers would receive in connection with the Acquisition, assuming (i) that the Acquisition were consummated

 

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and each such named executive officer experienced a qualifying termination on May 16, 2022 (which is the assumed date solely for purposes of this golden parachute compensation disclosure); (ii) a per share price of Nielsen ordinary shares of $28.00; (iii) that each named executive officer’s base salary rate and annual target bonus remain unchanged from those in effect as of the date of this proxy statement; and (iv) equity awards that are outstanding as of May 16, 2022. The calculations in the table below do not include any amounts that the named executive officers were entitled to receive or that were vested as of the date hereof. In addition, these amounts do not attempt to forecast any additional awards, grants or forfeitures that may occur prior to the Effective Time or any awards that, by their terms, vest irrespective of the Acquisition prior to May 16, 2022. As a result of the foregoing assumptions, which may or may not actually occur or be accurate on the relevant date, including the assumptions described in the footnotes to the table, the actual amounts, if any, to be received by a named executive officer may materially differ from the amounts set forth below.

For purposes of this discussion, “single trigger” refers to benefits that arise as a result of the completion of the Acquisition and “double trigger” refers to benefits that require two conditions, which are the completion of the Acquisition and a qualifying termination.

Golden Parachute Compensation

 

Named Executive Officer

   Cash ($)(1)      Equity
Awards
($)(2)
     Tax
Reimbursement
($)(3)
     Total ($)  

David Kenny

     8,675,583        26,849,878        —          35,525,461  

Linda Zukauckas

     4,482,833        9,415,400        4,722,115        18,620,348  

Karthik Rao

     3,185,167        5,429,437        3,337,489        11,952,093  

George D. Callard

     3,213,917        5,493,057        3,004,129        11,711,103  

Laurie Lovett

     2,640,167        4,057,474        2,877,393        9,575,034  

 

(1)

Cash Severance for Named Executive Officers. Each of the named executive officers participates in the Severance Policy. The Severance Policy provides that, in the event of a qualifying termination, the named executive officer will be entitled to (1) severance equal to two times the sum of the named executive officer’s base salary and average annual bonus for the three years preceding the year in which the effective time occurs, payable over twenty-four months following the qualifying termination, (2) the named executive’s full-year annual incentive award payable in a lump sum for the year in which the closing of the Acquisition takes place (reflected based on target performance for purposes of these calculations, but will ultimately be calculated based on the greater of actual performance and target performance), (3) reimbursement of the COBRA premiums for the executive and his or her covered family members for the twenty-four month severance payment period and (4) outplacement assistance and support services for one year following the date of the qualifying termination. Each of the named executive officers is prohibited for a period of two years following termination of employment from competing with Nielsen and soliciting Nielsen’s employees.

 

Named Executive Officer

  Base Salary
Component of
Severance
Calculation ($)
    Bonus
Component of
Severance
Calculation ($)
    2022 Target
Bonus($)
    Annual
COBRA
Reimbursement
    Outplacement
Services
    Total ($)  

David Kenny

    1,300,000       2,016,042       1,925,000       9,250       100,000       8,675,583  

Linda Zukauckas

    800,000       932,167       900,000       9,250       100,000       4,482,833  

Karthik Rao

    600,000       633,333       600,000       9,250       100,000       3,185,167  

George D. Callard

    575,000       660,208       625,000       9,250       100,000       3,213,917  

Laurie Lovett

    500,000       510,833       500,000       9,250       100,000       2,640,167  

 

(2)

Equity Award Treatment. Includes unvested Nielsen Options and Nielsen RSU Awards that vest upon completion of the Acquisition and are “single trigger.” Each Nielsen Option that is outstanding as of immediately prior to the Effective Time, whether vested or unvested, will be cancelled and converted into

 

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  the right to receive a cash payment equal to the product of (a) the number of Nielsen ordinary shares subject to such Nielsen Option as of immediately prior to the Effective Time and (b) the excess, if any, of the Offer Consideration over the exercise price per Nielsen ordinary share subject to such Nielsen Option as of the Effective Time. Each Nielsen RSU Award that is outstanding as of immediately prior to the Effective Time will be cancelled and converted into the right to receive a cash payment equal to the product of (a) the number of Nielsen ordinary shares subject to such Nielsen RSU Award as of immediately prior to the Effective Time and (b) the Offer Consideration. For purposes of clause (b) of the immediately preceding sentence, the number of Nielsen ordinary shares subject to a performance-based Nielsen RSU Award with respect to which the applicable performance period is incomplete as of immediately prior to the Effective Time will be based on target (100%) performance.

 

Named Executive Officer

   Value of
Nielsen
Unvested
Options ($)
     Value of
Nielsen RSU
Awards ($)
     Total ($)  

David Kenny

     378,414        26,471,464        26,849,878  

Linda Zukauckas

     624,753        8,790,647        9,415,400  

Karthik Rao

     378,414        5,051,023        5,429,437  

George D. Callard

     378,414        5,114,642        5,493,057  

Laurie Lovett

     378,414        3,679,059        4,057,474  

 

(3)

Tax Reimbursement. Nielsen has the right to enter into agreements with each of the named executive officers, other than Mr. Kenny, providing that, in the event that an executive officer receives any payments or benefits that are subject to tax under Section 4999 of the Code, the named executive officer will receive a payment that puts the executive officer in the same after-tax position as though the tax under Section 4999 of the Code did not apply. Each make whole agreement will require that the executive repay any make whole payment if the executive resigns without good reason or the executive’s employment is terminated for cause during the two-year period following completion of the Acquisition. Note that these estimates do not take into account the impact of any potential mitigation actions, including mitigation actions that would be available to Nielsen and that Nielsen anticipates would significantly reduce or eliminate the tax reimbursement amounts.

Financing of the Acquisition

Parent has obtained debt and equity financing commitments for the purpose of financing the Acquisition Amounts. The obligation of Parent and Purchaser to consummate the Acquisition is not subject to any financing condition.

Parent has entered into equity and rollover commitment letters (the “Equity Commitment Letters”) with the Equity Investors, pursuant to which the Equity Investors have committed to capitalize Purchaser, immediately prior to the Closing, with an aggregate equity contribution of up to approximately $5.19 billion and a rollover of 16,600,000 Nielsen ordinary shares subject to the terms and conditions set forth in the Equity Commitment Letters. The equity and rollover commitments are several (not joint) obligations of the Equity Investors.

The Equity Investors have executed limited guarantees in favor of Nielsen to guarantee, subject to certain limitations, the payment of the termination fee that may become payable by Parent under the terms of the Transaction Agreement and certain other expense and indemnification obligations of Parent under the Transaction Agreement.

In addition, (i) Bank of America, N.A., BofA Securities, Inc., Barclays Bank PLC, Mizuho Bank, Ltd., Credit Suisse AG, Credit Suisse International, Credit Suisse Loan Funding LLC, Citigroup Global Markets Inc., Citibank, N.A., Citicorp USA, Inc., Citicorp North America, Inc., HSBC Bank USA, National Association, HSBC Securities (USA) Inc., HSBC Bank plc, KKR Capital Markets LLC, KKR Corporate Lending LLC, Nomura Securities International, Inc., Ares Capital Management LLC, Bank of Montreal, BMO Capital Markets

 

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Corp., Goldman Sachs Bank USA, Jefferies Finance LLC, Macquarie Capital (USA) Inc., Macquarie Capital Funding LLC, Morgan Stanley Senior Funding, Inc., Royal Bank of Canada, RBC Capital Markets, LLC, Truist Bank, Truist Securities, Inc., BNP Paribas, BNP Paribas Securities Corp., Canadian Imperial Bank of Commerce, New York Branch, CIBC World Markets Corp., Fifth Third Bank, National Association, MUFG Bank, Ltd., MUFG Union Bank, N.A., and MUFG Securities Americas Inc. (in each case together with, through, and/or on behalf of their applicable affiliates), have committed to provide debt financing for the Acquisition consisting of a $6.35 billion secured term loan facility, $650 million secured revolving facility, and a $2 billion secured bridge facility on the terms set forth in the First Lien Debt Commitment Letter, and (ii) Ares Capital Corporation, Ares Capital Management LLC, Carlyle Global Credit Investment Management, L.L.C., PSP Investments Credit USA LLC, Fortress Credit Corp., BC Partners Advisors L.P., BCP Special Opportunities Fund II Holdings LP, Grosvenor Capital Management LP, Oaktree Capital Management, L.P., GoldenTree Asset Management LP, Stone Point Credit Adviser LLC, and T. Rowe Price Associates, Inc. (in each case together with, through, and/or on behalf of their applicable affiliates), have committed to provide debt financing for the Acquisition consisting of a $2.15 billion second lien secured term loan facility on the terms set forth in the Second Lien Debt Commitment Letter. The obligations of the commitment parties to provide the debt financing under the Debt Commitment Letters are subject to a number of conditions, including the receipt of executed loan documentation, accuracy of certain specified representations and warranties, consummation of the transactions contemplated in the Transaction Agreement, contribution of the equity contemplated by the Equity Commitment Letters, and in the case of the First Lien Debt Commitment Letter, completion of a designated marketing period.

No Appraisal Rights

Nielsen shareholders are not entitled to appraisal or dissenters’ rights in connection with the Acquisition.

When the Court Sanction is sought for the Scheme, the U.K. Court will consider matters including whether the Scheme has been implemented in accordance with the Companies Act, whether the Nielsen shareholders were fairly represented at the Court Meeting, whether the majority of the Nielsen shareholders are acting in a bona fide fashion and not coercing the minority and whether the Scheme is one that a reasonable shareholder would approve. Scheme Shareholders are entitled to attend the Court Meeting and to make submissions to oppose the Scheme on the basis that the aforementioned requirements have not been satisfied. However, if and when the Court Sanction is received and the Court Order is delivered to the Registrar of Companies, all Scheme Shareholders will be bound by the terms of the Scheme regardless of whether or how they voted at the Court Meeting or the Special Meeting.

Material U.S. Federal Income Tax Consequences of the Acquisition

The following discussion is a general discussion of certain material U.S. federal income tax consequences of the Acquisition that may be relevant to U.S. Holders (as defined below) of Nielsen ordinary shares whose Nielsen ordinary shares are exchanged for cash pursuant to the Acquisition. This discussion does not address U.S. federal income tax consequences with respect to holders of Nielsen ordinary shares other than U.S. Holders. This discussion is limited to U.S. Holders of Nielsen ordinary shares who hold such shares as “capital assets” within the meaning of Section 1221 of the Code (generally, property held for investment). This discussion is based upon the Code, applicable U.S. Treasury Regulations promulgated thereunder, judicial opinions and administrative rulings and published positions of the Internal Revenue Service (the “IRS”), each as in effect on the date of this proxy statement and all of which are subject to change or differing interpretations at any time, possibly with retroactive effect. Any such change or differing interpretation could affect the accuracy of the statements and conclusions set forth in this discussion. No assurance can be given that the IRS would not assert, or that a court would not sustain, a position contrary to any of the tax considerations described in this discussion. No ruling has been or will be sought from the IRS with respect to the Transaction.

This discussion is for general information purposes only and does not purport to be a complete analysis of all potential tax consequences. Further, this discussion does not purport to consider all aspects of U.S. federal

 

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income taxation that may be relevant to U.S. Holders in light of their particular circumstances, or that may apply to U.S. Holders subject to special rules under U.S. federal income tax laws, including, for example, but not limited to:

 

   

banks and other financial institutions;

 

   

mutual funds;

 

   

insurance companies;

 

   

brokers or dealers in securities, currencies or commodities;

 

   

dealers or traders in securities who elect to apply the mark-to-market method of accounting;

 

   

regulated investment companies and real estate investment trusts;

 

   

retirement plans, individual retirement and other deferred accounts;

 

   

tax-exempt organizations, governmental agencies, instrumentalities or other governmental organizations and pension funds;

 

   

U.S. Holders that hold Nielsen ordinary shares as part of a “straddle,” hedge, constructive sale, or other integrated transaction or conversion transaction or similar transaction;

 

   

U.S. Holders whose functional currency is not the U.S. dollar;

 

   

partnerships, other entities or arrangements treated as partnerships for U.S. federal income tax purposes, “S corporations,” or other pass-through entities (or investors in such partnerships, S corporations or other pass-through entities);

 

   

expatriated entities subject to Section 7874 of the Code;

 

   

U.S. Holders subject to the alternative minimum tax;

 

   

U.S. expatriates and former citizens or former long-term residents of the United States;

 

   

U.S. Holders that own or have owned (directly, indirectly or constructively) 5% or more of Nielsen ordinary shares (by vote or value);

 

   

grantor trusts;

 

   

U.S. Holders that received their Nielsen ordinary shares in a compensatory transaction, through a tax-qualified retirement plan or pursuant to the exercise of options or warrants;

 

   

U.S. Holders that own an equity interest, directly, indirectly or constructively in Parent following the Acquisition;

 

   

U.S. Holders that hold their Nielsen ordinary shares through a bank, financial institution or other entity, or a branch thereof, located, organized or resident outside the United States; and

 

   

U.S. Holders required to accelerate the recognition of any item of gross income as a result of such income being recognized on an applicable financial statement.

This discussion does not address any U.S. federal tax considerations other than those pertaining to the income tax or any state, local or foreign income or non-income tax considerations. In addition, this discussion does not address any considerations arising under the unearned income Medicare contribution tax pursuant to the Health Care and Education Reconciliation Act of 2010 or the Foreign Account Tax Compliance Act of 2010 (including the U.S. Treasury Regulations promulgated thereunder and intergovernmental agreements entered into pursuant thereto or in connection therewith and any laws, regulations or practices adopted in connection with any such agreement).

