UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE TO
Tender Offer Statements under Section 14(d)(1) or 13(e)(1)
of the Securities Exchange Act of 1934
MILLICOM INTERNATIONAL CELLULAR S.A.
(Name of Subject Company (Issuer))
ATLAS LUXCO S.À R.L.
(Offeror)
a wholly-owned subsidiary of
ATLAS INVESTISSEMENT
(Affiliate of Offeror)
a majority-owned subsidiary of
NJJ HOLDING
(Affiliate of Offeror)
wholly-owned by
XAVIER NIEL
(Affiliate of Offeror)
MAXIME LOMBARDINI
(Affiliate of Offeror)
(Name of Filing Persons (identify status as offeror, issuer or other person))
Common Shares, par value $1.50 per share
(Title of Class of Securities)
L6388F110
(CUSIP Number of Class of Securities)
Anthony Maarek
Directeur Général
Atlas Investissement
16 rue de la Ville l’Evêque 75008 Paris, France
Telephone: +33.1.42.66.99.19
(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications on Behalf of Filing Persons)
Copies to:
Denis Klimentchenko
Skadden, Arps, Slate, Meagher & Flom (UK) LLP
22 Bishopsgate
London, EC2N 4BQ
+44(0)20 7519 7289
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Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer.
Check the appropriate boxes below to designate any transactions to which the statement relates:
☒
third-party tender offer subject to Rule 14d-1.
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issuer tender offer subject to Rule 13e-4.
☒
going-private transaction subject to Rule 13e-3.
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amendment to Schedule 13D under Rule 13d-2.
Check the following box if the filing is a final amendment reporting the results of the tender offer: ☐
If applicable, check the appropriate box(es) below to designate the appropriate rule provision(s) relied upon:
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Rule 13e-4(i) (Cross-Border Issuer Tender Offer)
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Rule 14d-1(d) (Cross-Border Third-Party Tender Offer)
Neither the Securities and Exchange Commission (the “SEC”) nor any state securities commission has approved or disapproved of this transaction, passed upon the merits or fairness of this transaction, or passed upon the adequacy or accuracy of the disclosure herein. Any representation to the contrary is a criminal offense.
INTRODUCTION
This Tender Offer Statement and Rule 13e-3 Transaction Statement filed under cover of Schedule TO (this “Schedule TO”) is filed by Atlas Luxco S.à r.l., a Luxembourg limited liability company (société à responsibilité limitée) (“Purchaser”), Atlas Investissement, a French société par actions simplifiée and the parent company of Purchaser (“Parent”), NJJ Holding S.A.S., a simplified joint-stock company domiciled in Paris, France (société par actions simplifiée) and the majority owner of Parent (“NJJ”), Xavier Niel, the owner of NJJ (together with Purchaser, Parent and NJJ, the “Purchaser Group”), and Maxime Lombardini (together with the Purchaser Group, the “Filing Parties”), the Non-Executive Director, President and Chief Operating Officer of Millicom, as well as Vice-Chairman of the Board of Directors of Iliad Group, an affiliate of Purchaser and Parent. This Tender Offer Statement and Rule 13e-3 Transaction Statement filed under cover of Schedule TO relates to the offer by Purchaser to purchase, through separate but concurrent offers in the United States (the “US Offer”) and Sweden (the “Swedish Offer”), all of the issued and outstanding common shares, par value $1.50 per share (each, a “Common Share,” and collectively, the “Common Shares”), including Swedish Depositary Receipts representing Common Shares (each of which represents one Common Share) (each, an “SDR,” and collectively, the “SDRs”), of Millicom International Cellular S.A., a public limited liability company (société anonyme) organized and established under the laws of the Grand Duchy of Luxembourg (“MIC” or the “Company”), for USD $24.00 per Common Share and USD $24.00 per SDR (each such amount, the “Offer Price”), upon the terms and subject to the conditions set forth in the Offer to Purchase attached to this Tender Offer Statement and Rule 13e-3 Transaction Statement filed under cover of Schedule TO as Exhibit (a)(1)(A) (together with any amendments or supplements thereto, the “Offer to Purchase”) and in the accompanying Letter of Transmittal attached to this Tender Offer Statement and Rule 13e-3 Transaction Statement filed under cover of Schedule TO as Exhibit (a)(1)(B) (together with any amendments or supplements thereto, the “Letter of Transmittal” and together with this Offer to Purchase, the Letter of Transmittal and other materials related to the Swedish Offer and the US Offer, as each may be amended or supplemented from time to time, the “Offers”). In the US Offer, the Offer Price of USD $24.00 per Common Share is payable net to the seller in cash, without interest, less any withholding taxes that may be applicable. In the Swedish Offer, settlement will be made in SEK and the Offer Price of USD $24.00 per SDR will be converted into SEK in connection with settlement. Unless otherwise indicated, references to sections in this Tender Offer Statement and Rule 13e-3 Transaction Statement filed under cover of Schedule TO are references to sections of the Offer to Purchase.
Item 1. Summary Term Sheet.
The information set forth in the Offer to Purchase under the following caption is incorporated herein by reference:
“Summary Term Sheet”
Item 2. Subject Company Information.
(a) Name and Address. The name of the subject company, and the address and telephone number of its principal executive officers are as follows:
Millicom International Cellular S.A.
2, Rue du Fort Bourbon, L-1249
Luxembourg, Grand Duchy of Luxembourg
+352 691 750960 / +1 908 463 8588
(b) Securities. The information set forth in the Offer to Purchase under the following captions is incorporated herein by reference:
“Important Information”
“Questions and Answers”
(c) Trading Market and Price. The information set forth in the Offer to Purchase under the following caption is incorporated herein by reference:
“The Tender Offers — Price Range of Common Shares and SDRs”
Item 3. Identity and Background of Filing Person.
The information set forth in the Offer to Purchase under the following captions is incorporated herein by reference:
“Summary Term Sheet”
“The Tender Offers — Certain Information Concerning the Filing Parties”
“Schedule I”
“Schedule II”
Item 4. Terms of the Transaction.
(a) Material Terms.
(1) Tender Offers. The information set forth in the Offer to Purchase under the following captions is incorporated herein by reference:
“Summary Term Sheet”
“Questions and Answers”
“The Tender Offers”
Item 5. Past Contacts, Transactions, Negotiations and Agreements.
(a) Transactions. The information set forth in the Offer to Purchase under the following captions is incorporated herein by reference:
“Special Factors — Transactions and Arrangements Concerning the Shares and Other Securities of Millicom”
“Special Factors — Certain Agreements between the Filing Parties and their Affiliates and Millicom”
(b) Significant Corporate Events. The information set forth in the Offer to Purchase under the following captions is incorporated herein by reference:
“Questions and Answers”
“Special Factors — Background”
“Special Factors — Transactions and Arrangements Concerning the Shares and Other Securities of Millicom”
“Special Factors — Certain Agreements between the Filing Parties and their Affiliates and Millicom”
“Special Factors — Interests of Certain Millicom Directors and Executive Officers in the Offers”
Item 6. Purposes of the Transaction and Plans or Proposals.
(a) Purposes. The information set forth in the Offer to Purchase under the following captions is incorporated herein by reference:
“Special Factors — Purpose and Reasons for the Offers; Plans for Millicom”
(c)(1) – (c)(7) Plans. The information set forth in the Offer to Purchase under the following captions is incorporated herein by reference:
“Special Factors — Purpose and Reasons for the Offers; Plans for Millicom”
“Special Factors — Effects of the Offers”
“Special Factors — Appraisal Rights; Rule 13e-3”
“The Tender Offers — Possible Effects of the Offers on the Market for Common Shares; Nasdaq US Listing; Nasdaq Stockholm Listing; Exchange Act Registration; Squeeze-Out and Sell-Out”
Item 7. Source and Amount of Funds or Other Consideration.
(a) Source of Funds. The information set forth in the Offer to Purchase under the following captions is incorporated herein by reference:
“Questions and Answers”
“The Tender Offers — Source and Amount of Funds”
(b) Conditions. The information set forth in the Offer to Purchase under the following captions is incorporated herein by reference:
“Questions and Answers”
“The Tender Offers”
(d) Borrowed Funds. The information set forth in the Offer to Purchase under the following captions is incorporated herein by reference:
“Questions and Answers”
“The Tender Offers — Source and Amount of Funds”
Item 8. Interest in Securities of the Subject Company.
(a) Securities Ownership. The information set forth in the Offer to Purchase under the following captions is incorporated herein by reference:
“Special Factors — Background”
“Special Factors — Purpose and Reasons for the Offers; Going Private Transaction; Plans for Millicom and the Purchaser Group”
“Special Factors — Transactions and Arrangements Concerning the Shares and Other Securities of Millicom”
“Schedule II”
(b) Securities Transactions. The information set forth in the Offer to Purchase under the following captions is incorporated herein by reference:
“Special Factors — Background”
“Special Factors — Purpose and Reasons for the Offers; Going Private Transaction; Plans for Millicom and the Purchaser Group”
“Special Factors — Transactions and Arrangements Concerning the Shares and Other Securities of Millicom”
“Schedule II”
Item 9. Persons/Assets, Retained, Employed, Compensated or Used.
(a) Solicitations or Recommendations. The information set forth in the Offer to Purchase under the following captions is incorporated herein by reference:
“Introduction”
“Summary Term Sheet”
“The Tender Offer — Fees and Expenses”
Item 10. Financial Statements of Certain Bidders.
(a) Financial Information. The financial condition of Purchaser is not material to the Offer.
(b) Pro Forma Financial Information. The pro forma financial statements of Purchaser are not material to the Offer.
Item 11. Additional Information.
(a) Agreements, Regulatory Requirements and Legal Proceedings. The information set forth in the Offer to Purchase under the following captions is incorporated herein by reference:
“Questions and Answers”
“Special Factors — Background”
“Special Factors — Purpose and Reasons for the Offers; Going Private Transaction; Plans for Millicom and the Purchaser Group”
“Special Factors — Transactions and Arrangements Concerning the Shares and Other Securities of Millicom”
“Special Factors — Certain Agreements between the Filing Parties and their Affiliates and Millicom”
“Special Factors — Interests of Certain Millicom Directors and Executive Officers in the Offers”
“The Tender Offers — Possible Effects of the Offers on the Market for Common Shares; Nasdaq US Listing; Nasdaq Stockholm Listing; Exchange Act Registration; Squeeze-Out and Sell-Out”
“The Tender Offers — Certain Information Concerning the Filing Parties”
“The Tender Offers — Legal Matters; Required Regulatory Approvals”
(c) Other Material Information. The information set forth in the Offer to Purchase, including all Schedules thereto, and the Letter of Transmittal is incorporated herein by reference.
Item 12. Exhibits.
*
Filed herewith.
Item 13. Information Required by Schedule 13E-3.
The following sets forth information required by Schedule 13E-3 that has not already been set forth in Items 1-12 above. The information set forth in the Offer to Purchase is incorporated herein by reference to the items required by Schedule 13E-3.
Item 2. Subject Company Information.
(d) Dividends. The information set forth in the Offer to Purchase under the following caption is incorporated herein by reference:
“The Tender Offers — Dividends and Distributions in Millicom”
(e) Prior Public Offerings. Not applicable.
(f) Prior Stock Purchases. The information set forth in the Offer to Purchase under the following caption is incorporated herein by reference:
“Schedule II”
Item 4. Terms of the Transaction.
(c) Different Terms. Not applicable.
(d) Appraisal Rights. The information set forth in the Offer to Purchase under the following caption is incorporated herein by reference:
“Special Factors — Appraisal Rights; Rule 13e-3”
(e) Provisions for Unaffiliated Security Holders. No provision has been made to grant the Company’s unaffiliated shareholders access to the corporate files of the Company or the Purchaser Group. In addition, no provision has been made to obtain counsel or appraisal services for unaffiliated shareholders at the expense of the Purchaser Group.
(f) Eligibility for Listing or Trading. Not applicable.
Item 5. Past Contacts, Transactions, Negotiations and Agreements.
(c) Negotiations or Contracts. The information set forth in the Offer to Purchaser under the following captions is incorporated herein by reference:
“Questions and Answers”
“Special Factors — Background”
“Special Factors — Purpose and Reasons for the Offers; Going Private Transaction; Plans for Millicom and the Purchaser Group”
“Special Factors — Transactions and Arrangements Concerning the Shares and Other Securities of Millicom”
“Special Factors — Certain Agreements between the Filing Parties and their Affiliates and Millicom”
“Special Factors — Interests of Certain Millicom Directors and Executive Officers in the Offers”
(e) Agreements Involving the Subject Company’s Securities. The information set forth in the Offer to Purchase under the following captions is incorporated herein by reference:
“Special Factors — Transactions and Arrangements Concerning the Shares and Other Securities of Millicom”
“Special Factors — Certain Agreements between the Filing Parties and their Affiliates and Millicom”
“Special Factors — Interests of Certain Millicom Directors and Executive Officers in the Offers”
“Scheule II”
Item 6. Purposes of the Transaction and Plans or Proposals.
(b) Use of Securities Acquired. The information set forth in the Offer to Purchase under the following captions is incorporated herein by reference:
“Special Factors — Background”
“Special Factors — Purpose and Reasons for the Offers; Going Private Transaction; Plans for Millicom and the Purchaser Group”
(c)(8) Plans. The information set forth in the Offer to Purchase under the following captions is incorporated herein by reference:
“Special Factors — Background”
“Special Factors — Purpose and Reasons for the Offers; Going Private Transaction; Plans for Millicom and the Purchaser Group”
“Special Factors — Effects of the Offers”
“The Tender Offers — Possible Effects of the Offers on the Market for Common Shares; Nasdaq US Listing; Nasdaq Stockholm Listing; Exchange Act Registration; Squeeze-Out and Sell-Out”
Item 7. Purposes, Alternatives, Reasons and Effects.
(a) Purposes. The information set forth in the Offer to Purchase under the following captions is incorporated herein by reference:
“Special Factors — Background”
“Special Factors — Purpose and Reasons for the Offers; Going Private Transaction; Plans for Millicom and the Purchaser Group”
(b) Alternatives. The information set forth in the Offer to Purchase under the following captions is incorporated herein by reference:
“Special Factors — Background”
“Special Factors — Effects of the Offers”
“The Tender Offers — Possible Effects of the Offers on the Market for Common Shares; Nasdaq US Listing; Nasdaq Stockholm Listing; Exchange Act Registration; Squeeze-Out and Sell-Out”
(c) Reasons. The information set forth in the Offer to Purchase under the following captions is incorporated herein by reference:
“Special Factors — Background”
“Special Factors — Purpose and Reasons for the Offers; Going Private Transaction; Plans for Millicom and the Purchaser Group”
(d) Effects. The information set forth in the Offer to Purchase under the following captions is incorporated herein by reference:
“Questions and Answers”
“Special Factors — Effects of the Offers”
“The Tender Offers — Tax Considerations”
“The Tender Offers — Possible Effects of the Offers on the Market for Common Shares; Nasdaq US Listing; Nasdaq Stockholm Listing; Exchange Act Registration; Squeeze-Out and Sell-Out”
Item 8. Fairness of the Transaction.
(a) Fairness. The information set forth in the Offer to Purchase under the following captions is incorporated herein by reference:
“Special Factors — Background”
“Special Factors — The Recommendation by the Independent Bid Committee”
“Special Factors — Position of the Filing Parties Regarding Fairness of the Offers”
Valuation Analysis dated June 29, 2024 is attached hereto as Exhibit (c)(1) and incorporated herein by reference.
(b) Factors Considered in Determining Fairness. The information set forth in the Offer to Purchase under the following captions is incorporated herein by reference:
“Special Factors — Background”
“Special Factors — The Recommendation by the Independent Bid Committee”
“Special Factors — Position of the Filing Parties Regarding Fairness of the Offers”
Valuation Analysis dated June 29, 2024 is attached hereto as Exhibit (c)(1) and incorporated herein by reference.
(c) Approval of Security Holders. The transaction is not structured so that the approval of at least a majority of unaffiliated security holders is required.
(d) Unaffiliated Representative. The information set forth in the Offer to Purchase under the following caption is incorporated herein by reference:
“Special Factors — The Recommendation by the Independent Bid Committee”
(e) Approval of Directors. The Offer was not approved by a majority of the directors of the subject company who are not employees of the subject company.
(f) Other Offers. The information set forth in the Offer to Purchase under the following captions is incorporated herein by reference:
“Special Factors — Background”
“Special Factors — Position of the Filing Parties Regarding Fairness of the Offers”
Item 9. Reports, Opinions, Appraisals and Negotiations.
(a) – (b) Report, Opinion or Appraisal; Preparer and Summary of the Report, Opinion or Appraisal. The information set forth in the Offer to Purchase under the following captions is incorporated herein by reference:
“Special Factors — Background”
“Special Factors — Summary of the Valuation Analysis Delivered to Parent from certain Parent Financial Advisors (BNP Paribas S.A., Credit Agricole Corporate and Investment Bank, J.P. Morgan Securities plc, J.P. Morgan Securities LLC, Lazard Frères S.A.S. and Société Générale)”
Valuation Analysis dated June 29, 2024 is attached hereto as Exhibit (c)(1) and incorporated herein by reference.
(c) Availability of Documents. The reports, opinions or appraisals referenced in this Item 9 will be made available for inspection and copying at the principal executive offices of Parent during its regular business hours by any interested equity security holder of the Company or representative who has been so designated in writing.
Item 10. Source and Amount of Funds or Other Consideration.
(c) Expenses. The information set forth in the Offer to Purchase under the following caption is incorporated herein by reference:
“The Tender Offers — Fees and Expenses”
Item 12. The Solicitation or Recommendation.
(d) Intent to Tender or Vote in a Going-Private Transaction. Not applicable.
(e) Recommendations of Others. Not applicable.
Item 13. Financial Statements.
(a) Financial Information. The information set forth in the Offer to Purchase under the following caption is incorporated herein by reference:
“The Tender Offers — Certain Information Concerning Millicom”
(b) Pro Forma Financial Information. The pro forma financial statements of the Company are not material to the Offer.
Item 14. Persons/Assets, Retained, Employed, Compensated or Used.
(b) Employees and Corporate Assets. The information set forth in the Offer to Purchase under the following captions is incorporated herein by reference:
“Special Factors — Background”
“Special Factors — Certain Agreements between the Filing Parties and their Affiliates and Millicom”
“Special Factors — Interests of Certain Millicom Directors and Executive Officers in the Offers”
Item 15. Additional Information.
(b) Not applicable.
Item 16. Exhibits.
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Filed herewith.
SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.
Dated: July 1, 2024
ATLAS LUXCO S.À R.L.
By:
/s/ Anthony Maarek
Name:
Anthony Maarek
Title:
Manager
By:
/s/ Tigran Khachatryan
Name:
Tigran Khachatryan
Title:
Manager
ATLAS INVESTISSEMENT
By:
/s/ Xavier Niel
Name:
Xavier Niel
Title:
Président of NJJ Holding itself Président of Atlas Investissement
NJJ HOLDING
By:
/s/ Xavier Niel
Name:
Xavier Niel
Title:
Président
XAVIER NIEL
By:
/s/ Xavier Niel
MAXIME LOMBARDINI
By:
/s/ Maxime Lombardini
Exhibit (a)(1)(A)
OFFERS TO PURCHASE FOR CASH
ALL OF THE OUTSTANDING COMMON SHARES AND SWEDISH DEPOSITARY RECEIPTS REPRESENTING COMMON SHARES
OF
MILLICOM INTERNATIONAL CELLULAR S.A.
FOR
USD 24.00 PER COMMON SHARE AND USD 24.00 PER SWEDISH DEPOSITARY RECEIPT
BY
ATLAS LUXCO S.À R.L.
THE OFFERS WILL EXPIRE AT ONE MINUTE AFTER 10:59 A.M. EST, OR ONE MINUTE AFTER 4:59 P.M. CEST ON AUGUST 16, 2024, UNLESS THE OFFERS ARE EXTENDED.
Atlas Luxco S.à r.l., a private limited liability company (société à responsabilité limitée) existing under the laws of the Grand Duchy of Luxembourg, having its registered office at 53, boulevard Royal, L-2449 Luxembourg, Grand Duchy of Luxembourg (“Luxembourg”), with corporate registration number B274990 with the Luxembourg Trade and Companies Registry (R.C.S. Luxembourg) (“Atlas” or the “Purchaser”), is a subsidiary of Atlas Investissement S.A.S., a simplified joint-stock company (société par actions simplifiée), having its registered office at 16 Rue de la Ville-l’Évêque, FR-75008 Paris, France, with corporate registration number 908 070 188 with the Paris Trade and Companies Registry (R.C.S Paris) (the “Parent”). Parent is a majority owned subsidiary of NJJ Holding S.A.S., a simplified joint-stock company (société par actions simplifiée) domiciled in Paris, France, wholly owned by Xavier Niel. Atlas is offering to purchase, through separate but concurrent offers in Sweden (the “Swedish Offer”) and the United States (the “US Offer”), all of the outstanding common shares (CUSIP L6388F110), with nominal value USD 1.50 per share (each, a “Common Share,” and collectively, the “Common Shares”), including Swedish Depositary Receipts (ISIN: SE0001174970) representing Common Shares (each Swedish Depositary Receipt represents one Common Share) (each, an “SDR,” and collectively, the “SDRs,” and together with the Common Shares, the “Shares”) of Millicom International Cellular S.A., a public limited liability company (société anonyme) existing under the laws of Luxembourg, having its registered office at 2, rue du Fort Bourbon, L-1249 Luxembourg, with corporate registration number B40630 with the Luxembourg Trade and Companies Registry (R.C.S. Luxembourg) (“Millicom” or the “Company”), for USD 24.00 per Common Share and USD 24.00 per SDR1 (each such amount, the “Offer Price”), upon the terms and subject to the conditions set forth in this Offer to Purchase (together with any amendments or supplements hereto, the “Offer to Purchase”) and for the US Offer the accompanying Letter of Transmittal (together with any amendments or supplements thereto, the “Letter of Transmittal” and together with this Offer to Purchase, the Letter of Transmittal and other materials related to the Swedish Offer and the US Offer, as each may be amended or supplemented from time to time, the “Offers”).
In the US Offer, the Offer Price of USD 24.00 per Common Share is payable net to the seller in cash, without interest, less any withholding taxes that may be applicable. In the Swedish Offer, settlement will be made in SEK and the Offer Price of USD 24.00 per SDR will be converted into SEK in connection with settlement (see “The Tender Offers — Terms of the Offers — Consideration and Payment” and “The Tender Offers — Procedures for Tendering into the Offers — Tender of SDRs”).
The initial acceptance period for the Offers (the “Offer Period”) will commence on July 1, 2024, and expire at one minute after 10:59 a.m. EST, or one minute after 4:59 p.m. CEST, on August 16, 2024, unless the Offer Period is extended (the end of the Offer Period, as may be extended, the “Expiration Time”).
If the conditions for completion of the Offers are satisfied and the Offers are successful, following consummation of the Offers, to the extent legally permitted by applicable law, Purchaser currently intends to
1
Corresponding to SEK 254.67 per SDR, based on an illustrative USD/SEK exchange rate of 10.6 as of June 28, 2024. The Offer Price per SDR in SEK that will be paid to the holders of SDRs will be set based on the USD/SEK exchange rate as close to the settlement date as the Purchaser is able.
delist the Common Shares from the Nasdaq Stock Market (“Nasdaq US”) and the SDRs from Nasdaq Stockholm, Large Cap (“Nasdaq Stockholm”), to terminate registration of the Common Shares under Section 12(g)(4) of the Securities and Exchange Act of 1934 (the “Exchange Act”) and to suspend Millicom’s reporting obligations under Section 15(d) of the Exchange Act.
Atlas has been informed that the Board of Directors of Millicom (the “Millicom Board”) has established an independent bid committee (the “Independent Bid Committee”) consisting entirely of directors independent from Purchaser and Parent. On June 27, 2024, the Independent Bid Committee disclosed via press release that the then-anticipated Offer Price was not in the best interest of Shareholders (as defined below), having specifically taken into consideration Millicom’s management’s latest review of financial performance (the “Pre-Commencement Press Release”). As of the date of this Offer to Purchase, the Millicom Board, through the Independent Bid Committee, has not made a formal recommendation regarding the Offers and has not stated whether the Offers, as outlined in this Offer to Purchase, are fair or in the best interests of the Company and its “unaffiliated security holders” as defined in Rule 13e-3 under the Exchange Act (the “Unaffiliated Shareholders”). Though the Independent Bid Committee shared its preliminary views in the Pre- Commencement Press Release, Millicom is under US law required to make a formal recommendation or state that it is neutral or is unable to take a position with respect to the Offers in a Solicitation/Recommendation Statement on Schedule 14D-9, and to publish such recommendation or send it to holders of Common Shares within ten (10) US Business Days (a “US Business Day” is any day on which US banks are open to the public, other than Saturdays and Sundays, federal holidays in the United States or other day when Nasdaq US is closed for trading; a “Business Day” is any US Business Day, as well as any day on which Swedish banks are open to the public, other than Saturdays and Sundays, public holidays in Sweden or any other day when Nasdaq Stockholm is closed for trading) from the date of this Offer to Purchase. In each case the Independent Bid Committee is required to explain the reasons for its position. The Independent Bid Committee is, in accordance with the Takeover rules for Nasdaq Stockholm and Nordic Growth Market NGM (the “Swedish Takeover Rules”), required to announce its formal opinion regarding the Offers and obtain a fairness opinion from independent experts no later than two weeks prior to the expiry of the Offer Period. The Pre-Commencement Press Release does not constitute any such formal opinion or recommendation. Millicom Non-Executive Directors, Thomas Reynaud, Aude Durand and Maxime Lombardini have not participated, and will not participate, in any discussions, deliberations or decisions of the Independent Bid Committee of Millicom because of their affiliation with Purchaser. A description of the reasons for the Independent Bid Committee’s recommendation relating to the Offers will be set forth in a Solicitation/Recommendation Statement on Schedule 14D-9 prepared by Millicom and filed with the SEC and mailed to all holders of Common Shares. All holders of Common Shares should carefully read the information set forth in the Schedule 14D-9, including the information set forth under the heading “Item 4. The Solicitation or Recommendation” of the Schedule 14D-9.
AS OF THE DATE HEREOF, THE NON-EXECUTIVE DIRECTORS OF THE MILLICOM BOARD HAVE MADE NO RECOMMENDATION AS TO WHETHER SHAREHOLDERS SHOULD TENDER THEIR COMMON SHARES OR SDRS PURSUANT TO THE OFFERS.
The information on these front pages should be read in conjunction with, and is qualified in its entirety by, the more detailed information in this Offer to Purchase. A summary of the principal terms of the Offers appears on pages 1 through 16 below. You should read in its entirety this Offer to Purchase, and if you hold Common Shares, the accompanying Letter of Transmittal carefully before deciding whether to tender your Common Shares into the Offers. If you hold SDRs, see “The Tender Offers — Procedures for Tendering into the Offers — Tender of SDRs.”
Questions and requests for assistance in relation to the US Offer may be directed to D.F. King & Co., Inc., as information agent for the US Offer (the “Information Agent”) at (212) 269-5550, or at (866) 356-6140 (US toll-free), or via email at millicom@dfking.com, or otherwise as set out on the back cover of this Offer to Purchase. Additional copies of this Offer to Purchase, the Letter of Transmittal and other related materials may be obtained from the Information Agent or on the website maintained by the Securities and Exchange Commission (the “SEC”) at www.sec.gov. Holders of Common Shares may also contact their broker, dealer, commercial bank, trust company or other securities intermediary for copies of these documents.
We have filed with the SEC a Tender Offer Statement and Rule 13e-3 Transaction Statement on Schedule TO (in each case, including exhibits) in accordance with the Exchange Act, and may furnish certain additional information with respect to the US Offer and may file amendments thereto. In addition, Millicom will file a Solicitation/Recommendation Statement on Schedule 14D-9 in accordance with the Exchange Act setting forth the determination and recommendation of the Millicom Board through the Independent Bid Committee and furnishing certain additional related information. The Tender Offer Statement and Rule 13e-3 Transaction Statement and the Solicitation/Recommendation Statement, and any amendments thereto, including exhibits, may be examined and copies may be obtained from the SEC in the manner set forth under “The Tender Offers — Certain Information Concerning Millicom — Available Information.”
THIS OFFER TO PURCHASE AND RELATED MATERIALS, INCLUDING THE LETTER OF TRANSMITTAL, WILL NOT AND MAY NOT BE DISTRIBUTED, FORWARDED OR TRANSMITTED INTO OR FROM ANY JURISDICTION WHERE PROHIBITED BY APPLICABLE LAW BY ANY MEANS WHATSOEVER INCLUDING, WITHOUT LIMITATION, MAIL, FACSIMILE TRANSMISSION, EMAIL OR TELEPHONE. THE OFFERS CANNOT BE ACCEPTED BY ANY SUCH USE, MEANS OR INSTRUMENTALITY OR FROM WITHIN ANY JURISDICTION WHERE PROHIBITED BY LAW.
THE OFFERS HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SEC OR ANY US STATE SECURITIES COMMISSION, NOR HAS THE SEC OR ANY US STATE SECURITIES COMMISSION PASSED UPON THE FAIRNESS OR MERITS OF THE OFFERS OR UPON THE ACCURACY OR ADEQUACY OF THE INFORMATION CONTAINED IN THIS OFFER TO PURCHASE OR RELATED MATERIALS, INCLUDING THE LETTER OF TRANSMITTAL. ANY REPRESENTATION TO THE CONTRARY IS UNLAWFUL AND A CRIMINAL OFFENSE IN THE UNITED STATES.
July 1, 2024
IMPORTANT INFORMATION
General
Atlas has made separate but concurrent public offers to the Shareholders (as defined herein) of Millicom, for all Shares2 in accordance with the conditions set out in this Offer to Purchase. Holders of Common Shares and SDRs will collectively be referred to herein as “Shareholders.”
Pursuant to the US Offer, Purchaser is offering to acquire all outstanding Common Shares. Holders of Common Shares may tender their Common Shares only into the US Offer. Pursuant to the Swedish Offer, Purchaser is offering to acquire all outstanding SDRs. Holders of SDRs may tender their SDRs only into the Swedish Offer. Shareholders should refer to the offer restrictions included in the section “The Tender Offers — Miscellaneous — Offer Restrictions” on pages 121 – 123.
US holders (as defined in Rule 14d-1 of the Exchange Act) (“US Holders”) of SDRs may convert their SDRs into Common Shares on a one-for-one basis and tender their Common Shares into the US Offer, otherwise US Holders of SDRs may tender their SDRs only into the Swedish Offer.
The Common Shares are listed and traded on Nasdaq US and the SDRs are listed and traded on Nasdaq Stockholm, and, as a result, Millicom is subject to the securities laws, rules and regulations of the United States and Sweden, as well as the laws of Luxembourg where Millicom is incorporated and domiciled. Some of the information contained in this Offer to Purchase is included because it is required to be included pursuant to Swedish laws and regulations. Some of that information has been prepared in accordance with Swedish format and style, which differs from US format and style for documents of this type. Similarly, some of the information contained in this Offer to Purchase is included because it is required to be included pursuant to US laws and regulations and has been prepared in accordance with US format and style, which differs from Swedish format and style for documents of this type.
THE OFFERS ARE NOT OFFERS TO PURCHASE ANY SECURITIES, WHETHER DIRECTLY OR INDIRECTLY, IN AUSTRALIA, BELARUS, CANADA, HONG KONG, JAPAN, NEW ZEALAND, SINGAPORE, SOUTH AFRICA OR RUSSIA OR IN ANY OTHER JURISDICTION WHERE SUCH OFFER PURSUANT TO LEGISLATION AND REGULATIONS IN SUCH RELEVANT JURISDICTIONS WOULD BE PROHIBITED BY APPLICABLE LAW.
The Swedish Offer, as well as any agreements entered into between Atlas and the Shareholders in Millicom as a result of the Swedish Offer, shall be governed and construed in accordance with substantive Swedish law, save for certain corporate law aspects which are governed by Luxembourg law. Any dispute regarding the Swedish Offer or agreements in connection therewith shall be settled exclusively by Swedish courts, and the District Court of Stockholm (Sw. Stockholms tingsrätt) shall be the court of first instance. The US Offer shall be governed and construed in accordance with US federal securities laws, as well as Swedish law pursuant to certain exemptions where applicable, and Luxembourg law for certain corporate law aspects.
The Swedish Takeover Rules and the Swedish Securities Council’s (Sw. Aktiemarknadsnämnden) statements and rulings regarding the interpretation and application of the Swedish Takeover Rules are applicable to the Swedish Offer. Atlas has, in accordance with the Swedish Takeovers Act (Sw. lag (2006:451) om offentliga uppköpserbjudanden på aktiemarknaden), on June 30, 2024, contractually undertaken, in writing, towards Nasdaq Stockholm AB to fully comply with said rules and statements and to accept any sanctions that can be imposed by Nasdaq Stockholm AB in the event of a breach of the Swedish Takeover Rules. Atlas has, on July 1, 2024, informed the Swedish Financial Supervisory Authority (Sw. Finansinspektionen) (the “SFSA”) about the Offers and the above-mentioned undertaking towards Nasdaq Stockholm AB.
This Offer to Purchase has been approved and registered by the SFSA in accordance with the regulations in Chapter 2 of the Swedish Takeovers Act and Chapter 2a of the Swedish Financial Instruments Trading Act (Sw. lagen (1991:980) om handel med finansiella instrument) in connection with the Swedish Offer. The approval of this Offer to Purchase and the registration with the SFSA does not imply that the SFSA guarantees that the factual information provided in this Offer to Purchase is correct or complete. This Offer to Purchase
2
Excluding 840,641 Common Shares and/or SDRs held in treasury by Millicom.
has been prepared in accordance with a language exemption granted by the SFSA in respect of the requirement to prepare the Offer to Purchase in the Swedish language (please refer to the SFSA’s decision FI Dnr 24 − 15834).
US Holders of SDRs are advised that the SDRs are not registered under the US Securities Act of 1933, as amended. The Offers are being made in the United States in accordance with US federal securities laws, including Regulation 14D and Regulation 14E promulgated under the Exchange Act, subject to the exemptions provided by Rule 14d-1(d) (the “Tier II Exemptions”) under the Exchange Act, and otherwise in accordance with the requirements of Swedish law. Accordingly, the Offers are subject to disclosure and other procedural requirements, including with respect to notice of extensions, withdrawal rights, settlement procedures and timing of payments, that are different from those applicable under US domestic tender offer procedures and law, and certain rules applicable to US tender offers made in the United States do not apply. Accordingly, US Holders of SDRs are advised of the risk that they may not be afforded the same rights under US federal securities laws by participating in the Swedish Offer. US Holders are encouraged to consult with their own advisors regarding the Offers.
As permitted under the Tier II Exemptions, notices of extensions of the Offers and the settlement of the Offers are based on the applicable Swedish and Luxembourg law provisions which differ from the extension and settlement procedures customary in the United States, particularly as regards the time when notice must be given and payment of the consideration is rendered, respectively. The Offers, which are subject to Swedish law and Luxembourg law, are being made to holders of Common Shares and holders of SDRs in accordance with the applicable United States securities laws, and the exemptions applicable thereunder, in particular the Tier II Exemptions.
It may be difficult for US Holders or other Shareholders participating in the Swedish Offer to enforce their rights and any claims they may have arising under the US federal or state securities laws in connection with the Swedish Offer, since the Company and Atlas are located in countries other than the United States, and some or all of their officers and directors may be residents of countries other than the United States. US Holders may not be able to sue the Company or Atlas or their respective officers or directors in a non-US court for violations of US securities laws. Further, it may be difficult to compel the Company or Atlas and/or their respective affiliates to subject themselves to the jurisdiction or judgment of a US court.
To the extent permissible under applicable law and regulations, including Rule 14e-5 under the Exchange Act, Atlas and its affiliates or brokers (acting as agents for Atlas or its affiliates, as applicable) may from time to time after the date hereof directly or indirectly purchase or arrange to purchase SDRs outside the United States, or any securities that are convertible into, exchangeable for or exercisable for such Shares, other than pursuant to the Offers, during the period in which the Offers remain open for acceptance. These purchases may occur either in the open market at prevailing prices or in private transactions at negotiated prices. In addition, the financial advisors to Parent and/or the financial advisor to Atlas may also engage in ordinary course trading activities in securities of the Company, which may include purchases or arrangements to purchase such securities as long as such purchases or arrangements are in compliance with the applicable law, including Rule 14e-5 under the Exchange Act. Any information about such purchases will be announced to US Holders through relevant electronic media if, and to the extent, such announcement is required under applicable Swedish or US law, rules or regulations.
The information in this Offer to Purchase is intended to be accurate, although not complete, only as of the day of publication of this Offer to Purchase. It is not implied that the information has been or will be accurate at any other time. Except as required by the Swedish Takeover Rules, the Exchange Act or other applicable law or regulation, Atlas expressly disclaims any obligation or undertaking to publicly announce updates or revisions regarding this Offer to Purchase. The information in this Offer to Purchase is provided solely with respect to the Offers and is not permitted to be used for any other purpose.
The information regarding Millicom under “The Tender Offers — Certain Information Concerning Millicom” in this Offer to Purchase is based on information made public by Millicom. Atlas does not guarantee that the information included herein with respect to Millicom is accurate or complete and does not take any responsibility for such information being accurate or complete. Except where this is expressly stated in this Offer to Purchase, as the case may be, no information in this Offer to Purchase has been reviewed or audited by Millicom’s auditors.
BNP Paribas S.A., authorized and lead-supervised by the European Central Bank in Frankfurt-am-Main (Germany) and the Autorité de Contrôle Prudentiel et de Résolution in Paris (France), Crédit Agricole Corporate and Investment Bank, authorized and lead-supervised regulated by the European Central Bank (ECB) in Frankfurt-am-Main (Germany) and the Autorité de Contrôle Prudentiel et de Résolution (ACPR) in Paris (France), J.P. Morgan Securities plc, authorized by the Prudential Regulation Authority and regulated by the Financial Conduct Authority and the Prudential Regulation Authority the United Kingdom, J.P. Morgan Securities LLC, subject to regulatory supervision by a variety of US regulators including the Federal Reserve Bank, the SEC, FINRA, NYSE, CBOE and other exchanges and state regulatory organizations in the United States, Lazard Frères S.A.S., and Société Générale, authorized and supervised by the European Central Bank (ECB) and the Autorité de Contrôle Prudentiel et de Résolution (the French Prudential Control and Resolution Authority) (ACPR) and regulated by the Autorité des Marchés Financiers (the French financial markets regulator) (AMF) (each a “Parent Financial Advisor”, and together “Parent Financial Advisors”). The Parent Financial Advisors are the financial advisors to Parent and to no one else in connection with the Offers. The Parent Financial Advisors are not responsible to anyone other than Parent for advice in connection with the Offers, nor are they responsible for providing the protections afforded to clients of the Parent Financial Advisors to any other person in relation to such Offers nor for providing advice in relation to the Offers. The receipt of this Offer to Purchase by any person is not to be taken as constituting the giving of investment advice by the Parent Financial Advisors to any such person, nor to constitute a client of the Parent Financial Advisors.
Svenska Handelsbanken AB (publ) which is authorized and regulated by the SFSA in Sweden (the “Atlas Financial Advisor”), is financial advisor to Atlas and to no one else in connection with the Offers. The Atlas Financial Advisor is not responsible to anyone other than Atlas for advice in connection with the Offers, nor is the Atlas Financial Advisor responsible for providing the protections afforded to clients of the Atlas Financial Advisor to any other person in relation to such Offers nor for providing advice in relation to the Offers. The receipt of this Offer to Purchase by any person is not to be taken as constituting the giving of investment advice by the Atlas Financial Advisor to any such person, nor to constitute a client of the Atlas Financial Advisor.
The information contained in this Offer to Purchase, which does not purport to be comprehensive, has been provided by Atlas and, as regards such parts that relate to the Company, derives from Millicom’s publicly available information. The information contained in this Offer to Purchase has not been independently verified by the Parent Financial Advisors or Atlas Financial Advisor and does not constitute a recommendation from the Parent Financial Advisors or Atlas Financial Advisor to the recipient or to any other person. The Parent Financial Advisors and Atlas Financial Advisor do not undertake any obligation to provide any additional information or to update the information in this Offer to Purchase or to correct any inaccuracies that may become apparent.
The figures reported in this Offer to Purchase have been rounded as appropriate. This implies that some tables may not sum up correctly. All information in this Offer to Purchase regarding shareholdings in Millicom is based on 172,096,305 issued Common Shares and 171,255,6643 outstanding Common Shares, as reported in Millicom’s public disclosure.
Forward-Looking Statements
This Offer to Purchase and other related documents delivered to you and/or incorporated by reference herein include “forward-looking statements,” including statements regarding the Parent, Purchaser, NJJ Holding S.A.S. and Xavier Niel (the “Purchaser Group”), any member of the Purchaser Group’s future prospects, developments and business strategies, timing and completion of the Offers, compelling value of the Offers and the Offer Price, purpose of the Offers, future performance, plans, growth and other trend projections and other benefits of the Offers, certainty of the Offers and the potential to satisfy the conditions for completion of the Offers, regulatory approvals required for completion of the Offers, the possibility that competing offers will be made, potential adverse reactions or changes to business relationships as a result of the Offers and costs, charges or expenses relating to the Offers. These statements may generally, but not always, be identified by the use of words such as “anticipates,” “intends,” “expects,” “believes,” or similar expressions.
3
Excluding 840,641 Common Shares and/or SDRs held in treasury by Millicom.
By their nature, forward-looking statements involve risk and uncertainty because they relate to events and depend on assumptions and circumstances that may occur in the future. Actual results could differ materially from those set forth in forward-looking statements due to a variety of factors, many of which are outside the control of Atlas, the Purchaser Group and Millicom, including changes in domestic and foreign economic and market conditions; the effect of changes in governmental regulations; any natural disaster, public health crisis or other catastrophic event; and the effect of laws and regulations governing government contracts, as well as the possibility that expected benefits related to recent or pending acquisitions, including the Offers, may not materialize as expected; the Offers not being timely completed, if completed at all; regulatory approvals required for the transaction not being timely obtained, if obtained at all, or being obtained subject to conditions; prior to the completion of the transaction, Millicom’s business experiencing disruptions due to transaction-related uncertainty or other factors making it more difficult to maintain relationships with employees, customers, licensees, other business partners or governmental entities; difficulty retaining key employees; the outcome of any legal proceedings related to the Offers; the parties being unable to successfully implement integration strategies or to achieve expected synergies and operating efficiencies within the expected time frames or at all and other risk factors listed in Millicom’s most recent annual report on Form 20-F. There can be no assurance that actual results will not differ materially from those expressed or implied by these forward-looking statements.
Any forward-looking statements made herein speak only as of the date on which they are announced, and you should not rely on these forward-looking statements as representing Atlas’ or the Purchaser Group’s views as of any date after today. Except as required by the Swedish Takeover Rules or applicable law or regulation, Atlas and the Purchaser Group expressly disclaims any obligation or undertaking to publicly announce updates or revisions to any forward-looking statements contained in this Offer to Purchase to reflect any change in expectations with regard thereto or any change in events, conditions or circumstances on which any such statement is based. The reader should, however, consult any additional disclosures that Atlas, the Purchaser Group or Millicom have made or may make.
Offer Restrictions
This Offer to Purchase is not an offer, whether directly or indirectly, in Australia, Belarus, Canada, Hong Kong, Japan, New Zealand, Singapore, South Africa or Russia or in any other jurisdiction where such offer would be prohibited by applicable law pursuant to legislation, restrictions and regulations in such relevant jurisdiction. Shareholders not resident in Sweden or the United States who wish to accept the Offers must make inquiries concerning applicable legislation and possible tax consequences. Shareholders should refer to the offer restrictions included in the section “The Tender Offers — Miscellaneous — Offer Restrictions” on pages 121 – 123.
This Offer to Purchase has not been produced by, and has not been approved by, an “authorised person” for the purposes of section 21 of the UK Financial Services and Markets Act 2000 (as amended, the “FSMA”). The communication of this Offer to Purchase and any other related documents or materials to persons in the United Kingdom is exempt from the restrictions on financial promotions in section 21 of the FSMA on the basis that it is a communication by or on behalf of a body corporate which relates to a transaction to acquire shares in a body corporate and the object of the transaction may reasonably be regarded as being the acquisition of day-to-day control of the affairs of that body corporate, or to acquire fifty (50) per cent or more of the voting shares in that body corporate, within Article 62 (Sale of a body corporate) of the Financial Services and Markets Act 2000 (Financial Promotion) Order 2005.
FOR HOLDERS OF COMMON SHARES
If you desire to tender all or any portion of your Common Shares to Purchaser pursuant to the US Offer, you must:
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If you hold your Common Shares directly as the holder of record, complete and sign the Letter of Transmittal (or, in the case of a book-entry transfer, deliver an Agent’s Message (as defined under “The Tender Offers — Acceptance for Payment and Payment — Common Shares”) in lieu of the Letter of Transmittal) that accompanies this Offer to Purchase (in the US Offer) in accordance with the instructions set forth therein and mail or deliver the Letter of Transmittal with any required signature guarantees and all other required documents to the Broadridge Corporate Issuer Solutions, LLC, the depositary and paying agent for the US Offer (the “US Tender Agent”). These materials must be delivered to the US Tender Agent prior to the Expiration Time.
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If you hold your Common Shares through a broker, dealer, commercial bank, trust company or other nominee, request your broker, dealer, commercial bank, trust company or other nominee to tender your Shares through The Depository Trust Company’s (“DTC”) Automated Tender Offer Program (“ATOP”) prior to the Expiration Time.
We do not provide guaranteed delivery procedures. Therefore, holders of Common Shares must allow sufficient time for the necessary tender procedures to be completed during normal business hours of DTC. Normal business hours of DTC are between 8:00 a.m. and 5:00 p.m. EST, Monday through Friday. Holders of Common Shares must tender their Common Shares in accordance with the procedures set forth in this Offer to Purchase and the related Letter of Transmittal prior to the Expiration Time. Tenders received by the US Tender Agent after the Expiration Time will be disregarded and of no effect. See “The Tender Offers — Procedures for Tendering into the Offers — Tender of Common Shares.”
Questions and requests for assistance regarding the US Offer or any of the terms thereof with respect to Common Shares and for additional copies of this Offer to Purchase, the Letter of Transmittal and other materials related to the US Offer may be directed to the Information Agent:
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Shareholders in Europe Please Contact:
D.F. King Ltd
6th Floor, 65 Gresham Street
London EC2V 7NQ
+ 44(0) 207 920 9700
Email: Millicom@dfking.com
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Shareholders in the United States Please Contact:
D.F. King & Co., Inc.
48 Wall Street, 22nd Floor
New York, New York 10005
Banks and Brokers Call Collect: (212) 269-5550
All Others Call Toll-Free: (866) 356-6140
Email: Millicom@dfking.com
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Copies of these materials may also be obtained at the website maintained by the SEC at www.sec.gov. You may contact your account operator, broker, dealer, commercial bank, trust company, custodian, or other nominee for assistance.
The Letter of Transmittal and certificates for Common Shares, and any other required documents should be sent or delivered by each holder of Common Shares or the holder of Common Shares’ broker, dealer, commercial bank, trust company or nominee to the US Tender Agent at one of its addresses set forth below. To confirm delivery of Common Shares, holders of Common Shares are directed to contact the US Tender Agent. Holders of Common Shares submitting certificates representing Common Shares to be tendered must deliver such certificates together with the Letter of Transmittal and any other required documents by mail or overnight courier. Facsimile copies of Common Share certificates will not be accepted. The US Tender Agent is Broadridge Corporate Issuer Solutions, LLC.
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If delivering via courier, UPS, FedEx or
other expedited service:
Broadridge, Inc.
Attn: BCIS IWS
51 Mercedes Way
Edgewood, NY 11717
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If delivering via a USPS service:
Broadridge, Inc.
Attn: BCIS Re-Organization Dept.
P.O. Box 1317
Brentwood, NY 11717-0718
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FOR HOLDERS OF SDRS
Holders of SDRs whose SDRs in Millicom are directly registered with Euroclear Sweden AB (“Euroclear”) and who wish to accept the Swedish Offer shall, during the period from July 1, 2024, up to and including August 16, 2024, one minute after 4:59 p.m. CEST, sign and submit a duly completed acceptance form (the “SDR Acceptance Form”) to Handelsbanken Offerings & Issue Services (“Handelsbanken Issue Department” or the “Swedish Settlement Agent”) at the address stated on the SDR Acceptance Form.
The SDR Acceptance Form must be sent in ample time before the last day of the Offer Period so that it is received by the Swedish Settlement Agent no later than one minute after 4:59 p.m. CEST on August 16, 2024.
The securities account (Sw. VP-konto) and the current number of SDRs held in Millicom are pre-printed on the SDR Acceptance Form which will be sent out to holders of SDRs in Millicom who are directly registered as of July 1, 2024.
Holders of SDRs should verify that the pre-printed information on the SDR Acceptance Form is correct.
Note that SDR Acceptance Forms which are incomplete or incorrectly completed may be disregarded.
Nominee-registered Holdings of SDRs
Holders of SDRs whose holdings are registered in the name of a nominee, i.e., a bank or other nominee, will not receive a pre-printed SDR Acceptance Form. Acceptances must be made in accordance with instructions received by the nominee. If you hold your SDRs through a broker, dealer, commercial bank, trust company or other nominee you should be aware that such securities intermediaries may establish their own earlier cut-off times and dates for receipt of instructions to tender (or to submit a notice of withdrawal on your behalf, as applicable) to ensure that those instructions will be timely received by the Swedish Settlement Agent. Holders of SDRs are responsible for determining and complying with any applicable cut-off times and dates.
The settlement will be provided for in accordance with the nominee’s routines respectively.
Pledged SDRs
If SDRs in Millicom are pledged in the Euroclear system, both the holder of SDRs and the pledgee must sign the SDR Acceptance Form and confirm that the pledge will be terminated should the Offers be completed.
For questions regarding administration of the Swedish Offer, please contact Handelsbanken Issue Department at issuedept@handelsbanken.se or, if holdings are registered with a nominee, please contact the nominee. Information about the Offers is also available on Atlas’ website (www.atlas-investissement.com/en/offers).
* * * * *
This Offer to Purchase will be available at the office of Atlas at 53, boulevard Royal, L-2449 Luxembourg, Luxembourg and at Atlas’ website (www.atlas-investissement.com/en/offers). This Offer to Purchase will also be available on the website maintained by the SEC at (www.sec.gov) and on the SFSA’s website (www.finansinspektionen.se).
TABLE OF CONTENTS
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SUMMARY TERM SHEET
Atlas (as defined herein) is offering to purchase, through separate but concurrent offers in Sweden (the “Swedish Offer”) and the United States (the “US Offer”), all of the outstanding common shares (CUSIP L6388F110), with nominal value USD 1.50 per share (each, a “Common Share,” and collectively, the “Common Shares”), including Swedish Depositary Receipts representing Common Shares (each Swedish Depositary Receipt represents one Common Share) (each, an “SDR,” and collectively, the “SDRs,” and together with the Common Shares, the “Shares”) of Millicom International Cellular S.A., a public limited liability company (société anonyme) existing under the laws of Grand Duchy of Luxembourg (“Luxembourg”), having its registered office at 2, rue du Fort Bourbon, L-1249 Luxembourg, with corporate registration number B40630 with the Luxembourg Trade and Companies Registry (R.C.S. Luxembourg) (“Millicom” or the “Company”), for USD 24.00 per Common Share and USD 24.00 per SDR4 (each such amount, the “Offer Price”), upon the terms and subject to the conditions set forth in this Offer to Purchase (together with any amendments or supplements hereto, the “Offer to Purchase”) and for the US Offer the accompanying Letter of Transmittal (together with any amendments or supplements thereto, the “Letter of Transmittal” and together with this Offer to Purchase, the Letter of Transmittal and other materials related to the Swedish Offer and the US Offer, as each may be amended or supplemented from time to time, the “Offers”).
The information contained herein is a summary only and is not meant as a substitute for the more detailed descriptions and information contained elsewhere in this Offer to Purchase and for the US Offer, in the accompanying Letter of Transmittal. You are urged to read carefully, in its entirety, all sections of this Offer to Purchase and if you hold Common Shares, the accompanying Letter of Transmittal.
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Securities Sought:
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All of the outstanding Shares of Millicom.
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Common Share Offer Price:
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USD 24.00 per Common Share, payable net to the seller in cash, without interest, less any withholding taxes that may be applicable.
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SDR Offer Price:
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USD 24.005 per SDR. Settlement of the Swedish Offer will be made in SEK and the Offer Price per SDR will be converted into SEK in connection with settlement.
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Offer Period:
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The initial acceptance period for the Offers (the “Offer Period”) will commence on July 1, 2024, and expire at one minute after 10:59 a.m. EST, or one minute after 4:59 p.m. CEST, on August 16, 2024, unless the Offer Period is extended (the end of the Offer Period, as may be extended, the “Expiration Time”).
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Commencement Date of the Offer Period:
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July 1, 2024 (following publication of the Offer to Purchase and filing of the combined Tender Offer Statement and Rule 13e-3 Transaction Statement with the Securities and Exchange Commission (the “SEC”) (the “Commencement Date”).
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Expiration Date of the Offer Period:
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August 16, 2024 (the “Expiration Date”).
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4
Corresponding to SEK 254.67 per SDR, based on an illustrative USD/SEK exchange rate of 10.6 as of June 28, 2024. The Offer Price per SDR in SEK that will be paid to the holders of SDRs will be set based on the USD/SEK exchange rate as close to the settlement date as the Purchaser is able.
5
Corresponding to SEK 254.67 per SDR, based on an illustrative USD/SEK exchange rate of 10.6 as of June 28, 2024. The Offer Price per SDR in SEK that will be paid to the holders of SDRs will be set based on the USD/SEK exchange rate as close to the settlement date as the Purchaser is able.
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Estimated Date of Settlement:
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On or around August 29, 2024.
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Purchaser:
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Atlas Luxco S.à r.l., a private limited liability company (société à responsabilité limitée) existing under the laws of Luxembourg, having its registered office at 53, boulevard Royal, L-2449 Luxembourg, Luxembourg with corporate registration number B274990 with the Luxembourg Trade and Companies Registry (R.C.S. Luxembourg) (“Atlas” or “Purchaser”), is a subsidiary of Atlas Investissement, a simplified joint-stock company (société par actions simplifiée), having its registered office at 16 Rue de la Ville-l’Évêque, FR-75008 Paris, France, with corporate registration number 908 070 188 with the Paris Trade and Companies Registry (R.C.S. Paris) (“Parent”). Parent is a majority owned subsidiary of NJJ Holding S.A.S., a simplified joint-stock company (société par actions simplifiée) domiciled in Paris, France, wholly owned by Xavier Niel.
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Determination of Millicom’s Board through the Independent Bid Committee:
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Atlas has been informed that the Board of Directors of Millicom (the “Millicom Board”) has established an independent bid committee (the “Independent Bid Committee”) consisting entirely of directors independent from Purchaser and Parent. As of the date of this Offer to Purchase, the Millicom Board, through the Independent Bid Committee, has not made a recommendation regarding the Offers.
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The distribution of this Offer to Purchase may, in some jurisdictions, be restricted by law. The Offer to Purchase is not an offer to purchase securities and is not a solicitation of an offer to sell securities, nor shall there be any sale or purchase of securities pursuant hereto, in any jurisdiction in which such offer, solicitation or sale is not permitted or would be unlawful.
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In this Offer to Purchase, unless the context otherwise requires, the terms “we,” “our” and “us” refer to Purchaser.
If you have questions in relation to the US Offer or need additional copies of this Offer to Purchase, the accompanying Letter of Transmittal or other related materials, you can contact D.F. King & Co., Inc., as information agent for the US Offer (the “Information Agent”) at the address or telephone numbers set forth on the back cover of this Offer to Purchase. You may also contact your broker, or other securities intermediary, or obtain copies of these materials for free on the website maintained by the SEC at http://www.sec.gov.
QUESTIONS AND ANSWERS
Below we have provided answers to questions that you may have as a holder of Common Shares or SDRs. Information in this Questions and Answers section is not complete and additional important information is contained elsewhere in this Offer to Purchase, and if you hold Common Shares, the accompanying Letter of Transmittal which we urge you to read carefully in its entirety before you make any decision with respect to the Offers.
Who is offering to buy my Common Shares or SDRs?
Purchaser, a private limited liability company (société à responsabilité limitée) existing under the laws of Luxembourg, having its registered office at 53, boulevard Royal, L-2449 Luxembourg, Luxembourg with corporate registration number B274990 with the Luxembourg Trade and Companies Registry (R.C.S. Luxembourg), a subsidiary of Parent, a simplified joint-stock company (société par actions simplifiée)), having its registered office at 16 Rue de la Ville-l’Évêque, FR-75008 Paris, France, with corporate registration number 908 070 188 with the Paris Trade and Companies Registry (R.C.S Paris), which is a majority owned subsidiary of NJJ Holding S.A.S., a simplified joint-stock company (société par actions simplifiée) domiciled in Paris, France, wholly owned by Xavier Niel, is offering to buy your Common Shares and SDRs. As of the date hereof, Purchaser is a long-term industrial investor looking to support the development and profitable growth of the telecoms sector through targeted investments in assets that offer opportunities for significant value creation. Xavier Niel is also the owner of the Iliad Group. NJJ Holding S.A.S. is an investor in telecom assets with presence in Switzerland, Ireland, Monaco, Cyprus, Malta, Sweden and the Baltics, while Iliad Group is one of the leading telecom providers present in France, Italy, Poland, Sweden and the Baltics. Xavier Niel has significant expertise in the telecoms sector and a track record of innovation and strategy execution, with a thirty (30)-year track record of innovation in the sector. Parent, Purchaser, NJJ Holding S.A.S. and Xavier Niel (the “Purchaser Group”), may be deemed affiliates (as defined under US federal securities law) of Millicom. See “Introduction” and “The Tender Offers — Certain Information Concerning Parent and Purchaser” for more information).
Why are there separate Swedish and US Offers?
Swedish and US law, rules and practice relating to tender offers differ. The Swedish Offer complies with Swedish law, rules and practice, and will be conducted in accordance with the Takeover rules for Nasdaq Stockholm and Nordic Growth Market NGM (the “Swedish Takeover Rules”) and the Swedish Securities Council’s (Sw. Aktiemarknadsnämnden) statements and rulings regarding the interpretation and application of the Swedish Takeover Rules, the Swedish Takeovers Act (Sw. lag (2006:451) om offentliga uppköpserbjudanden på aktiemarknaden) and the Swedish Financial Instruments Trading Act (Sw. lagen (1991:980) om handel med finansiella instrument) and certain corporate law aspects which are governed by Luxembourg law. The US Offer complies with US law, rules and practice, and will be conducted in accordance with the US federal securities laws, including Regulation 14D and Regulation 14E promulgated under the Securities and Exchange Act of 1934 (the “Exchange Act”) subject to applicable exemptions. The terms of the Swedish Offer and the US Offer, however, are substantially the same, except for certain necessary practical differences, such as persons tendering SDRs in the Swedish Offer will receive consideration denominated in SEK and persons tendering into the US Offer will receive consideration denominated in USD. This Offer to Purchase has been prepared in connection with both Offers.