If a partnership (including an entity or arrangement treated as a partnership for U.S. federal income tax purposes) is a beneficial owner of Nielsen ordinary shares, the tax treatment of a person treated as a partner in

 

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such partnership generally will depend upon the status of the partner, the activities of the partner and the partnership and certain determinations made at the partner level. Accordingly, partnerships holding Nielsen ordinary shares and partners in such partnerships should consult their tax advisors regarding the tax consequences of the Acquisition to them.

THE U.S. FEDERAL INCOME TAX TREATMENT OF THE ACQUISITION TO ANY PARTICULAR U.S. HOLDER WILL DEPEND ON SUCH U.S. HOLDER’S PARTICULAR TAX CIRCUMSTANCES. U.S. HOLDERS ARE URGED TO CONSULT THEIR TAX ADVISORS WITH RESPECT TO THE U.S. FEDERAL INCOME TAX CONSEQUENCES OF THE ACQUISITION TO THEM IN LIGHT OF THEIR PARTICULAR CIRCUMSTANCES, AS WELL AS ANY TAX CONSEQUENCES OF THE ACQUISITION ARISING UNDER THE U.S. FEDERAL TAX LAWS OTHER THAN THOSE PERTAINING TO INCOME TAX, OR UNDER ANY STATE, LOCAL OR NON-U.S. TAX LAWS OR UNDER ANY APPLICABLE INCOME TAX TREATY.

For purposes of this discussion, a “U.S. Holder” means a beneficial owner of Nielsen ordinary shares that, for U.S. federal income tax purposes, is or is treated as any of the following:

 

   

an individual who is a citizen or resident of the United States;

 

   

a corporation created or organized in or under the laws of the United States, any state thereof or the District of Columbia;

 

   

an estate, the income of which is subject to U.S. federal income tax regardless of its source; or

 

   

a trust, if (i) a court within the United States is able to exercise primary supervision over the administration of such trust and one (1) or more “United States persons” (within the meaning of the Code) have the authority to control all substantial decisions of the trust or (ii) the trust validly elected to be treated as a United States person for U.S. federal income tax purposes.

Except as specifically discussed below, the following discussion assumes Nielsen is not a PFIC (as defined below). The receipt of cash by a U.S. Holder in exchange for Nielsen ordinary shares pursuant to the Acquisition will be a taxable transaction for U.S. federal income tax purposes. In general, for U.S. federal income tax purposes, a U.S. Holder who receives cash in exchange for Nielsen ordinary shares pursuant to the Acquisition will recognize gain or loss in an amount equal to the difference, if any, between (i) the amount of cash received and (ii) the U.S. Holder’s adjusted tax basis in the Nielsen ordinary shares surrendered in exchange therefor. A U.S. Holder’s adjusted tax basis in its Nielsen ordinary shares generally will equal the amount that such U.S. Holder paid for such shares. Any such gain or loss generally will be capital gain or loss, and generally will be long-term capital gain or loss if such U.S. Holder’s holding period in the Nielsen ordinary shares surrendered in the Acquisition is more than one year as of the date of the Acquisition. Long-term capital gains of certain non-corporate U.S. Holders, including individuals, are generally subject to U.S. federal income tax at preferential rates. The deductibility of capital losses is subject to limitations. If a U.S. Holder acquired different blocks of Nielsen ordinary shares at different times or different prices, such U.S. Holder must determine its adjusted tax basis and holding period separately with respect to each block of Nielsen ordinary shares.

A non-U.S. corporation, such as Nielsen, will be classified as a “passive foreign investment company” (“PFIC”) for U.S. federal income tax purposes for any taxable year in which, after the application of certain look-through rules, either: (i) 75% or more of its gross income for such taxable year is “passive income” as defined in the relevant provisions of the Code (e.g., dividends, interest, royalties, rents, annuities, net gains from the sale or exchange of property producing such income and net foreign currency gains), or (ii) 50% or more of the total value of its assets (based on an average of the quarterly values of the assets during such year) is attributable to assets, including cash, that produce “passive income” or are held for the production of “passive income.” Although it is not free from doubt, based on the composition of Nielsen’s gross assets and income and the manner in which Nielsen has operated its business, Nielsen does not believe that it has been classified as a PFIC for U.S. federal income tax purposes for prior taxable years or that it will be so classified for the taxable year

 

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including the Acquisition. However, the determination of PFIC status is fundamentally factual in nature, depends on the application of complex U.S. federal income tax rules that are subject to differing interpretations and generally cannot be determined until the close of the taxable year in question. Accordingly, there can be no assurance that Nielsen will not be a PFIC for the taxable year including the Acquisition or that Nielsen has not been a PFIC for any other taxable year. If Nielsen were classified as a PFIC for any taxable year during which a U.S. Holder held Nielsen ordinary shares, such classification could result in adverse tax consequences to such U.S. Holder, and different U.S. federal income tax consequences from those described above may apply to the receipt of cash by such U.S. Holder in exchange for Nielsen ordinary shares pursuant to the Acquisition. These consequences may include having gains realized on the receipt of cash in exchange for Nielsen ordinary shares treated as ordinary income rather than capital gain and being subject to punitive interest charges on such gains.

Information Reporting and Backup Withholding

Payments made to a U.S. Holder in exchange for Nielsen ordinary shares pursuant to the Acquisition may be subject to information reporting to the IRS and backup withholding (currently, at a rate of 24%). Such payments will not be subject to backup withholding if such U.S. Holder provides the applicable withholding agent with a properly completed and executed IRS Form W-9 providing such U.S. Holder’s correct taxpayer identification number and certifying that such U.S. Holder is not subject to backup withholding, or otherwise establishes an exemption, and otherwise complies with the backup withholding rules. Certain holders (including corporations) are not subject to backup withholding or information reporting.

Backup withholding is not an additional tax. Any amounts withheld under the backup withholding rules from a payment to a U.S. Holder may be refunded or allowed as a credit against such U.S. Holder’s U.S. federal income tax liability, if any, provided that the required information is timely furnished to the IRS.

U.S. Holders should consult their tax advisors regarding their qualification for an exemption from backup withholding and the procedures for obtaining such an exemption.

Regulatory Approvals Required for the Acquisition

General

Nielsen, Purchaser and Parent have agreed to use their reasonable best efforts to take and do all things necessary, proper or advisable under any applicable laws to consummate and make effective the Acquisition as promptly as possible, and, subject to certain limitations, to obtain all regulatory approvals required to consummate the Acquisition and the other transactions contemplated by the Transaction Agreement. These approvals include clearances under the HSR Act and certain other competition and foreign investment approvals, as described below.

HSR Act and U.S. Antitrust Matters

Under the HSR Act, the Acquisition cannot be completed until the waiting periods applicable to the Acquisition have expired or been terminated. A transaction notifiable under the HSR Act may not be completed until the expiration of a 30-day waiting period following the parties’ filings of their HSR Act notification and report forms or the early termination of that waiting period. The parties made the required filings with the FTC and the DOJ on April 11, 2022, and the waiting period expired on May 11, 2022.

At any time before or after consummation of the Acquisition, notwithstanding the termination or expiration of the waiting periods under the HSR Act, the FTC, the DOJ, or any state could take such action under the antitrust laws as any of them deem necessary or desirable in the public interest, including seeking to enjoin the completion of the Acquisition, seeking divestiture of assets of the Company, or requiring the parties to license or hold separate assets or terminate existing relationships and contractual rights. Private parties may also seek to take legal action under the antitrust laws under certain circumstances. We cannot be certain that a challenge to the Acquisition will not be made or that, if a challenge is made, we will prevail.

 

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Other Foreign Regulatory Approvals

The Acquisition is also conditioned on the review, approval, and/or clearance by governmental entities in other jurisdictions pursuant to the competition and foreign investment laws of certain other jurisdictions, including, among others, the competition laws of the European Union and the foreign investment laws of Australia and the United Kingdom. Pursuant to the terms of Transaction Agreement, the parties made all such filings, or drafts thereof, on or before April 27, 2022. There can be no assurances that all of the regulatory approvals described above will be obtained and, if obtained, there can be no assurances as to the timing of any approvals, the parties’ ability to obtain the approvals on satisfactory terms or the absence of any litigation challenging such approvals.

 

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THE TRANSACTION AGREEMENT

The following summarizes the provisions of the Transaction Agreement. The descriptions of the Transaction Agreement in this summary and elsewhere in this proxy statement are not complete and are qualified in their entirety by reference to the Transaction Agreement, a copy of which is attached to this proxy statement as Annex A and incorporated into this proxy statement by reference. You should carefully read and consider the entire Transaction Agreement and the Scheme, which are the legal documents that govern the Acquisition, because this summary may not contain all the information about the Transaction Agreement that is important to you. The rights and obligations of the parties are governed by the express terms of the Transaction Agreement and the Scheme, and not by this summary or any other information contained in this proxy statement.

The representations, warranties, covenants and agreements described below and included in the Transaction Agreement (i) were made only for purposes of the Transaction Agreement and as of specific dates; (ii) were made solely for the benefit of the parties to the Transaction Agreement; and (iii) may be subject to important qualifications, limitations and supplemental information agreed to by Nielsen, Parent and Purchaser in connection with negotiating the terms of the Transaction Agreement. In addition, the representations and warranties have been included in the Transaction Agreement for the purpose of allocating contractual risk between Nielsen, Parent and Purchaser rather than to establish matters as facts, and may be subject to standards of materiality applicable to such parties that differ from those applicable to investors. Shareholders are not third-party beneficiaries under the Transaction Agreement and should not rely on the representations, warranties, covenants and agreements or any descriptions thereof as characterizations of the actual state of facts or condition of Nielsen, Parent and Purchaser or any of their respective affiliates or businesses. Moreover, information concerning the subject matter of the representations and warranties may change after the date of the Transaction Agreement. In addition, you should not rely on the covenants in the Transaction Agreement as actual limitations on the respective businesses of Nielsen, Parent and Purchaser, because the parties may take certain actions that are either expressly permitted in the confidential disclosure schedule to the Transaction Agreement or as otherwise consented to by the appropriate party, which consent may be given without prior notice to the public. The Transaction Agreement and Scheme are described below, and included as Annex A and Annex B to this proxy statement, only to provide you with information regarding their terms and conditions, and not to provide any other factual information regarding Nielsen, Parent and Purchaser or their respective businesses. Accordingly, the representations, warranties, covenants and other agreements in the Transaction Agreement and the Scheme should not be read alone, and you should read the information provided elsewhere in this document and in our filings with the SEC regarding Nielsen and our business.

Terms of the Acquisition

Purchaser will acquire all of the outstanding Nielsen ordinary shares (except for the Excluded Shares) by means of the Scheme. However, under certain circumstances, the parties to the Transaction Agreement reserve the right to effect the Acquisition by means of a contractual takeover as described in Section 974 of the Companies Act. At the Effective Time, each Nielsen ordinary share then outstanding (other than the Excluded Shares) shall automatically be transferred from the Nielsen shareholders to Purchaser, and the Nielsen shareholders shall cease to have any rights with respect to their Nielsen ordinary shares, except their right to receive the Offer Consideration of $28.00 per Nielsen ordinary share, less any required tax withholdings and any dividend or other distributions and other return of capital (other than Permitted Dividends) proposed, announced, authorized, declared, paid or made by Nielsen with a record date falling prior to the Effective Time.

Effective Time and Closing of the Acquisition

Closing will take place on the date on which the Effective Time occurs. Subject to the receipt of the approval by the Nielsen shareholders of the Articles Amendment and Scheme Implementation Proposal, following the receipt of the Court Order, the Company will not take any action to amend, modify, rescind or terminate the Court Order and will deliver a copy of it as required by the Transaction Agreement to Companies

 

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House, whereby the Scheme will become effective upon such delivery in accordance with its terms, and the Effective Time shall be the time of such delivery and the Scheme becoming effective. Nielsen will also deliver a copy of the Court Order to Parent, together with appropriate evidence of the Effective Time and a duly executed certificate confirming that the Company has performed and complied in all material respects with all covenants it is required to have performed or complied with pursuant to the Transaction Agreement prior to the Effective Time.

The parties to the Transaction Agreement currently expect the completion of the Acquisition to occur in the second half of 2022. However, as the Acquisition is subject to regulatory clearances, U.K. Court approval, the approval of the Nielsen shareholders and the satisfaction or waiver of other terms described in the Transaction Agreement, it is possible that factors outside the control of the Company, Parent and Purchaser could result in the Acquisition being completed at a later time or not at all.

Offer Consideration

Treatment of Nielsen Ordinary Shares

At the Effective Time, each then outstanding Nielsen ordinary share shall be transferred from the Nielsen shareholders to Purchaser (and/or its nominees) in accordance with the provisions of the Scheme, the Transaction Agreement and the laws of England and Wales. The Nielsen shareholders shall cease to have any rights with respect to the Nielsen ordinary shares, except their rights under the Scheme, including the right to receive the Offer Consideration, less any required tax withholdings and any dividend or other distributions and other return of capital (other than Permitted Dividends) proposed, announced, authorized, declared, paid or made by Nielsen with a record date falling prior to the Effective Time.

Treatment of Nielsen Equity Awards

At the Effective Time, each option to purchase Nielsen ordinary shares (a “Nielsen Option”) that is outstanding as of immediately prior to the Effective Time, whether vested or unvested, will be cancelled in consideration for the right to receive a cash payment equal to the product of (i) the number of Nielsen ordinary shares subject to such Nielsen Option as of immediately prior to the Effective Time and (ii) the excess, if any, of the Offer Consideration over the exercise price per Nielsen ordinary share subject to such Nielsen Option as of the Effective Time. At the Effective Time, each restricted stock unit award in respect of Nielsen ordinary shares, including any award of deferred stock units held by non-employee directors (a “Nielsen RSU Award” and together with the Nielsen Options, the “Nielsen Equity Awards”) that is outstanding as of immediately prior to the Effective Time will be cancelled in consideration for the right to receive a cash payment equal to the product of (a) the number of Nielsen ordinary shares subject to such Nielsen RSU Award as of immediately prior to the Effective Time and (b) the Offer Consideration. For purposes of clause (a) of the immediately preceding sentence, the number of Nielsen ordinary shares subject to a performance-based Nielsen RSU Award with respect to which the applicable performance period is incomplete as of immediately prior to the Effective Time will be based on target (100%) performance.