Who can participate in the US Offer?
Holders of Common Shares may tender their Common Shares only in the US Offer. US holders (as defined in Rule 14d-1 of the Exchange Act) (“US Holders”) of SDRs may convert such SDRs into Common Shares on a one-for-one basis and tender the resulting Common Shares into the US Offer. US Holders tendering their SDRs into the Swedish Offer are advised of the risks of participating in the Swedish Offer and should see the section entitled “Important Information” for more information. Holders of Common Shares should also refer to the offer restrictions included in the section “The Tender Offers — Miscellaneous — Offer Restrictions” on pages 121 – 123.
Who can participate in the Swedish Offer?
Holders of SDRs may tender their SDRs only in the Swedish Offer. See section entitled “Important Information” for more information. Holders of SDRs should also refer to the offer restrictions included in the section “The Tender Offers — Miscellaneous — Offer Restrictions” on pages 121 – 123.
What are the differences between the US Offer and the Swedish Offer?
The terms of the US Offer and the Swedish Offer are substantially the same, subject to the limited differences described below. The US Offer and the Swedish Offer are subject to the same conditions for completion of the Offers. However, because of differences in law between the United States and Sweden, the procedures for accepting the Offers and tendering Common Shares and SDRs, as well as some of the rights of tendering Shareholders, under the US Offer and the Swedish Offer are not identical.
The US Offer is made to holders of Common Shares, while the Swedish Offer is made to the holders of SDRs, subject to the laws and regulations applicable to such holders. Shareholders should refer to the offer restrictions included in the section “The Tender Offers — Miscellaneous — Offer Restrictions” on pages 121 – 123.
In the US Offer, the Offer Price is payable net to the seller in cash, without interest, less any withholding taxes that may be applicable. In the Swedish Offer, settlement will be made in SEK and the Offer Price will be converted into SEK in connection with settlement (see “The Tender Offers — Terms of the Offers — Consideration and Payment” and “The Tender Offers — Procedures for Tendering into the Offers — Tender of SDRs”).
How many Common Shares and SDRs is Purchaser offering to purchase in the Offers?
Pursuant to applicable laws and regulations, and subject to the satisfaction or waiver of the conditions for completion of the Offers, the Purchaser is offering to purchase all of the outstanding Shares of Millicom. As of close of business on June 28, 2024, the most recent practicable date before publication of this Offer to Purchase, Millicom had 172,096,305 issued Common Shares, of which 156,031,098 were represented by SDRs (each of which represents one Common Share).6
How much is Purchaser offering to pay for my Common Shares or SDRs and what is the form of payment in the Offers?
We are offering to pay USD 24.00 per Common Share in the US Offer and USD 24.007 per SDR in the Swedish Offer. In the US Offer, the Offer Price is payable net to the seller in cash, without interest, less any withholding taxes that may be applicable. In the Swedish Offer, settlement will be made in SEK and the Offer Price will be converted into SEK in connection with settlement (see “The Tender Offers — Terms of the Offers — Consideration and Payment” and “The Tender Offers — Procedures for Tendering into the Offers — Tender of SDRs”). No fraction of a Common Share or SDR will be purchased from any holder. We will not pay interest on the Offer Price for Common Shares (see “Introduction” and “The Tender Offers — Terms of the Offers — Consideration and Payment”).
I am a holder of Common Shares. How do I participate in the US Offer?
Broadridge Corporate Issuer Solutions, LLC, the depositary and paying agent for the US Offer (the “US Tender Agent”) has been appointed by Purchaser to act as centralizing, paying and transfer agent for Common Shares in connection with the US Offer. If you are a holder of Common Shares that are not represented by SDRs, and if you intend to tender all or any portion of such Common Shares into the US Offer, you should follow the below procedures.
If you hold your Common Shares directly as the holder of record, you must complete and sign the Letter of Transmittal (or, in the case of a book-entry transfer, deliver an Agent’s Message (as defined under “The Tender
6
Millicom holds 840,641 Common Shares and/or SDRs in treasury.
7
Corresponding to SEK 254.67 per SDR, based on an illustrative USD/SEK exchange rate of 10.6 as of June 28, 2024. The Offer Price per SDR in SEK that will be paid to the holders of SDRs will be set based on the USD/SEK exchange rate as close to the settlement date as the Purchaser is able.
Offers — Acceptance for Payment and Payment — Common Shares”) in lieu of the Letter of Transmittal) that accompanies this Offer to Purchase (in the US Offer) in accordance with the instructions set forth therein and mail or deliver the Letter of Transmittal with any required signature guarantees and all other required documents to the US Tender Agent. These materials must be delivered to the US Tender Agent prior to the expiration of the Offers, which will expire one minute after 10:59 a.m. EST, or one minute after 4:59 p.m. CEST, on August 16, 2024 (as it may be extended from time to time, the “Expiration Time”).
If you hold your Common Shares through a broker, dealer, commercial bank, trust company or other nominee, request your broker, dealer, commercial bank, trust company or other nominee to tender your Shares through the Depository Trust Company’s (“DTC”) Automated Tender Offer Program (“ATOP”) prior to the Expiration Time.
We do not provide guaranteed delivery procedures. Therefore, holders of Common Shares must allow sufficient time for the necessary tender procedures to be completed during normal business hours of DTC. Normal business hours of DTC are between 8:00 a.m. and 5:00 p.m. EST, Monday through Friday. Holders of Common Shares must tender their Common Shares in accordance with the procedures set forth in this Offer to Purchase and the related Letter of Transmittal prior to the Expiration Time. Tenders received by the US Tender Agent after the Expiration Time will be disregarded and of no effect. See “The Tender Offers — Procedures for Tendering into the Offers — Tender of Common Shares.”
Do NOT send the Letter of Transmittal or any related documents to Parent, Purchaser, the Information Agent or the SDR Depositary.
I am a holder of SDRs. How do I participate in the Swedish Offer?
Holders of SDRs whose SDRs in Millicom are directly registered with Euroclear Sweden AB (“Euroclear”) and who wish to accept the Swedish Offer shall, during the period from July 1, 2024, up to and including August 16, 2024, one minute after 4:59 p.m. CEST, sign and submit a duly completed acceptance form (the “SDR Acceptance Form”) to Handelsbanken Offerings & Issue Services (“Handelsbanken Issue Department” or the “Swedish Settlement Agent”) to the address stated on the SDR Acceptance Form.
The SDR Acceptance Form must be sent in ample time before the Expiration Date so that it is received by Handelsbanken Issue Department no later than one minute after 4:59 p.m. CEST on August 16, 2024.
The securities account (Sw. VP-konto) and the current number of SDRs held in Millicom are pre-printed on the SDR Acceptance Form which will be sent out to holders of SDRs in Millicom who are directly registered as of July 1, 2024.
Holders of SDRs should verify that the pre-printed information on the SDR Acceptance Form is correct.
Note that SDR Acceptance Forms which are incomplete or incorrectly completed may be disregarded.
If SDRs in Millicom are pledged in the Euroclear system, both the holder of SDRs and the pledgee must sign the SDR Acceptance Form and confirm that the pledge will be terminated should the Offers be completed.
Holders of SDRs whose holdings are registered in the name of a nominee, i.e., a bank or other nominee, will not receive a pre-printed SDR Acceptance Form. Acceptances must be made in accordance with instructions received by the nominee. If you hold your SDRs through a broker, dealer, commercial bank, trust company or other nominee you should be aware that such securities intermediaries may establish their own earlier cut-off times and dates for receipt of instructions to tender to ensure that those instructions will be timely received by the Swedish Settlement Agent. Holders of SDRs are responsible for determining and complying with any applicable cut-off times and dates.
I hold my SDRs through a bank or nominee. How do I participate in the Swedish Offer?
Holders of SDRs whose holdings are registered in the name of a nominee, i.e., a bank or other nominee, will not receive a pre-printed SDR Acceptance Form. Such holders of SDRs are instead requested to contact their nominee for information about the Swedish Offer. Acceptances must be made in accordance with instructions received by the nominee.
When will I be paid for my Common Shares or SDRs tendered into the Offers?
Purchaser expects to pay for Common Shares and SDRs tendered into the Offers as soon as possible in accordance with the applicable Swedish Takeover Rules after the Expiration Time; provided that Atlas has announced that all of the conditions for completion of the Offers have been satisfied or waived. Provided that such announcement takes place no later than August 19, 2024, settlement for SDRs is expected to be initiated on or around August 29, 2024 (see “The Tender Offers — Acceptance for Payment and Payment” and “The Tender Offers — Procedures for Tendering into the Offers — Tender of SDRs — Settlement in the Swedish Offer”).
How will I be paid for my tendered Common Shares or SDRs?
Common Shares
If the conditions for completion of the Offers are satisfied or waived and we accept your validly tendered Common Shares for payment, payment will be made by deposit of the aggregate purchase price for the Common Shares accepted in the US Offer with the US Tender Agent, which will act as agent for holders of Common Shares tendering in the US Offer for the purpose of receiving payments from Purchaser and transmitting payments, subject to any tax withholding required by applicable law, to tendering shareholders whose Common Shares have been accepted for payment.
Payments will be subject to any withholding taxes that may be applicable. Under no circumstances will interest be paid by us on the Common Share Offer Price pursuant to the US Offer (see “The Tender Offers — Terms of the Offers — Consideration and Payment”).
SDRs
If the conditions for completion of the Offers are satisfied or waived, payment will be effected by distribution of a contract note to those holders of SDRs who have accepted the Swedish Offer. The settlement amount will be paid to the yield account (Sw. likvidkonto) which is connected to the holder’s securities account. If a holder does not have a yield account connected to their securities account or if the yield account is incorrect the payment may be delayed. If the holding is registered in the name of a nominee, settlement will be provided for by the nominee. In connection with the settlement, the SDRs will be removed from the blocked securities account which will then be terminated. No VP-notice evidencing the removal from the blocked securities account will be sent.
Note that, even if the SDRs are pledged, payment will be made to the yield account which is connected to the holder’s securities account.
For holders of SDRs the Offer Price is determined in USD, however the settlement will be made in SEK and the Offer Price will be set, based on the obtained USD/SEK exchange rate, as close to the settlement date as the Purchaser is able. The conversion of USD to SEK will be made in connection with the Purchaser making the consideration available to the Swedish Settlement Agent (expected around three business days following an announcement that the Purchaser declares the Offers unconditional and will complete the Offers), by the Swedish Settlement Agent at the prevailing market rates. The conversion may be affected by the availability of currency and the amount of SEK to be settled. This further means that the conversion may need to take place over more than one (1) day.
All holders of Common Shares or SDRs that validly tender, and do not withdraw, their Shares into the Offers prior to the Expiration Date will receive the same Offer Price per Share, as applicable, regardless of whether they tendered before or during any extension period of the Offers. At the start of any extension period, we will file with the SEC an amendment to the Tender Offer Statement and Rule 13e-3 Transaction Statement filed under cover of Schedule TO, of which this Offer to Purchase is a part, setting forth the new expiration date of the Offers. No fraction of a Common Share or SDR will be purchased from any holder and all payments made to holders of Common Shares or SDRs pursuant to this Offer to Purchase will be rounded to the nearest whole cent or rounded off to two decimal points of SEK, as applicable. See “The Tender Offers — Acceptance for Payment and Payment” and “The Tender Offers — Procedures for Tendering into the Offer” for more information.
Until what time may I withdraw previously tendered Common Shares or SDRs?
You can withdraw some or all of the Common Shares or SDRs that you previously tendered into the Offers not later than one minute after 10:59 a.m. EST, or one minute after 4:59 p.m. CEST, on the Expiration Date; provided that, exclusively in connection with the Swedish Offer, Purchaser has not announced that the conditions for completion of the Offers have been fulfilled. If the conditions for completion of the Offers, which Purchaser has reserved the right to waive, have not been satisfied or waived and remain during an extension of the Offers, the right to withdraw an acceptance will apply in the same manner throughout any such extension of the Offers.
How do I withdraw previously tendered Common Shares or SDRs?
To properly withdraw previously tendered Common Shares, you must deliver a written notice of withdrawal with the required information to the US Tender Agent prior to the Expiration Time. If you tendered Common Shares by giving instructions to a broker, dealer, commercial bank, trust company or other nominee, you must instruct the broker, dealer, commercial bank, trust company or other nominee to arrange for the withdrawal of your Common Shares in a timely manner prior to the Expiration Time.
If you have tendered SDRs, you must properly complete and duly execute a notice of withdrawal for such SDRs, and such withdrawal must have been received in writing by the Swedish Settlement Agent in a timely manner prior to the Expiration Time. If you tendered SDRs by giving instructions to a broker, dealer, commercial bank, trust company or other nominee, you must instruct the broker, dealer, commercial bank, trust company or other nominee to arrange for the withdrawal of your SDRs in a timely manner prior to the Expiration Time (see “The Tender Offers — Withdrawal Rights”).
If conditions for completion of the Offers remain during an extension of the Offers, the right to withdraw an acceptance will apply in the same manner throughout any such extension of the Offers.
Will I have the opportunity to sell my Common Shares or SDRs to Purchaser after the Offers are completed if I do not tender my Common Shares or SDRs into the Offers?
If you do not tender your Common Shares or SDRs into the Offers, the opportunity to sell your Common Shares or SDRs (or requirement to sell and transfer your Common Shares or SDRs to Purchaser as the case may be) will depend on the number of Shares that the Purchaser holds in Millicom following consummation of the Offers (see “The Tender Offers — Terms of the Offers — Squeeze-Out and Sell-Out”). No assurance can be given that you will have an opportunity to sell your Common Shares or SDRs to Purchaser after the Offer Period is completed if Purchaser does not hold securities carrying more than ninety (90) per cent of the voting rights in Millicom.
If I decide not to tender, how will the Offers affect my Common Shares or SDRs?
If you do not tender your Common Shares, you will continue to hold those Common Shares following consummation of the Offers. However, if the conditions for completion of the Offers are satisfied and the Offers are successful, to the extent legally permitted by applicable law, Purchaser currently intends to delist the Common Shares from Nasdaq Stock Market (“Nasdaq US”), to terminate registration of the Common Shares under Section 12(g)(4) of the Exchange Act and to suspend Millicom’s reporting obligations under Section 15(d) of the Exchange Act.
If you do not tender your SDRs, you will continue to hold those SDRs following consummation of the Offers. Pursuant to Article 15 of Luxembourg law of 19 May 2006 transposing Directive 2004/25/EC of the European Parliament and of the Council of 21 April 2004 on takeover bids (the “Luxembourg Takeover Law”), if Atlas holds securities representing not less than ninety five (95) per cent of the capital carrying voting rights and ninety five (95) per cent of the voting rights in Millicom following the Offers, Atlas may request that the remaining Shareholders transfer their Shares to Atlas against a fair price (a “Takeover Squeeze-Out”).
Furthermore, pursuant to Article 16 of the Luxembourg Takeover Law, if following the Offers, Atlas (together with any person acting in concert with the Purchaser) holds securities carrying more than ninety (90) per cent of the voting rights in Millicom, Shareholders may require that Atlas purchases the remaining Shares at a fair price (a “Takeover Sell-Out”). Atlas is not acting in concert with any other person within the meaning of
Article 2 (1)(d) and (2) of the Luxembourg Takeover Law in relation to the Offers. In connection with a Takeover Squeeze-Out or a Takeover Sell-Out, Purchaser intends to promote delisting of the SDRs in Millicom from Nasdaq Stockholm, Large Cap (“Nasdaq Stockholm”). See “The Tender Offers — Terms of the Offers — Squeeze-Out and Sell-Out” and “The Tender Offers — Possible Effects of the Offers on the Market for Common Shares; Nasdaq US Listing; Nasdaq Stockholm Listing; Exchange Act Registration; Squeeze-Out and Sell-Out.”
Are the Offers conditional upon a minimum acceptance level?
The Offers are, among other things, conditional upon the Offers being accepted to such extent that Purchaser becomes the owner of Shares representing ninety five (95) per cent or more of the Shares in Millicom. See “The Tender Offers — Terms of the Offers — Conditions for Completion of the Offers.”
What are the conditions for completion of the Offers?
The completion of the Offers is conditional upon:
1.
the Offers being accepted to such extent that Atlas becomes the owner of Shares representing ninety five (95) per cent or more of the Shares in Millicom;8
2.
no other party announcing an offer to acquire Shares on terms that are more favorable to the Shareholders than the Offers;
3.
with respect to the Offers and completion of the acquisition of Millicom, receipt of all necessary regulatory, governmental or similar clearances, approvals, decisions and other actions from authorities or similar, including from competition authorities, being obtained, in each case on terms which, in Atlas’ opinion, are acceptable;
4.
neither the Offers nor the acquisition of Millicom being rendered wholly or partially impossible or significantly impeded as a result of legislation or other regulation, any decision of a court or public authority, or any similar circumstance;
5.
no circumstances having occurred which could have a material adverse effect or could reasonably be expected to have a material adverse effect on Millicom’s financial position or operations, including Millicom’s sales, results, liquidity, equity ratio, equity or assets;
6.
no information made public by Millicom, or otherwise made available to Atlas by Millicom, being inaccurate, incomplete or misleading, and Millicom having made public all information which should have been made public; and
7.
Millicom not taking any action that is likely to impair the prerequisites for making or completing the Offers.
Atlas reserves the right to withdraw the Offers in the event that it is clear that any of the above conditions are not satisfied or cannot be satisfied. However, with regard to conditions 2 – 7 above, the Offers may only be withdrawn where the non-satisfaction of such condition is of material importance to Atlas’ acquisition of Millicom or if otherwise approved by the Swedish Securities Council.
Atlas reserves the right to waive, in whole or in part, one, several or all of the conditions 1 – 7 set out above, including, with respect to condition 1 above, to complete the Offers at a lower level of acceptance.
Are the Offers subject to a financing condition?
No. The Offers are not subject to any financing condition.
Does Purchaser have the financial resources to make payment?
Yes. Assuming that all of the outstanding Common Shares, including SDRs representing Common Shares, are tendered into the Offers, the aggregate Offer Price payable by Purchaser upon consummation of the Offers
8
Excluding 840,641 Common Shares and/or SDRs held in treasury by Millicom.
would be approximately USD 2.9 billion. Purchaser has obtained Debt Commitment Letters (as defined herein) with BNP Paribas, Crédit Agricole Corporate and Investment Bank, JPMorgan Chase Bank, N.A., London Branch, J.P. Morgan SE, Natixis and Société Générale, pursuant to which these banks and the other banks party to the Debt Commitment Letters and related Interim Facilities Agreement (as defined herein) have committed irrevocably to make unconditionally available the funds necessary to finance the purchase of all outstanding Shares that are subject to the Offers, and, if applicable, refinance certain outstanding indebtedness of Millicom and, as the case may be, its subsidiaries (see “The Tender Offers — Source and Amount of Funds” and “The Tender Offers — Certain Information Concerning Millicom — Material Agreements — Millicom’s Indebtedness”).
Is Purchaser’s financial position relevant to my decision to tender into the Offers?
No. Our financial position should not be relevant to your decision whether to tender Shares pursuant to the Offers because:
1.
the Offers are being made for all of the outstanding Common Shares, including SDRs representing Common Shares;
2.
you will receive payment solely in cash for any Shares that you tender into the Offers; and
3.
the Offers are not subject to any financing condition.
See “The Tender Offers — Source and Amount of Funds.”
What are the US federal income tax consequences of tendering my Common Shares or SDRs if I am a US Holder?
The receipt of cash for Shares by a US Holder (as defined below under “The Tender Offers — Tax Considerations — US Federal Income Tax Considerations”) pursuant to the Offers will be a taxable transaction for US federal income tax purposes. In general, a US Holder that sells Common Shares or SDRs pursuant to the Offers will recognize gain or loss for US federal income tax purposes equal to the difference, if any, between the amount of cash received and such US Holder’s adjusted tax basis in the Common Shares or SDRs tendered (see “The Tender Offers — Tax Considerations — US Federal Income Tax Considerations”).
If you are a US Holder, you should consult your tax advisor regarding the tax consequences that you may be subject to (including the application and effect of any US state or local or non-US income and other tax laws) by participating in the Offers in light of your particular circumstances.
What are the material Swedish income tax consequences of tendering my Common Shares or SDRs if I am a Swedish holder?
The receipt of cash for Shares by a Swedish holder pursuant to the Offers will be a taxable transaction for Swedish tax purposes. In general, a Swedish holder that disposes Common Shares or SDRs pursuant to the Offers will recognize a gain or loss for Swedish tax purposes that will be subject to a different tax regime depending on whether the Swedish holder is a private individual subject to personal income tax or a company subject to corporate income tax. In general, a non-Swedish holder that disposes Common Shares or SDRs pursuant to the Offers will not be subject to Swedish income tax in respect of such sale of Common Shares or SDRs, subject to certain exceptions. For a more complete description of the Swedish income tax consequences of the Offers, see “The Tender Offers — Tax Considerations — Material Swedish Tax Consequences.”
You should consult your tax advisors about the tax consequences that you may be subject to (including the application and effect of any Swedish or non-Swedish income and other tax laws) by participating in the Offers in light of your particular circumstances.
What are the material Luxembourg income tax consequences of tendering my Common Shares or SDRs?
The receipt of cash for Shares by a Luxembourg holder pursuant to the Offers will be a taxable transaction for Luxembourg income tax purposes. In general, a Luxembourg resident Holder that sells Common Shares or SDRs pursuant to the Offers will recognize a gain or loss for Luxembourg tax purposes that will be subject to
a different tax regime depending on whether the Luxembourg holder is an individual subject to personal income tax or a company subject to corporate income tax and municipal business tax (see “The Tender Offers — Tax Considerations — Material Luxembourg Tax Consequences”). In general, a non-Luxembourg resident that sells Common Shares or SDRs pursuant to the Offers will not be subject to Luxembourg income tax in respect of such sale of Common Shares or SDRs, subject to certain exceptions. For a more complete description of the Luxembourg income tax consequences of the Offers, see “The Tender Offers — Tax Considerations — Material Luxembourg Tax Consequences.”
You should consult your tax advisor about the tax consequences that you may be subject to (including the application and effect of any Luxembourg or non-Luxembourg income and other tax laws) by participating in the Offers in light of your particular circumstances.
Am I entitled to appraisal rights in connection with the Offers?
Under Luxembourg law, appraisal rights are not recognized and you are not entitled to appraisal rights in connection with the Offers.
How long do I have to decide whether to tender into the Offers?
Unless we extend the Offers, you have until one minute after 10:59 a.m. EST on the Expiration Date to tender Common Shares into the US Offer, or one minute after 4:59 p.m. CEST on the Expiration Date to tender SDRs into the Swedish Offer during the Offer Period, by which time the US Tender Agent or Swedish Settlement Agent, as applicable, must receive all documents necessary in accordance with the procedures set forth in this Offer to Purchase. See “The Tender Offers — Procedures for Tendering into the Offers.”
If you hold your Shares through a broker, dealer, commercial bank, trust company or other nominee you should be aware that such securities intermediaries may establish their own earlier cut-off times and dates for receipt of instructions to tender (or to submit a notice of withdrawal on your behalf, as applicable) to ensure that those instructions will be timely received by the US Tender Agent or Swedish Settlement Agent. Shareholders are responsible for determining and complying with any applicable cut-off times and dates.
Under what circumstances may Purchaser extend the Offers?
The Purchaser reserves the right to extend the Offer Period, as well as to postpone the settlement date. If the Swedish Offer is extended in accordance with Swedish law, the US Offer is expected to be extended so that it will expire on the same day as, and simultaneously with, the Swedish Offer. If the US Offer is extended in accordance with US law the Swedish Offer is expected to be extended so that it will expire on the same day as, and simultaneously with, the US Offer.
We will extend the Offers for any period or periods required by applicable law or applicable rules, regulations, interpretations or positions of the SEC or its staff or any of the rules and regulations, including listing standards, of Nasdaq US. In the event of an extension, all the Common Shares or SDRs validly tendered into and not properly withdrawn from the Offers will remain subject to the Offers. During such extension, each holder will continue to have the right to withdraw Common Shares or SDRs previously tendered provided that the conditions for completion of the Offers remain during such an extension and that the Offers have not been declared unconditional by Purchaser. See “The Tender Offers — Terms of the Offers — Offer Period and Right to Extend the Offers” and “The Tender Offers — Terms of the Offers — Conditions for Completion of the Offers” for more details on our obligation and ability to extend the Offers. Purchaser may make available a “subsequent offering period” as such term is defined in and in accordance with Rule 14d-11 promulgated under the Exchange Act.
How will I be notified if the Offers are extended?
If the Offer Period is extended and/or the settlement date is postponed, we will notify the US Tender Agent and the Swedish Settlement Agent and we will make a public announcement of the extension by press release in accordance with applicable laws and regulations. At the start of any extension period, we will file with the SEC an amendment to the Tender Offer Statement and Rule 13e-3 Transaction Statement filed under cover of
Schedule TO, of which this Offer to Purchase is a part, setting forth the new expiration date of the Offers (see “The Tender Offers — Terms of the Offers — Offer Period and Right to Extend the Offers”).
What is the market value of my Common Shares or SDRs as of a recent date?
On June 28, 2024, the last full trading day prior to the commencement of the Offers, the closing sale price for Common Shares and SDRs reported on Nasdaq US and Nasdaq Stockholm was USD 24.55 per Common Share and SEK 258.00 per SDR, respectively.
How will my outstanding equity awards be treated in the Offers?
Pursuant to the Millicom International Cellular S.A. Deferred Short-Term Incentive Share Plan (the “DSP”) and the Millicom International Cellular S.A. Long-Term Incentive Performance Share Plan (the “PSP”), the Millicom International Cellular S.A. Equity Incentive Plan (the “Equity Plan” and, collectively with the DSP and the PSP, the “Plans”) and the Plan rules associated with the performance years 2022 – 2024, the completion of the Offers will result in a change of control of the Company. Per the terms of the awards, accelerated vesting occurs on the date of a change of control if outstanding stock appreciation rights, restricted stock units or performance stock units are not assumed, converted or replaced with substantially equivalent awards in connection with the closing of the Offers. The Shares that vest must be settled as soon as practicable and in any event within ninety (90) days after the vesting date, or if a U.S. taxpayer, no later than March 15 of the calendar year following the year in which the vesting date occurs. In connection with completion of the Offers, Purchaser expects that all outstanding equity awards under the Plans will be assumed and continue to be subject to the same terms and conditions as were in effect immediately prior to the Offers, except that the Millicom Compensation Committee of the Board will make a good faith determination of the actual level of performance against the goals set for outstanding performance stock units as of the date of the change of control, and thus the number of performance stock units that will continue to vest following the change of control will be fixed. See “Special Factors — Interests of Certain Millicom Directors and Executive Officers in the Offers” for additional information.
Pursuant to the Plans and change of control agreements entered into with certain executive officers of the Company, the outstanding equity awards that do not vest in connection with the change of control will be subject to vesting acceleration upon certain qualifying terminations of employment (see “Special Factors — Interests of Certain Millicom Directors and Executive Officers in the Offers”). The foregoing summaries are exclusively based on publicly available information concerning Millicom and certain due diligence materials provided by Millicom, including agreements between Millicom and affiliates of Purchaser.
Who should I contact if I have questions about the Offers?
Holders of Common Shares in the US may call the Information Agent at (212) 269-5550, or at (866) 356-6140 (US toll-free), Shareholders may also contact the Information Agent in writing at its address at set forth on the back cover of this Offer to Purchase. Material requests (only) may be made to the Information Agent by email . The Information Agent’s contact information is also detailed on the back cover of this Offer to Purchase.
Holders of SDRs, whose SDRs are directly registered with Euroclear Sweden can direct their questions regarding administration of the Swedish Offer to Handelsbanken Issue Department by email to issuedept@handelsbanken.se. Holders of SDRs, whose holdings are registered in the name of a nominee, i.e., a bank or other nominee, should contact their nominee regarding administrative questions regarding the Swedish Offer.
INTRODUCTION
Introduction
On July 1, 2024, Atlas, announced separate but concurrent public offers in Sweden (the “Swedish Offer”) and the United States (the “US Offer”) to shareholders in Millicom, to tender all of their Shares9 in Millicom to Atlas. The Common Shares are listed on the Nasdaq US and the SDRs are listed on Nasdaq Stockholm. The Common Shares, together with the SDRs, are referred to herein as “Shares” and the holders as “Shareholders”.
Consideration
Shareholders are being offered USD 24.00 per Common Share and USD 24.00 per SDR,10 each such amount the “Offer Price,” upon the terms and subject to the conditions set forth in this Offer to Purchase and for the US Offer the accompanying Letter of Transmittal and other materials related to the US Offer and the Swedish Offer, as each may be amended or supplemented from time to time.
In the US Offer, the Offer Price is payable net to the seller in cash, without interest, less any withholding taxes that may be applicable. In the Swedish Offer, settlement will be made in SEK and the Offer Price will be converted into SEK in connection with settlement (see “The Tender Offers — Terms of the Offers — Consideration and Payment” and “The Tender Offers — Procedures for Tendering into the Offers — Tender of SDRs”).
Should Millicom, prior to the settlement of the Offers, distribute dividends or in any other way distribute or transfer value to its Shareholders, the Offer Price will be adjusted accordingly. In the event of either of the foregoing, Atlas reserves the right to determine whether this price adjustment mechanism or condition 7 to completion of the Offers (see “The Tender Offers — Terms of the Offers — Conditions for Completion of the Offers”) will be invoked.
No commission will be charged in respect of the settlement of the Shares in Millicom tendered to Atlas under the Offers.
Premium
In the US Offer, the Offer Price represents a premium of:11
•
1.8 per cent compared to the closing price of the Common Shares of USD 23.6 on May 22, 2024 (the last day of trading prior to market speculation12 regarding a potential public offer for the Company);13
•
17.2 per cent compared to the volume weighted average trading price of USD 20.5 for the Common Shares during the last ninety (90) calendar days ended on May 22, 2024 (the last day of trading prior to market speculation regarding a potential public offer for the Company);
•
24.4 per cent compared to the volume weighted average trading price of USD 19.3 for the Common Shares during the last one hundred eighty (180) calendar days ended on May 22, 2024 (the last day of trading prior to market speculation regarding a potential public offer for the Company); and
•
37.0 per cent compared to the volume weighted average trading price of USD 17.5 for the Common Shares during the last three hundred sixty-five (365) calendar days ended on May 22, 2024 (the last day of trading prior to market speculation regarding a potential public offer for the Company).
9
Based on 172,096,305 issued Common Shares in Millicom, less 840,641 Common Shares and/or SDRs held in treasury by Millicom.
10
Corresponding to SEK 254.67 per SDR, based on an illustrative USD/SEK exchange rate of 10.6 as of June 28, 2024. The Offer Price per SDR in SEK that will be paid to the holders of SDRs will be set based on the USD/SEK exchange rate as close to the settlement date as the Purchaser is able.
11
Source for Millicom’s Common Share prices: Nasdaq US.
12
On May 23, 2024, in response to the market speculation, the Parent announced through a press release that it was exploring a potential all-cash tender offer for Millicom securities.
13
Representing a premium of -2.2 per cent compared to the closing price of the Common Shares of USD 24.6 on June 28, 2024 (the last day of trading prior to the announcement of the Offers).
In the Swedish Offer, the Offer Price14 represents a premium of:15
•
1.2 per cent compared to the closing price of the SDRs of SEK 251.6 on May 22, 2024 (the last day of trading prior to market speculation regarding a potential public offer for the Company);16
•
19.3 per cent compared to the volume weighted average trading price of SEK 213.4 for the SDRs during the last ninety (90) calendar days ended on May 22, 2024 (the last day of trading prior to market speculation regarding a potential public offer for the Company);
•
29.3 per cent compared to the volume weighted average trading price of SEK 197.0 for the SDRs during the last one hundred eighty (180) calendar days ended on May 22, 2024 (the last day of trading prior to market speculation regarding a potential public offer for the Company); and
•
37.4 per cent compared to the volume weighted average trading price of SEK 185.3 for the SDRs during the last three hundred sixty five (365) calendar days ended on May 22, 2024 (the last day of trading prior to market speculation regarding a potential public offer for the Company).
On a blended basis to illustrate one premium for both Offers, the Offer Price represents a premium of:17
•
18.8 per cent compared to the volume weighted average trading price of USD 20.2 for the Shares during the last ninety (90) calendar days ended on May 22, 2024 (the last day of trading prior to market speculation regarding a potential public offer for the Company);
•
27.1 per cent compared to the volume weighted average trading price of USD 18.9 for the Shares during the last one hundred eighty (180) calendar days ended on May 22, 2024 (the last day of trading prior to market speculation regarding a potential public offer for the Company); and
•
37.8 per cent compared to the volume weighted average trading price of USD 17.4 for the Shares during the last three hundred sixty-five (365) calendar days ended on May 22, 2024 (the last day of trading prior to market speculation regarding a potential public offer for the Company).
The Total Value of the Offers
The Offers value Millicom, based on all outstanding 171,255,66418 Shares, at approximately USD 4.1 billion. The total value of the Offers, based on the 121,288,93019 outstanding Shares in Millicom, which are not directly or indirectly owned by Atlas or its closely related parties, amounts to approximately USD 2.9 billion.20
Financing of the Offers
The consideration payable in respect of the Offers is financed in full through funds available to Purchaser pursuant to financing provided by BNP Paribas, Crédit Agricole Corporate and Investment Bank, JPMorgan Chase Bank, N.A., London Branch, J.P. Morgan SE, Natixis and Société Générale under the Debt Commitment Letters and related Interim Facilities Agreement, on terms customary for financing of public offers on the US and Swedish markets and as described herein under “The Tender Offers — Source and Amount of Funds.”
The above-mentioned financing provides Atlas with sufficient cash resources to satisfy in full the consideration payable in respect of the Offers and, accordingly, completion of the Offers is not subject to any financing condition.
14
Based on the Offer Price of USD 24.00 per SDR, corresponding to SEK 254.67 per SDR, based on an illustrative USD/SEK exchange rate of 10.6 as of June 28, 2024.
15
Source for Millicom’s SDR prices: Nasdaq Stockholm.
16
Representing a premium of -1.3 per cent compared to the closing price of the SDRs of SEK 258.0 on June 28, 2024 (the last day of trading prior to the announcement of the Offers).
17
The blended share price premium is calculated using the daily volume-weighted average share prices of the Common Shares on Nasdaq US and the SDRs on Nasdaq Stockholm expressed in USD, with the SDR price converted from SEK to USD using the daily SEK/USD exchange rate.
18
Based on 172,096,305 issued Common Shares in Millicom, less 840,641 Common Shares and/or SDRs held in treasury by Millicom.
19
Based on 172,096,305 issued Common Shares in Millicom, less 840,641 Common Shares and/or SDRs held in treasury by Millicom and 49,966,734 SDRs held by Purchaser.
20
Corresponding to approximately SEK 30.9 billion, based on an illustrative USD/SEK exchange rate of 10.6 as of June 28, 2024.
Acceptance Level in the Offers
The Offers are, inter alia, conditional upon the Offers being accepted to such extent that Atlas becomes the owner of Shares representing ninety five (95) per cent or more of the Shares in Millicom. Atlas reserves the right to waive this condition and to complete the Offers at a lower level of acceptance. Further, the Offers will be made on the terms and subject to the conditions 2 – 7 set out below under “The Tender Offers — Terms of the Offers — Conditions for Completion of the Offers.”
Statement by the Independent Bid Committee and Fairness Opinion
Atlas has been informed that the Millicom Board has established an Independent Bid Committee, consisting entirely of directors independent from Purchaser and Parent.
As of the date of this Offer to Purchase, the Millicom Board, through the Independent Bid Committee, has not made a formal recommendation regarding the Offers and has not stated whether the Offers, as outlined in this Offer to Purchase, are fair or in the best interests of the Company and its “unaffiliated security holders” as defined in Rule 13e-3 under the Exchange Act (the “Unaffiliated Shareholders”). Though the Independent Bid Committee shared its preliminary views in the Pre-Commencement Press Release (as defined under “Special Factors — Background”), the Independent Bid Committee is, in accordance with the Swedish Takeover Rules, required to announce its formal opinion regarding the Offers and obtain a fairness opinion from independent experts no later than two weeks prior to the expiry of the Offer Period. Under US law, Millicom is required to make a formal recommendation or state that it is neutral or is unable to take a position with respect to the Offers in a Solicitation/Recommendation Statement on Schedule 14D-9, and to publish such recommendation or send it to holders of Common Shares within ten (10) US Business Days from the date of this Offer to Purchase. In each case the Independent Bid Committee is required to explain the reasons for its position. The Pre-Commencement Press Release does not constitute any such formal opinion or recommendation (see “Special Factors — Background”).
We have been informed that the Independent Bid Committee consists of the Millicom Non-Executive Directors Mauricio Ramos, Bruce Churchill, Justine Dimovic, Tomas Eliasson, Blanca Treviño de Vega and María Teresa Arnal. The Millicom Non-Executive Directors Thomas Reynaud, Aude Durand and Maxime Lombardini have not participated in, and will not participate in, the Independent Bid Committee’s handling of or decisions regarding the Offers as they have a conflict of interest pursuant to Rule II.18 of the Swedish Takeover Rules (see “Certain Closely Related Parties” below).
Atlas’ Shareholding in Millicom
As of the date of this Offer to Purchase, Atlas holds 49,966,734 Shares (composed entirely of SDRs)21 in Millicom, which corresponds to approximately 29.0322 per cent of the share capital and the total number of votes in Millicom. Atlas is an affiliate (as defined under US federal securities laws) of Millicom and has during the six (6) months preceding the announcement of the Offers acquired 131,587 SDRs at a price per SDR not exceeding the Offer Price. The highest price paid per SDR during the six (6) months preceding the announcement of the Offers was SEK 192.51.
Apart from the above, neither Atlas nor any of its closely related companies or closely related parties owns or controls any Shares in Millicom, nor any financial instruments that give financial exposure equivalent to holding Shares in Millicom, at the time of the publication of this Offer to Purchase. Neither Atlas nor any of its closely related companies or closely related parties have acquired or agreed to acquire any Shares or any other financial instruments in Millicom that give financial exposure equivalent to holding Shares in Millicom at a price above the Offer Price during the six (6) months preceding the announcement of the Offers through the date of this Offer to Purchase.
To the extent permissible under applicable laws and regulations, Atlas and its closely related companies or closely related parties may acquire, or take measures to acquire, Shares in other ways than through the Offers. Information about such acquisitions of Shares, or measures to acquire Shares, will be disclosed in accordance with applicable laws and regulations.
21
Each SDR represents one Common Share in Millicom.
22
Based on 172,096,305 issued Common Shares in Millicom.
Review of Information in Connection with the Offers
Atlas has been permitted by the Independent Bid Committee to carry out a limited confirmatory due diligence review of Millicom in connection with the preparation of the Offers. To Atlas’ knowledge, no material non-public or inside information has been disclosed to Atlas during the process.
Approvals from Authorities
The completion of the Offers is conditional upon all necessary clearances, approvals, decisions, and other actions from authorities or similar, including approvals from competition authorities, being obtained, in each case on terms which, in Atlas’ opinion, are acceptable.
According to Atlas’ assessment, the Offers will require customary regulatory approvals in the United States, Bolivia and Colombia. Atlas has initiated the work on filings relevant for the transaction. Atlas expects necessary clearances to be obtained prior to the end of the Offer Period. See “The Tender Offers — Terms of the Offers — Conditions for Completion of the Offers” and “The Tender Offers — Legal Matters; Required Regulatory Approvals — Regulatory Approvals.”
Certain Closely Related Parties
The Millicom Non-Executive Director Thomas Reynaud is the Chief Executive Officer and member of the Board of Directors of Iliad Group,23 the Millicom Non-Executive Director Aude Durand is the Deputy Chief Executive Officer of Iliad Holding and Iliad Group and the Millicom Non-Executive Director, President and Chief Operating Officer Maxime Lombardini is the Vice-Chairman of the Board of Directors of Iliad Group, and they are therefore not considered independent in relation to Atlas pursuant to the Swedish Takeover Rules. Consequently, Thomas Reynaud, Aude Durand and Maxime Lombardini have a conflict of interest pursuant to Rule II.18 of the Swedish Takeover Rules. For this reason, they have not participated, and will not participate, in Millicom’s handling of matters regarding the Offers.
The above means that Section III of the Swedish Takeover Rules is applicable to the Swedish Offer, entailing that the Offer Period shall be at least four weeks and that Millicom is obliged to obtain and make public a valuation opinion (a fairness opinion) regarding the Shares from independent experts.
Applicable Law and Disputes
The Swedish Offer, as well as any agreements entered into between Atlas and the Shareholders in Millicom as a result of the Swedish Offer, shall be governed and construed in accordance with substantive Swedish law, save for certain corporate law aspects which are governed by Luxembourg law. Any dispute regarding the Swedish Offer or agreements in connection therewith shall be settled exclusively by Swedish courts, and the District Court of Stockholm (Sw. Stockholms tingsrätt) shall be the court of first instance. The US Offer shall be governed and construed in accordance with US federal securities laws, as well as Swedish law pursuant to certain exemptions where applicable, and Luxembourg law for certain corporate law aspects.
The Swedish Takeover Rules and the Swedish Securities Council’s statements and rulings regarding the interpretation and application of the Swedish Takeover Rules are applicable to the Swedish Offer. Furthermore, Atlas has, in accordance with the Swedish Takeovers Act, on June 30, 2024, contractually undertaken, in writing, towards Nasdaq Stockholm AB to comply with said rules and statements and to accept any sanctions that can be imposed by Nasdaq Stockholm AB in the event of a breach of the Swedish Takeover Rules. On July 1, 2024, Atlas informed the Swedish Financial Supervisory Authority (the “SFSA”) about the Offers and the above-mentioned undertaking towards Nasdaq Stockholm AB.
Purchaser intends to conduct the Offers in compliance with the applicable regulatory requirements in the United States, including the applicable requirements of Regulations 14D and 14E under the Exchange Act. Purchaser is relying on Rule 14d-1(d) under the Exchange Act in respect of the Offers (the “Tier II Exemptions”).
23
Xavier Niel, the owner of NJJ Holding S.A.S. which is the parent company of the Parent, is also the owner of Iliad Group.
THIS OFFER TO PURCHASE AND THE LETTER OF TRANSMITTAL CONTAIN IMPORTANT INFORMATION. YOU SHOULD CAREFULLY READ THIS OFFER TO PURCHASE AND THE LETTER OF TRANSMITTAL (IF YOU ARE A HOLDER OF COMMON SHARES) IN THEIR ENTIRETY BEFORE YOU MAKE A DECISION WITH RESPECT TO THE OFFERS.
SPECIAL FACTORS
1.
Background
Atlas Investissement is a long-term industrial investor looking to support the development and profitable growth of the telecoms sector through targeted investments in assets that offer opportunities for significant value creation. Xavier Niel, who indirectly owns Atlas Investissement, has significant expertise in the telecoms sector and a track record of innovation and strategy execution. He has created one of the fastest-growing operators in France and in Italy, and owns successful telecom businesses in Poland, Switzerland and Ireland.
The Purchaser Group has periodically reviewed their respective long-term strategic plans and considered strategic actions with respect to their investments in the Company.
On November 4, 2022, the Purchaser Group disclosed in its Schedule 13G filing that it had acquired a 7.1 per cent stake in Millicom (the “Initial Acquisition”). Since the Initial Acquisition, the Purchaser Group regularly reviewed Millicom’s performance, future growth prospects, business strategies, competitive positioning, opportunities and challenges as part of its evaluation of Millicom’s prospects for enhancing shareholder value.
On January 25, 2023, the Purchaser Group became aware, via a press release issued by Millicom, that Millicom was discussing a potential acquisition of all Shares by Apollo Global Management and Claure Group. On June 15, 2023, the Purchaser Group similarly became aware via a press release issued by Millicom that discussions with Apollo Global Management and Claure Group regarding a potential acquisition of all Shares had terminated. To the Purchaser Group’s knowledge, such contacts did not result in any firm offer or proposal for an acquisition of the Company, sale of all or substantial part of the Company’s assets, or a purchase of a controlling amount of the Company’s securities.
From February 14, 2023, to January 12, 2024, the Purchaser Group steadily increased its stake in the Company to its present ownership of 49,966,734 SDRs, which at the time of the Schedule 13G and Schedule 13D filings corresponded to approximately 29.19 per cent of the outstanding Shares as reported in its Schedule 13G and Schedule 13D filings with the SEC, and as further disclosed in Schedule II hereto. As part of this process, the Purchaser Group regularly reviewed Millicom’s direction and business objectives and considered its ability to assist the Company to improve its performance.
On March 10, 2023, Purchaser delivered a letter to the Millicom Board requesting a discussion between the parties surrounding the possibility of Purchaser proposing to Millicom’s Nomination Committee the nomination of potential candidates to the Millicom Board for consideration by the Company’s shareholders at the upcoming annual general meeting.
During the week of March 13, 2023, members of the Purchaser Group met via videoconference with members of the Millicom Board to discuss the possibility of Purchaser nominating a member to Millicom’s Nomination Committee.
On March 23, 2023, and as disclosed in the Purchaser Group’s Schedule 13D filing dated March 28, 2023, the Company’s Nomination Committee extended an invitation to Purchaser to appoint a member of its choice to the Nomination Committee.
On March 23, 2023, Nicolas Jaeger, the former Deputy Chief Executive Officer of Iliad Group, joined Millicom’s Nomination Committee on behalf of Purchaser. Following Millicom’s Annual General Meeting held on May 31, 2023, Nicolas Jaeger was replaced by Aude Durand, the Deputy Chief Executive Officer at Iliad Holding and Deputy Chief Executive Officer of the Iliad Group, as a member of the Nomination Committee on behalf of Purchaser.
From May 31, 2023, the Purchaser Group, in part through its representation on the Millicom Board and institutional knowledge in the telecoms sector, assisted in implementing a number of strategic initiatives at Millicom. These initiatives also included, in 2023 and 2024, the entry into the commercial agreements listed under “Special Factors — Certain Agreements between Parent and its Affiliates and Millicom — Commercial Agreements,” whereby members or affiliates (as defined under US federal securities law) of the Purchaser Group provided services to Millicom.
On May 31, 2023, Thomas Reynaud, the Chief Executive Officer of Iliad Group, an affiliate of the Purchaser Group, Nicolas Jaeger and Michael Golan, who served in several executive positions in NJJ Holding S.A.S., a member of the Purchaser Group, were elected to serve as Non-Executive Directors of the Company at the Company’s Annual General Meeting 2023. In September 2023, Maxime Lombardini, the Vice Chairman of Iliad Group, was appointed as President and Chief Operating Officer of the Company.
On February 26, 2024, Aude Durand was appointed to serve as a Non-Executive Director of the Company, replacing Nicolas Jaeger. Maxime Lombardini (together with the Purchaser Group, the “Filing Parties”) was elected to serve as a Non-Executive Director of the Company at the Company’s Annual General Meeting 2024.
From January 2024, members and affiliates (as defined under US federal securities law) of the Purchaser Group, by virtue of their positions in and/or on behalf of Millicom, were involved in preliminary discussions and deliberations in connection with local mergers, acquisitions, joint ventures and similar transactions contemplated by Millicom, in particular in Colombia and Costa Rica, including, but not limited to, Millicom infrastructure assets. Such members and affiliates (as defined under US federal securities law) of the Purchaser Group assisted with the preparation, assessment and negotiation of such proposed transactions, though no definitive documentation was executed.
On March 12, 2024, on the basis of Millicom’s publication of its annual report for the year ended December 31, 2023, the Purchaser Group believed that its strategic initiatives at Millicom had garnered positive financial results and began considering more critically enhancing its exposure to Millicom.
Between April 4, 2024, and July 1, 2024, representatives of the Purchaser Group and representatives of Skadden, Arps, Slate, Meagher & Flom LLP (“Skadden”), counsel to the Purchaser Group, and Roschier Advokatbyrå AB (“Roschier”), Swedish counsel to the Purchaser Group, Arendt & Medernach SA, Luxembourg counsel to the Purchaser Group, Kirkland & Ellis LLP (“K&E”), finance counsel to the Purchaser Group, and BNP Paribas S.A., Crédit Agricole Corporate and Investment Bank, J.P. Morgan Securities plc, J.P. Morgan Securities LLC, Lazard Frères S.A.S., Société Générale (each a “Parent Financial Advisor”, and together “Parent Financial Advisors”) and Svenska Handelsbanken AB (publ) (the “Atlas Financial Advisor”), participated in a number of discussions regarding different transaction structures by which the Purchaser Group could execute the Offers as well as discussions relating to transaction execution. The discussions covered, among other things, analyses of the procedural steps, applicable legal and regulatory requirements, the probability of success, financing alternatives, estimated timelines of the different transaction structures, the Offer to Purchase and related auxiliary transaction documents.
On May 23, 2024, Parent announced that it was exploring a potential all cash tender offer for the Company’s Shares, and that it was exploring financing options to support an offer price of USD 24.0 per Common Share, and its SEK equivalent per SDR (the “Initial Announcement”). Parent also furnished the Millicom Board with a letter of intent (the “Letter of Intent”) noting that the potential offer price would represent a nineteen (19) per cent premium to Millicom’s volume-weighted average price for the previous three (3) months; a twenty seven (27) per cent premium to its volume-weighted average price for the previous six (6) months and a thirty eight (38) per cent premium to its volume-weighted average price for the previous twelve (12) months. The Letter of Intent also noted that the potential offer price would be higher than the median of brokers’ time-adjusted target prices and would provide immediate liquidity for Shareholders, but that no assurances could be given that any such offer would be made by Parent, or if one was made, its terms or timing.
On May 23, 2024, following the Initial Announcement and receipt of the Letter of Intent, the Company announced that it had received the Letter of Intent and that the Millicom Board would carefully review any offer, should one be made.
On May 24, 2024, Parent delivered a letter to the Millicom Board requesting its support and cooperation in connection with the Purchaser Group’s preparatory due diligence work in relation to its potential offer (the “Preparatory Work Request Letter”).
On May 28, 2024, the chair of the Millicom Board delivered a letter to Parent confirming Millicom’s willingness to offer Parent a session with relevant members of Millicom’s management to provide select diligence information in response to the Preparatory Work Request Letter.
On June 5, 2024, Parent entered into a confidentiality agreement with Millicom with respect to the potential offer (the “Confidentiality Agreement”). See “Special Factors — Certain Agreements between Parent and its Affiliates and Millicom — Confidentiality Agreement.”
On June 10, 2024, Skadden, Millicom and its legal counsel met via videoconference to discuss the regulatory conditions applicable to the Offers and related diligence matters.
On June 11, 2024, representatives of the Purchaser Group, K&E, Latham & Watkins LLP, legal counsel to certain potential lenders to the Purchaser Group, and Millicom and its legal counsel met via videoconference to discuss the change of control provisions relating to Millicom’s existing indebtedness, as well as a potential refinancing of Millicom’s revolving credit facility.
On June 12, 2024, the Parent delivered an indicative offer letter to the Millicom Board confirming its intention to move forward with the proposed offer and that it had begun discussions with potential lenders to support the indicative offer price (the “Indicative Offer Letter”). The Indicative Offer Letter outlined the proposed transaction structure of the Offers, the proposed offer price as disclosed in the Initial Announcement and the general steps the Purchaser Group would try to take in order to advance the Offers.
During the week of June 10, 2024, Thomas Reynaud, the Chief Executive Officer of Iliad Group and a Millicom Non-Executive Director, and Mauricio Ramos, Chair of the Millicom Board, held two telephone meetings to discuss the terms and conditions of the Offers.
From June 13 to June 28, 2024, the Purchaser Group requested information on Millicom’s business as part of the Purchaser Group’s due diligence review of Millicom. On June 13, 2024, Millicom received the first diligence request list from the Purchaser Group.
On June 12, 2024, Millicom granted access to the Purchaser Group to certain limited information concerning Millicom’s financing via a virtual data room.
On June 18, 2024, the Independent Bid Committee delivered a letter to the Purchaser Group in response to the Indicative Offer Letter (the “Indicative Offer Response Letter”), stating that the Independent Bid Committee believed the proposed offer price undervalued the Company and was not in the best interests of the Company’s Shareholders. The Indicative Offer Response Letter further indicated that the Independent Bid Committee would not provide any further due diligence materials to the Purchaser Group at that time, and requested further detail from the Purchaser Group about the proposed offer, including any conditions to the proposed offer and the source of funds used to finance the proposed offer.
On June 26, 2024, representatives of the Purchaser Group met via videoconference with the Independent Bid Committee to discuss the Offers (the “Pre-Commencement Meeting”). Specifically, representatives of the Purchaser Group conveyed to the Independent Bid Committee the then-proposed Offer Price and the reasons the Purchaser Group believed the Offer Price was fair (as described under “Special Factors — Position of the Filing Parties Regarding Fairness of the Offers”), as well as the Purchaser Group’s financing for the proposed Offers (as described under “The Tender Offers — Source and Amount of Funds”), progress of the Purchaser Group’s diligence review of the Company and related regulatory filings (as described under “The Tender Offers — Legal Matters; Required Regulatory Approvals”).
On June 27, 2024, the Company disclosed via press release that the Pre-Commencement Meeting had taken place, and that the Independent Bid Committee believed that the then-anticipated Offer Price was not in the best interests of Shareholders, having specifically taken into consideration Millicom’s management’s latest review of financial performance (the “Pre-Commencement Press Release”). The Pre-Commencement Press Release included updated financial forecasts of Millicom’s full-year 2024 results. The Pre-Commencement Press Release disclosed that Millicom had entered into exclusive negotiations regarding a sale and leaseback of a large portion of its tower portfolio, and that such updated financial forecasts did not include the expected proceeds that may be obtained from any such future tower monetization. The Pre-Commencement Press Release noted that the Independent Bid Committee would carefully review the final terms of the then-proposed Offers before making a formal recommendation.
2.
Purpose and Reasons for the Offers; Going Private Transaction; Plans for Millicom and the Purchaser Group
Purpose of the Offers
Purchaser has identified Millicom as an attractive investment opportunity due to its position as a regional market leader in Latin America and its strong position in South America, its high-quality assets and strong brand. Millicom has also demonstrated a long-term commitment to the region with its significant investments, which are expected to support digital development for the relevant populations and economies as well as the achievement of its ambitious ESG targets.
The purpose of the Offers is for Atlas to continue to support the Company in the execution of its strategic plan. Specifically, we want to continue expanding the reach and capacity of Millicom’s networks and distribution capabilities to grow its customer base and better leverage its comprehensive telecom expertise. We believe the Company will benefit from the Purchaser Group’s long-term knowledge and experience in the telecoms sector across numerous jurisdictions, as well as the creation of potential synergies that will allow Millicom to be better equipped to focus on long-term business goals, including pursuing any potential strategic transactions and acquisitions. The Purchaser Group will conduct a detailed review of Millicom and will consider what specific changes would be appropriate to achieve this objective following completion of the Offers. See “Special Factors — Purpose and Reasons for the Offers; Going Private Transaction; Plans for Millicom and the Purchaser Group — Plans for Millicom and the Purchaser Group.”
The Purchaser currently intends to retain all Shares acquired by Purchaser pursuant to the Offers subject to possible intra-group transactions and restructurings.
If you tender your Shares in the Offers, you will cease to have any equity interest in Millicom or any right to participate in its earnings and future growth after the Offers. Similarly, after tendering your Shares in the Offers, you will not bear the risk of any decrease in the value of Millicom.
Pursuant to Article 15 of the Luxembourg Takeover Law, if Purchaser holds securities representing not less than ninety five (95) per cent of the capital carrying voting rights and ninety five (95) per cent of the voting rights in Millicom following the completion of the Offers, Purchaser has the right to exercise a Takeover Squeeze-Out within three (3) months following the Expiration Date. If Purchaser initiates a Takeover Squeeze-Out, Purchaser may only offer consideration in cash. In this case, under the supervision of the CSSF (the Commission de Surveillance du Secteur Financier) that the consideration constitutes a fair price in this respect, Purchaser would announce the exercise of its right of a Takeover Squeeze-Out to acquire the remaining Shares not tendered in the Offers including the terms for the Takeover Squeeze-Out (e.g., the price per Share, details of the transfer of the Share and payment of the corresponding consideration).
Furthermore, pursuant to Luxembourg Takeover Law, if the Purchaser holds securities carrying more than ninety (90) per cent of the voting rights in Millicom, the remaining Shareholders may require that the Purchaser exercises a Takeover Sell-Out and purchases the remaining Shares at a “fair price.” The price offered in a voluntary offer shall be presumed to be “fair” for the remaining securities in a Takeover Sell-Out if Atlas, through acceptance of the Offers, succeeded in acquiring not less than ninety (90) per cent of the capital carrying voting rights comprised in the Offers. The consideration paid in a Takeover Sell-Out shall take the same form as the consideration offered in the Offers or shall be in cash. Cash shall be offered at least as an alternative. The right to initiate a Takeover Sell-Out must be exercised within three (3) months after the Expiration Date.
Going Private Transaction
The SEC has adopted Rule 13e-3 under the Exchange Act, which is applicable to certain “going private” transactions, and which may under certain circumstances be applicable to the purchase of Common Shares pursuant to the US Offer in which Purchaser seeks to acquire the remaining Shares not held by the Purchaser. Because Purchaser may be deemed an affiliate (as defined under US federal securities laws) of Millicom, the transactions contemplated by the US Offer may constitute a “going private transaction” under Rule 13e-3 under the Exchange Act (see “Special Factors — Appraisal Rights; Rule 13e-3”).
Plans for Millicom and the Purchaser Group
Following completion of the Offers, Purchaser will conduct a detailed review of Millicom and its assets, corporate structure, dividend policy, capitalization, indebtedness, operations, properties, policies, management and personnel, obligations to report under Section 15(d) of the Exchange Act and the delisting of its securities from a registered national securities exchange, and will consider what, if any, changes would be desirable in light of the circumstances that exist following completion of the Offers. Purchaser will evaluate the business and operations of Millicom following the consummation of the Offers and will take such actions as Purchaser deems appropriate under the circumstances then existing. Thereafter, Purchaser intends to analyze such information as part of a comprehensive review of Millicom’s business, operations, capitalization and management with a view to continue enhancing the development of Millicom’s potential. Possible changes could include changes in Millicom’s business, corporate structure, organizational documents, capitalization, management, business development opportunities, indebtedness, dividend policy or to the Millicom Board. While Purchaser’s plans with respect to Millicom do not currently include changing its business and general strategy, Purchaser will consider what, if any, changes would be desirable in light of its review and the circumstances that exist after the completion of the Offers.