Exchange and Payment Procedures

Prior to the Closing, Parent will appoint a bank or trust company reasonably acceptable to Nielsen to act as paying agent (the “Paying Agent”) to make payments of the Offer Consideration to Nielsen shareholders. At or prior to the Effective Time (or, in the event that the Effective Time occurs later than 3:00 p.m. UK time on any date (or such later time as Parent and the Company may agree to), then no later than the first business day following such date), Parent will deposit, or cause to be deposited, with a U.S. branch of the Paying Agent, in trust for the benefit of the Scheme Shareholders, cash in an amount equal to the aggregate Offer Consideration.

As soon as possible following the Effective Time (and in any event within fourteen (14) business days following the Effective Time), the Paying Agent will dispatch all checks (or electronic payments in lieu of

 

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checks) to the person entitled to it at the address as appearing in the register of members of the Company at the Scheme Record Time and made in U.S. dollars. The amount of any Offer Consideration paid to Nielsen shareholders may be reduced by any required tax withholdings and any dividend or other distributions and other return of capital (other than Permitted Dividends) proposed, announced, authorized, declared, paid or made by Nielsen with a record date falling prior to the Effective Time. As from the Scheme Record Time, each holding of Nielsen ordinary shares credited to any stock account in the DTC will be disabled and all Nielsen ordinary shares will be removed from DTC in due course.

Any portion of the Payment Fund (as defined in the Transaction Agreement) which has not been transferred to the Scheme Shareholders within six months following the Effective Time, will be delivered to Parent or its designee(s) promptly upon demand by Parent (it being understood that no such delivery will affect any legal right that a Scheme Shareholder may have to receive the Offer Consideration), and thereafter such shareholder will be entitled to look only to Parent for, and Parent will remain liable for, payment of their claims for the Offer Consideration.

Representations and Warranties

The Transaction Agreement contains representations and warranties of Nielsen, Parent and Purchaser.

Some of the representations and warranties in the Transaction Agreement made by Nielsen are qualified as to “materiality” or “Material Adverse Effect.” For purposes of the Transaction Agreement, “Material Adverse Effect” means, with respect to Nielsen, any change, effect, event, occurrence or development that has, or would reasonably be expected to have, individually or in the aggregate, a material adverse effect on the business, operations or financial condition of Nielsen and its subsidiaries taken as a whole, excluding the impact of:

 

   

changes or developments in domestic, foreign or global markets or domestic, foreign or global economic conditions generally, including (i) any changes or developments in or affecting domestic or any foreign securities, equity, credit or financial markets or (ii) any changes or developments in or affecting domestic or any foreign interest or exchange rates;

 

   

changes in GAAP or other applicable accounting standards or in any authoritative interpretation or enforcement thereof;

 

   

changes in applicable law or in the official interpretation or enforcement thereof;

 

   

changes in domestic, foreign or global political conditions (including the outbreak or escalation of war (whether or not declared), hostilities, military actions, or acts of terrorism, including by cyberattack (whether state-sponsored or not) or otherwise), including any worsening of such conditions threatened or existing on the date of the Transaction Agreement;

 

   

changes or developments in the business or regulatory conditions affecting the industries in which the Company or any of its subsidiaries operate;

 

   

the execution, delivery and performance of the Transaction Agreement or the public announcement or pendency or consummation of the Acquisition or the other transactions contemplated thereby (including the impact thereof on the relationships, contractual or otherwise, of the Company or any of its subsidiaries with employees, labor unions, financing sources, customers, suppliers or partners), subject to certain exceptions;

 

   

the identity of Parent or any of its affiliates as the acquiror of Nielsen;

 

   

any conditions resulting from epidemics and pandemics (including COVID-19), weather conditions or other acts of God (including storms, earthquakes, tornados, floods or other natural disasters), any changes arising out of the implementation or compliance by the Company and its subsidiaries of or with any COVID-19 Measures (as such term is defined in the Transaction Agreement);

 

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a decline in the trading price or trading volume of Nielsen ordinary shares or in the trading price of any other securities of Nielsen or any of its subsidiaries or any change in the ratings or ratings outlook for Nielsen or any of its subsidiaries or any of their respective securities (provided that the underlying causes thereof may be considered in determining whether a Material Adverse Effect has occurred if not otherwise excluded thereunder);

 

   

the failure to meet any internal or published projections, guidance, budgets, forecasts or estimates for any period (provided that the underlying causes thereof may be considered in determining whether a Material Adverse Effect has occurred if not otherwise excluded thereunder);

 

   

the taking or omission of any action required by the Transaction Agreement (other than the requirement to conduct the business in the ordinary course) or expressly directed by Parent or Purchaser;

 

   

certain matters set forth in the confidential disclosure schedule to the Transaction Agreement;

 

   

any litigation relating to or resulting from the Transaction Agreement or the transactions contemplated thereby; or

 

   

the failure to obtain any approvals or consents from any governmental entity in connection with the transactions contemplated by the Transaction Agreement;

except, with respect to bullets 1–5, 8 and 9 above, to the extent that such impact is disproportionately adverse to Nielsen and its subsidiaries, taken as a whole, relative to similarly situated businesses in the industry or industries in which Nielsen and its subsidiaries operate (in which case the incremental disproportionate impact shall be taken into account in determining whether there has been a Material Adverse Effect to the extent not otherwise excluded from the definition of Material Adverse Effect).

In the Transaction Agreement, Nielsen has made customary representations and warranties to Parent and Purchaser that are subject, in some cases, to specified exceptions and qualifications contained in the Transaction Agreement and the confidential disclosure schedule to the Transaction Agreement. These representations and warranties relate to, among other things:

 

   

due organization, valid existence and good standing and authority and qualification to conduct business with respect to Nielsen and its subsidiaries;

 

   

the organizational documents of Nielsen and its subsidiaries;

 

   

the capital structure of Nielsen and its subsidiaries;

 

   

the absence of any undisclosed subscription, option, warrant, call, put, convertible security, exchangeable security or other similar right obligating Nielsen or any of its subsidiaries to issue, exchange or sell any of their equity interests or granting any preemptive, antidilutive or similar rights;

 

   

certain indebtedness of Nielsen;

 

   

Nielsen’s corporate power and authority to enter into and perform the Transaction Agreement, the enforceability of the Transaction Agreement and the absence of conflicts with laws with Nielsen’s organizational documents and Nielsen’s contracts;

 

   

the recommendation of the Board relating to the Acquisition and the Transaction Agreement;

 

   

the necessary vote of Nielsen shareholders in connection with the Transaction Agreement;

 

   

the absence of any undisclosed conflict, breach or loss of benefit under any existing contracts, resulting creation of any lien upon Nielsen’s assets, conflict with or violation of any of Nielsen’s organizational documents or applicable laws to Nielsen or due to the performance of the Transaction Agreement;

 

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required consents, approvals and regulatory filings in connection with the Transaction Agreement and performance thereof (including a representation that the Takeover Code does not apply to Nielsen or the Acquisition);

 

   

the accuracy of Nielsen’s required SEC filings and financial statements;

 

   

Nielsen’s disclosure controls and procedures;

 

   

Nielsen’s internal accounting controls and procedures;

 

   

the absence of specified undisclosed liabilities;

 

   

Nielsen’s compliance with laws, standards and requirements and possession of necessary permits;

 

   

Nielsen’s compliance with anti-money laundering laws, anti-corruption laws and international trade laws;

 

   

environmental matters;

 

   

employee benefit plans;

 

   

since December 31, 2021: (i) the conduct of the businesses of Nielsen and its subsidiaries in the ordinary course of business; (ii) the absence of a Material Adverse Effect; and (iii) the absence of any action that would constitute a breach of or require the consent of Parent under certain prohibited actions as discussed below under the caption “—Conduct of Business Pending the Acquisition”;

 

   

litigation and regulatory matters;

 

   

the accuracy of information supplied by Nielsen in connection with this proxy statement, the Scheme and other related documents circulated to Nielsen shareholders;

 

   

certain tax matters;

 

   

certain employment and labor matters;

 

   

certain real property owned or leased by Nielsen and its subsidiaries;

 

   

trademarks, patents, copyrights and other intellectual property matters, including information technology systems, trade secrets and software;

 

   

data privacy and cybersecurity;

 

   

receipt by the Board of the respective opinions of Nielsen’s financial advisors;

 

   

the existence and enforceability of specified categories of Nielsen’s material contracts, and any notices with respect to termination or intent not to renew those material contracts therefrom;

 

   

contracts with governmental entities;

 

   

Nielsen’s insurance policies; and

 

   

payment of fees to brokers in connection with the consummation of the Acquisition.

In the Transaction Agreement, Parent and Purchaser have made customary representations and warranties to Nielsen that are subject, in some cases, to specified exceptions and qualifications contained in the Transaction Agreement and the confidential disclosure schedule to the Transaction Agreement. These representations and warranties relate to, among other things:

 

   

due organization, valid existence, good standing and authority and qualification to conduct business with respect to the Purchasing Entities;

 

   

the Purchasing Entities’ authority to enter into and perform the Transaction Agreement and the enforceability of the Transaction Agreement;

 

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the absence of any conflict, breach or loss of benefit under any existing contracts, resulting creation of any lien upon any of the Purchasing Entities’ assets, conflict with or violation of any of the Parent Purchasing Entities’ organizational documents or applicable laws to the Purchasing Entities’ or due to the performance of the Transaction Agreement;

 

   

required consents and regulatory filings in connection with the Transaction Agreement;

 

   

the absence of litigation, orders and investigations;

 

   

accuracy of information to be provided by the Purchasing Entities in this proxy statement;

 

   

payment of fees to brokers in connection with the consummation of the Acquisition;

 

   

the debt and equity financing commitments related to the Acquisition and the solvency of Parent after consummation of the transactions contemplated by the Transaction Agreement;

 

   

the delivery and enforceability of the Equity Commitment Letters;

 

   

the solvency of Parent and its subsidiaries following the consummation of the Acquisition and the transactions contemplated by the Transaction Agreement;

 

   

the delivery and enforceability of the Limited Guarantees;

 

   

operations of Purchaser;

 

   

the absence of certain arrangements between the Purchasing Entities, the Equity Investors or any of their affiliates, on the one hand, and certain beneficial owners of Nielsen ordinary shares, members of management or members of the Board, on the other hand;

 

   

the absence of a greater than 25% interest by Parent or any of its affiliates (including any portfolio companies thereof) in any person that derives revenues from certain lines of business competitive with Nielsen;

 

   

ownership of Nielsen ordinary shares;

 

   

the absence of any required consent of holders of voting interests in Parent or Purchaser;

 

   

certain tax matters; and

 

   

the independent review and analysis conducted by Parent and Purchaser in connection with Nielsen and its subsidiaries.

The representations and warranties contained in the Transaction Agreement will not survive the consummation of the Acquisition.

Conduct of Business Pending the Acquisition

The Transaction Agreement provides that, except: (i) as may be required by applicable law; (ii) with the prior written consent of Parent (not to be unreasonably withheld, conditioned or delayed); (iii) as expressly contemplated or required by the Transaction Agreement; (iv) in connection with any commercially reasonable action taken, or omitted to be taken, pursuant to or in connection with any COVID-19 Measures, which action or inaction Nielsen has determined in good faith to be in its best interests (provided that Nielsen is required to consult in good faith with Parent prior to such action or omission to the extent reasonably practicable), during the period of time between the date of the signing of the Transaction Agreement and the first to occur of the Effective Time and the termination of the Transaction Agreement (the “Interim Period”); or (v) as disclosed in the confidential disclosure schedule to the Transaction Agreement, Nielsen will, and will cause each of its subsidiaries to, use reasonable best efforts to conduct its operations in all material respects in the ordinary course of business; and use reasonable best efforts to maintain and preserve intact its business organization and business relations, provided that no action by Nielsen or its subsidiaries with respect to matters addressed in any of bullets one to 21 below shall be deemed by breach of this obligation unless such action would constitute a breach of the obligation addressed in any such bullet below.