If the conditions for completion of the Offers are satisfied and the Offers are successful, following the consummation of the Offers and to the extent legally permitted by applicable law, Purchaser currently intends to delist the Common Shares from Nasdaq US and the SDRs from Nasdaq Stockholm, to terminate the registration of the Common Shares under Section 12(g)(4) of the Exchange Act and to suspend Millicom’s reporting obligations under Section 15(d) of the Exchange Act.
Purchaser expressly reserves the right to make any changes it deems appropriate in light of its evaluation and review or in light of future developments. Specifically, it may evaluate the feasibility or possibility of making investments or divestments in business lines, selling assets, or forming strategic alliances for the development of Millicom’s business. Any such transactions would be subject to the required corporate and governmental approvals under applicable current legislation. Similarly, Purchaser may evaluate the feasibility or possibility of making changes to align with strategic goals, subject to applicable corporate approvals.
Initially following the consummation of the Offers, Millicom’s business and operations will be continued substantially as they are currently being conducted and, except as disclosed in this Offer to Purchase (in the section “Special Factors — Background,” with respect to any transactions that may result from the Company’s ongoing discussions or negotiations involving the Company or certain subsidiaries in Central and South America), neither Purchaser nor the Purchaser Group nor, to the best of our knowledge, any of the persons listed in Schedule I hereto, has any current plans, proposals or negotiations that relate to or would result in the following: (a) an extraordinary corporate transaction, such as a merger, reorganization or liquidation involving the Company or any of its subsidiaries, (b) any purchase, sale or transfer of a material amount of assets of the Company or any of its subsidiaries, (c) any material change in the Company’s present dividend rate or policy, or indebtedness or capitalization, (d) any change in the present Millicom Board or management of the Company, including, but not limited to, any plans or proposals to change the number or the term of directors or to fill any existing vacancies on the Millicom Board, any changes concerning the Company’s management or employees, or to change any material term of the employment contract of any executive officer or other employee, (e) any other material change in the Company’s corporate structure, business or with regard to Millicom’s operational sites, (f) any class of security of the Company to be de-listed from a national securities exchange or cease to be authorized to be quoted in an automated quotations system operated by a national securities association or (g) any class of equity securities of the Company becoming eligible for termination of registration under section 12(g)(4) of the Exchange Act.
We do not at this point in time anticipate that Millicom’s business will be materially affected as a result of the Offers, though as noted above, upon completion of our detailed review following completion of the Offers, we intend to leverage the Purchaser Group’s long-term knowledge and experience in the telecoms sector across numerous jurisdictions to explore potential synergies, focus on long-term business goals and pursue any potential strategic transactions and acquisitions that may arise.
Furthermore, at this point in time there are no employees in Atlas, implying that the Offers will not entail any changes for the management and employees in Atlas. We do not anticipate that the Offers will affect Atlas’ business.
For further information, please refer to the information in this Offer to Purchase, which has been prepared by the Board of Managers of Atlas in connection with the Offers. The Board of Managers of Atlas assures that, to the best of its knowledge, the information in the Offer to Purchase with regard to Atlas is correct.
Luxembourg, July 1, 2024
Atlas Luxco S.à r.l.
The Board of Managers
3.
The Recommendation by the Independent Bid Committee
Atlas has been informed that the Millicom Board has established an Independent Bid Committee, existing entirely of directors independent from Purchaser and Parent. As of the date of this Offer to Purchase, the Millicom Board, through the Independent Bid Committee, has not made a formal recommendation regarding the Offers and has not stated whether the Offers, as outlined in this Offer to Purchase, are fair or in the best interests of the Company and its Unaffiliated Shareholders. Though the Independent Bid Committee shared its preliminary views in the Pre-Commencement Press Release (see “Special Factors — Background”), Millicom is required to make a formal recommendation or state that it is neutral or is unable to take a position with respect to the Offers in a Solicitation/Recommendation Statement on Schedule 14D-9, and to publish such recommendation or send it to holders of Common Shares within ten US Business Days from the date of this Offer to Purchase. A description of the reasons for the Independent Bid Committee’s recommendation relating to the Offers will be set forth in a Solicitation/Recommendation Statement on Schedule 14D-9 prepared by Millicom. All holders of Common Shares should carefully read the information set forth in the Schedule 14D-9, including the information set forth under the heading “Item 4. The Solicitation or Recommendation” of the Schedule 14D-9.
The Independent Bid Committee is, in accordance with the Swedish Takeover Rules, required to announce its opinion regarding the Offers and obtain a fairness opinion from independent experts no later than two weeks prior to the expiry of the Offer Period.
Millicom Non-Executive Directors, Thomas Reynaud, Aude Durand and Maxime Lombardini have not participated in any discussions, deliberations or decisions of the Independent Bid Committee of Millicom because of their affiliation with Purchaser.
4.
Summary of the Valuation Analysis Delivered to Parent from the Parent Financial Advisors (BNP Paribas S.A., Credit Agricole Corporate and Investment Bank, J.P. Morgan Securities plc, J.P. Morgan Securities LLC, Lazard Frères S.A.S. and Société Générale)
The Parent Financial Advisors acted as financial advisors to Parent in connection with the Offers.
On June 29, 2024 representatives of the Parent Financial Advisors provided Parent with a valuation analysis (the “Parent Financial Advisors’ Material”) of the Shares, excluding Shares held by Parent, Purchaser or their affiliates and Shares held in treasury. The Parent Financial Advisors’ financial analyses consisted of (i) a historical trading analysis based on the weighted average trading prices of the Shares before Parent’s statement regarding media reports on a potential all cash tender offer for Millicom securities before market close on May 23, 2024, (ii) an analysis of time-adjusted target prices from equity research analysts, (iii) a discounted cash flow analysis using certain financial forecasts for Millicom for fiscal years ending December 31, 2024 through December 31, 2030, based on cash flow projections in brokers’ consensus for fiscal years ending December 31, 2024 through December 31, 2026, published after the release of Millicom’s Q1 2024 results on May 8, 2024, as extrapolated for fiscal years ending December 31, 2027 through December 31, 2030, in each case, provided by, and approved for the Parent Financial Advisors’ use by, Parent’s management (the “Parent Forecasts”), (iv) an analysis of certain financial metrics, including certain multiples, for selected comparable companies as compared to the Company and (v) for reference purposes only, an analysis of multiples in selected transactions involving comparable companies as compared to the Company.
The Parent Financial Advisors have not acted as financial advisors to Millicom, the Millicom Board or the Independent Bid Committee in connection with the Offers. The Parent Financial Advisors were not requested to, and did not, render an opinion with respect to the fairness of the Offers or any consideration to be paid in the
Offers, including the Offer Price, or as to valuation or otherwise. The Parent Financial Advisors’ Material was provided solely for the information of Parent and to assist Parent in connection with its consideration of the Offer Price. The Parent Financial Advisors have not recommended any specific Offer Price to Parent or Purchaser or their respective directors, shareholders, creditors or other relevant parties. The Parent Financial Advisors’ Material is not an opinion as to the fairness to Purchaser, Parent, the Company or their respective shareholders of the Offers or of the consideration to be paid in the Offers, does not constitute a recommendation to Parent or Purchaser as to whether or not to consummate the Offers or to the holders of Shares as to whether they should tender their Shares in the Offers or as to how to vote or act with respect to any other matter, and should not be relied on as the basis for any investment decision.
A copy of the Parent Financial Advisors’ Material is attached as Exhibit (c)(1) to the Transaction Statement on Schedule 13E-3 filed with the SEC by Purchaser, and the Parent Financial Advisors’ Material is incorporated herein by reference. The description of the Parent Financial Advisors’ Material set forth in this Offer to Purchase is qualified in its entirety by reference to the full text of the Parent Financial Advisors’ Material, which may be obtained from the SEC in the manner described under “The Tender Offers — Certain Information Concerning Parent and Purchaser — Available Information.”
The following is a summary of the material information and analyses contained in the Parent Financial Advisors’ Material. The following summary, however, does not purport to be a complete description of the information and analyses contained in the Parent Financial Advisors’ Material. Some of the summaries of the financial analyses in the Parent Financial Advisors’ Material include information presented in tabular format. The tables must be read together with the full text of each summary and are alone not a complete description of the Parent Financial Advisors’ analyses. Except as otherwise noted, quantitative information, to the extent that it is based on market data included in the Parent Financial Advisors’ Material, is based on market data as they existed on or before May 22, 2024 (being the last trading day unaffected by Parent’s statement regarding media reports on a potential all cash tender offer for Millicom securities before market close on May 23, 2024), and is not necessarily indicative of current market conditions.
Historical Trading Analysis. The Parent Financial Advisors reviewed the historical trading prices of the Common Shares and the SDRs on the Nasdaq US and Nasdaq Stockholm, respectively, as of May 22, 2024 (being the last trading day unaffected by Parent’s statement regarding media reports on a potential all cash tender offer for Millicom securities before market close on May 23, 2024), in each case calculated on a blended share price method (using the daily volume-weighted average prices of the Common Shares on Nasdaq US and the SDRs on Nasdaq Stockholm expressed in U.S. dollars, with the SDR price converted from Swedish Krona to U.S. dollars using the daily SEK/USD exchange rate). The Parent Financial Advisors noted in the Parent Financial Advisors’ Material that, as of May 22, 2024:
•
the blended closing price of Millicom on both Nasdaq US and Nasdaq Stockholm was $23.5;
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the 30-day volume weighted average price (“VWAP”) of Millicom on both Nasdaq US and Nasdaq Stockholm was $22.4;
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the 90-day VWAP of Millicom on both Nasdaq US and Nasdaq Stockholm was $20.2;
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the 180-day VWAP of Millicom on both Nasdaq US and Nasdaq Stockholm was $18.9; and
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the 360-day VWAP of Millicom on both Nasdaq US and Nasdaq Stockholm was $17.4.
Brokers’ Target Price Analysis. The Parent Financial Advisors considered target price releases from 11 brokers following the Company’s release of its Q1 2024 results on May 8, 2024, and prior to May 22, 2024 (being the last trading day unaffected by Parent’s statement regarding media reports on a potential all cash tender offer for Millicom securities before market close on May 23, 2024). The target prices were discounted back to June 30, 2024, using a 15.1% cost of equity based on respective target price horizons, resulting in a range between $16.0 and $26.5 per Share, with an average of $23.5 per Share.
Discounted Cash Flow Analysis. The Parent Financial Advisors performed a discounted cash flow analysis of the Company using the Parent Forecasts and other information and data provided by, and approved for the Parent Financial Advisors’ use by, Parent’s management, to calculate a range of implied prices per Share as of June 30, 2024. The Parent Financial Advisors applied a range of discount rates between 10.6% and 11.0% (as the weighted average cost of capital of the Company) to (i) the unlevered free cash flows expected to be
generated by the Company between March 31, 2024, and December 31, 2030, based on the Parent Forecasts and (ii) the estimated terminal value calculated by the Parent Financial Advisors using normative terminal year data provided by, and approved for the Parent Financial Advisors’ use by, Parent’s management, and perpetual growth rates between 2.4% and 2.6%. The resulting share price was compounded to June 30, 2024, using a 15.1% cost of equity to obtain an implied share price as of June 30, 2024. This analysis resulted in a range of implied prices of between $20.1 and $24.0 per Share.
Trading Comparable Analysis. The Parent Financial Advisors performed a public trading comparable analysis by reviewing and comparing certain financial estimates for the Company with comparable publicly available consensus equity analyst research estimates for selected companies that, in the professional judgement and experience of the Parent Financial Advisors, share certain similar business characteristics and have certain comparable operating characteristics including, among other things, business model, geographic markets and/or other similar operating characteristics. For purposes of this analysis, using publicly available information, the Parent Financial Advisors analysed the ratios of enterprise value, which the Parent Financial Advisors defined as market capitalization plus financial net debt, equity attributable to non-controlling interests, non-current provisions and other financial and non-financial liabilities, minus investments in joint-ventures, to EBITDAaL, which the Parent Financial Advisors defined as earnings before interest, taxes, depreciation, amortisation and after leases, which ratios the Parent Financial Advisors referred to as EV/EBITDAaL, for fiscal years 2023 through 2025. The average EV/EBITDAaL multiples for each of 2023A, 2024E and 2025E, the corresponding multiple ranges using +/- 0.25x from the relevant averages, as well as the range of implied prices per Share resulting from this analysis were:
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EV/EBITDAaL
Multiples Range
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EV/EBITDAaL
Multiples Average
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Implied
Share Price
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EV/EBITDAaL 2023A
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4.3x – 4.8x |
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4.6x |
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$ |
8.5 – $13.7 |
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EV/EBITDAaL 2024E
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4.1x – 4.6x |
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4.4x |
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|
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$ |
16.3 – $22.6 |
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EV/EBITDAaL 2025E
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3.8x – 4.3x |
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|
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4.0x |
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|
|
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$ |
13.9 – $20.5 |
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Comparable Transactions Analysis. For reference purposes only, the Parent Financial Advisors performed a comparable transactions analysis by reviewing certain publicly available financial information concerning selected M&A transactions since 2014 that the Parent Financial Advisors selected based on their professional judgment and experience. The Parent Financial Advisors reviewed the EV/EBITDAaL for each transaction, prepared on a pre-IFRS 16 basis and if any synergies were indicated, on a post-synergy basis, in each case, based on publicly available information. The average EV/EBITDAaL multiple, the corresponding range of multiples using +/- 0.25x from the average EV/EBITDAaL multiple, as well as the range of implied prices per Share applying such average EV/EBITDAaL multiple to the last twelve (12) months EBITDAaL for the Company as of March 31, 2024, resulting from this analysis were:
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EV/EBITDAaL
Multiples Range
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EV/EBITDAaL
Multiples Average
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|
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Implied
Share Price
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EV/EBITDAaL
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5.2x – 5.7x |
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|
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5.5x |
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$ |
21.0 – $26.5 |
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Miscellaneous. Parent retained the Parent Financial Advisors to act as its financial advisors in connection with the Offers. Each of the Parent Financial Advisors is an internationally recognized investment banking firm regularly engaged in the valuation of businesses and securities in connection with mergers and acquisitions, negotiated underwritings, secondary distributions of listed and unlisted securities, private placements and valuations for corporate and other purposes. Parent selected the Parent Financial Advisors to act as its financial advisors in connection with the Offers on the basis of their experience in transactions similar to the Offers and their reputation in the investment community.
The Parent Financial Advisors did not assume responsibility for independent verification of, and did not independently verify, the analyses, financial forecasts and other information relating to the Company prepared by Parent’s management (including the Parent Forecasts) or any publicly available information regarding the Company, including, without limitation, any financial information, forecasts or projections used in the Parent Financial Advisors’ Material. Accordingly, for purposes of preparing such materials, the Parent Financial Advisors assumed and relied upon the accuracy and completeness of all such information. The Parent Financial Advisors did not conduct a physical inspection of any of the properties or assets, and did not
prepare or obtain any independent evaluation or appraisal of any of the assets or liabilities (including any contingent, derivative or off-balance-sheet assets or liabilities), of the Company or any of its subsidiaries, nor did the Parent Financial Advisors evaluate the solvency or fair value of any of the Parent, the Purchaser, the Company or any of their respective subsidiaries (or the impact of the Offers thereon) under any law relating to bankruptcy, insolvency or similar matters. In relying on the analyses, financial forecasts and other information relating to the Company prepared by Parent’s management (including the Parent Forecasts), the Parent Financial Advisors assumed that such information was reasonably prepared and reflected the best currently available estimates and judgment of Parent’s management.
The Parent Financial Advisors have not made any representation or warranty, express or implied, to any person regarding the accuracy or completeness of any of the information contained in the Parent Financial Advisors’ Material and any liability therefor to third parties (including in respect of direct, indirect or consequential loss or damages) is expressly disclaimed. The Parent Financial Advisors do not provide legal, tax or regulatory advice. With respect to such matters, Parent and Purchaser relied on the advice of specialists who are experts in such fields.
The Parent Financial Advisors’ Material was necessarily based upon economic, market and other conditions as in effect on, and the information made available to it as of, the date of the Parent Financial Advisors’ Material. Events that occur after the date of the Parent Financial Advisors’ Material may affect the valuation results contained in the Parent Financial Advisors’ Material, however the Parent Financial Advisors expressly disclaim any undertaking or obligation to revise, modify or reaffirm the contents of the Parent Financial Advisors’ Material or to advise any person of any change in any fact or matter affecting the Parent Financial Advisors’ Material of which they become aware after any such date.
No company utilized in the public trading comparable analysis or the comparable transactions analysis described above is identical to the Company or directly comparable in business mix, size or other metrics. Accordingly, an analysis of the results of the foregoing analyses necessarily involves complex considerations and judgements concerning differences between the Company and the companies being compared and other factors that would affect the value of the companies to which the Company is being compared. In selecting comparable companies and comparable transactions, the Parent Financial Advisors made numerous judgements and assumptions with respect to size, business mix, industry performance, general business, regulatory, economic, market and financial conditions and other matters, many of which are beyond the control of the Company. These include, among other things, the impact of competition on the Company’s business and the industry generally, industry growth, and the absence of any adverse material change in the financial condition and prospects of the Company, the industry, or in the financial markets in general, which could affect the public trading value of the Company or the companies to which it is being compared.
Each of the Parent Financial Advisors is involved in a wide range of banking and other financial services business, both for its own account and for the account of its clients, out of which a conflict of interest or duties may arise. Each of the Parent Financial Advisors may, from time to time, (i) provide financial advisory services and/or financing to the Company, Parent, Purchaser and/or parties involved with the foregoing, (ii) maintain a banking or other commercial relationship with the Company, Parent, Purchaser and/or parties involved with the foregoing and (iii) trade shares and other securities of the Company, Parent, Purchaser and/or parties involved with the foregoing in the ordinary course of business for such Parent Financial Advisor’s own account and for the accounts of such Parent Financial Advisor’s customers and may, therefore, from time to time hold long or short positions in such securities. Within each of the Parent Financial Advisors, practices and procedures, including, but not limited to, customary information barriers, are maintained, designed to help ensure the independence of advice and to restrict the flow of information and to manage such conflicts of interests or duties.
For the financial analyses conducted in connection with the Offers, Parent has agreed to pay the Parent Financial Advisors a customary advisory fee, which (if due) is contingent and payable upon the consummation of the Offers. In addition, Parent has agreed to reimburse the Parent Financial Advisors for certain of their expenses incurred in connection with their services, including the fees and disbursements of counsel, and will indemnify the Parent Financial Advisors against certain liabilities arising out of the Parent Financial Advisors’ engagement.
During the past two years, CACIB and its affiliates have provided financing, corporate or investment banking services to Parent and its affiliates, including Atlas, the Iliad Group, NJJ Holding as well as Unibail-Rodamco-Westfield SE (which may be considered an affiliate of Parent and Atlas under U.S. securities laws; however, Millicom will not be considered an affiliate of such entities for the purposes of this paragraph), for which CACIB and its affiliates have received or will receive customary compensation. CACIB and its affiliates continue to provide these services and may in the future provide such services. In addition, in the ordinary course of CACIB’s businesses, it and its affiliates may actively trade the debt and equity securities or financial instruments (including derivatives, bank loans or other obligations) of Millicom, Parent or affiliates of Parent for their own account 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. As of June 26, 2024, CACIB and its affiliates held on a non-fiduciary basis less than 1% of the outstanding ordinary shares of certain publicly traded affiliates of Atlas and Parent.
During the past two years, CACIB and its affiliates have not had any financing, corporate or investment banking relationships with Millicom, and CACIB and its affiliates have not received any compensation from Millicom during such period. As of June 26, 2024, CACIB and its affiliates held on a non-fiduciary basis less than 1% of the outstanding ordinary shares of Millicom.
During the past two years, BNP Paribas SA and its affiliates have provided commercial and corporate banking services to Parent and its affiliates, including Atlas, the Iliad Group, NJJ Holding as well as Unibail-Rodamco-Westfield SE (which may be considered an affiliate of Parent and Atlas under U.S. securities laws; however, Millicom will not be considered an affiliate of such entities for the purposes of this paragraph), for which BNP Paribas SA and its affiliates have received or will receive customary compensation. BNP Paribas SA continues to provide these services and may in the future provide such services. In addition, in the ordinary course of BNP Paribas SA’s businesses, it and its affiliates may actively trade the debt and equity securities or financial instruments (including derivatives, bank loans or other obligations) of Millicom, Parent or affiliates of Parent for their own account 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. In addition, as of June 26, 2024, BNP Paribas SA and its affiliates hold, on a non-fiduciary basis, less than 1% of the outstanding ordinary shares of certain publicly traded affiliates of Atlas and Parent.
During the past two (2) years, BNP Paribas SA and its affiliates have provided, are currently providing, and may in the future provide, commercial and corporate banking services to Millicom, and BNP Paribas SA and its affiliates have received aggregate compensation from Millicom of approximately €6.6 million during such period. As of June 26, 2024, BNP Paribas SA and its affiliates held on a non-fiduciary basis less than 1% of the outstanding ordinary shares of Millicom.
During the past two years, Lazard Frères SAS and its affiliates have provided and continue to provide financial advisory services to affiliates of Parent, including Atlas, the Iliad Group and NJJ Holding (Millicom will not be considered an affiliate of Parent for the purposes of this paragraph), in connection with certain transactions, including the acquisition of interests in Tele2 in February 2024, the sale of interests in On Tower Poland in June 2023, the sale of interests in Polski Światłowód Otwarty sp. z o.o. in April 2023 and the acquisition of interests in Millicom as from September 2022. Lazard Frères SAS and its affiliates have received or may receive customary compensation for providing such services to Atlas, the Iliad Group, NJJ Holding and their affiliates. In addition, in the ordinary course of Lazard Frères SAS and its affiliates’ businesses, they may actively trade the debt and equity securities or financial instruments (including derivatives, bank loans or other obligations) of Millicom, Parent or affiliates of Parent for their own account 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 past two years, Lazard Frères SAS and its affiliates have had and continue to have investment banking relationships with Millicom for which it and its affiliates have not yet received, but may in the future receive, customary compensation.
During the past two years, neither J.P. Morgan Securities plc, J.P. Morgan Securities LLC nor their affiliates have had any other material financial advisory or other material commercial or investment banking relationships with Parent, and they have not received any compensation from Parent during such period. During the past two years, J.P. Morgan Securities plc, J.P. Morgan Securities LLC and their affiliates have had
and continue to have commercial or investment banking relationships with affiliates of Parent (Millicom will not be considered an affiliate of Parent for the purposes of this paragraph) for which they and their affiliates have received or will receive customary compensation. Such services during such period have included acting as joint bookrunner on offerings of debt securities of iliad S.A. in December 2022, February 2023 and December 2023, as joint bookrunner of an offering of debt securities of iliad Holding S.A.S. in May 2024, as bookrunner on a syndicated credit facility of EirCom in February 2024, and as joint bookrunner on an offering of debt securities of Unibail-Rodamco-Westfield SE (which may be considered an affiliate of Parent and Atlas under U.S. securities laws) in June 2023. In addition, a commercial banking affiliate of J.P. Morgan Securities plc and J.P. Morgan Securities LLC is an agent bank under an outstanding credit facility of Unibail-Rodamco-Westfield SE, for which such agent bank receives customary compensation or other financial benefits. J.P. Morgan Securities plc and J.P. Morgan Securities LLC anticipate that they and their affiliates will arrange and/or provide financing to affiliates of Parent in connection with the Transaction for customary compensation. During the past two years, J.P. Morgan Securities plc, J.P. Morgan Securities LLC and their affiliates have not received any compensation from Atlas while the aggregate fees they recognized from controlled affiliates of Parent were approximately $12.4 million. In the ordinary course of J.P. Morgan Securities plc and J.P. Morgan Securities LLC’s businesses, they and their affiliates may actively trade the debt and equity securities or financial instruments (including derivatives, bank loans or other obligations) of Millicom, Parent or affiliates of Parent for their own account 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. As of June 26, 2024, J.P. Morgan Securities plc, J.P. Morgan Securities LLC and their affiliates held, on a non-fiduciary basis, less than 1% of the outstanding ordinary shares of certain publicly traded affiliates of Atlas and Parent.
During the past two years, J.P. Morgan Securities plc, J.P. Morgan Securities LLC and their affiliates have had and continue to have commercial or investment banking relationships with Millicom for which they and their affiliates have received compensation from Millicom of approximately $14.7 million during such period. Such services during such period have included acting as joint bookrunner on an offering of debt securities of Millicom in March 2024. As of June 26, 2024, J.P. Morgan Securities plc, J.P. Morgan Securities LLC and their affiliates held, on a non-fiduciary basis, less than 1% of the outstanding ordinary shares of Millicom.
During the past two years, Société Générale and its affiliates have had material financial advisory or other material commercial or investment banking relationships with Atlas, Parent and their affiliates, including Atlas, the Iliad Group, NJJ Holding as well as Unibail-Rodamco-Westfield SE (which may be considered an affiliate of Parent and Atlas under U.S. securities laws; however, Millicom will not be considered an affiliate of such entities for the purposes of this paragraph), for which Société Générale and its affiliates have received (or will receive) customary compensations or other financial benefits from Atlas, Parent or their affiliates during such period. Société Générale and its affiliates continue to provide these services and may in the future provide such services. In addition, in the ordinary course of Société Générale’s businesses, it and its affiliates may actively trade the debt and equity securities or financial instruments (including derivatives, bank loans or other obligations) of Millicom, Parent or affiliates of Parent for their own account 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 past two years, Société Générale and its affiliates have not had any material financial advisory or other material commercial or investment banking relationships with Millicom, and Société Générale and its affiliates have not received any compensation from Millicom during such period. As of June 26, 2024, Société Générale and its affiliates held on a non-fiduciary basis less than 1% of the outstanding ordinary shares of Millicom.
5.
Position of the Filing Parties Regarding Fairness of the Offers
According to the rules of the SEC governing “going private” transactions, including Rule 13e-3 of the Exchange Act, the Filing Parties are required to express their belief as to the fairness of the Offers to the Unaffiliated Shareholders. The Filing Parties reasonably believe that the Offer Price to be received by the Unaffiliated Shareholders is fair to such Unaffiliated Shareholders seeking immediate liquidity. The Filing Parties based their belief on, among other things, the following factors, each of which, in their judgment, supports their views as to the fairness of the Offers:
•
In the US Offer, the Offer Price represents a premium of:24
•
1.8 per cent compared to the closing price of the Common Shares of USD 23.6 on May 22, 2024 (the last day of trading prior to market speculation25 regarding a potential public offer for the Company);26
•
17.2 per cent compared to the volume weighted average trading price of USD 20.5 for the Common Shares during the last ninety (90) calendar days ended on May 22, 2024 (the last day of trading prior to market speculation regarding a potential public offer for the Company);
•
24.4 per cent compared to the volume weighted average trading price of USD 19.3 for the Common Shares during the last one hundred eighty (180) calendar days ended on May 22, 2024 (the last day of trading prior to market speculation regarding a potential public offer for the Company); and
•
37.0 per cent compared to the volume weighted average trading price of USD 17.5 for the Common Shares during the last three hundred sixty-five (365) calendar days ended on May 22, 2024 (the last day of trading prior to market speculation regarding a potential public offer for the Company).
•
In the Swedish Offer, the Offer Price27 represents a premium of:28
•
1.2 per cent compared to the closing price of the SDRs of SEK 251.6 on May 22, 2024 (the last day of trading prior to market speculation regarding a potential public offer for the Company);29
•
19.3 per cent compared to the volume weighted average trading price of SEK 213.4 for the SDRs during the last ninety (90) calendar days ended on May 22, 2024 (the last day of trading prior to market speculation regarding a potential public offer for the Company);
•
29.3 per cent compared to the volume weighted average trading price of SEK 197.0 for the SDRs during the last one hundred eighty (180) calendar days ended on May 22, 2024 (the last day of trading prior to market speculation regarding a potential public offer for the Company); and
•
37.4 per cent compared to the volume weighted average trading price of SEK 185.3 for the SDRs during the last three hundred sixty five (365) calendar days ended on May 22, 2024 (the last day of trading prior to market speculation regarding a potential public offer for the Company).
•
On a blended basis to illustrate one premium for both Offers, the Offer Price represents a premium of:30
•
18.8 per cent compared to the volume weighted average trading price of USD 20.2 for the Shares during the last ninety (90) calendar days ended on May 22, 2024 (the last day of trading prior to market speculation regarding a potential public offer for the Company);
•
27.1 per cent compared to the volume weighted average trading price of USD 18.9 for the Shares during the last one hundred eighty (180) calendar days ended on May 22, 2024 (the last day of trading prior to market speculation regarding a potential public offer for the Company); and
24
Source for Millicom’s Common Share prices: Nasdaq US.
25
On May 23, 2024, in response to the market speculation, the Parent announced through a press release that it was exploring a potential all-cash tender offer for Millicom securities.
26
Representing a premium of -2.2 per cent compared to the closing price of the Common Shares of USD 24.6 on June 28, 2024 (the last day of trading prior to the announcement of the Offers).
27
Based on the Offer Price of USD 24.00 per SDR, corresponding to SEK 254.67 per SDR, based on an illustrative USD/SEK exchange rate of 10.6 as of June 28, 2024.
28
Source for Millicom’s SDR prices: Nasdaq Stockholm.
29
Representing a premium of -1.3 per cent compared to the closing price of the SDRs of SEK 258.0 on June 28, 2024 (the last day of trading prior to the announcement of the Offers).
30
The blended share price premium is calculated using the daily volume-weighted average share prices of the Common Shares on Nasdaq US and the SDRs on Nasdaq Stockholm expressed in USD, with the SDR price converted from SEK to USD using the daily SEK/USD exchange rate.
•
37.8 per cent compared to the volume weighted average trading price of USD 17.4 for the Shares during the last three hundred sixty-five (365) calendar days ended on May 22, 2024 (the last day of trading prior to market speculation regarding a potential public offer for the Company).
•
The Offer Price represents an opportunity for Shareholders to benefit from full and immediate liquidity.
•
The Offers are not subject to any financing condition and Purchaser has the financial ability and willingness to consummate the Offers.
•
The Offer Price will be paid in cash. Therefore, Shareholders will receive a certain value in the Offers.
•
The Filing Parties reasonably believe that the Offers are procedurally fair to the Unaffiliated Shareholders, based on the following factors considered by them:
•
Unaffiliated Shareholders will have sufficient time to make a decision whether or not to tender their Shares in the Offers:
•
The Offers will remain open for a minimum of twenty Business Days.
•
If Purchaser amends the Offers to include any material additional information, Purchaser will, if necessary to allow adequate dissemination and investor response, extend the Offers for a sufficient period to allow the Unaffiliated Shareholders to consider the additional information.
•
Each of the Unaffiliated Shareholders will be able to decide voluntarily whether or not to tender such Unaffiliated Shareholder’s Shares.
•
The Offers are conditional upon the Offers being accepted to such extent that Purchaser becomes the owner of Shares representing ninety five (95) per cent or more of the Shares. The Purchaser Group owns in the aggregate 49,966,734 SDRs31 or approximately 29.1832 per cent of the outstanding Shares.
The Filing Parties also considered the following factors, each of which the Filing Parties believed to be negative in their considerations concerning the fairness of the terms of the transaction:
•
Any Shareholder who tenders all of its Shares in the Offers would cease to participate in the future earnings or growth, if any, of the Company or benefit from increases, if any, in the value of the Company.
•
The Offers are not conditioned on the affirmative vote of a majority of Unaffiliated Shareholders, although to be successful the Offers would require participation of a vast majority of the Unaffiliated Shareholders.
•
With respect to the Offer Price, our financial interest in acquiring Shares for the lowest price possible is in conflict with the financial interest of the Unaffiliated Shareholders in selling their Shares for the highest price possible. Accordingly, our financial interest is adverse to the financial interest of the Unaffiliated Shareholders. In addition, certain directors and executive officers of the Company have actual or potential conflicts of interest in connection with the Offers (see “Special Factors — Interests of Certain Millicom Directors and Executive Officers in the Offers”).
•
The receipt of cash for Shares pursuant to the Offers will be a taxable transaction for US federal income tax purposes (see “The Tender Offers — Tax Considerations US — Federal Income Tax Considerations”).
Purchaser did not find it practicable to assign, nor did Purchaser assign, relative weight to the individual factors considered in reaching its conclusion as to the fairness of the Offers.
The Filing Parties consideration of the factors described above reflects their assessment as to the fairness of the Offer Price to the Company’s Unaffiliated Shareholders.
Except as discussed above in “Special Factors — Background,” the Purchaser Group is not aware of any firm offers made by any person, other than the Purchaser Group, during the two (2) years preceding the date of this
31
Each SDR represents one Common Share in Millicom.
32
Based on 172,096,305 issued Common Shares in Millicom, less 840,641 Common Shares and/or SDRs held in treasury by Millicom.
Offer to Purchase for (1) the merger or consolidation of the Company with or into another company, or vice versa; (2) the sale or other transfer of all or any substantial part of the assets of the Company; or (3) a purchase of the Company’s securities that would enable the holder of such securities to exercise control of the Company.
Additionally, the Filing Parties did not consider the net book value of the Company. The net book value was not considered because the Filing Parties believe that the net book value is not a material indicator of the value of the Company as a going concern because it does not take into account the Company’s future prospects, market conditions, trends in the Company’s industry or the business risks inherent in competing with other companies in that industry. Millicom’s net book value per Share as of March 31, 2024, according to Millicom’s Form 6-K furnished to the SEC on May 8, 2024, and calculated as total assets minus total liabilities, was USD 20.38 based on 172,096,305 issued Common Shares in Millicom.
The foregoing discussion of the information and factors considered and given weight by the Filing Parties are the material factors considered by the Purchaser Group. The Filing Parties’ views as to the fairness of the Offers to the Company’s Unaffiliated Shareholders should not be construed as a recommendation to any Shareholder as to whether that Shareholder should tender such Shareholder’s Shares in the Offers.
6.
Effects of the Offers
General
Upon consummation of the Offers, holders of Shares that are purchased pursuant to the Offers will either no longer have an interest or have a reduced interest in Millicom, as the case may be, and a corresponding decreased opportunity to participate in the future earnings, profits and growth of Millicom and to vote on Millicom’s corporate matters.
As a result of the Offers, the Purchaser’s interest in Millicom’s net book value and net earnings will increase to the extent of the number of Shares we acquire. For example, according to Millicom’s Form 6-K furnished to the SEC on May 8, 2024, for the three (3)-month period ended March 31, 2024, Millicom’s net book value at March 31, 2024, calculated as total assets minus total liabilities, was approximately USD 3,508 million and net profit attributable to owners of the Company for the period was approximately USD 92 million. Assuming the Purchaser Group current ownership of 49,966,734 SDRs33 (composed entirely of SDRs) or approximately 29.1834 per cent of the outstanding Shares as of March 31, 2024, the Purchaser Group’s interest in Millicom’s net book value and net profit attributable to owners of the Company as of March 31, 2024, would have been approximately USD 1,024 million and USD 27 million, respectively. Assuming the Offers are consummated, the Purchaser Group’s interest in those items would increase to one hundred (100) per cent, and the Purchaser Group would be entitled to all other benefits resulting from its one hundred (100) per cent ownership of Millicom, including all income generated by Millicom’s operations and any future increase in Millicom’s value. Similarly, the Purchaser Group would also bear all of the risk of losses generated by Millicom’s operations and any decrease in the value of Millicom after the consummation of the Offers.
Holders whose Shares are purchased by Purchaser pursuant to the Offers will face no risk of losses that could be generated by Millicom operations and no risk of a decline in the value of Millicom after the consummation of the Offers. If you do not tender your Shares in the Offers, you will remain a holder of such Shares. After the completion of the Offers, the number of Shares remaining in public circulation may decrease, and the market for such securities may be even further reduced.
If the Offers are not completed for any reason, Purchaser will review its options, which could include (i) not taking any further action, (ii) purchasing or selling Shares in the open market or in privately negotiated transactions, (iii) making a new tender offer, (iv) seeking to negotiate any other business combination with Millicom or (v) a combination of the foregoing. If Purchaser were to pursue any of these alternatives, it might take considerably longer for the Unaffiliated Shareholders to receive any consideration for their Shares (other than through sales in the open market or otherwise) than if they had tendered their Shares in the Offers. No
33
Each SDR represents one Common Share in Millicom.
34
Based on 172,096,305 issued Common Shares in Millicom, less 840,641 Common Shares and/or SDRs held in treasury by Millicom.
assurance can be given as to the price per Share that may be paid in any such future acquisition of Shares, and such price may, subject to applicable rules and legislation, be higher or lower than or the same as the Offer Price.
Effects on Nasdaq US Listing
The Common Shares are currently quoted on Nasdaq US. However, the rules of Nasdaq US establish certain criteria that, if not met, could lead to the discontinuance of quotation of the Common Shares from Nasdaq US. Among such criteria are the number of shareholders, the number of shares publicly held and the aggregate market value of the shares publicly held. If, as a result of the purchase of Common Shares pursuant to the US Offer or otherwise, the Common Shares no longer meet the requirements of Nasdaq US for continued quotation and the quotation of Common Shares is discontinued, the market for Common Shares would be adversely affected. If the conditions for completion of the Offers are satisfied and the Offers are successful, Purchaser currently intends to cause the delisting of the Common Shares from Nasdaq US as promptly as practicable after the consummation of the Offers, as permitted by applicable law and the rules of Nasdaq US.
Furthermore, pursuant to the Luxembourg Takeover Law, if following the Offers, the Purchaser holds securities carrying more than ninety (90) per cent of the voting rights in Millicom, the remaining Shareholders may require that the Purchaser purchases the remaining Shares at a fair price by exercising a Takeover Sell-Out. See “The Tender Offers — Terms of the Offers — Squeeze-Out and Sell-Out.”
Effects on Nasdaq Stockholm Listing
In the event Purchaser, in connection with the Offers or otherwise, has acquired securities representing not less than ninety five (95) per cent of the capital carrying voting rights and ninety five (95) per cent of the voting rights in Millicom, Purchaser will have the right to exercise a Takeover Squeeze-Out in accordance with the Luxembourg Takeover Law. Furthermore, pursuant to the Luxembourg Takeover Law, if following the Offers, the Purchaser holds securities carrying more than ninety (90) per cent of the voting rights in Millicom, the remaining Shareholders may require that Atlas purchases the remaining Shares at a fair price by exercising a Takeover Sell-Out. In connection with a Takeover Squeeze-Out or a Takeover Sell-Out, Purchaser intends to promote delisting of the SDRs in Millicom from Nasdaq Stockholm. See “The Tender Offers — Terms of the Offers — Squeeze-Out and Sell-Out.”
Effects on Reporting Obligations and Registration under the Exchange Act
The Common Shares are currently registered under the Exchange Act. Such registration may be terminated upon application by Millicom to the SEC if the Common Shares are neither listed on a national securities exchange nor held by 300 or more holders of record (on a worldwide basis or in the United States), or alternatively if the average daily trading volume of the Common Shares in the United States for a recent twelve (12)-month period has been no greater than five (5) per cent of the average daily trading volume of the Common Shares on a worldwide basis for the same period. Termination of registration of the Common Shares under the Exchange Act would substantially reduce the information required to be furnished by Millicom to holders of Common Shares and to the SEC and would make certain provisions of the Exchange Act no longer applicable to Millicom, such as the requirements of Rule 13e-3 under the Exchange Act with respect to “going private” transactions. If the conditions for completion of the Offers are satisfied and the Offers are successful, presuming the requirements for termination of registration are met, Purchaser intends to cause Millicom to make a filing with the SEC to terminate registration of the Common Shares under Section 12(g)(4) of the Exchange Act and to suspend Millicom’s reporting obligations under Section 15(d) of the Exchange Act.
7.
Appraisal Rights; Rule 13e-3
Under Luxembourg law, appraisal rights are not recognized and you are not entitled to appraisal rights in connection with the Offers.
Because Parent is an affiliate (as defined under US federal securities laws) of Millicom, the transactions contemplated by the Offers may constitute a “going private transaction” under Rule 13e-3 under the Exchange Act. Rule 13e-3 requires, among other things, that certain financial information concerning Millicom and
certain information relating to the fairness of the Offers and the consideration offered to the Unaffiliated Shareholders be filed with the SEC and disclosed to the Unaffiliated Shareholders. Parent has provided such information in this Offer to Purchase and combined Tender Offer Statement and Rule 13e-3 Transaction Statement filed under cover of Schedule TO and the exhibits thereto filed with the SEC pursuant to Rules 14d-3 and 13e-3 under the Exchange Act.
8.
Transactions and Arrangements Concerning the Shares and Other Securities of Millicom
Except as set forth in Schedule II, (i) none of (a) Parent, (b) Purchaser or (c) to the knowledge of Parent or Purchaser after reasonable inquiry, any of the persons listed in Schedule I or any associate or majority owned subsidiary of Parent, Purchaser or any of the persons so listed, beneficially owns any Common Shares or SDRs and (ii) none of (a) Parent, (b) Purchaser, (c) to the knowledge of Parent or Purchaser after reasonable inquiry, any of the persons listed in Schedule I or any associate or majority owned subsidiary of Parent or Purchaser, and (d) any pension, profit-sharing or similar plan of Parent or Purchaser has effected any transaction in Common Shares or SDRs during the past 60 days preceding the publication of this Offer to Purchase.
To Parent and Purchaser’s knowledge, neither Millicom nor any of its directors, executive officers or affiliates has made a recommendation either in support of or opposed to the transaction and the reasons for the recommendation, other than as may be set forth in the Schedule 14D-9 to be filed by Millicom with the SEC.
Except as set forth in “Special Factors — Certain Agreements Between Parent and its Affiliates and Millicom” none of Parent, Purchaser or, to the knowledge of Parent or Purchaser after reasonable inquiry, any of the persons listed in Schedule I, has any agreement, arrangement, or understanding, whether or not legally enforceable, with any other person with respect to any securities of Millicom (including, but not limited to, any agreement, arrangement, or understanding concerning the transfer or the voting of any such securities, joint ventures, loan or option arrangements, puts or calls, guarantees of loans, guarantees against loss or the giving or withholding of proxies, consents or authorizations).
Except as set forth under “Special Factors — Background,” “Special Factors — Certain Agreements Between Parent and its Affiliates and Millicom” and this Section, in the past two (2) years, (i) there have been no transactions between any of Parent, Purchaser or, to the knowledge of Parent or Purchaser after reasonable inquiry, any of the persons listed in Schedule I, on the one hand, and Millicom or any of its affiliates that are not natural persons, on the other hand, for which the aggregate value of the transaction was more than one per cent of Millicom’s consolidated revenues for the fiscal year in which the transaction occurred or the past portion of the current fiscal year (if the transaction occurred in the current fiscal year), (ii) there have been no transactions between any of Parent, Purchaser or, to the knowledge of Parent or Purchaser after reasonably inquiry, any of the persons listed in Schedule I, on the one hand, and any executive officer, director or affiliate of Millicom who is a natural person, on the other hand, for which the aggregate value of the transaction, or series of similar transaction with such director, executive officer or affiliate, exceeded USD 60,000; (iii) there have been no negotiations, transactions or material contacts between any of Parent, Purchaser, their respective subsidiaries, or, to the knowledge of Parent or Purchaser after reasonable inquiry, any of the persons listed in Schedule I, on the one hand, and Millicom or any of its affiliates, on the other hand, concerning a merger, consolidation or acquisition, a tender offer or other acquisition of Millicom’s securities, an election of Millicom’s directors or a sale or other transfer of a material amount of assets of Millicom; and (iv) to the knowledge of Parent or Purchaser after reasonable inquiry, there have been no negotiations or material contacts between (A) any affiliate of Millicom and (B) Millicom or any of its affiliates, on the one hand, and any person not affiliated with Millicom, on the other hand, concerning a merger, consolidation or acquisition, a tender offer or other acquisition of Millicom’s securities, an election of Millicom’s directors or a sale or other transfer of a material amount of assets of Millicom.
9.
Certain Agreements between Parent and its Affiliates and Millicom
Commercial Agreements
On February 1, 2024, Millicom and Network Solutions Factory S.A.S. (“NETSF”), an affiliate of Purchaser, which is wholly owned indirectly by NJJ Holding S.A.S., entered into a framework services agreement (the “Framework Services Agreement”) for the provision, in particular, of mobile network rollout services and
network performance and optimization services by NETSF to Millicom and Millicom’s affiliates. The Framework Services Agreement has an initial duration of three (3) years and will continue thereafter unless otherwise terminated. The Framework Services Agreement may be terminated at the convenience of Millicom following the first anniversary of the agreement, subject to a prior 180-day notice to NETSF.
On May 13, 2024, Millicom and Parent entered into a consultancy and advisory agreement (the “Consultancy and Advisory Agreement”) for the provision of professional consultancy and advisory services for the benefit of Millicom and Millicom’s affiliates in relation to Millicom’s business, with effect as of May 1, 2024. The Consultancy Advisory Agreement has an initial duration of one (1) year and may be terminated at the convenience of either party at any time, subject to a prior 30-day notice to the other party.
On May 13, 2024, Millicom and IT Solutions Factory S.A.S. (“ITSF”), an affiliate of Purchaser, which is wholly owned indirectly by NJJ Holding S.A.S., entered into a software license and professional services agreement (the “Software License and Professional Services Agreement”) regarding the licensing by ITSF to Millicom of the Galaxion software and the provision of related professional support and transformation services for the benefit of Millicom, with effect as of May 1, 2024. The agreement has an initial duration of five (5) years and will continue thereafter for consecutive one (1)-year periods unless otherwise terminated. The Software License and Professional Services Agreement may be terminated at the convenience of either party following the first anniversary of the agreement, subject to a prior 60-day notice to the other party.
Between July and October 2023, Monaco Telecom International S.A.M., an entity affiliated with the Purchaser Group, entered into a series of separate International Bilateral Telecommunication Services Agreements (the “IBTS Agreements”) with Comunicaciones Celulares, Sociedad Anónima, Orbitel Servicios Internacionales S.A.S., Telecomunicaciones Digitales, S.A., Telefonía Celular de Nicaragua, Sociedad Anónima, Telefónica Celular de Bolivia, S.A., Telefónica Celular, S.A. de C.V. and Telemovil El Salvador, S.A. de C.V., respectively (collectively, the “Counterparties”). Each of the Counterparties is a subsidiary and affiliate of the Company.
The IBTS Agreements generally provide for the provision of access to each party’s facilities or equipment to provide the necessary internet capacity for the proper functioning of the interconnection on their respective sites, in relation to their wish to interconnect their respective telecommunications systems and networks to exchange international voice services between them for onward conveyance to international destinations, including international direct telecommunications services and international transit telecommunications services. The IBTS Agreements each have an initial duration of one year and will continue thereafter for subsequent one-year periods unless either party to such IBTS Agreement gives at least three (3)-months written notice of termination to the other party before the end of the then-current contractual period termination (except for the IBTS Agreements entered into with Orbitel Servicios Internacionales S.A.S., which provides for a one (1)-month prior written notice, and with Telefónica Celular, S.A. de C.V., which provides for a 60-day prior written notice). Each party shall pay the other, as the case may be, the per-minute rate by destination set forth in the applicable list of rates and destinations for the service provided by each of them, respectively.
Confidentiality Agreement
On June 5, 2024, Parent and Millicom entered into the Confidentiality Agreement to facilitate certain exploratory discussions between the parties regarding the Offers. Pursuant to the Confidentiality Agreement, Purchaser agreed, subject to certain exceptions, to keep confidential all confidential information and to not use any confidential information for any reason besides evaluating, negotiating and consummating the Offers. Purchaser’s obligations under the Confidentiality Agreement will expire two (2) years after the date of the Confidentiality Agreement, for the general provisions listed therein which, by their nature, shall survive the term of the agreement.
To Atlas’ knowledge, no material non-public or inside information has been disclosed to Atlas during the process.
10.
Interests of Certain Millicom Directors and Executive Officers in the Offers
Thomas Reynaud and Aude Durand, both affiliates of the Purchaser Group and Non-Executive Directors of the Board of Directors of Millicom, as well as Maxime Lombardini, an affiliate of the Purchaser Group and the President and Chief Operating Officer of Millicom and Non-Executive Director of the Board of Directors
of Millicom, are participating in an incentive program offered by Parent. This incentive program has also been offered to various individuals that are employees or corporate officers of Parent or its affiliates (who are not officers or directors of Millicom) and takes the form of ordinary shares of Parent granted for free under the provisions of the French Commercial Code (article L.225-197-2 1° of the Code de commerce). The shares are subject to a twelve (12)-month vesting starting from their grant date, ending on January 11, 2025, and then a twelve (12)-month holding period starting from the vesting date. In aggregate, such free shares represent 7.5 per cent of the total share capital of Parent on a fully diluted basis.
Unaffiliated Shareholders should also be aware that certain of the Company’s executive officers have arrangements, which are outlined below, that may provide them with interests that may differ from, or be in addition to, those of Unaffiliated Shareholders.
Unvested Equity Awards
Under the Plans
Pursuant to the DSP, PSP and Equity Plan and the Plan rules associated with the performance years 2022 – 2024, executive officers of the Company hold stock appreciation rights, restricted stock units and performance stock units representing rights to receive the appreciation in market value of Shares over the exercise price or Shares upon satisfaction of applicable vesting conditions. The completion of the Offers will result in a change of control of the Company. Per the terms of the awards, accelerated vesting occurs on the date of a change of control if outstanding stock appreciation rights, restricted stock units, performance stock units are not assumed, converted or replaced with substantially equivalent awards in connection with the closing of the Offers. The Shares that vest must be settled as soon as practicable and in any event within ninety (90) days after the vesting date, or if a US taxpayer, no later than March 15 of the calendar year following the year in which the vesting date occurs. In connection with completion of the Offers, Purchaser expects that all outstanding equity awards under the Plans will be assumed and continue to be subject to the same terms and conditions as were in effect immediately prior to the Offers, except as otherwise set forth below.
To the extent outstanding equity awards are assumed, converted or replaced in connection with a change of control, the Plans provide that unvested stock appreciation rights, restricted stock units and performance stock units will vest if the holder’s employment is terminated within the one-year period following a change of control by the Company as a “Good Leaver” or by such holder for “Good Reason”. Under the DSP and Equity Plan, pursuant to such a qualifying termination, the outstanding stock appreciation rights and restricted stock units will vest in full. Under the PSP and Equity Plan, outstanding performance stock units will vest with respect to a pro-rated number of Shares based on actual performance achieved through the date of the termination of employment (to the extent the performance goals continue to apply following the change of control) and the proportion of the performance period that has elapsed as of the date of such termination.
In connection with the Offers, Purchaser reserves the right to decline to assume the awards, in which case, upon completion of the Offers, outstanding restricted stock units will vest in full and outstanding performance stock units will vest with respect to a pro-rated number of Shares based on actual performance achieved through the date that the Offers are completed (the date of the change of control for purposes of the plans). See “The Tender Offers — Possible Effects of the Offers on the Market for Common Shares; Nasdaq US Listing; Nasdaq Stockholm Listing; Exchange Act Registration; Squeeze-Out and Sell-Out.”
Under the Change of Control Agreements
Certain executive officers of the Company have entered into change of control agreements with the Company (the “Change of Control Agreements”) which address the treatment of outstanding stock appreciation rights, restricted stock units and performance stock units granted under the Plans in connection with a change of control.
In connection with a change of control, the Millicom Compensation Committee will determine the number of performance stock units that may continue to vest following the change of control based on the greater of the target number of Shares granted and the number of Shares that would vest based on the actual performance level attained against applicable performance goals as of the date of the change of control.
To the extent outstanding equity awards are assumed, converted or replaced in connection with a change of control, the Change of Control Agreements provide that unvested restricted stock units and performance stock units will vest if the holder’s employment is terminated within the two-year period following a change of control by the employer without “Cause” or by such holder for “Good Reason”. Upon such a qualifying termination, the outstanding restricted stock units will vest in full, and outstanding performance stock units will vest with respect to a pro-rated number of Shares based on the greater of the target number of Shares granted and the number of Shares that would vest based on the actual performance level attained against applicable performance goals as of the date of the change of control.
If the Shares underlying the outstanding equity awards are no longer traded on an internationally recognized securities exchange (including in connection with a Takeover Squeeze-Out or a Takeover Sell-Out), or such Shares are cancelled and retired in connection with the change of control, the Change of Control Agreements provide that unvested restricted stock units and performance stock units will be converted into cash-based awards and will otherwise remain subject to the same terms and conditions as applied to such awards immediately prior to the change of control. The Millicom Compensation Committee will determine, in good faith, the amount of such cash-based awards based on the product of the value per Share received by the Shareholders in connection with the change of control and the number of Shares underlying such equity awards.
Change of Control Severance Protections
As noted above, certain executives of Millicom are party to Change of Control Agreements with the Company, which provide for severance payments and benefits in the event of certain qualifying terminations of employment following a change of control. In the event that any such executive’s employment is terminated within the two-year period following a change of control by the Company without Cause (other than due to death or disability) or by such executive for Good Reason, the executive will be eligible to receive, in addition to certain accrued benefits: (i) twelve times the executive’s monthly base salary and bonus amount, 75 per cent of which will be paid within twenty business days after the date of termination and 25 per cent of which will be paid within twenty business days after the end of the applicable non-compete term; (ii) a lump-sum payment equal to the amount the executive’s entitlement to a car allowance and other fringe benefits, if applicable, and the pro-rated participation in any pension plans maintained by the Company prior to the change of control, calculated as if the executive had been employed for an additional twelve (12) months; and (iii) a lump-sum payment equal to twelve months’ worth of premiums associated with health care continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, grossed up for applicable income taxes.
In addition, in the event that any such executive’s employment is terminated within the six-month period preceding a change of control by the Company without Cause (other than due to death or disability) or by such executive for Good Reason, and the executive reasonably demonstrates that the termination was at the request of a third party that had indicated an intention to effect a change of control or otherwise arose in connection with a threatened or proposed change of control, the executive will be eligible to receive the applicable payments and benefits as though the termination of employment had occurred following a change of control.
Any termination of employment pursuant to the Change of Control Agreements must be communicated by written notice of termination to the other party indicating the specific termination provision relied upon and the facts and circumstances used to support a claim of entitlement to the severance payments and benefits.
Continued Employment
In addition, the executive officers of the Company have an interest in the continued service of such officers in positions that are substantially similar to their current positions. The foregoing summaries are exclusively based on publicly available information concerning Millicom and certain due diligence materials provided by Millicom, including agreements between Millicom and affiliates of Purchaser.
THE TENDER OFFERS
1.
Terms of the Offers
General
Purchaser is offering to purchase all outstanding Shares35 in Millicom. Purchaser is offering to pay USD 24.00 per Common Share and USD 24.00 per SDR.36
In the US Offer, the Offer Price is payable net to the seller in cash, without interest, less any withholding taxes that may be applicable. In the Swedish Offer, settlement will be made in SEK and the Offer Price will be converted into SEK in connection with settlement (see “The Tender Offers — Terms of the Offers — Consideration and Payment” and “The Tender Offers — Procedures for Tendering into the Offers — Tender of SDRs”).
No fraction of a Common Share or SDR will be purchased from any holder. We will not pay interest on the Offer Price for Common Shares.
Dual Offer Structure
Purchaser has commenced two tender offers: (i) the US Offer, which is open to all holders of Common Shares and (ii) the Swedish Offer, which is open to all holders of SDRs, subject to the offer restrictions included in the section “The Tender Offers — Miscellaneous — Offer Restrictions” on pages 121 – 123.
The Swedish Takeover Rules and the Swedish Securities Council’s statements and rulings regarding the interpretation and application of the Swedish Takeover Rules are applicable to the Swedish Offer. Atlas has, in accordance with the Swedish Takeovers Act, on June 30, 2024, contractually undertaken, in writing, towards Nasdaq Stockholm AB to fully comply with said rules and statements and to accept any sanctions that can be imposed by Nasdaq Stockholm AB in the event of a breach of the Swedish Takeover Rules. Atlas has on July 1, 2024, informed the SFSA about the Offers and the above-mentioned undertaking towards Nasdaq Stockholm AB.
In accordance with Rule 14d-1 under the Exchange Act, Purchaser has determined that the Offers are eligible for certain Tier II Exemptions under Rule 14d-1(d) of the Exchange Act. See the section entitled “Important Information.” Accordingly, Purchaser must permit US Holders (as defined in Rule 14d-1 of the Exchange Act) of Common Shares to participate in the transaction on terms at least as favorable as those offered in Sweden, and in accordance with the Swedish Takeover Rules, Purchaser must treat all Shareholders equally, inter alia, by offering all holders of Shares with identical terms an identical consideration per Share.
For purposes of this Offer to Purchase a “US Business Day” is any day on which US banks are open to the public, other than Saturdays and Sundays, federal holidays in the United States or other day when Nasdaq US is closed for trading; a “Business Day” is any US Business Day, as well as any day on which Swedish banks are open to the public, other than Saturdays and Sundays, public holidays in Sweden or any other day when Nasdaq Stockholm is closed for trading.
The price of USD 24.00 per SDR offered in the Swedish Offer is equivalent to the price of USD 24.00 per Common Share offered in the US Offer. In the US Offer, the Offer Price is payable net to the seller in cash, without interest, less any withholding taxes that may be applicable. In the Swedish Offer, settlement will be made in SEK and the Offer Price will be converted into SEK in connection with settlement (see “The Tender Offers — Terms of the Offers — Consideration and Payment” and “The Tender Offers — Procedures for Tendering into the Offers — Tender of SDRs”).
35
Based on 172,096,305 issued Common Shares in Millicom, less 840,641 Common Shares and/or SDRs held in treasury by Millicom.
36
Corresponding to SEK 254.67 per SDR, based on an illustrative USD/SEK exchange rate of 10.6 as of June 28, 2024. The Offer Price per SDR in SEK that will be paid to the holders of SDRs will be set based on the USD/SEK exchange rate as close to the settlement date as the Purchaser is able.
Consideration and Payment
The Shareholders of Millicom are being offered USD 24.00 per Common Share and USD 24.00 per SDR,37 upon the terms and subject to the conditions set forth in this Offer to Purchase and, with respect to the US Offer, in the accompanying Letter of Transmittal.
In the US Offer, the Offer Price is payable net to the seller in cash, without interest, less any withholding taxes that may be applicable. In the Swedish Offer, settlement will be made in SEK and the Offer Price will be converted into SEK in connection with settlement (see “The Tender Offers — Procedures for Tendering into the Offers — Tender of SDRs”).
Should Millicom, prior to the settlement of the Offers, distribute dividends or in any other way distribute or transfer value to its Shareholders, the Offer Price will be adjusted accordingly. In the event of either of the foregoing, Atlas reserves the right to determine whether this price adjustment mechanism or condition 7 to completion of the Offers will be invoked (see “The Tender Offers — Terms of the Offers — Conditions for Completion of the Offers”).
No Commission
No commission will be charged in respect of the settlement of Shares tendered pursuant to the Offers.