 

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In addition, Nielsen has also agreed that, except: (i) as may be required by applicable law; (ii) with the prior written consent of Parent (which may not be unreasonably withheld, conditioned or delayed); (iii) as expressly contemplated or required by the Transaction Agreement; and (iv) in connection with any commercially reasonable action taken, or omitted to be taken, pursuant to or in connection with any COVID-19 Measures, which action or inaction Nielsen has determined in good faith to be in its best interests (provided that Nielsen is required to consult in good faith with Parent prior to such action or omission to the extent reasonably practicable), during the period of time between the date of the signing of the Transaction Agreement and the first to occur of the Effective Time and the termination of the Transaction Agreement (such period, the “Interim Period”); or (v) as disclosed in the confidential disclosure schedule to the Transaction Agreement, during the Interim Period, Nielsen will not, and will not permit any of its subsidiaries to, among other things (and subject to specified materiality thresholds and exceptions set forth in the Transaction Agreement and the confidential disclosure schedule to the Transaction Agreement):

 

   

amend the articles of association of Nielsen or the organizational documents of any of its subsidiaries;

 

   

adjust, split, combine or reclassify any shares, voting securities or other equity interests of Nielsen or any of its subsidiaries;

 

   

make, establish a record date for, declare or pay any dividend or other distribution or redeem, purchase or otherwise acquire, any of its shares or convertible or exchangeable securities, other than certain exceptions, including quarterly cash dividends made by Nielsen in an amount per Nielsen ordinary share not in excess of $0.06 per quarter and with record dates consistent with the record dates customarily used by Nielsen for the payment of quarterly cash dividends;

 

   

grant any Nielsen Equity Awards or other equity-based awards or interests;

 

   

issue any additional shares or securities convertible or exchangeable into, or exercisable for, any of Nielsen’s or its subsidiaries’ shares or any options, warrants, or other rights of any kind to acquire any such shares, subject to certain exceptions;

 

   

adopt a plan of complete or partial liquidation, dissolution, merger, consolidation or other reorganization, other than any mergers, consolidations or reorganizations solely among Nielsen and its subsidiaries or among Nielsen’s subsidiaries;

 

   

incur, assume, guarantee or otherwise become liable for or modify in any material respect the terms of any indebtedness for borrowed money or issue or sell any debt securities or any rights to acquire any debt securities, except for intercompany indebtedness, guarantees for indebtedness outstanding as of the date of the Transaction Agreement, indebtedness incurred pursuant to agreements entered into prior to the execution of the Transaction Agreement or additional indebtedness not more than $10 million in the aggregate;

 

   

other than in accordance with contracts or agreements in effect on the date of the Transaction Agreement, sell, transfer, mortgage, encumber or otherwise dispose of any of its properties or assets having a value in excess of $25 million individually or $50 million in the aggregate to any person, subject to certain exceptions;

 

   

sell, transfer, license, create any lien or otherwise dispose of any of its properties or assets;

 

   

acquire any person or the business or assets of any other person (whether by merger or consolidation, acquisition of stock or assets or by formation of a joint venture or otherwise) or make any investment in any person (by purchase of stock or securities or contributions to capital), in each case other than a wholly owned subsidiary of Nielsen, if such acquisition or investment is in excess of $25 million individually or $50 million in the aggregate;

 

   

implement or adopt any material change in its financial accounting principles or methods, other than as may be required by GAAP or applicable law;

 

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enter into, modify or amend, terminate or waive or release any rights under any of Nielsen’s material contracts;

 

   

settle or compromise any pending or threatened proceeding, or pay, discharge, satisfy or agree to pay, discharge or satisfy any claim related to a proceeding, other than the settlement of tax proceedings and certain proceedings (i) providing solely for the payment of monetary damages that are reflected or reserved against in full in Nielsen’s balance sheet or covered in full by existing insurance policies or (ii) solely involving monetary damages for amounts less than $250,000 individually or $1 million in the aggregate;

 

   

agree to any covenant limiting the ability of Nielsen or any of its subsidiaries to compete or engage in any line of business or to compete with any person in any geographic area, in each case which is material to Nielsen and its subsidiaries taken as a whole;

 

   

acquire or dispose of any real property or enter into, extend, terminate or materially modify any lease entered into by Nielsen or its subsidiaries other than in the ordinary course of business;

 

   

sell, assign or transfer all or any portion of Nielsen or its subsidiaries’ owned intellectual property; grant any exclusive licenses of Nielsen or its subsidiaries’ owned intellectual property; or abandon or cease to prosecute or maintain any of Nielsen’s and its subsidiaries’ registered intellectual property;

 

   

establish, adopt, amend or terminate any Nielsen benefit plan or create or enter into any plan, agreement, program, policy, trust, fund, except for any changes to such company benefit plans made during the annual open enrollment process in the ordinary course of business consistent with past practice that do not materially increase benefits or result in a material increase in administrative costs;

 

   

increase in any manner the compensation (including severance, change-in-control and retention compensation) or benefits of any current or former employees of Nielsen or its subsidiaries except for increases in annual base salaries in the ordinary course of business;

 

   

pay or award, or commit to pay or award, any bonuses or incentive compensation;

 

   

accelerate any rights, funding or benefits under any company benefit plan;

 

   

amend the funding obligation or contribution rate of any company benefit plan or change any underlying assumptions to calculate benefits payable under any company benefit plan, except as may be required by GAAP;

 

   

accelerate the time of vesting or payment of any award under any company benefit plan;

 

   

terminate the employment or engagement of any employee or natural independent contractor of the Company or its Subsidiaries whose annual base salary or fee is in excess of $250,000 other than for cause (determined consistent with past practice);

 

   

cause any “plant closing” or “mass layoff” (in each case as defined by the Work Adjustment and Retraining Notification Act (the “WARN Act”)) or other terminations of employees that would create any obligations upon or liabilities for the Company under the WARN Act or similar state or local Laws;

 

   

hire or engage, or make an offer to hire or engage, any individual whose annual base salary or fee is in excess of $250,000;

 

   

other than in the ordinary course of business or as is consistent with past practice: make or revoke any material tax election; change an annual tax accounting period; adopt or change any material tax accounting method; settle or compromise any material tax liability or any audit, claim or proceeding; file (or cause to be filed) any material amended tax return; surrender in writing any right to a material refund of taxes; consent to any extension or waiver of the limitation period

 

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applicable to any claim or assessment in respect of material taxes (other than any valid (A) automatic or automatically granted extension of the due date of a tax return or (B) requested extension with respect to pending audits, actions or proceedings); change its residence for tax purposes; or, to the knowledge of Nielsen, establish a permanent establishment outside of its jurisdiction of incorporation for tax purposes, in each case, relating to taxes of Nielsen or its subsidiaries for an amount materially in excess of amounts reserved therefor; or

 

   

agree to take, or make any commitment to take, any of the foregoing actions.

In addition, during the Interim Period, Parent will not, and will not permit any of its subsidiaries, the Equity Investors or their respective controlled affiliates to acquire or agree to acquire a material portion of the assets or equity in, or enter into certain new lines of business, if the entering into such definitive agreement relating to the consummation of such acquisition or new line of business would reasonably be expected to (a) prevent, materially delay or materially impede the obtaining of any required governmental approvals required to consummate the transactions contemplated by the Transaction Agreement or (b) materially increase the risk of any governmental entity entering an order, ruling, judgment or injunction prohibiting the consummation of the Acquisition.

The Go-Shop Period

During the Go-Shop Period from the date of the Transaction Agreement and until 11:59 p.m. Eastern time on May 12, 2022 (the “No-Shop Period Start Date”), the Company and its Representatives had the right to:

 

   

solicit, initiate, propose or induce the making, submission or announcement of, or knowingly encourage, facilitate or assist, any proposal or inquiry that constitutes, could constitute or is reasonably expected to lead to, a Company Takeover Proposal;

 

   

subject to the entry into an acceptable confidentiality agreement, furnish non-public or other information relating to the Company to a third party and its representatives or afford to any such third party and its representatives access to the business, properties, assets, books, records or other non-public or other information, or to any personnel, of Nielsen and its subsidiaries (provided, however, that Nielsen will substantially concurrently provide to Parent any non-public information concerning Nielsen provided to such third party, which was not previously provided to Parent);

 

   

continue, enter into, maintain, participate or engage in discussions or negotiations with any third party and its representatives with respect to a Company Takeover Proposal (or any proposal or inquiry that could constitute or is reasonably expected to lead to a Company Takeover Proposal); and

 

   

cooperate with or assist or participate in or facilitate any such proposals, inquiries, offers, discussions or negotiations or any effort or attempt to make any Company Takeover Proposal, including that Nielsen may grant a limited waiver under any “standstill provision” or similar obligation of any third party with respect to Nielsen or any of its subsidiaries solely to allow such third party to submit or amend a Company Takeover Proposal on a confidential basis to the Board or any committee thereof.

The Go-Shop Period expired on May 12, 2022 without any party submitting a Company Takeover Proposal.

Restrictions on Solicitation of Alternative Proposals

As of the expiration of the Go-Shop period at 11:59 p.m. on the No-Shop Period Start Date, with the exception of any “Excluded Party” (defined as a party that submitted a Company Takeover Proposal that the

 

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Board determined prior to the end of the Go-Shop Period was or would reasonably be expected to lead to a Company Superior Proposal), Nielsen has agreed not to:

 

   

solicit, initiate, propose, knowingly assist, knowingly encourage or knowingly facilitate any inquiry, proposal or offer that constitutes, relates to or would reasonably be expected to lead to a Company Takeover Proposal;

 

   

participate in any discussions or negotiations regarding, or furnish to any other person any information in connection with or for the purpose of encouraging or facilitating, any inquiry, proposal or offer that constitutes, or would reasonably be expected to lead to, a Company Takeover Proposal;

 

   

enter into any letter of intent, agreement or agreement in principle relating to or providing for a Company Takeover Proposal (other than an acceptable confidentiality agreement);

 

   

publicly approve, endorse or recommend any proposal that constitutes, or would reasonably be expected to lead to, a Company Takeover Proposal; or

 

   

release any third party from, or waive, amend or modify any standstill or confidentiality provision with respect to a Company Takeover Proposal in any agreement to which the Company is a party.

In addition, Nielsen has agreed to, and agreed to cause each of its subsidiaries and direct its representatives to: cease all discussions or negotiations with any other party that may be ongoing with respect to a Company Takeover Proposal (other than any Excluded Party); request in writing within two (2) business days that each third party that has entered into a confidentiality agreement with Nielsen during the twelve-(12)-month period immediately preceding the No-Shop Period Start Date promptly return to Nielsen or destroy all confidential information furnished to such party to the extent required and in accordance with the terms of such confidentiality agreement; cease providing any further information with respect to the Company or its subsidiaries to any such third party or its representatives; and terminate such third party’s and its representatives’ access to any physical or electronic data room.

Additionally, under certain specified circumstances, if prior to the receipt of the Court Sanction or if the Articles Amendment and Scheme Implementation Proposal approved by Nielsen shareholders at the Special Meeting, prior to the receipt of the Company Shareholder Approval, Nielsen receives a written Company Takeover Proposal from any person, and the Board determines in good faith, after consultation with its outside legal counsel and outside financial advisors, that such Company Takeover Proposal constitutes, or could reasonably be expected to lead to, a Company Superior Proposal, then Nielsen may enter into an acceptable confidentiality agreement with such person making such Company Takeover Proposal and Nielsen and its representatives may: (i) furnish, pursuant to such confidentiality agreement, information with respect to Nielsen and its subsidiaries; and (ii) engage in or otherwise participate in discussions or negotiations with such person and its representatives regarding such Company Takeover Proposal, subject to requirements contained in the Transaction Agreement to substantially concurrently provide to Parent any such non-public information with respect to Nielsen and its subsidiaries which is provided to such third party that has not previously been provided to Parent and to notify Parent in writing promptly, and in any event within twenty-four (24) hours if the Company takes any of the foregoing actions described in clauses (i) and (ii).

Prior to the receipt of the Court Sanction or if the Articles Amendment and Scheme Implementation Proposal is approved by Nielsen shareholders at the Special Meeting, prior to the receipt of the Company Shareholder Approval, Nielsen is not entitled to terminate the Transaction Agreement for the purpose of entering into an agreement in respect of a Company Superior Proposal unless (i) it complies with certain procedures in the Transaction Agreement, including, but not limited to, negotiating with Parent and its representatives in good faith over a four (4) business-day period in an effort to amend the terms and conditions of the Transaction Agreement, so that such Company Superior Proposal no longer constitutes a “Company Superior Proposal” relative to the transactions contemplated by the Transaction Agreement, as amended pursuant to such negotiations, and

 

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(ii) Nielsen has complied in all material respects with the non-solicitation provisions set forth in the Transaction Agreement with respect to such Company Superior Proposal. Nielsen must notify Parent within 24 hours of receipt of such Company Takeover Proposal and keep Parent informed, on a reasonably prompt and current basis on the status and material terms of the Company Takeover Proposal.

If Nielsen terminates the Transaction Agreement prior to the receipt of the Court Sanction or, if the Articles Amendment and Scheme Implementation Proposal is approved by Nielsen shareholders at the Special Meeting, prior to the receipt of the Company Shareholder Approval, for the purpose of entering into an agreement in respect of a Company Superior Proposal, Nielsen must pay the Company Termination Fee of $102 million to Parent.

For purposes of this proxy statement and the Transaction Agreement:

“Company Takeover Proposal” means a bona fide proposal or offer for (i) a merger, consolidation, scheme of arrangement, business combination or similar transaction involving Nielsen, or (ii) the acquisition of more than 20% of the Nielsen ordinary shares or consolidated assets.

“Company Superior Proposal” means a Company Takeover Proposal, substituting “50%” for “20%” in such definition, that the Board determines in good faith, after consultation with its outside legal counsel and outside financial advisors, taking into account the timing, likelihood of consummation, legal, financial, regulatory and other aspects of the Company Takeover Proposal, including the financing terms thereof and the identity of the person making the Company Takeover Proposal, and such other factors as the Board considers to be appropriate, to be more favorable to Nielsen and its shareholders than the Transaction.

The Board’s Recommendation; Company Adverse Recommendation Change

As described above, and subject to the provisions described below, the Board: (i) determined that the transactions contemplated by the Transaction Agreement, including the Acquisition, would be most likely to promote the success of the Company for the benefit of its shareholders as a whole; (ii) approved the execution, delivery and performance of the Transaction Agreement and the consummation of the transactions contemplated thereby, including the Acquisition; (iii) resolved to recommend that Nielsen shareholders vote in favor of the Scheme at the Court Meeting and the Company Proposals at the Special Meeting, and (iv) directed that the Scheme be submitted for approval by Nielsen shareholders at the Court Meeting (the “Company Recommendation”). The Transaction Agreement provides that the Board will not effect a Company Adverse Recommendation Change, as defined below, and except as described below.

The Board may not take any action described in the following:

 

   

(i) fail to make, qualify, withhold, withdraw or modify, or publicly propose to qualify, withhold, withdraw or modify, in each case in any manner adverse to Parent, the Company Recommendation; (ii) adopt, approve, declare advisable or recommend or publicly propose to adopt, approve, declare advisable or recommend, a Company Takeover Proposal; (iii) fail to recommend against the acceptance of any Company Takeover Proposal that is a tender offer or exchange offer for the Nielsen ordinary shares within ten (10) business days after the commencement of such offer pursuant to Rule 14d-2 of the Exchange Act; (iv) fail to publicly reaffirm the Company Recommendation within five (5) business days after Parent so requests in writing following the public disclosure of a Company Takeover Proposal; (v) fail to include the Company Recommendation in this proxy statement; or (vi) publicly propose to take any action described in the foregoing clauses (i)–(v) (any action described in clauses (i) through (vi) a “Company Adverse Recommendation Change”); or

 

   

authorize, cause or permit Nielsen or any of its subsidiaries to enter into any letter of intent, agreement or agreement in principle relating to or providing for a Company Takeover Proposal (a “Company Acquisition Agreement”).