Offer Period and Right to Extend the Offers
The Offer Period will commence on July 1, 2024, and expire at one minute after 10:59 a.m. EST, or one minute after 4:59 p.m. CEST, on the Expiration Date, unless the Offer Period is extended.
The Purchaser reserves the right to extend the Offer Period, as well as to postpone the settlement date. If the Swedish Offer is extended in accordance with Swedish law, the US Offer is expected to be extended so that it will expire on the same day as, and simultaneously with, the Swedish Offer. If the US Offer is extended in accordance with US law, the Swedish Offer is expected to be extended so that it will expire on the same day as, and simultaneously with, the US Offer.
We will also extend the Offers for any period or periods required by applicable law or applicable rules, regulations, interpretations or positions of the SEC or its staff or any of the rules and regulations, including listing standards, of Nasdaq US. In the event of an extension, Common Shares or SDRs validly tendered into and not properly withdrawn from the Offers will remain subject to the Offers. During such extension, each holder will continue to have the right to withdraw Common Shares or SDRs previously tendered provided that the conditions for completion of the Offers remain during such an extension and that the Offers have not been declared unconditional by Purchaser (see “The Tender Offers — Withdrawal Rights” and “The Tender Offers — Terms of the Offers — Conditions for Completion of the Offers” for more details on our obligation and ability to extend the Offers). Purchaser may make available a “subsequent offering period” as such term is defined in and in accordance with Rule 14d-11 promulgated under the Exchange Act.
If you hold your Shares through a broker, dealer, commercial bank, trust company or other nominee you should be aware that such securities intermediaries may establish their own earlier cut-off times and dates for receipt of instructions to tender (or to submit a notice of withdrawal on your behalf, as applicable) to ensure that those instructions will be timely received by the US Tender Agent or Swedish Settlement Agent. Shareholders are responsible for determining and complying with any applicable cut-off times and dates.
If we make a material change in the terms of the US Offer, subject to applicable law, we will extend the US Offer and disseminate additional tender offer materials to the extent required by Rules 14d-4(d)(1), 14d-6(c) and 14e-1 under the Exchange Act. The minimum period during which an offer must remain open following material changes in the terms of the US Offer, other than a change in price, will depend upon the facts and circumstances, including the materiality of the changes. A minimum ten (10) US Business Day period from the date of such change is generally required to allow for adequate dissemination of new information to Shareholders in connection with a change in the Offer Price. The requirement to extend the US Offer will not
37
Corresponding to SEK 254.67 per SDR, based on an illustrative USD/SEK exchange rate of 10.6 as of June 28, 2024. The Offer Price per SDR in SEK that will be paid to the holders of SDRs will be set based on the USD/SEK exchange rate as close to the settlement date as the Purchaser is able.
apply if the number of US Business Days remaining until the then scheduled expiration date equals or exceeds the minimum extension period that would be required because of such amendment.
Any extension, delay, termination, waiver or amendment of the US Offer will be followed by public announcement thereof in accordance with the Tier II Exemptions. Without limiting the manner in which we may choose to make any public announcement, subject to applicable law (including the Tier II Exemptions and Rule 14d-4(d) under the Exchange Act), we will make announcements regarding the Offers by issuing a press release.
If we extend the US Offer, delay our acceptance for payment of Common Shares, or we are unable to accept for payment Common Shares pursuant to the US Offer, for any reason, then, without prejudice to our rights under the US Offer, the US Tender Agent may nevertheless, on our behalf, retain tendered Common Shares, and such Common Shares may not be withdrawn except to the extent that tendering Shareholders exercise withdrawal rights as described in “The Tender Offers — Withdrawal Rights” prior to 10:59 a.m. EST, or one minute after 4:59 p.m. CEST, on the Expiration Date or as otherwise required by Rule 14e-1(c) under the Exchange Act.
If, on or before 10:59 a.m. EST or 4:59 p.m. CEST, on the Expiration Date (or a later expiration date), Purchaser increases the Offer Price, such increased consideration will be paid to all Shareholders whose Shares are purchased in the Offers, whether or not such Shares were tendered before the announcement of such potential increase in consideration.
Squeeze-Out and Sell-Out
Atlas may exercise a Takeover Squeeze-Out within three months after the Expiration Date. If Atlas initiates a Takeover Squeeze-Out, Atlas may only offer consideration in cash. The CSSF shall ensure that a fair price is guaranteed. Pursuant to Article 15 paragraph 5 of the Luxembourg Takeover Law, the Offer Price of the Offers shall be presumed to be fair for a Takeover Squeeze-Out if Atlas, through acceptance of the Offers, succeeded in acquiring securities representing not less than ninety (90) per cent of the capital carrying voting rights comprised in the Offers.
The remaining Shareholders may initiate a Takeover Sell-Out within three months after the Expiration Date. The CSSF shall ensure that a fair price is guaranteed. Pursuant to Article 16 paragraph 2 of the Luxembourg Takeover Law, the Offer Price of the Offers shall be presumed to be fair for a Takeover Sell-Out if Atlas, through acceptance of the Offers, succeeded in acquiring securities representing not less than ninety (90) per cent of the capital carrying voting rights comprised in the Offers.
For more information on Takeover Squeeze-Out and Takeover Sell-Out, see “The Tender Offers — Possible Effects of the Offers on the Market for Common Shares; Nasdaq US Listing; Nasdaq Stockholm Listing; Exchange Act Registration; Squeeze-Out and Sell-Out.”
Right to Withdraw Acceptance
Shareholders have the right to withdraw their acceptance of the Offers. To be valid, such withdrawal must have been received in writing by the US Tender Agent, with respect to the US Offer, or the Swedish Settlement Agent, with respect to the Swedish Offer, pursuant to the instructions under “The Tender Offers — Withdrawal Rights” and otherwise in accordance with this Offer to Purchase and the Letter of Transmittal, the latter with respect to the US Offer. If conditions for completion of the Offers, which Purchaser has reserved the right to waive, have not been satisfied or waived and remain during an extension of the Offers, the right to withdraw an acceptance will apply in the same manner throughout any such extension of the Offers.
For more information on your withdrawal rights pursuant to the Offers, see “The Tender Offers — Withdrawal Rights.”
Conditions for Completion of the Offers
The completion of the Offers is conditional upon:
1.
the Offers being accepted to such extent that Atlas becomes the owner of Shares representing ninety five (95) per cent or more of the Shares in Millicom;38
2.
no other party announcing an offer to acquire Shares on terms that are more favorable to the Shareholders than the Offers;
3.
with respect to the Offers and completion of the acquisition of Millicom, receipt of all necessary regulatory, governmental or similar clearances, approvals, decisions and other actions from authorities or similar, including from competition authorities, being obtained, in each case on terms which, in Atlas’ opinion, are acceptable;
4.
neither the Offers nor the acquisition of Millicom being rendered wholly or partially impossible or significantly impeded as a result of legislation or other regulation, any decision of a court or public authority, or any similar circumstance;
5.
no circumstances having occurred which could have a material adverse effect or could reasonably be expected to have a material adverse effect on Millicom’s financial position or operations, including Millicom’s sales, results, liquidity, equity ratio, equity or assets;
6.
no information made public by Millicom, or otherwise made available to Atlas by Millicom, being inaccurate, incomplete or misleading, and Millicom having made public all information which should have been made public; and
7.
Millicom not taking any action that is likely to impair the prerequisites for making or completing the Offers.
Atlas reserves the right to withdraw the Offers in the event that it is clear that any of the above conditions are not satisfied or cannot be satisfied. However, with regard to conditions 2 – 7 above, the Offers may only be withdrawn where the non-satisfaction of such condition is of material importance to Atlas’ acquisition of Millicom or if otherwise approved by the Swedish Securities Council.
Atlas reserves the right to waive, in whole or in part, one, several or all of the conditions 1 – 7 set out above, including, with respect to condition 1 above, to complete the Offers at a lower level of acceptance.
2.
Acceptance for Payment and Payment
Purchaser is offering USD 24.00 per Common Share in the US Offer and USD 24.00 per SDR39 in the Swedish Offer, upon the terms and subject to the conditions set forth in this Offer to Purchase and, with respect to the US Offer, the accompanying Letter of Transmittal.
In the US Offer, the Offer Price is payable net to the seller in cash, without interest, less any withholding taxes that may be applicable. In the Swedish Offer, settlement will be made in SEK and the Offer Price will be converted into SEK in connection with settlement (see “The Tender Offers — Terms of the Offers — Consideration and Payment” and “The Tender Offers — Procedures for Tendering into the Offers — Tender of SDRs”).
Under no circumstances will any interest be paid by us on the Offer Price for Common Shares tendered pursuant to the US Offer, regardless of any delay in making such payments. No fraction of a Common Share or SDR will be purchased from any holder and all payments to tendering holders of the Common Shares or SDRs pursuant to the Offers will be rounded to the nearest whole cent or rounded off to two decimal points of SEK, as applicable.
Upon the satisfaction, or to the extent legally permitted, waiver of the conditions set forth in the section “The Tender Offers — Conditions for Completion of the Offers” and for the US Offer the accompanying Letter of
38
Excluding 840,641 Common Shares and/or SDRs held in treasury by Millicom.
39
Corresponding to SEK 254.67 per SDR, based on an illustrative USD/SEK exchange rate of 10.6 as of June 28, 2024. The Offer Price per SDR in SEK that will be paid to the holders of SDRs will be set based on the USD/SEK exchange rate as close to the settlement date as the Purchaser is able.
Transmittal, Purchaser will pay for such Common Shares and SDRs as soon as possible in accordance with the Swedish Takeover Rules after the Expiration Date. Payment for Common Shares accepted for payment pursuant to the US Offer will be made only after timely receipt of the required documents by the US Tender Agent in accordance with the procedures set forth in the section “The Tender Offers — Procedures for Tendering into the Offers.”
All payments in the US Offer will be subject to any withholding taxes that may be applicable (see “The Tender Offers — Terms of the Offers — Consideration and Payment”).
In the US Offer, tendering holders of Common Shares who are holders of record of their Common Shares and who tender directly to the US Tender Agent will not be obligated to pay brokerage fees or commissions or, except as otherwise provided in Section 6 of the Letter of Transmittal, stock transfer taxes with respect to the purchase of Common Shares by Purchaser pursuant to the US Offer. Holders of Common Shares who hold their Common Shares through a broker, dealer, commercial bank, trust company or other nominee should consult such broker, dealer, commercial bank, trust company or other nominee as to whether it charges any service fees or commissions.
No commission will be charged in respect of the SDRs tendered pursuant to the Swedish Offer.
Common Shares
In all cases, we will pay for Common Shares validly tendered and accepted for payment pursuant to the US Offer only after timely receipt by the US Tender Agent of (i) the certificates evidencing such Common Shares (the “Share Certificates”) or confirmation of a book-entry transfer of such Common Shares into the Tender Agent’s account at DTC (such a confirmation, a “Book-Entry Confirmation”) pursuant to the procedures set forth in “The Tender Offers — Procedures for Tendering into the Offers — Tender of Common Shares,” (ii) the Letter of Transmittal, properly completed and duly executed, with any required signature guarantees (or, in the case of a book-entry transfer or a tender through ATOP, an Agent’s Message (as defined below) in lieu of the Letter of Transmittal) and (iii) any other documents required by the Letter of Transmittal or the US Tender Agent, in each case prior to the Expiration Time. Accordingly, tendering holders of Common Shares may be paid at different times depending upon when the Share Certificates and Letter of Transmittal, or Book-Entry Confirmations and Agent’s Message, in each case, with respect to Common Shares that are actually received by the US Tender Agent.
The term “Agent’s Message” means a message transmitted through electronic means by DTC in accordance with the normal procedures of DTC to, and received by, the US Tender Agent and forming part of a Book-Entry Confirmation, that states that DTC has received an express acknowledgment from the participant in DTC tendering the Shares that are the subject of such Book-Entry Confirmation that such participant has received and agrees to be bound by the terms of, the Letter of Transmittal, and that Purchaser may enforce such agreement against such participant.
For purposes of the US Offer, we will be deemed to have accepted for payment, and thereby purchased, Common Shares validly tendered to Purchaser and not properly withdrawn as, if and when we give oral or written notice to the US Tender Agent of our acceptance for payment of such Common Shares pursuant to the US Offer. Upon the terms and subject to the conditions of the US Offer, payment for Common Shares accepted for payment pursuant to the US Offer will be made by deposit of the Common Share Offer Price with the US Tender Agent, which will act as agent for tendering Shareholders for the purpose of receiving payments from us and transmitting such payments to tendering Shareholders whose Common Shares have been accepted for payment. If we extend the Offers, are delayed in our acceptance of Common Shares for payment or are unable to accept Common Shares for payment pursuant to the US Offer for any reason, then, without prejudice to our rights under the Offers, the US Tender Agent may retain tendered Common Shares on our behalf, and such Common Shares may not be withdrawn except to the extent that tendering Shareholders are entitled to withdrawal rights as described under “The Tender Offers — Withdrawal Rights.”
If any tendered Common Shares are not accepted for payment pursuant to the terms and conditions of the US Offer for any reason, or if Share Certificates are submitted evidencing more Common Shares than are tendered, electronic book-entry shares representing unpurchased Common Shares will be promptly issued, without expense to the tendering Shareholder (or, in the case of Common Shares tendered by book-entry
transfer into the US Tender Agent’s account at DTC pursuant to the procedure set forth in “The Tender Offers — Procedures for Tendering into the Offers — Tender of Common Shares,” such Common Shares will be credited to an account maintained at DTC) following the Expiration Time.
3.
Procedures for Tendering into the Offers
Tender of Common Shares
Valid Tenders
In order for a holder to validly tender Common Shares pursuant to the US Offer, the Letter of Transmittal, properly completed and duly executed, together with any required signature guarantees (or, in the case of a book-entry transfer or a tender through DTC’s ATOP, an Agent’s Message in lieu of the Letter of Transmittal) and any other documents required by the Letter of Transmittal or the US Tender Agent must be received by the US Tender Agent at one of its addresses set forth on the back cover of this Offer to Purchase and either (i) in the case of certificated Common Shares, the Share Certificates evidencing tendered Common Shares must be received by the US Tender Agent at such address or (ii) in the case of Common Shares held in book-entry form, such Common Shares must be tendered pursuant to the procedures for book-entry transfer described below under “Book-Entry Transfer” and a Book-Entry Confirmation must be received by the US Tender Agent, in each case prior to the Expiration Time.
Book-Entry Transfer
The US Tender Agent will establish an account with respect to the Common Shares at DTC for purposes of the US Offer. Any financial institution that is a participant in DTC’s system may make a book-entry delivery of Common Shares by causing DTC to transfer such Common Shares into the US Tender Agent’s account at DTC in accordance with DTC’s procedures for such transfer. However, although delivery of Common Shares may be effected through book-entry transfer at DTC, either the Letter of Transmittal, properly completed and duly executed, together with any required signature guarantees, or an Agent’s Message in lieu of the Letter of Transmittal, and any other required documents, must, in any case, be received by the US Tender Agent at one of its addresses set forth on the back cover of this Offer to Purchase prior to the Expiration Time. Delivery of documents to DTC does not constitute delivery to the US Tender Agent.
No Guaranteed Delivery
We do not provide guaranteed delivery procedures. Therefore, holders of Common Shares must allow sufficient time for the necessary tender procedures to be completed during normal business hours of DTC. Normal business hours of DTC are between 8:00 a.m. and 5:00 p.m. EST, Monday through Friday. Holders must tender their Common Shares in accordance with the procedures set forth in this Offer to Purchase and the related Letter of Transmittal prior to the Expiration Time. Tenders received by the US Tender Agent after the Expiration Time will be disregarded and of no effect.
Signature Guarantees for Common Shares
No signature guarantee is required on the Letter of Transmittal (i) if the Letter of Transmittal is signed by the holder(s) of record (which term, for purposes of this Section 3, includes any participant in DTC’s system whose name appears on a security position listing as the owner of the Common Shares) of the Common Shares tendered therewith, unless such holder or holders have completed either the box entitled “Special Delivery Instructions” or the box entitled “Special Payment Instructions” on the Letter of Transmittal or (ii) if the Common Shares are tendered for the account of a financial institution (including most commercial banks, savings and loan associations and brokerage houses) that is a member in good standing of the Security Transfer Agents Medallion Program or any other “eligible guarantor institution,” as such term is defined in Rule 17Ad-15 of the Exchange Act (each, an “Eligible Institution”). In all other cases, all signatures on a Letter of Transmittal must be guaranteed by an Eligible Institution. See Instruction 1 of the Letter of Transmittal. If a Share Certificate is issued in the name of a person or persons other than the signers of the Letter of Transmittal, or if payment is to be made or delivered to, or a Share Certificate not accepted for payment or not tendered is to be issued in, the name(s) of a person or persons other than the holder(s) of
record, then the Letter of Transmittal must be endorsed or accompanied by appropriate duly executed stock powers, in either case signed exactly as the name(s) of the holder(s) of record that appear on the Share Certificate, with the signature(s) on such Letter of Transmittal guaranteed by an Eligible Institution as provided in instructions 5 and 6 of the Letter of Transmittal.
Notwithstanding any other provision of the US Offer, payment for Common Shares accepted for payment pursuant to the US Offer will in all cases only be made after timely receipt by the US Tender Agent of (i) certificates evidencing such Common Shares or a Book-Entry Confirmation of a book-entry transfer of such Common Shares into the US Tender Agent’s account at DTC pursuant to the procedures set forth in this Section 3, (ii) the Letter of Transmittal, properly completed and duly executed, with any required signature guarantees (or, in the case of a book-entry transfer or a tender through DTC’s ATOP, an Agent’s Message in lieu of the Letter of Transmittal) and (iii) any other documents required by the Letter of Transmittal or the US Tender Agent, in each case prior to the Expiration Time. Accordingly, tendering holders of Common Shares may be paid at different times depending upon when the Share Certificates and Letter of Transmittal, or Book-Entry Confirmations and Agent’s Message, in each case, with respect to Common Shares that are actually received by the US Tender Agent.
THE METHOD OF DELIVERY OF THE COMMON SHARES (OR SHARE CERTIFICATES, IF ANY), THE LETTER OF TRANSMITTAL, THE AGENT’S MESSAGE AND ALL OTHER REQUIRED DOCUMENTS, INCLUDING DELIVERY THROUGH DTC, IS AT THE ELECTION AND RISK OF THE TENDERING HOLDER OF COMMON SHARES. DELIVERY OF THE COMMON SHARES (OR SHARE CERTIFICATES, IF ANY), THE LETTER OF TRANSMITTAL AND ALL OTHER REQUIRED DOCUMENTS WILL BE DEEMED MADE, AND RISK OF LOSS THEREOF WILL PASS, ONLY WHEN THEY ARE ACTUALLY RECEIVED BY THE US TENDER AGENT (INCLUDING, IN THE CASE OF A BOOK-ENTRY TRANSFER OF COMMON SHARES, BY BOOK-ENTRY CONFIRMATION WITH RESPECT TO SUCH COMMON SHARES). IF SUCH DELIVERY IS BY MAIL, IT IS RECOMMENDED THAT THE SHARE CERTIFICATES (IF ANY), THE LETTER OF TRANSMITTAL AND ALL OTHER REQUIRED DOCUMENTS BE SENT BY PROPERLY INSURED REGISTERED MAIL WITH RETURN RECEIPT REQUESTED. IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO ENSURE TIMELY DELIVERY PRIOR TO THE EXPIRATION TIME.
Tender Constitutes Binding Agreement
The tender of Common Shares pursuant to any of the procedures described above will constitute the tendering Shareholder’s acceptance of the US Offer, as well as the tendering Shareholder’s representation and warranty that such Shareholder has the full power and authority to tender and assign the Common Shares tendered, as specified in the Letter of Transmittal (or, in the case of a book-entry transfer, an Agent’s Message). Our acceptance for payment of Common Shares tendered pursuant to the US Offer will constitute a binding agreement between the tendering Shareholder and us upon the terms and subject to the conditions of the US Offer.
Determination of Validity
All questions as to the validity, form, eligibility (including time of receipt) and acceptance for payment of any tender of Common Shares will be determined by the US Tender Agent, in its sole discretion, which determination will be final and binding on all parties, subject to the rights of holders of Common Shares to challenge such determination with respect to their Common Shares in a court of competent jurisdiction and any subsequent judgment of any such court. The US Tender Agent reserves the absolute right to reject any and all tenders determined not to be in proper form or the acceptance for payment of which may be unlawful. We reserve the absolute right to waive any defect or irregularity in the tender of any Common Shares of any particular Shareholders, whether or not similar defects or irregularities are waived in the case of other Shareholders. No tender of Common Shares will be deemed to have been validly made until all defects and irregularities have been cured or waived to our satisfaction. None of Purchaser, the Company or any of their respective affiliates or assigns, the US Tender Agent, the Information Agent or any other person will be under any duty to give any notification of any defects or irregularities in tenders or incur any liability for failure to give any such notification. Subject to the rights of holders of Common Shares to challenge any interpretation
with respect to their Common Shares in a court of competent jurisdiction and any subsequent judgment of any such court, our interpretation of the terms and conditions of the US Offer (including the Letter of Transmittal and the instructions thereto) will be final and binding.
Appointment as Proxy
By executing the Letter of Transmittal as set forth above, the tendering Shareholder will irrevocably appoint designees of Purchaser as such Shareholder’s attorneys-in-fact and proxies in the manner set forth in the Letter of Transmittal, each with full power of substitution, to the full extent of such Shareholder’s rights with respect to the Common Shares tendered by such Shareholder and accepted for payment by Purchaser and with respect to any and all other Common Shares or other securities or rights issued or issuable in respect of such Common Shares. All such powers of attorney and proxies will be considered irrevocable and coupled with an interest in the tendered Common Shares. Such appointment will be effective when, and only to the extent that, we accept for payment the Common Shares tendered by such Shareholder as provided herein. Upon such appointment, all prior powers of attorney, proxies and consents given by such Shareholder with respect to such Common Shares or other securities or rights will, without further action, be revoked and no subsequent powers of attorney, proxies, consents or revocations may be given by such Shareholder (and, if given, will not be deemed effective). The designees of Purchaser will thereby be empowered to exercise all voting and other rights with respect to such Common Shares and other securities or rights, including, without limitation, in respect of any annual, special or adjourned meeting of Millicom Shareholders, actions by written consent in lieu of any such meeting or otherwise, as they in their sole discretion deem proper. We reserve the right to require that, in order for Common Shares to be deemed validly tendered, immediately upon our acceptance for payment of such Common Shares, Purchaser must be able to exercise full voting, consent and other rights with respect to such Common Shares and other related securities or rights, including voting at any meeting of Shareholders of Millicom.
Representations and Agreements with Respect to Tenders of Common Shares
Each holder of the Common Shares, by tendering its securities into the US Offer, irrevocably undertakes, represents, warrants and agrees (so as to bind the holder and the holder’s personal representatives, heirs, successors and assigns) as follows:
•
that it has the full power and authority to tender and assign the Common Shares tendered, and that our acceptance for payment of the Common Shares tendered pursuant to the US Offer will constitute a binding agreement containing the terms and conditions of the Offers, as between us and the tendering holder;
•
that the tendering of its Common Shares, and the execution of the Letter of Transmittal shall constitute: (i) an acceptance of the US Offer in respect of the number of Common Shares identified therein, (ii) an undertaking to execute all further documents and give all further assurances which may be required to enable us to obtain the full benefit and to obtain title to the tendered Common Shares and (iii) an acknowledgment that each such holder’s acceptance shall be irrevocable, subject to the accepting holder not having validly withdrawn such acceptance;
•
that the Common Shares in respect to which the US Offer is accepted or deemed to be accepted are fully paid and non-assessable, sold free from all liens, equities, charges and encumbrances and together with all rights attaching thereto, including voting rights and the right to all dividends or other distributions having a record date after such Common Shares have been accepted for purchase in accordance herewith;
•
that the tendering of its Common Shares, and the execution of the Letter of Transmittal constitutes the irrevocable appointment of designees of Purchaser as such holder’s attorneys-in-fact and proxies in the manner set forth in the Letter of Transmittal, each with full power of substitution, to the full extent of such holder’s rights with respect to the Common Shares tendered by such holder and accepted for purchase by Purchaser and with respect to any and all other Common Shares or other securities or rights issued or issuable in respect of such Common Shares. All such powers of attorney and proxies will be considered irrevocable and coupled with an interest in the tendered Common Shares. Such appointment will be effective when, and only to the extent that, we accept for payment Common Shares tendered by such holder as provided herein. Upon such appointment, all prior powers of attorney,
proxies and consents given by such holder with respect to such Common Shares or other securities or rights will, without further action, be revoked and no subsequent powers of attorney, proxies, consents or revocations may be given by such holder (and, if given, will not be deemed effective). The designees of Purchaser will thereby be empowered to exercise all voting and other rights with respect to such Common Shares and other securities or rights, including, without limitation, in respect of any annual, special or adjourned meeting of Millicom’s Shareholders, actions by written consent in lieu of any such meeting or otherwise, as they in their sole discretion deem proper. We reserve the right to require that, in order for Common Shares to be deemed validly tendered, immediately upon our acceptance for payment of such Common Shares, Purchaser or its designees must be able to exercise full voting, consent and other rights with respect to such Common Shares and other related securities or rights, including voting at any meeting of Millicom’s Shareholders;
•
that the tendering of its Common Shares, and the execution of the Letter of Transmittal, constitutes, subject to the tendering holder of the Common Shares not having withdrawn its tender, an irrevocable authority and request (i) to Millicom and its directors, officers and agents, to cause the registration of the transfer of the Common Shares pursuant to the US Offer and the delivery of any and all document(s) of title in respect thereof to us or our nominees and (ii) to us or our agents, to act upon any instructions with regard to notices and payments that have been recorded in the records of Millicom regarding such holder’s Common Shares;
•
that this “The Tender Offers — Procedures for Tendering into the Offers — Representations and Agreements With Respect to Tenders of Common Shares” section shall be incorporated in and form part of the Letter of Transmittal; and
•
that it agrees to ratify each and every act or thing which may be done or effected by us, Parent or any of our directors or agents, or Millicom or its agents, as applicable, in the proper exercise of the power and authorities of any such person.
DO NOT DELIVER ANY DOCUMENTS TO MILLICOM, PARENT, PURCHASER, THE INFORMATION AGENT OR THE SDR DEPOSITARY. DELIVERY OF THE LETTER OF TRANSMITTAL OR ANY OTHER REQUIRED DOCUMENTS TO PARENT, PURCHASER, THE INFORMATION AGENT OR THE SDR DEPOSITARY DOES NOT CONSTITUTE A VALID TENDER.
Tender of SDRs
Holders of SDRs whose SDRs in Millicom are directly registered with Euroclear and who wish to accept the Swedish Offer shall, during the period from July 1, 2024, up to and including August 16, 2024, one minute after 4:59 p.m. CEST, sign and submit a duly completed SDR Acceptance Form to Handelsbanken Issue Department to;
Handelsbanken
Offerings & Issue Services
SE-106 70 Stockholm
Sweden
or by email to;
submit@handelsbanken.se
The SDR Acceptance Form must be sent in ample time before the last day of the Offer Period so that it may be received by Handelsbanken Issue Department no later than one minute after 4:59 p.m. CEST on August 16, 2024.
The securities account (Sw. VP-konto) and the current number of SDRs held in Millicom are pre-printed on the SDR Acceptance Form which will be sent out to holders of SDRs in Millicom who are directly registered as of July 1, 2024.
Holders of SDRs should verify that the pre-printed information on the SDR Acceptance Form is correct.
Note that SDR Acceptance Forms which are incomplete or incorrectly completed may be disregarded.
Pledged SDRs
If SDRs in Millicom are pledged in the Euroclear system, both the holder of SDRs and the pledgee must sign the SDR Acceptance Form and confirm that the pledge will be terminated should the Offers be completed.
Offer to Purchase
This Offer to Purchase will be available as applicable on the following websites:
•
Atlas (www.atlas-investissement.com/en/offers); and
•
SFSA (Sw. Finansinspektionen) (www.finansinspektionen.se).
Confirmation of Acceptance and Transfer of SDRs in Millicom to Blocked Securities Accounts
After Handelsbanken Issue Department has received and registered an SDR Acceptance Form which has been duly completed, the SDRs will be transferred to a new blocked securities account (Sw. apportkonto), which has been opened for each holder of SDRs. In connection hereto, Euroclear will send a notification (“VP-notice”) showing the number of SDRs that have been removed from the original securities account and a VP-notice showing the number of SDRs that have been entered in the newly opened blocked securities account.
Nominee-Registered Holdings of SDRs
Holders of SDRs whose holdings are registered in the name of a nominee, i.e., a bank or other nominee, will not receive a pre-printed SDR Acceptance Form. Acceptances must be made in accordance with instructions received by the nominee. If you hold your SDRs through a broker, dealer, commercial bank, trust company or other nominee you should be aware that such securities intermediaries may establish their own earlier cut-off times and dates for receipt of instructions to tender (or to submit a notice of withdrawal on your behalf, as applicable) to ensure that those instructions will be timely received by the Swedish Settlement Agent. Holders of SDRs are responsible for determining and complying with any applicable cut-off times and dates.
The settlement will be provided for in accordance with the nominee’s routines respectively.
Settlement in the Swedish Offer
Settlement will be initiated as soon as Purchaser announces that the conditions for completion of the Offers have been fulfilled or if Purchaser has otherwise decided to complete the Offers. Provided that such announcement takes place no later than August 19, 2024, settlement for SDRs is expected to be initiated on or around August 29, 2024. The conversion of USD to SEK will be made in connection with the Purchaser making the consideration available to the Swedish Settlement Agent (expected around three business days following an announcement that the Purchaser declares the Offers unconditional and will complete the Offers), by the Swedish Settlement Agent at the prevailing market rates. The conversion may be affected by the availability of currency and the amount of SEK to be settled. This further means that the conversion may need to take place over more than one (1) day.