 

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However, nothing in the non-solicitation covenant of the Transaction Agreement will prohibit Nielsen or the Board from: (i) taking and disclosing to Nielsen shareholders a position contemplated by Rule 14e-2(a) or Rule 14d-9 or Item 1012(a) of Regulation M-A promulgated under the Exchange Act or any similar communications to Nielsen shareholders; (ii) making a “stop, look and listen” communication to Nielsen shareholders pursuant to Rule 14d-9(f) promulgated under the Exchange Act or any similar communications to Nielsen shareholders; or (iii) making any disclosure to Nielsen shareholders if the Board determines in good faith, after consultation with Nielsen’s outside legal counsel and outside financial advisors, that the failure of the Board to make such disclosure would reasonably be expected to be inconsistent with the directors’ fiduciary duties under applicable law.

Notwithstanding the restrictions described above, prior to the receipt of the Court Sanction or if the Articles Amendment and Scheme Implementation Proposal is approved by Nielsen shareholders at the Special Meeting, prior to the receipt of the Company Shareholder Approval, the Board may effect a Company Adverse Recommendation Change with respect to an Intervening Event (as defined below), if, prior to taking such action, the Board has determined in good faith, after consultation with outside legal counsel and outside financial advisors, that the failure to take such action would reasonably be expected to be inconsistent with the Board’s fiduciary duties under applicable law.

The Board may only effect a Company Adverse Recommendation Change with respect to an Intervening Event if:

 

   

Nielsen has given Parent at least four (4) business days’ prior written notice of its intention to take such action specifying, in reasonable detail, the reasons therefor and the Intervening Event;

 

   

During such four (4) business day period, Nielsen has (i) has negotiated and caused its representatives to, if requested by Parent, negotiate with Parent and its representatives in good faith to make adjustments to the terms and conditions of the Transaction Agreement so that the Board (or a committee thereof) no longer determines that the failure to make a Company Adverse Recommendation Change in response to such Intervening Event would be inconsistent with the Board’s fiduciary duties under applicable law and (ii) provided Parent and its representatives all applicable material information with respect to such Intervening Event reasonably requested by Parent to permit it to propose revisions to the terms of the Transaction Agreement; and

 

   

Upon the end of such notice period, the Board has considered in good faith any revisions to the terms of the Transaction Agreement proposed in writing by Parent and any other information provided by Parent in response to the four (4) business days’ prior written notice and has determined, after consultation with its outside legal counsel and outside financial advisors, that the failure to make a Company Adverse Recommendation Change would continue to reasonably be expected to be inconsistent with the Board’s fiduciary duties under applicable law.

In addition, prior to the time of the Court Sanction or the time the Company Shareholder Approval is obtained, the Board may only effect a Company Adverse Recommendation Change or cause the Company to terminate the Transaction Agreement in order to enter into an agreement with respect to a Company Superior Proposal if the Board has determined in good faith that a Company Takeover Proposal made after the date of the Transaction Agreement constitutes a Company Superior Proposal, only if, prior to making such Company Adverse Recommendation Change or so terminating the Transaction Agreement:

 

   

Nielsen has given Parent at least four (4) business days’ prior written notice of its intention to take such action, including a description of the material terms and conditions of, and the identity of the person making, any such Company Superior Proposal and a copy of any proposed Company Acquisition Agreements providing for such Company Superior Proposal;

 

   

During such four (4) business day period, the Company has negotiated, and has caused its representatives to, if requested by Parent, negotiate with Parent and its representatives in good

 

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faith to make amendments to the terms and conditions of the Transaction Agreement in a manner that would obviate the need to effect a Company Adverse Recommendation Change;

 

   

Upon the end of such notice period, the Board shall have considered in good faith any revisions to the terms of the Transaction Agreement proposed in writing by Parent and any other information provided by Parent in response to the four (4) business days’ prior written notice and shall have determined that such Company Superior Proposal would continue to constitute a Company Superior Proposal if the revisions proposed by Parent were to be given effect; and

 

   

In the event of any material change to the terms of such Company Superior Proposal, Nielsen shall, in each case, have delivered to Parent an additional notice consistent with that described in the first bullet above and a new two (2) business day notice period consistent with the first bullet above commences during which time Nielsen is required to comply with the requirements above with respect to such additional notice.

For purposes of this proxy statement and the Transaction Agreement, an “Intervening Event” means any material event, change, occurrence or development with respect to Nielsen or its subsidiaries, that was not known to or reasonably foreseeable by the Board as of the date of the Transaction Agreement and does not relate to (i) any Company Takeover Proposal or (ii) the mere fact, in and of itself, that Nielsen meets or exceeds any internal or published projections, forecasts, estimates or predictions of revenue, earnings or other financial or operating metrics for any period, or changes in the market price or trading volume of Nielsen ordinary shares or its credit rating (it being understood that the underlying cause of any of the foregoing in this clause (ii) may be taken into account).

Employee Benefits

The Transaction Agreement provides that, during the period commencing at the Closing and ending on the one-year anniversary thereof, each Nielsen employee will be entitled to (i) base compensation and target cash incentive compensation opportunities and equity and equity-based incentive compensation opportunities that, in each case, are no less favorable than (or, with respect to equity and equity-based incentive opportunities, materially similar to those that) were provided to the Nielsen employee immediately before the Closing (provided that Parent may elect to substitute cash incentive compensation opportunities of equivalent value for equity or equity-based compensation opportunities and the value of any equity or equity-based compensation opportunities to be matched hereunder shall be measured based on the annualized grant date value thereof for financial accounting purposes), and (ii) employee benefits (excluding equity or equity-based incentive compensation) that are substantially comparable in the aggregate to those provided to the Nielsen employee under the Nielsen benefit plans immediately before the Closing. In addition, Parent shall provide, or shall cause Nielsen to provide, to each Nielsen employee whose employment is involuntarily terminated during the one (1)-year period following the Closing, severance benefits no less favorable than the severance benefits that would have been provided to the Nielsen employee under the Nielsen severance arrangements in effect immediately prior to the Closing.

The Transaction Agreement also provides that, no later than March 15 of the year following the year in which the Closing occurs, Parent shall, or shall cause Nielsen to, pay to each Nielsen employee who participates in any bonus or incentive plans with respect to the performance period during which the Closing occurs and who remains employed through December 31 of the year in which the Closing occurs or experiences a qualifying termination prior to December 31 of the year in which the Closing occurs, an incentive award under the applicable bonus plans for such performance period equal to the greater of (i) such employee’s incentive entitlement under the bonus plans based on the actual level of achievement of the applicable performance goals, and (ii) such employee’s incentive entitlement assuming target level performance is achieved. In the event that the Effective Time has not occurred prior to January 1, 2023, annual bonuses for Nielsen’s 2022 fiscal year shall be determined by the Board (or an authorized committee thereof) in its sole discretion as if the Closing had occurred immediately prior to the conclusion of such fiscal year, and shall be paid immediately prior to the

 

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Closing (or, if earlier, at Nielsen’s election, at such time as they would be paid in the ordinary course of business).

Financing

Parent has obtained debt and equity financing commitments for the purpose of financing the Acquisition Amounts. The obligations of Parent to consummate the Acquisition are not subject to a financing condition and Parent is required to use its reasonable best efforts to obtain the financing set forth in the Commitment Letters on the terms and conditions described in the Commitment Letters. If any portion of the debt financing contemplated by the Debt Commitment Letters (the “Debt Financing”) becomes unavailable, Parent is required to use its reasonable best efforts to obtain alternative financing, in an amount sufficient to consummate the transactions and pay the Acquisition Amounts, with terms and conditions that, in the aggregate, when taken as a whole, are not materially less favorable than those in the Debt Commitment Letters.

Financing Cooperation Efforts

Nielsen is required to use its reasonable best efforts to, and cause its applicable subsidiaries and its and their respective representatives to use their reasonable best efforts to, provide such cooperation as is reasonably requested by Parent in writing in connection with the Debt Financing as set forth in the Transaction Agreement, and that, in the opinion of Nielsen, does not unreasonably interfere with the ongoing operations of Nielsen and its subsidiaries.

Indemnification and Insurance

From and after the Effective Time, Parent and Nielsen are required to indemnify and hold harmless all past and present directors, officers or employees of Nielsen or any of its subsidiaries and any person who served as a director, officer, member, trustee or fiduciary of another corporation, partnership, joint venture, trust, pension or other employee benefit plan or enterprise at the request of or for the benefit of the Company or any of its subsidiaries (collectively, the “Covered Persons”) to the fullest extent permitted by law against any costs and expenses (including advancing attorneys’ fees and expenses in advance of the final disposition of any claim, suit, proceeding or investigation to each Covered Person to the fullest extent permitted by law), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of acts or omissions occurring at or prior to the Effective Time; provided that the Covered Person has made an undertaking to repay such amounts if it is ultimately determined that such Covered Person was not entitled to indemnification pursuant to this covenant. From and after the Effective Time, Parent and Nielsen are required to indemnify and hold harmless (subject to the proviso to the immediately preceding sentence) the Covered Persons to the fullest extent permitted by applicable law for acts or omissions occurring in connection with the process resulting in, and the approval of, the Transaction Agreement, the Scheme and the consummation of the transactions contemplated by the Transaction Agreement, and advance expenses (including reasonable and documented legal fees and expenses) as incurred by the Covered Persons in the defense of any proceeding or investigation with respect to the foregoing matters in accordance with Nielsen’s organizational documents or any existing indemnification agreements.

For a period of six (6) years from and after the Effective Time, Nielsen is required to, and Parent is required to cause Nielsen to, maintain for the benefit of the directors and officers of Nielsen and its subsidiaries, as of the date of the Transaction Agreement and as of the Effective Time, an insurance and indemnification policy that provides coverage for events occurring at or prior to the Effective Time that is substantially equivalent to and in any event not less favorable in the aggregate than the existing policies of Nielsen and its subsidiaries. However, neither Parent nor Nielsen will be required to pay an annual premium for such insurance in excess of 300% of the amount paid for the policy year in effect immediately prior to the Effective Time (the “Maximum Premium”), but in such case shall purchase as much coverage as is available for such amount. The

 

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provisions of the immediately preceding sentence shall be deemed to have been satisfied if prepaid policies have been obtained prior to the Effective Time (which the Company shall be permitted to purchase prior to the Effective Time, provided that it shall not be permitted to obtain such policies with a cost in excess of the Maximum Premium), which policies provide such directors and officers with coverage for an aggregate period of at least six (6) years from and after the Effective Time with respect to claims arising from facts or events that occurred at or prior to the Effective Time, including in respect of the transactions contemplated by the Transaction Agreement. If such prepaid policies have been obtained prior to the Effective Time, Nielsen is required to, and Parent is required to cause Nielsen to, maintain such policies in full force and effect, and continue to honor the obligations thereunder.

Other Covenants

Court Meeting and Special Meeting

Nielsen has agreed to take all action necessary (in accordance with applicable law and Nielsen’s organizational documents and the directions of the U.K. Court) to (i) set a record date for and duly give notice of the Court Meeting and the Special Meeting, and convene and use reasonable best efforts to hold (a) the Court Meeting on the date set out in this proxy statement, or such later date as may be agreed in writing between Purchaser and Nielsen (each acting reasonably) and with the approval of the U.K. Court (if required), and (b) the Special Meeting as promptly as reasonably practicable and as permissible under applicable law following the mailing of this proxy statement to Nielsen shareholders, it being understood that the Special Meeting will be held as promptly as reasonably practicable following the Court Meeting, and (ii) implement the Scheme in accordance with the terms and conditions of the Scheme and, so far as reasonably practicable, the Expected Timetable of Principal Events.

Implementation and Amendment of the Scheme

The Acquisition will be effected by means of the Scheme. For a summary of the Scheme, please refer to the section of this proxy statement captioned “Court Scheme Proposal,” and for the full terms of the Scheme, please refer to the Scheme attached as Annex B to this proxy statement.

Nielsen, Parent and Purchaser have agreed to implement the Scheme in accordance with the terms of the Transaction Agreement, subject to the parties’ ability to consummate the transactions contemplated by the Acquisition as a contractual takeover offer as described in Section 974 of the Companies Act under certain circumstances. Nielsen will, for the purposes of implementing the Scheme, instruct a barrister in connection with the Scheme and provide Parent, Purchaser and their advisors a summary of any advice given by such counsel to the extent that such advice is in respect of the implementation of the Scheme, does not relate to a matter where there is a conflict of interests between any of the parties or their respective affiliates (including the Equity Investors) and the disclosure of such advice would not reasonably be expected to be prejudicial to Nielsen or any of its directors, officers, employees or members or result in the waiver of attorney client or other legal privilege. Parent and Purchaser shall each be entitled to instruct a barrister in connection with the Scheme, and the Nielsen will take full and proper account of advice provided to Purchaser or Parent by such barrister in respect of implementation of the Scheme, and, in the event that such advice is not followed, the Company will inform Purchaser and Parent of any proposed deviation, provide an explanation and work with Parent, Purchaser, their barrister and Nielsen’s barrister to discuss in good faith any differences in proposed advice.

Nielsen will provide Parent and Purchaser with drafts of any applications, statements, filings or other documents filed in connection with the Scheme Convening Hearing (as defined below), the Court Hearing or otherwise in connection with the Scheme in sufficient time allowing them to review and comment, and will consider their comments in good faith. Parent and Purchaser will promptly furnish the Company with additional information and assistance as Nielsen reasonably requests in connection with the Scheme Convening Hearing and Court Hearing.

 

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Nielsen will make the necessary applications to the U.K. Court in connection with the implementation of the Scheme and, where applicable, in accordance with the Expected Timetable of Principal Events:

 

   

as promptly as practicable, issue a claim form requesting the U.K. Court to give directions under Section 896(1) of the Companies Act to hold the Court Meeting (the hearing of the U.K. Court at which such matters are to be considered, the “Scheme Convening Hearing”), comply with all directions of the U.K. Court and make all necessary applications and filings in relation to the Scheme Convening Hearing;

 

   

use reasonable best efforts to ensure that the Scheme Convening Hearing occurs to facilitate the publication and posting of the proxy statement as promptly as reasonably practicable;

 

   

seek the directions of the U.K. Court as Nielsen, Parent and Purchaser consider reasonably necessary or desirable to facilitate the convening of the Court Meeting or otherwise in connection with the Scheme and the Scheme Information, and comply with the directions of the U.K. Court; and

 

   

seek such orders of the U.K. Court as Nielsen, Parent and Purchaser consider necessary or desirable and as the U.K. Court permits to implement or facilitate the re-registration of the Company from a public limited company to a private limited company at the Effective Time or as soon as reasonably practicable thereafter.

Nielsen will, subject to receipt of the Company Shareholder Approval, deliver to the Companies House in accordance with Section 899(4) of the Companies Act a true, complete and accurate copy of the Court Order not later than one (1) business day after the Court Hearing. Each of Nielsen on the one hand, and Purchaser and Parent on the other, will keep each other reasonably informed as to the performance of their obligations regarding the implementation of the Scheme.

Following dissemination of the proxy statement, neither the Company nor Parent and Purchaser will amend the Scheme, other than with the prior written consent of the other parties, except that Nielsen and Purchaser agree to implement the Acquisition by way of a new or revised Scheme or Offer (or similar structure) upon the occurrence of a “Technical Revision,” defined as the occurrence of any of the following events:

 

   

if, after the Court Meeting has been held, in circumstances where the Court Scheme Proposal has not been lawfully passed due to technical and/or procedural defects relating to the Scheme being either: (a) that the relevant provisions of the Companies Act have not been complied with, including the composition of classes for the purposes of the Court Meeting, or (b) there is a blot on the Scheme ((a) and (b) collectively referred to as a “Scheme Technical Defect”), and the Scheme Technical Defect reasonably appears capable of remedy without any material adverse impact on Nielsen, the Nielsen shareholders or Purchaser;

 

   

if, after the Special Meeting, in circumstances where the Company Resolutions have not been lawfully passed due to technical or procedural defects being either (a) on the grounds that the relevant provisions of the Companies Act or applicable laws have not been complied with, or (b) a failure to comply with the Articles (as defined below) or other constitutional documents of Nielsen, which reasonably appears capable of remedy without any material adverse impact on Nielsen, the Nielsen shareholders or Purchaser; or

 

   

in the event that the U.K. Court does not sanction the Scheme at the Court Hearing on the grounds of a technical and/or procedural defect in relation to the Scheme or its implementation being a Scheme Technical Defect, or on such other grounds which reasonably appear capable of remedy without any material adverse impact on Nielsen, the Nielsen shareholders or Purchaser.

In the event of a Technical Revision, the parties agree that the Technical Revision will be made and implemented on substantially the same terms as the Transaction Agreement save for any changes necessary to address the technical or procedural defects.

 

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Takeover Code Applicability

If Nielsen receives a notification from the Panel to the effect that it may assert jurisdiction over the Acquisition or that the Company may become subject to the Takeover Code, Nielsen will notify Parent and Purchaser as promptly as reasonably practicable, and each party will reasonably cooperate in making representations to the Panel to seek a ruling that the Company is not subject to the Takeover Code, including appeals as necessary. If, following such appeal process, it is ultimately determined that the Company is subject to the Takeover Code and the Panel is able to assert jurisdiction over the Acquisition, or if the Company does not participate in such appeal process, then each of Parent and Purchaser may terminate the Transaction Agreement with immediate effect by giving Nielsen written notice within five (5) business days’ after such ultimate determination. Nielsen will not take any action that could reasonably be expected to result in the application of the Takeover Code to, or the Panel having jurisdiction over, the Acquisition or any manners contemplated thereby.

Switching to an Offer

Nielsen, Parent and Purchaser may, at any time prior to the Effective Time, mutually agree to implement the Acquisition by way of a takeover offer as described in Section 974 of the Companies Act made by or on behalf of Purchaser to acquire all of the issued and to be issued Nielsen ordinary shares other than the Excluded Shares (an “Offer”) rather than the Scheme. In the event of a switch to an Offer (a “Switch”), as soon as practicable on the date the Offer is first commenced (within the meaning of Rule 14d-2 promulgated under the Exchange Act), Parent and Purchaser will prepare a tender offer statement on Schedule TO with respect to the Offer, as well as any required accompanying documents, and Nielsen will file, concurrently with the Schedule TO, a Schedule 14D-9 pertaining to the Offer. Each of Nielsen, Parent and Purchaser will also take other actions required to implement the Offer in accordance with the Transaction Agreement. In the event of a Switch, Purchaser will commence the Offer within ten (10) business days following the Switch, and will offer to purchase all of the Nielsen ordinary shares to which the Offer relates at not less than the Offer Consideration.

The Offer will be subject to no conditions other than (a) the condition that prior to the expiration at the Offer, there have been validly tendered and not validly withdrawn in accordance with the terms of the Offer a number of Nielsen ordinary shares that, upon consummation of the Offer, together with the Nielsen ordinary shares owned by Parent and Purchaser would represent not less than 90% in value of the Nielsen ordinary shares to which the Offer relates, or such lower percentage (but not less than 50% of the Nielsen ordinary shares in issue plus one (1) Nielsen ordinary share) as Parent may determine in its sole discretion (the “Minimum Condition”) and (b) the satisfaction of the Closing Conditions (other than receipt of the Court Sanction and delivery of the Court Order to Companies House).

In the event of any Switch, each of Nielsen, Parent and Purchaser agree that, unless the Offer is extended, it will expire at 12:00 midnight (Eastern time) on the date that is twenty (20) business days after the date the Offer is first commenced. Unless Parent receives the prior written consent of Nielsen, (i) Purchaser will extend the Offer for any period required by law, the SEC or NYSE to the extent necessary to resolve any SEC comments, (ii) in the event that any of the Offer conditions (other than the Minimum Condition) have not been satisfied or waived prior to the then-scheduled expiration of the Offer, Purchaser will extend the Offer for successive ten (10) business day periods in order to permit the satisfaction or valid waiver of Offer conditions and (iii) if any then-scheduled expiration of the Offer each condition (other than the Minimum Condition) has been satisfied, Purchaser may (and at Nielsen’s request, will) extend the Offer for successive ten (10) business day periods, provided that in no event will Purchaser or Parent be required to extend the offer more than twice pursuant to this (iii). Neither Parent nor Purchaser will terminate or withdraw the Offer prior to the then-scheduled Expiration of the Offer unless the Transaction Agreement is validly terminated, in which case Purchaser will irrevocably and unconditionally terminate the Offer promptly after the termination of the Transaction Agreement.

 

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Transaction Litigation

Each party to the Transaction Agreement is required to promptly (and in any event within two (2) business days) notify the other parties to in writing of any shareholder litigation or other litigation or proceedings brought or threatened in writing against it or its directors or executive officers or other representatives relating to the Transaction Agreement, the Acquisition and/or the other transactions contemplated by the Transaction Agreement, and is required to keep the other parties informed on a reasonably current basis with respect to the status thereof. Each party is required to, subject to the preservation of privilege and confidential information, provide the other parties the opportunity to participate in (but not control) the defense or settlement of any shareholder litigation or other litigation or proceeding against it and/or its directors or executive officers or other representatives relating to the Transaction Agreement, the Acquisition or the other transactions contemplated by the Transaction Agreement and is required to give due consideration to such other parties’ advice with respect to such litigation or proceeding. No party may cease to defend, consent to the entry of any judgment, settle or offer to settle or take any other material action with respect to such litigation or proceeding commenced without the prior written consent of the other parties (which consent will not be unreasonably withheld, conditioned or delayed).

Efforts to Consummate the Acquisition

Parent, Purchaser and Nielsen have each agreed to use their respective reasonable best efforts, to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under any applicable laws to consummate and make effective the Acquisition, as applicable, as promptly as practicable and in any event by such dates provided in the Transaction Agreement, including, as applicable:

 

   

preparing and filing all forms, registrations and notifications required to be filed to consummate the Acquisition and the other transactions contemplated by the Transaction Agreement;

 

   

using reasonable best efforts to satisfy the conditions to consummating the Acquisition and the other transactions contemplated by the Transaction Agreement;

 

   

using reasonable best efforts to obtain (and to cooperate with each other in obtaining) any consent, authorization, expiration or termination of a waiting period, permit, order, approval, waiver or exemption of or by any governmental entity (including furnishing all information and documentary material required under the HSR Act or any other antitrust law) required to be obtained or made by Parent, Purchaser, Nielsen or any of their respective subsidiaries in connection with the Acquisition and the other transactions contemplated hereby or the taking of any action contemplated by the Transaction Agreement; and

 

   

the execution and delivery of any reasonable additional instruments necessary to consummate the Acquisition and the other transactions contemplated thereby and to fully carry out the purposes of the Transaction Agreement.

Parent shall direct and control all aspects of the strategy and process relating to the efforts to obtain the consents, authorizations, expirations or terminations of a waiting period, permits, orders, approvals, waivers or exemptions of or by any governmental entity, including any material communications with any governmental entity and any filing, investigation, legal proceeding or other inquiry relating thereto; provided, however, that Parent is required to reasonably consult with Nielsen and in good faith consider its views regarding the strategy and process relating to such efforts.

Parent and Nielsen are each required to keep the other apprised of the status of matters relating to the completion of the Acquisition and the other transactions contemplated by the Transaction Agreement and work cooperatively in connection with obtaining all required consents, authorizations, expirations or terminations of a waiting period, permits, orders, approvals, waivers or exemptions of or by any governmental entity undertaken. In that regard, prior to the Closing, each party shall promptly consult with the other parties to the Transaction Agreement with respect to and provide any necessary information and assistance as the other parties may reasonably request with respect to (and, in the case of correspondence, provide the other parties (or their counsel)

 

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with copies of) all notices, submissions or filings made by or on behalf of such party or any of its subsidiaries with any governmental entity or any other information supplied by or on behalf of such party or any of its Subsidiaries to, or correspondence with, a governmental entity in connection with the Transaction Agreement and the Acquisition and the other transactions contemplated by the Transaction Agreement. Each party to Transaction Agreement is required to promptly inform the other parties, and if in writing, furnish the other parties with copies of (or, in the case of oral communications, advise the other parties orally of) any communication from or to any governmental entity regarding the Acquisition and the other transactions contemplated by the Transaction Agreement, and permit the other parties to review and discuss in advance, and consider in good faith the views of the other parties in connection with, any proposed communication or submission with any such governmental entity. No party or any of its affiliates may participate in any meeting , teleconference or videoconference with any governmental entity in connection with the Transaction Agreement or the Acquisition unless, to the extent practicable under the circumstances, it consults with the other parties in advance and, to the extent not prohibited by such governmental entity, gives the other parties the opportunity to attend and participate.

Nielsen and Parent are required to make or file, as promptly as practicable, with the appropriate governmental entity all filings, forms, registrations and notifications required to be filed to consummate the Acquisition and the other transactions contemplated by the Transaction Agreement under any applicable antitrust law, and subsequent to such filings, Nielsen and Parent are required to, and are required to cause their respective Subsidiaries to, as promptly as practicable, respond to inquiries from governmental entities, or provide any supplemental information that may be requested by governmental entities, in connection with filings made with such governmental entities. In furtherance of the foregoing, Nielsen and Parent were required to file their notification and report forms under the HSR Act no later than ten (10) business days after the date of the Transaction Agreement (such filing being completed on April 11, 2022), and all other filings, forms, registrations and notifications (or drafts thereof in jurisdictions requiring a draft be submitted to the relevant governmental entity in advance of any formal or final filing, form, registration or notification) as required to obtain any required foreign regulatory approval or clearance as identified in the Transaction Agreement no later than thirty (30) days after the date of the Transaction Agreement (such filings being completed on or before April 27, 2022).

Conditions to the Closing of the Acquisition

The obligations of the parties to consummate the Acquisition is subject to the satisfaction or waiver (where permitted by applicable law) of each of the following conditions:

 

   

the receipt of the Company Shareholder Approval;

 

   

the absence of any injunction or other order of a court or other tribunal of competent jurisdiction or law prohibiting the consummation of the Acquisition;

 

   

the expiration or termination of the applicable waiting period under the HSR Act, as well as the receipt of certain specified foreign antitrust and foreign investment approvals;

 

   

the receipt of the Court Sanction; and

 

   

the delivery of the Court Order providing for the Court Sanction to Companies House.

In addition, the obligations of Parent and Purchaser to consummate the Transaction are subject to the satisfaction or waiver of each of the following additional conditions:

 

   

the representations and warranties of Nielsen that are qualified by a “Material Adverse Effect” qualification being true and correct in all respects as so qualified at and as of the date of the Transaction Agreement and at and as of the Measurement Time as though made at and as of such time;

 

   

the representations and warranties relating to certain aspects of Nielsen’s organization, capitalization, corporate authority, the applicability of the Takeover Code and finders or brokers

 

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being generally true and correct in all respects at and as of the date of the Transaction Agreement and at and as of the Measurement Time as though made at and as of such time, in all material respects (or, for certain representations relating to Nielsen’s capitalization, in all respects other than for de minimis inaccuracies);

 

   

the other representations and warranties of Nielsen that are not qualified by a “Material Adverse Effect” qualification or included in the immediately preceding bullet being true and correct (without giving effect to any materiality or similar qualifiers) at and as of the date of the Transaction Agreement and at and as of the Measurement Time as though made at and as of such time, except for such failures to be so true and correct would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect; provided that for this bullet and the two (2) immediately preceding bullets, for representations and warranties that are made as of a particular date or period, they shall only be true and correct as of such date or period;

 

   

Nielsen having performed and complied in all material respects with all covenants required by the Transaction Agreement to be performed or complied with by it prior to the Measurement Time; and

 

   

Nielsen having delivered to Parent a certificate, dated as of the date of the Measurement Time and signed by a duly authorized executive officer of the Company, certifying that the conditions described in the preceding three bullets have been satisfied.

In addition, the obligation of Nielsen to consummate the Acquisition is subject to the satisfaction or waiver of each of the following additional conditions:

 

   

the representations and warranties of Parent and Purchaser that are qualified by a “Parent Material Adverse Effect” (as defined in the Transaction Agreement) qualification being true and correct in all respects as so qualified at and as of the date of the Transaction Agreement and at and as of the Measurement Time as though made at and as of such time;

 

   

the other representations and warranties of Parent and Purchaser that are not qualified by a “Parent Material Adverse Effect” qualification being true and correct (without giving effect to any materiality or similar qualifiers) at and as of the date of the Transaction Agreement and at and as of the Measurement Time as though made at and as of such time, except for such failures to be so true and correct would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect; provided that for this bullet and the immediately preceding bullet, for representations and warranties that are made as of a particular date or period, they shall only be true and correct as of such date or period;

 

   

Parent and Purchaser having performed and complied in all material respects with all covenants required by the Transaction Agreement to be performed or complied with by them prior to the Measurement Time; and

 

   

Parent and Purchaser having each delivered to Nielsen a certificate, dated as of the date of the Measurement Time and signed by a duly authorized signatory of each of Parent and Purchaser, certifying to the effect that the conditions in the preceding three bullets have been satisfied.

Termination of the Transaction Agreement

The Transaction Agreement may be terminated at any time prior to the Effective Time, in the following ways:

 

   

by mutual written consent of Nielsen and Parent;

 

   

by either Nielsen or Parent, if:

 

   

the Closing has not occurred by six (6) months after the date of the Transaction Agreement, which can be extended in certain circumstances up to twelve (12) months following the date

 

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of the Transaction Agreement (as extended, the “End Date”) if (i) the Marketing Period has commenced but not yet been completed as of the third (3rd) business day prior to the End Date, (ii) all Closing Conditions other than requisite regulatory approvals have been obtained or (iii) there are certain amendments to the Scheme or a Switch (the “End Date Termination Right”);

 

   

there is a final and non-appealable order issued by a governmental entity of competent jurisdiction prohibiting the consummation of the Acquisition (the “Legal Restraint Termination Right”);

 

   

the Court Meeting or the Special Meeting (as either may be adjourned or postponed) at which a vote on the applicable matters comprising the Company Shareholder Approval was taken has concluded and the applicable Company Shareholder Approval has not been obtained (the “Shareholder Approval Termination Right”); or

 

   

the other party breaches their representations, warranties or covenants in a manner that it occurred or was continuing to occur as of the Measurement Time, would cause the applicable Closing Condition to fail to be satisfied (subject to an applicable cure period) (the “Breach Termination Right”).

 

   

by Nielsen:

 

   

if (i) certain the conditions to Parent’s and Purchaser’s obligations to consummate the Closing are satisfied or waived, (ii) Parent and Purchaser fail to consummate the Closing by the date required under the Transaction Agreement, (iii) Nielsen has provided irrevocable and unconditional notice to Parent five (5) business days prior to such termination that it is ready, willing and able to consummate the Closing and solely for purposes of consummating the Closing, all conditions to Nielsen’s obligation to consummate the Closing have been satisfied or that it is willing to waive any unsatisfied conditions in order to consummate the Closing; and (iv) Parent and Purchaser fail to consummate the Acquisition within five (5) business days after delivery of such notice (the “Financing Failure Termination Right”); or

 

   

in order to enter into a definitive agreement providing for a Company Superior Proposal; provided that (i) Nielsen has complied in all material respects with its non-solicitation obligations under the Transaction Agreement and (ii) immediately prior to or substantially concurrently with (and as a condition to) the termination of the Transaction Agreement, Nielsen pays to Parent the Company Termination Fee (the “Company Superior Proposal Termination Right”).

 

   

by Parent or Purchaser:

 

   

in the event of a Company Adverse Recommendation Change (the “Change of Recommendation Termination Right”); or

 

   

if it is ultimately determined that the Company is subject to the Takeover Code and the Panel is able to assert jurisdiction over the Acquisition; provided that such termination right must be exercised within five (5) business days of such ultimate determination.

In the event that the Transaction Agreement is validly terminated pursuant to the termination rights above, the Transaction Agreement will terminate, except certain sections of the Transaction Agreement will survive such termination, and there will be no other liability on the party of Nielsen, on the one hand, or Parent or Purchaser, on the other hand, to the other, except as provided in certain sections of the Transaction Agreement; provided that nothing in the Transaction Agreement will relieve any party from liability for a willful and material breach of the Transaction Agreement prior to its termination. In addition, (i) in no event will Parent’s related parties, collectively have any liability for monetary damages (including damages for fraud or breach, whether willful, intentional, unintentional or otherwise, or monetary damages in lieu of specific performance) in the

 

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aggregate in excess of the Maximum Liability Amount (as defined below) and (ii) in no event will Nielsen’s related parties, collectively, have any liability for monetary damages (including damages for fraud or breach, whether willful, intentional, unintentional or otherwise, or monetary damages in lieu of specific performance) in the aggregate in excess of the Maximum Liability Amount.

Termination Fees

Parent will be entitled to receive a termination fee of $102 million from Nielsen (the “Company Termination Fee”) if the Transaction Agreement is terminated:

 

   

by Parent pursuant to its Change of Recommendation Termination Right;

 

   

by Nielsen pursuant to its Company Superior Proposal Termination Right; or

 

   

if (i) a Company Takeover Proposal (substituting 50% for the 20% threshold set forth in such definition) has been publicly made and not withdrawn two (2) business days before the Special Meeting (or any adjournment or postponement thereof), (ii) the Transaction Agreement is subsequently terminated by either party pursuant to its End Date Termination Right (provided that the Company Shareholder Approval has not been obtained) or its Shareholder Approval Termination Right or by Parent pursuant to its Breach Termination Right due to the Company’s material breach of its non-solicitation or certain other obligations that leads to or results in such Company Takeover Proposal and (iii) Nielsen completes or enters into a definitive agreement with respect to any Company Takeover Proposal substituting 50% for the 20% threshold set forth in such definition) within twelve (12) months of such termination.

Nielsen will be entitled to receive a termination fee of $511 million from Parent (the “Parent Termination Fee”) if the Transaction Agreement is terminated:

 

   

by the Company pursuant to its Breach Termination Right;

 

   

by the Company pursuant to its Financing Failure Termination Right; or

 

   

by either party pursuant to its End Date Termination Right if at such time Nielsen could have terminated the Transaction Agreement pursuant to its Breach Termination Right or its Financing Failure Termination Right.

Specific Enforcement

In circumstances where Parent and Purchaser are obligated to consummate the Transaction and the Transaction has not been consummated, Nielsen will be entitled (in addition to any other remedy that may be available to it whether in law or equity) to specifically enforce Parent’s and Purchaser’s obligations under the Transaction Agreement, including to consummate the Acquisition, subject to the following requirements: (i) certain conditions to Parent’s and Purchaser’s obligation to close the Acquisition are satisfied or waived; (ii) the full amount of the Debt Financing has been funded or would be funded at the Closing; (iii) Parent and Purchaser are required to consummate the Closing in accordance with the Transaction Agreement and have failed to complete the Closing by the date the Closing is required to have occurred pursuant to the Transaction Agreement; and (iv) the Company has irrevocably confirmed in writing to Parent that if specific performance is granted and the Equity Financing and Debt Financing are funded, then it is ready, willing and able to consummate the Closing.

Under no circumstances will Nielsen be permitted or entitled to receive both a grant of specific performance and payment of the Parent Termination Fee.

Limitations of Liability

If the Transaction Agreement is validly terminated pursuant to its terms and the applicable Termination Fee is due and payable, from and after such termination and payment of the applicable Termination Fee in full,

 

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neither party nor any of their respective related parties may obtain any monetary recovery or award in excess of an amount equal to the sum of the Parent Termination Fee plus any enforcement expenses and/or indemnification or reimbursement obligations, as applicable (the “Maximum Liability Amount”), against the other party and its related parties. Other than the Equity Investors’ liabilities, obligations and agreements under the Limited Guarantees and the Equity Commitment Letters and other than the liabilities, obligations and agreements of Parent and Purchaser under the Transaction Agreement, in no event will any related party of Parent have any liability for monetary damages (including damages for fraud or breach, whether willful, intentional, unintentional or otherwise, or monetary damages in lieu of specific performance) to any related party of Nielsen arising out of the Transaction or the transactions contemplated thereby, including the Acquisition. Notwithstanding the foregoing, neither party will be relieved from liability with respect to the confidentiality agreements entered into between Nielsen and the Consortium members.

Costs and Expenses

Except in specified circumstances, all costs and expenses incurred in connection with the Acquisition, the Transaction Agreement and the transactions contemplated by the Transaction Agreement will be paid by the party incurring such expenses; provided, that Parent will pay (i) all filing fees required under the HSR Act or other antitrust laws and (ii) all filing fees required to be paid to the SEC with respect to, and all printing and mailing costs for, this proxy statement. All transfer, documentary, sales, use, stamp, registration and other such taxes imposed with respect to the transfer of Nielsen ordinary shares pursuant to the Acquisition will be paid by Parent or Purchaser and expressly will not be a liability of Nielsen shareholders. Parent, Purchaser and the Company shall (at Parent’s cost and expense) cooperate and use commercially reasonable endeavors to structure the Acquisition in a manner consistent with the Transaction Agreement so as to mitigate the cost of transfer, documentary, sales, use, stamp, registration and other such taxes imposed with respect to the transfer of Nielsen ordinary shares pursuant to the Acquisition; provided that no action shall be required to be taken which would result in a liability for transfer, documentary, sales, use, stamp, registration and other such taxes for the Company (unless Parent or Purchaser economically bears such transfer, documentary, sales, use, stamp, registration and other such taxes) or any Nielsen shareholder and provided further that the Company shall not be required to take or refrain from taking any steps or actions the effect of which may deter or prevent Nielsen ordinary shares (i) being removed from DTC to the extent required for the purposes of attending and voting at the Court Meeting or if otherwise requested by the beneficial owner or (ii) being disabled in the DTC as from the Scheme Record Time.

Amendments and Waivers

The Transaction Agreement may be amended or waived if such amendment or waiver is in writing and signed, in the case of an amendment, by Nielsen, on the one hand, and Parent and Purchaser, on the other hand; provided, that after the receipt of Company Shareholder Approval, if any such amendment or waiver will under applicable law or the rules and regulations of the NYSE require further approval of the Nielsen shareholders, the effectiveness of such amendment or waiver will be subject to such approval. None of the provisions of the Transaction Agreement relating to Purchaser’s debt financing sources may be amended, waived or modified in any way adverse to the debt financing sources without their prior written consent.

Governing Law

The Transaction Agreement is governed by Delaware law (except that the determination of whether the Scheme has been implemented in accordance with the Transaction Agreement and the interpretation of the duties of the Board will be governed by English law).

 

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SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT

The following table sets forth information regarding ownership of or beneficial interests in Nielsen ordinary shares by:

 

   

each person or group of affiliated persons known by Nielsen to be the beneficial owner of more than 5% of Nielsen outstanding ordinary shares;

 

   

each member of the Board;

 

   

each of our named executive officers (each, an “NEO”); and

 

   

all directors and executive officers as a group.

The amounts for NEOs and executive officers and directors as a group and Nielsen significant shareholders are as of May 16, 2022, unless otherwise indicated in a footnote below (and in that case are based upon SEC filings made on behalf of such owners). Beneficial ownership in this table is determined in accordance with the rules of the SEC, and does not necessarily indicate beneficial ownership for any other purpose. Under these rules, the number of Nielsen ordinary shares deemed outstanding includes all Nielsen restricted shares that vest within sixty (60) days after May 16, 2022, and those shares issuable upon exercise of options held by the respective person or group that may be exercised within sixty (60) days after May 16, 2022. For purposes of calculating each person’s or group’s percentage ownership, unvested Nielsen Options exercisable within sixty (60) days and all Nielsen RSU Awards that vest within sixty (60) days are included for that person or group, but not for any other person or group. Percentage of beneficial ownership is based on the number of Nielsen ordinary shares outstanding as of May 16, 2022, which was 359,781,600. Beneficial ownership representing less than 1% is denoted with an asterisk (*).

Directors and Executive Officers

 

Name of Beneficial Owner

   Number      Percentage  

James A. Attwood, Jr.1

     370,730                

Thomas H. Castro1

     20,745                

Guerrino De Luca1

     44,311                

Karen M. Hoguet1

     67,294                

Janice Marinelli Mazza1

     20,745                

Jonathan F. Miller1

     15,559                

Stephanie Plaines1

     7,266                

Nancy Tellem1

     26,715                

Lauren Zalaznick1

     52,348                

David Kenny2

     1,242,092                

Linda Zukauckas3

     169,233                

Karthik Rao4

     88,378                

George Callard1

     31,151                

Laurie Lovett1

     12,380                

Henry Iglesias 1

     0                

All Directors and Executive Officers as a group (15 persons)

     2,168,947                

 

*

less than 1%

1

Includes amounts vested as of May 16, 2022 and amounts that vest within 60 days thereafter.

2

Of the shares shown as beneficially owned, 750,000 represent rights to acquire shares through the exercise of options. Includes amounts vested as of May 16, 2022 and amounts that vest within 60 days thereafter.

3

Of the shares shown as beneficially owned, 66,666 represent rights to acquire shares through the exercise of options. Includes amounts vested as of May 16, 2022 and amounts that vest within 60 days thereafter.

4

Of the shares shown as beneficially owned, 31,358 represent rights to acquire shares through the exercise of options. Includes amounts vested as of May 16, 2022 and amounts that vest within 60 days thereafter.

 

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Certain Beneficial Owners

 

Name of Beneficial Owner and Address    Number      Percentage  

The WindAcre Partnership LLC1
2200 Post Oak Blvd., Suite 1580, Houston, Texas 77056

     98,190,100        27.29

The Vanguard Group2
100 Vanguard Blvd., Malvern, PA 19355

     44,593,436        12.40

BlackRock Inc.3
55 East 52nd Street, New York, NY 10055

     21,302,288        5.92

Nomura Holdings, Inc.4
13-1, Nihonbashi 1-chome, Chuo-ku, Tokyo 103-8645, Japan

     18,046,788        5.02

 

1

Based on the Schedule 13D/A filed jointly on May 4, 2022 by The WindAcre Partnership LLC, a Delaware limited liability company (“WindAcre”), The WindAcre Partnership Master Fund LP, an exempted limited partnership established in the Cayman Islands (“MasterFund”), and Snehal Rajnikant Amin, a citizen of the United States of America. The MasterFund owns 98,190,100 ordinary shares directly. Each joint filer has sole voting power with respect to none of Nielsen’s ordinary shares, shared voting power with respect to 98,190,100 of Nielsen’s ordinary shares, sole dispositive power with respect to none of Nielsen’s ordinary shares and shared dispositive power with respect to 98,190,100 of Nielsen’s ordinary shares. The principal business address of the Master Fund is Ogier Global (Cayman) Limited, 89 Nexus Way, Camana Bay, Grand Cayman KY1-9009, Cayman Islands and the principal business address of WindAcre and Mr. Amin is 2200 Post Oak Blvd., Suite 1580, Houston, Texas 77056.

2

Based on the Schedule 13G/A filed by The Vanguard Group on February 10, 2022. The Vanguard Group has sole voting power with respect to none of Nielsen’s ordinary shares, shared voting power with respect to 513,690 of Nielsen’s ordinary shares, sole dispositive power with respect to 43,138,212 of Nielsen’s ordinary shares and shared dispositive power with respect to 1,455,224 of Nielsen’s ordinary shares.

3

Based on the Schedule 13G/A filed by BlackRock, Inc. on February 3, 2022. BlackRock, Inc. has sole voting power with respect to 18,847,718 of Nielsen’s ordinary shares, shared voting power with respect to none of Nielsen’s ordinary shares, sole dispositive power with respect to 21,302,288 of Nielsen’s ordinary shares and shared dispositive power with respect to none of Nielsen’s ordinary shares.

4

Based on the Schedule 13G filed jointly by Nomura Holdings, Inc. and Nomura Global Financial Products, Inc. on February 14, 2022. The shares are held jointly pursuant to a joint filing agreement. Each joint filer has sole voting power with respect to none of Nielsen’s ordinary shares, shared voting power with respect to 18,046,788 of Nielsen’s ordinary shares, sole dispositive power with respect to none of Nielsen’s ordinary shares and shared dispositive power with respect to 18,046,788 of Nielsen’s ordinary shares. The principal business address of Nomura Global Financial Products, Inc. is Worldwide Plaza, 309 West 49th Street, New York, NY 10019.

 

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Section 16(a) Beneficial Ownership Reporting Compliance

Section 16(a) of the Exchange Act requires Nielsen’s directors and executive officers, and persons who own more than ten percent of a registered class of Nielsen’s equity securities, to file with the SEC initial reports of ownership and reports of changes in ownership of ordinary shares and other equity securities of Nielsen. Officers, directors, and greater than ten percent shareholders are required by SEC regulation to furnish the Company with copies of all Section 16(a) forms they file.

To Nielsen’s knowledge, based solely on a review of the copies of such reports furnished to Nielsen and written representations that no other reports were required, during the year ended December 31, 2021, all Section 16(a) filing requirements applicable to its officers, directors, and greater than 10 percent beneficial owners were complied with.

 

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FUTURE SHAREHOLDER PROPOSALS

If the Acquisition is completed, we will have no public shareholders and there will be no public participation in any future meetings of Nielsen shareholders. However, if the Acquisition is not completed, shareholders will continue to be entitled to attend and participate in shareholder meetings.

After the 2022 annual meeting of the Nielsen shareholders held on May 17, 2022, there will be no annual meetings of Nielsen shareholders if the Acquisition is completed.

As described in our annual proxy statement for the 2021 annual meeting filed on April 12, 2021, Nielsen shareholders had the opportunity to submit proper proposals for inclusion in our proxy statement and for consideration at the 2022 annual meeting by submitting their proposals in writing to our Company Secretary in a timely manner by December 13, 2021, and otherwise complying with the requirements of Rule 14a-8 of the Exchange Act.

In addition, shareholder(s) meeting the requirements of the Companies Act and the Company’s articles of association (the “Articles”) were able to propose a resolution to be considered at the 2022 annual meeting by adhering to certain procedural requirements set out in the Companies Act and the Company’s Articles, including notifying the Company in writing of such proposed resolution at least six weeks prior to the 2022 annual meeting.

Nielsen’s Articles establish an advance notice procedure with regard to business to be brought before an annual meeting, including shareholder proposals not included in our proxy statement. Shareholder(s) may require the Company to give notice of a resolution proposed by members, if such request is made by (i) shareholders representing at least 5 percent of the total voting rights of all members who have a right to vote on the relevant resolution (excluding any voting rights attached to any shares in the Company held as treasury shares); or (ii) at least 100 shareholders who have a right to vote on the relevant resolution and hold shares in the Company on which there has been paid up an average sum, per member, of at least £100, provided that a written notice of the request is made in hardcopy form or in electronic form, identifies the resolution of which notice is to be given and is authenticated by the member or members making it; and is received by the Company not later than six (6) weeks before the annual general meeting to which the request relates; or if later, the time at which notice is given of that meeting.

A copy of the full text of the Articles provisions governing the notice requirements set forth above may be obtained by writing to our Company Secretary. All notices of proposals and director nominations by shareholders should be sent to Nielsen Holdings plc, 675 Avenue of the Americas, New York, NY 10010, Attention: Company Secretary.

 

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WHERE YOU CAN FIND MORE INFORMATION

The SEC allows us to “incorporate by reference” information into this proxy statement, which means that we can disclose important information to you by referring you to other documents filed separately with the SEC. The information incorporated by reference is deemed to be part of this proxy statement, except for any information superseded by information in this proxy statement or incorporated by reference subsequent to the date of this proxy statement. This proxy statement incorporates by reference the documents set forth below that we have previously filed with the SEC. These documents contain important information about us and our financial condition and are incorporated by reference into this proxy statement.

The following Nielsen filings with the SEC are incorporated by reference:

 

   

Nielsen’s Annual Report on  Form 10-K for the fiscal year ended December 31, 2021, filed on February 28, 2022;

 

   

Nielsen’s Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2022, filed on April 28, 2022;

 

   

the portions of Nielsen’s Definitive Proxy Statement on Schedule 14A filed with the SEC April  5, 2022 that are incorporated by reference in Nielsen’s Annual Report on Form 10-K for the fiscal year ended December 31, 2021; and

 

   

Nielsen’s Current Reports on Form 8-K, filed on  March 29, 2022, March 30, 2022, May  13, 2022 and May 18, 2022.

We also incorporate by reference into this proxy statement additional documents that we may file with the SEC between the date of this proxy statement and the earlier of the date of the Special Meeting or the termination of the Transaction Agreement. These documents include periodic reports, such as Annual Reports on Form 10-K and Quarterly Reports on Form 10-Q, as well as Current Reports on Form 8-K and proxy soliciting materials. The information provided on our website is not part of this proxy statement, and therefore is not incorporated by reference herein.

Information furnished under Item 2.02 or Item 7.01 of any Current Report on Form 8-K, including related exhibits, is not and will not be incorporated by reference into this proxy statement.

Nielsen is subject to the informational requirements of the Exchange Act. We file reports, proxy statements and other information with the SEC. The SEC maintains an Internet site that contains our reports, proxy and information statements and other information at www.sec.gov.

You may obtain any of the documents we file with the SEC, without charge, by requesting them in writing or by telephone from us at the following address:

Nielsen Holdings plc

Attention: Company Secretary

675 Avenue of the Americas

New York, NY 10010

If you would like to request documents from us, please do so as soon as possible, to receive them before the Court Meeting and the Special Meeting. If you request any documents from us, we will mail them to you. Please note that all of our documents that we file with the SEC are also promptly available through our Investor website at www.ir.nielsen.com/. The information included on our website is not incorporated by reference into this proxy statement.

 

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If you have any questions concerning the Acquisition, the Court Meeting, the Special Meeting or this proxy statement, would like additional copies of this proxy statement or need help voting your Nielsen ordinary shares, please contact our proxy solicitor:

INNISFREE M&A INCORPORATED

 

 

LOGO

501 Madison Avenue, 20th Floor

New York, NY 10022

Stockholders May Call:

(877) 750-8269 (TOLL-FREE from the U.S. and Canada) or

+1 (412) 232-3651 (from other locations)

 

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MISCELLANEOUS

Nielsen has supplied all information relating to Nielsen, and Parent has supplied, and Nielsen has not independently verified, all of the information relating to Parent, Purchaser and the other Consortium entities contained in this proxy statement.

You should rely only on the information contained in this proxy statement, the annexes to this proxy statement and the documents that we incorporate by reference in this proxy statement in voting on the Transaction. We have not authorized anyone to provide you with information that is different from what is contained in this proxy statement. This proxy statement is dated [●], 2022. You should not assume that the information contained in this proxy statement is accurate as of any date other than that date (or as of an earlier date if so indicated in this proxy statement), and the mailing of this proxy statement to shareholders does not create any implication to the contrary. This proxy statement does not constitute a solicitation of a proxy in any jurisdiction where, or to or from any person to whom, it is unlawful to make a proxy solicitation.

 

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Annex A

EXECUTION VERSION

 

 

TRANSACTION AGREEMENT

by and among

NIELSEN HOLDINGS PLC,

NEPTUNE INTERMEDIATE JERSEY LIMITED

and

NEPTUNE BIDCO US INC.

Dated as of March 28, 2022

 

 


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TABLE OF CONTENTS

 

            Page  

ARTICLE 1

 

THE ACQUISITION

 

 

Section 1.1

     The Acquisition      A-2  

Section 1.2

     Closing; Effective Time      A-2  

Section 1.3

     Certain Adjustments      A-2  

Section 1.4

     Payment of Offer Consideration      A-2  

Section 1.5

     Treatment of Company Equity Awards      A-3  

Section 1.6

     Further Assurances      A-4  

Section 1.7

     Articles of Association      A-4  

ARTICLE 2

 

REPRESENTATIONS AND WARRANTIES OF THE COMPANY

 

 

Section 2.1

     Organization      A-5  

Section 2.2

     Share Capital and Indebtedness      A-5  

Section 2.3

     Corporate Authority Relative to this Agreement; Consents and Approvals; No Violation      A-6  

Section 2.4

     Reports and Financial Statements      A-7  

Section 2.5

     Internal Controls and Procedures      A-8  

Section 2.6

     No Undisclosed Liabilities      A-9  

Section 2.7

     Compliance with Law; Permits      A-9  

Section 2.8

     Environmental Matters      A-10  

Section 2.9

     Employee Benefit Plans      A-11  

Section 2.10

     Absence of Certain Changes or Events      A-12  

Section 2.11

     Litigation      A-13  

Section 2.12

     Company Information      A-13  

Section 2.13

     Tax Matters      A-13  

Section 2.14

     Employment and Labor Matters      A-15  

Section 2.15

     Real Property      A-16  

Section 2.16

     Intellectual Property      A-17  

Section 2.17

     Data Privacy and Cybersecurity      A-18  

Section 2.18

     Opinion of Financial Advisor      A-19  

Section 2.19

     Material Contracts      A-19  

Section 2.20

     Government Contracts      A-21  

Section 2.21

     Insurance      A-22  

Section 2.22

     Finders or Brokers      A-22  

Section 2.23

     No Other Representations      A-22  

ARTICLE 3

 

REPRESENTATIONS AND WARRANTIES OF PARENT AND PURCHASER

 

 

Section 3.1

     Organization      A-22  

Section 3.2

     Corporate Authority Relative to this Agreement; Consents and Approvals; No Violation      A-23  

Section 3.3

     Litigation      A-24  

 

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            Page  

Section 3.4

     Parent and Purchaser Information      A-24  

Section 3.5

     Finders or Brokers      A-24  

Section 3.6

     Financing; Solvency      A-24  

Section 3.7

     Limited Guarantees      A-26  

Section 3.8

     Purchaser      A-26  

Section 3.9

     Certain Arrangements      A-26  

Section 3.10

     Interest in Competitors      A-26  

Section 3.11

     Ownership of Company Ordinary Shares      A-26  

Section 3.12

     No Vote of Parent Stockholders      A-26  

Section 3.13

     Withholding      A-27  

Section 3.14

     Investigation; No Other Representations      A-27  

ARTICLE 4

 

COVENANTS AND AGREEMENTS

 

 

Section 4.1

     Conduct of Business      A-28  

Section 4.2

     Access      A-31  

Section 4.3

     No Solicitation      A-32  

Section 4.4

     Filings; Other Actions      A-36  

Section 4.5

     Implementation of the Scheme      A-37