Settlement will be effected by distribution of a contract note to those directly registered holder of SDRs who have accepted the Swedish Offer. If the holding is registered in the name of a nominee, settlement will be provided for by the nominee.
The settlement amount in respect of the SDRs will be paid to the yield account which is connected to the holder’s securities account. Settlement for holders who do not have a yield account connected to their securities account or whose yield account is incorrect the payment may be delayed. In connection with the settlement, the SDRs will be removed from the blocked securities account which will then be terminated. No VP-notice evidencing the removal from the blocked securities account will be sent.
Note that, even if the SDRs are pledged, payment will be made to the yield account which is connected to the holder’s securities account.
Settlement Price in SEK
For holders of SDRs the Offer Price is determined in USD, however the settlement will be made in SEK and the Offer Price will be set, based on the obtained USD/SEK exchange rate, as close to the settlement date as the Purchaser is able. The conversion of USD to SEK will be made in connection with the Purchaser making the consideration available to the Swedish Settlement Agent (expected around three business days following an announcement that the Purchaser declares the Offers unconditional and will complete the Offers), by the Swedish Settlement Agent at the prevailing market rates. The conversion may be affected by the availability of currency and the amount of SEK to be settled. This further means that the conversion may need to take place over more than one (1) day.
Important Information Regarding LEI and NID at Acceptance
According to Directive 2014/65/EU of the European Parliament and of the Council (MiFID II) and as of 3 January 2018, all investors must have a global identification code in order to conduct a securities transaction. These requirements require legal entities to apply for registration of a LEI code (Legal Entity Identifier code) and natural persons need to find their National ID or NID number (National Client Identifier number) in order to accept the Swedish Offer. Please note that it is the Shareholder’s legal status that determines whether a LEI code or NID number is required, and that an issuing agent may be prevented from performing the transaction on behalf of the person in question if a LEI code or NID number (as applicable) is not provided.
Legal persons who need to obtain a LEI code may contact one of the suppliers available on the market. Through this website approved institutions for the global LEI system can be found: www.gleif.org/en/about-lei/how-to-get-an-lei-find-lei-issuing-organizations.
For natural persons who only have Swedish citizenship, the NID number consists of the designation “SE” followed by the person’s social security number. If the person in question has a citizenship other than Swedish, or multiple citizenships, the NID number may be any other type of number.
Shareholders in Millicom who wish to participate in the Swedish Offer should apply for registration of a LEI code (legal persons) or find out the NID number (natural persons with citizenship other than Swedish, or multiple citizenships) well in advance since this information is required in the SDR Acceptance Form upon acceptance of the Swedish Offer.
Other Information
Handelsbanken Issue Department acts as settlement agent in relation to the Swedish Offer for the SDRs, which means that it performs certain administrative services relating to the Swedish Offer. This does not mean that a person who accepts the Swedish Offer (the “Participant”) will be automatically regarded as a customer of Handelsbanken. This means, inter alia, that neither customer categorization nor the appropriateness test will be performed with respect to the Swedish Offer. Each Participant is therefore responsible for ensuring that it has sufficient experience and knowledge to understand the risks associated with the Swedish Offer.
Information about Processing of Personal Data
Svenska Handelsbanken AB (publ) is the party responsible (data controller) for processing the personal data that holders of SDRs provide on their SDR Acceptance Forms or that is otherwise registered in connection with the Swedish Offer. Detailed information of Svenska Handelsbanken AB (publ)’s processing of personal data and holders’ rights in connection with this process is available at www.handelsbanken.se.
Questions About the Swedish Offer
For questions regarding the administration of the Swedish Offer, please contact Handelsbanken Issue Department at issuedept@handelsbanken.se or, if holdings are registered with a nominee, please contact the nominee.
Information about the Offers is also available on Atlas’ website (www.atlas-investissement.com/en/offers).
4.
Withdrawal Rights
Except as otherwise provided in this Section 4, or as provided by applicable law, tenders of Shares made pursuant to the Offers are irrevocable. Shares tendered pursuant to the Offers may be withdrawn at any time prior to the Expiration Time; provided that, exclusively in connection with the Swedish Offer, Purchaser has not announced that the conditions for completion of the Offers have been fulfilled.
Common Shares
For a withdrawal of Common Shares to be effective, the US Tender Agent must timely receive a written notice of withdrawal at one of its addresses set forth on the back cover of this Offer to Purchase. Any notice of withdrawal must specify the name of the person who tendered the Common Shares to be withdrawn, the number of Common Shares to be withdrawn and the names in which the Share Certificates are registered, if different from the person who tendered such Common Shares. The signature(s) on the notice of withdrawal must be guaranteed by an Eligible Institution, unless such Common Shares have been tendered for the account of an Eligible Institution. If Common Shares have been tendered pursuant to the procedures for book-entry transfer as set forth in “The Tender Offers — Procedures for Tendering into the Offers — Tender of Common Shares” any notice of withdrawal must specify the name and number of the account at DTC to be credited with the withdrawn Common Shares. If Share Certificates representing the Common Shares to be withdrawn have been delivered or otherwise identified to the US Tender Agent, then, prior to the return of such Common Shares in electronic book-entry form, the name of the holder(s) of record and the serial numbers shown on such Share Certificates must also be furnished to the US Tender Agent.
Withdrawals of tenders of Common Shares may not be rescinded and any Common Shares properly withdrawn will be deemed not validly tendered for purposes of the US Offer. Withdrawn Common Shares may, however, be retendered by following one of the procedures for tendering Shares described in “The Tender Offers — Procedures for Tendering into the Offers” at any time prior to the Expiration Time.
Purchaser will determine, in its sole discretion, all questions as to the form and validity (including time of receipt) of any notice of withdrawal, and such determination will be final and binding, subject to the rights of holders of Common Shares to challenge such determination with respect to their Common Shares in a court of competent jurisdiction and any subsequent judgment of any such court. No withdrawal of Common Shares will be deemed to have been properly made until all defects and irregularities have been cured or waived. None of Purchaser, Millicom or any of their respective affiliates or assigns, the US Tender Agent, the Information Agent or any other person will be under any duty to give notification of any defects or irregularities in any notice of withdrawal or incur any liability for failure to give such notification.
If Purchaser extends the US Offer, delays its acceptance for payment of Common Shares, or is unable to accept for payment Common Shares pursuant to the US Offer, for any reason, then, without prejudice to Purchaser’s rights under the US Offer, the US Tender Agent may nevertheless, on Purchaser’s behalf, retain tendered Common Shares, and such Common Shares may not be withdrawn except to the extent that tendering Shareholders exercise withdrawal rights as described in this Section 4.
If conditions for completion of the Offers remain during an extension of the Offers, the right to withdraw an acceptance will apply in the same manner throughout any such extension of the Offers.
SDRs
If you have tendered SDRs, you must properly complete and duly execute a notice of withdrawal for such SDRs, and such withdrawal must have been received in writing by the Swedish Settlement Agent in a timely manner prior to the Expiration Time. If conditions for completion of the Offers remain during an extension of the Offers, the right to withdraw an acceptance will apply in the same manner throughout any such extension of the Offers. If you tendered SDRs by giving instructions to a broker, dealer, commercial bank, trust company or other nominee, you must instruct the broker, dealer, commercial bank, trust company or other nominee to arrange for the withdrawal of your SDRs in a timely manner prior to the Expiration Time.
5.
Tax Considerations
US Federal Income Tax Considerations
The following is a summary of US federal income tax considerations generally applicable to US Holders (as defined below) with respect to the sale of Common Shares or SDRs pursuant to the Offers. This summary is based on the Internal Revenue Code of 1986, as amended (the “Code”), Treasury Regulations promulgated thereunder, administrative rulings and pronouncements and judicial decisions, all as in effect on the date of this Offer to Purchase and all of which are subject to change or to differing interpretations, possibly with retroactive effect. No assurance can be given that the US Internal Revenue Service (the “IRS”) will agree with the tax consequences described in this summary, or that a court will not sustain any challenge by the IRS.
This summary is limited to US Holders of Common Shares or SDRs that hold such securities as capital assets within the meaning of the Code (generally, for investment purposes), and does not address all of the potential US federal income tax considerations that may be applicable to a particular beneficial owner of Common Shares or SDRs in light of its particular circumstances, including holders of Common Shares or SDRs received in connection with the exercise of employee stock options, the performance of services, or otherwise as compensation, and holders who hold an equity interest, actually or constructively, in Parent or Purchaser after the Offers. This summary also does not address all of the potential US federal income tax considerations that may be applicable to certain categories of beneficial owners subject to special tax rules, such as banks and other financial institutions, thrift institutions, insurance companies, regulated investment companies, real estate investment trusts, personal holding companies, tax-exempt entities, dealers or traders in securities or currencies, taxpayers that utilize the mark-to-market method of accounting, accrual method taxpayers subject to special tax accounting rules as a result of their use of certain financial statements, US Holders whose functional currency for tax purposes is not the U.S. dollar, S corporations, entities or arrangements treated as partnerships or other pass-through entities for U.S. federal income tax purposes and investors therein, persons subject to the alternative minimum tax, individual retirement and other tax-deferred accounts, US expatriates, and persons that hold Common Shares or SDRs as part of a hedge, conversion transaction, straddle, integrated or other risk reduction transaction. This summary does not address US federal estate and gift tax consequences, the Medicare tax on net investment income, or consequences under the tax laws of any US state, local or non-US jurisdiction.
ALL US HOLDERS SHOULD CONSULT THEIR TAX ADVISORS AS TO THE PARTICULAR TAX CONSEQUENCES TO THEM OF A SALE OF COMMON SHARES OR SDRS PURSUANT TO THE OFFERS IN LIGHT OF THEIR PARTICULAR CIRCUMSTANCES, INCLUDING WITH RESPECT TO THE APPLICABILITY AND EFFECT OF U.S. FEDERAL, STATE AND LOCAL TAX LAWS, NON-U.S. TAX LAWS OR INCOME TAX TREATIES.
For purposes of this summary, a “US Holder” is a beneficial owner of Common Shares or SDRs that is, for US federal income tax purposes:
•
a citizen or individual resident of the United States;
•
a corporation (or entity or arrangement treated as 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 includible in gross income for US federal income tax purposes regardless of its source; or
•
a trust (1) if a court within the United States is able to exercise primary supervision over its administration and one or more US persons have the authority to control all of its substantial decisions, or (2) that has a valid election in effect to be treated as a US person for U.S. federal income tax purposes.
If a partnership (or other entity or arrangement treated as a partnership for US federal income tax purposes) holds Common Shares or SDRs, the US federal income tax treatment of its partners will generally depend upon the status of the partners and the activities of the partnership. Partners in such a partnership should consult their tax advisors regarding the tax considerations applicable to them of the partnership’s sale of securities pursuant to the Offers.
Sale of Common Shares or SDRs Pursuant to the Offers
The receipt of cash by a US Holder in exchange for Common Shares or SDRs pursuant to the Offers will be a taxable transaction for US federal income tax purposes. In general, such US Holder’s gain or loss will be equal to the difference, if any, between the amount of cash received and the US Holder’s adjusted tax basis in the Common Shares or SDRs tendered. Gain or loss will be determined separately for each block of Common Shares or SDRs (that is, Common Shares or SDRs acquired at the same cost in a single transaction).
Subject to the discussion of the passive foreign investment company (or “PFIC”) rules below, such gain or loss will be capital gain or loss and will be long-term capital gain or loss if such US Holder’s holding period in its Common Shares or SDRs is more than one year at the time of the sale of such securities pursuant to the Offers. In general, long-term capital gains of a non-corporate US Holder (including an individual US Holder) are eligible for reduced rates of US federal income tax. The deductibility of capital losses is subject to limitations.
Any gain or loss recognized by a US Holder on the sale of Common Shares or SDRs pursuant to the Offers will generally be treated as from sources within the United States for purposes of computing the foreign tax credit allowable to a US Holder. Consequently, a US Holder may not be able to claim a credit for any non-US tax imposed on such sale unless such credit can be applied (subject to applicable limitations) against tax due on other income treated as derived from foreign sources.
PFIC Status of the Company
The Company disclosed in its previously filed annual reports on Form 20-F that it believes, subject to the respective discussions therein, that it was not a PFIC for its taxable years ended December 31, 2023, and December 31, 2022. In general, the test for determining whether the Company is or has been a PFIC is applied annually and is based upon the composition of the Company’s and certain of its affiliates’ income and assets for such taxable year. If the Company were treated as a PFIC in the current taxable year or in any prior taxable year in which a tendering US Holder has held its Common Shares or SDRs, then such US Holder would generally be subject to adverse US federal income tax consequences with respect to gain recognized on any sale or exchange of such securities, including any sale pursuant to the Offers, although such adverse US federal income tax consequences could potentially be mitigated if such US Holder has in effect certain elections with respect its Common Shares or SDRs.
Material Swedish Tax Consequences
The following is a summary of certain Swedish tax consequences that may arise for private individuals and Swedish limited liability companies (Sw. aktiebolag) as part of the Offers. The summary is based on current Swedish tax legislation and is intended only as general information for Shareholders who are resident in Sweden for tax purposes, unless otherwise indicated. The summary is not intended to address comprehensively all tax consequences that may occur from the Offers. For instance, the summary does not address the specific rules that apply to shares that constitutes so-called qualified shares in accordance with the specific rules for Shareholders in a closely held company (Sw. fåmansföretag), or to shares that have been acquired by means of such shares. Also, the summary does not deal with the specific rules for tax-exempt capital gains (including non-deductible capital losses) and dividends which applies if the Shareholder holds shares in the company under the Swedish participation exemption regime (Sw. näringsbetingade andelar). Nor does the summary address foreign companies conducting business from a permanent establishment in Sweden, the rules that apply where shares are held by limited partnerships or partnerships, shares held as current assets (i.e., stock) in business operations or shares held in an investment savings account (Sw. investeringssparkonto) or endowment insurance (Sw. kapitalförsäkring). Special tax consequences not described below may also arise for other categories of Shareholders, such as investment companies, mutual funds, banks, insurance companies, brokers and other financial traders holding shares as trading assets. Each Shareholder is therefore recommended to consult their own tax advisors with respect to the tax consequences that may arise from the Offers in their individual case, including the applicability and effect of foreign tax legislation and provisions in double tax treaties.
General Information
Shareholders who accept the Offers and dispose their shares should generally be subject to capital gains taxation. The capital gain or capital loss is calculated as the difference between the sales proceeds, after deducting sales costs, and the acquisition cost for tax purposes. The acquisition cost is determined by applying the average cost method (Sw. genomsnittsmetoden). This means that the acquisition cost for all shares of the same type and class are aggregated and calculated jointly. For listed shares (such as Millicom’s shares) the acquisition cost may, alternatively, be determined by applying the standard method (Sw. schablonmetoden) where the acquisition cost may be determined at 20 per cent of the sales proceeds after deducting sales costs. SDRs are taxed as the underlying shares, in relation to e.g., dividends and capital gains or capital losses.
Private individuals
For private individuals’ resident in Sweden for tax purposes a capital income, such as interest income, dividends, and capital gains on listed shares will be subject to capital income taxation at a tax rate of 30 per cent. For the calculation of capital gains and capital losses, see the section “General Information” above.
Capital losses on listed shares can be fully deductible against taxable capital gains that arise in the same income year on shares and other listed securities that are taxed as shares (but not shares in mutual funds or special funds that contain only Swedish receivables, so-called fixed income funds). For capital losses on listed shares that have not been offset against capital gains, 70 per cent of the loss may be deducted against other income from capital.
In case of a net capital loss, such loss may be used as a reduction against municipal and state income tax on income from employment and business income, as well as state property tax and municipal property charge. Such tax reduction is granted with 30 per cent of the net capital loss not exceeding SEK 100,000 and 21 per cent of any remaining part. An excess net loss may not be carried forward to later income years.
Swedish limited liability companies
For Swedish limited liability companies’ resident in Sweden for tax purposes all income, including taxable capital gains and dividends on listed shares is taxed as income from business operations at a tax rate of 20.6 per cent. For the calculation of capital gains and capital losses, see the section “General Information” above.
A deductible capital loss can only be offset against taxable gains on shares or other securities that are taxed as shares. Such capital losses may however, if certain circumstances are met, also be offset against taxable capital gains on shares and other securities that are taxed as shares in another company within the same group; provided that the companies are able to exchange group contributions and both companies request it for an income year that have the same time for declaring taxes (or would have had it if none of the companies’ requirement to maintain accounting records ceases).
Capital losses which have not been utilized in a certain income year, can be carried forward in the company incurring the loss and be used to offset against taxable capital gains on shares or other securities that are taxed as shares in the subsequent income years without any limitation in time.
Shareholders not resident in Sweden for tax purposes
Shareholders not resident in Sweden for tax purposes are normally not subject to capital income taxation in Sweden on the disposal of shares. These Shareholders may nonetheless be subject to tax in their state of residence.
According to a specific rule, private individuals not resident in Sweden for tax purposes may be subject to tax in Sweden for capital gains if the person during the year of disposal, or ten calendar years preceding the year of the disposal, has been domiciled or have had his habitual abode permanently in Sweden. However, the applicability of this rule is often limited by double tax treaties concluded by Sweden and other countries.
There is no Swedish withholding tax on capital gains resulting from the Offers.
Material Luxembourg Tax Consequences
The following is a summary of certain Luxembourg tax consequences that may arise from the Offers. The summary is based on the Luxembourg tax law and tax regulations currently in effect and as currently interpreted by the Luxembourg tax authorities. These laws and interpretations are subject to change, including retroactively. The summary is not intended to deal comprehensively with all tax consequences that may occur in this context. Shareholders should consult their own professional advisors as to the particular consequences of the Offers, including the application and effect of any federal, state or local taxes under the tax laws of Luxembourg and their countries of citizenship, residence, domicile or incorporation.
Non-resident Shareholders
Non-resident Shareholders that have neither a permanent establishment nor a permanent representative in Luxembourg to which or to whom the Shares are attributable are generally not liable to any income tax in Luxembourg in respect of the Shares.
However, non-resident Shareholders may be subject to Luxembourg income tax on capital gains in case they hold a substantial participation in Millicom (i.e., more than ten (10) per cent of the issued Shares, alone or together with certain close relatives, at any time during the five-year period preceding the sale) and the sale takes place within six (6) months after acquisition or in the case of a sale after six (6) months or more, they have been a Luxembourg resident taxpayer for more than fifteen (15) years and have become a non-Luxembourg taxpayer less than five (5) years before the sale takes place. Nevertheless, reference should be made to the relevant double tax treaties concluded by Luxembourg, if any, to determine which state (residency state or Luxembourg) has the right to tax the capital gains.
Non-resident corporate Shareholders that have a permanent establishment or a permanent representative in Luxembourg to which or to whom the Shares are attributable, must include any gains realised on the sale in their taxable income for Luxembourg income tax assessment purposes. The same inclusion applies to individual Shareholders, acting in the course of the management of a professional or business undertaking, who have a permanent establishment or a permanent representative in Luxembourg to which or to whom the Shares are attributable.
Taxable gains are determined as the difference between the sale price and the lower of the cost or book value of the shares sold.
Individual resident Shareholders
Capital gains realised on the disposal of Shares by an individual resident Shareholder, acting in the course of the management of his/her private wealth, are not subject to personal income tax, unless said capital gains qualify as speculative gains or gains on a substantial participation.
Capital gains are deemed to be speculative and are thus subject to personal income tax at ordinary rates if the shares are disposed of within six (6) months of their acquisition or if their disposal precedes their acquisition.
A participation is deemed to be substantial where an individual resident Shareholder holds or has held, alone or together with his/her spouse or partner and/or minor children, directly or indirectly at any time within the five (5) years preceding the disposal, more than ten (10) per cent of the share capital of Millicom. An individual resident Shareholder is also deemed to sell a substantial participation if he/she has acquired free of charge, within the five (5) years preceding the transfer, a participation which constituted a substantial participation in the hands of the alienator (or the alienators in the case of successive transfers free of charge within the same five-year period).
Capital gains realised on a substantial participation more than six (6) months after the acquisition thereof are taxed according to the half-global rate method (i.e., the average rate applicable to the total income is calculated according to the progressive income tax rates and half of the average rate is applied to the capital gains realised on the substantial participation).
Capital gains realised on the disposal of Shares by an individual resident Shareholder, acting in the course of the management of his/her professional/business activity, are subject to personal income tax at ordinary rates.
Taxable gains are determined as the difference between the sale price and the lower of the cost or book value of the shares sold.
Corporate resident Shareholders
Capital gains realised on the disposal of Shares by fully taxable corporate resident Shareholders are subject to corporate income tax (CIT) and municipal business tax (MBT) at ordinary rates, unless the conditions of the participation exemption regime, as described below, are satisfied. Under the participation exemption regime, capital gains realised on the Shares may be exempt from CIT and MBT at the level of the corporate resident Shareholder (subject to recapture rules) if at the time the capital gain is realised, the Shareholder has held for an uninterrupted period of at least twelve (12) months Shares representing either (a) a direct participation of at least 10 per cent in the share capital of Millicom or (b) a direct participation in Millicom with an acquisition price of at least EUR 6 million. Taxable gains are determined as the difference between the sale price and the lower of the cost or book value of the shares sold or redeemed.
Corporate resident Shareholders which benefit from a special tax regime, such as (i) specialised investment funds subject to the amended law of 13 February 2007, (ii) family wealth management companies subject to the amended law of 11 May 2007, (iii) undertakings for collective investment subject to the amended law of 17 December 2010, or (iv) reserved alternative investment funds treated as specialised investment funds for Luxembourg tax purposes and subject to the amended law of 23 July 2016, are exempt from income taxes in Luxembourg and profits derived from the Shares are thus not subject to Luxembourg income taxes.
Other taxes
The disposal of Shares is not subject to any Luxembourg registration tax or stamp duty, unless it is recorded in a Luxembourg notarial deed or otherwise registered in Luxembourg, in which case a EUR 12 fixed registration duty will apply.
6.
Price Range of Common Shares and SDRs
The Common Shares are listed and traded on Nasdaq US under the symbol “TIGO.” The Common Shares in the form of SDRs are listed and traded on Nasdaq Stockholm under the symbol “TIGO SDB.” Nasdaq Stockholm is the principal trading market for Millicom. The following table sets forth, for the periods indicated, the intraday high and low trading prices per Common Share and SDR on Nasdaq US and Nasdaq Stockholm, respectively, as reported by published financial sources:
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High
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Low
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High
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Low
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$
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SEK
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|
|
Fiscal Year Ended December 31, 2022
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Third Quarter
|
|
|
|
|
16.10 |
|
|
|
|
|
11.33 |
|
|
|
|
|
167.30 |
|
|
|
|
|
125.85 |
|
|
|
Fourth Quarter
|
|
|
|
|
14.28 |
|
|
|
|
|
10.22 |
|
|
|
|
|
146.50 |
|
|
|
|
|
109.15 |
|
|
|
Fiscal Year Ended December 31, 2023
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
First Quarter
|
|
|
|
|
21.15 |
|
|
|
|
|
12.91 |
|
|
|
|
|
221.70 |
|
|
|
|
|
132.65 |
|
|
|
Second Quarter
|
|
|
|
|
20.12 |
|
|
|
|
|
14.57 |
|
|
|
|
|
206.90 |
|
|
|
|
|
156.60 |
|
|
|
Third Quarter
|
|
|
|
|
17.19 |
|
|
|
|
|
15.01 |
|
|
|
|
|
182.25 |
|
|
|
|
|
160.10 |
|
|
|
Fourth Quarter
|
|
|
|
|
18.38 |
|
|
|
|
|
14.46 |
|
|
|
|
|
186.45 |
|
|
|
|
|
161.00 |
|
|
|
Fiscal Year Ending December 31, 2024
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
First Quarter
|
|
|
|
|
20.67 |
|
|
|
|
|
15.55 |
|
|
|
|
|
219.40 |
|
|
|
|
|
159.9 |
|
|
|
Second Quarter
|
|
|
|
|
25.60 |
|
|
|
|
|
19.50 |
|
|
|
|
|
287.80 |
|
|
|
|
|
213.20 |
|
|
On June 28, 2024, the last full trading day prior to the commencement of the Offers, the closing sale price for Common Shares and SDRs reported on Nasdaq US and Nasdaq Stockholm was USD 24.55 per Common Share and SEK 258.00 per SDR, respectively. All Shareholders are urged to obtain current market quotations for the Common Shares and SDRs before deciding whether to tender their Shares.
7.
Possible Effects of the Offers on the Market for Common Shares; Nasdaq US Listing; Nasdaq Stockholm Listing; Exchange Act Registration; Squeeze-Out and Sell-Out
Possible Effects of the Offers on the Market for Common Shares
If the conditions for completion of the Offers are satisfied and the Offers are successful, Millicom may no longer be eligible to maintain a listing with Nasdaq US. The delisting of the Common Shares or the absence of an active trading market for Common Shares could reduce the liquidity and market value of the Common Shares.
Upon the consummation of the Offers, the number of Common Shares that are publicly held may be so small that the liquidity of the Common Shares may be significantly reduced, there may no longer be an active trading market for Common Shares and the market value of the Common Shares may be significantly reduced. The extent of the public market for the Common Shares and the availability of price quotations would depend upon factors such as, among others:
•
the number of holders of Common Shares and the number of Common Shares in public ownership;
•
the aggregate market value of the Common Shares and SDRs in public ownership;
•
the trading volume of the remaining Common Shares on Nasdaq US;
•
whether securities firms remain interested in maintaining a market in Common Shares or providing research on Millicom;
•
the intended delisting of the Common Shares from Nasdaq US;
•
the intended suspension of Millicom’s disclosure and reporting obligations and further duties to provide information under applicable securities laws and/or listing rules as a result of a possible delisting; and
•
the intended termination of registration of Common Shares under the Exchange Act.
Nasdaq US Listing
The Common Shares are currently quoted on Nasdaq US. However, the rules of Nasdaq US establish certain criteria that, if not met, could lead to the discontinuance of quotation of the Common Shares from Nasdaq US. Among such criteria are the number of shareholders, the number of shares publicly held and the aggregate market value of the shares publicly held. If, as a result of the purchase of Common Shares pursuant to the US Offer or otherwise, the Common Shares no longer meet the requirements of Nasdaq US for continued quotation and the quotation of Common Shares is discontinued, the market for Common Shares would be adversely affected. If the conditions for completion of the Offers are satisfied and the Offers are successful, Purchaser currently intends to cause the delisting of the Common Shares from Nasdaq US as promptly as practicable after the consummation of the Offers, as permitted by applicable law and the rules of Nasdaq US. Furthermore, pursuant to the Luxembourg Takeover Law, if following the Offers, the Purchaser holds securities carrying more than ninety (90) per cent of the voting rights in Millicom, the remaining Shareholders may require that the Purchaser purchases the remaining Shares at a fair price by exercising a Takeover Sell-Out. See “The Tender Offers — Terms of the Offers — Squeeze-Out and Sell-Out.”
Nasdaq Stockholm Listing
In the event Purchaser, in connection with the Offers or otherwise, has acquired securities representing not less than ninety five (95) per cent of the capital carrying voting rights and ninety-five (95) per cent of the voting rights in Millicom, Purchaser will have the right to exercise a Takeover Squeeze-Out in accordance with the Luxembourg Takeover Law. Furthermore, pursuant to the Luxembourg Takeover Law, if following the Offers, the Purchaser holds securities carrying more than ninety (90) per cent of the voting rights in Millicom, the remaining Shareholders may require that Atlas purchases the remaining Shares at a fair price by exercising a Takeover Sell-Out. In connection with a Takeover Squeeze-Out or a Takeover Sell-Out, Purchaser intends to promote delisting of the SDRs in Millicom from Nasdaq Stockholm. See “The Tender Offers — Terms of the Offers — Squeeze-Out and Sell-Out.”
Reporting Obligations and Registration under the Exchange Act
The Common Shares are currently registered under the Exchange Act. Such registration may be terminated upon application by Millicom to the SEC if the Common Shares are neither listed on a national securities exchange nor held by 300 or more holders of record (on a worldwide basis or in the United States), or alternatively if the average daily trading volume of the Common Shares in the United States for a recent 12-month period has been no greater than five (5) per cent of the average daily trading volume of the Common Shares on a worldwide basis for the same period. Termination of registration of the Common Shares under the Exchange Act would substantially reduce the information required to be furnished by Millicom to holders of Common Shares and to the SEC and would make certain provisions of the Exchange Act no longer applicable to Millicom, such as the requirements of Rule 13e-3 under the Exchange Act with respect to “going private” transactions. If the conditions for completion of the Offers are satisfied and the Offers are successful, presuming the requirements for termination of registration are met, Purchaser intends to cause Millicom to make a filing with the SEC to terminate registration of the Common Shares under Section 12(g)(4) of the Exchange Act and to suspend Millicom’s reporting obligations under Section 15(d) of the Exchange Act.
Margin Regulations
The Common Shares are currently “margin stock” under the Regulations of the Board of Governors of the Federal Reserve System (the “Federal Reserve Board”), which has the effect, among other things, of allowing brokers to extend credit based on the use of Common Shares as collateral. Depending upon factors similar to those described above regarding the market for the Common Shares and stock quotations, it is possible that, following the Offers, the Common Shares would no longer constitute “margin stock” for the purposes of the margin regulations of the Federal Reserve Board and, therefore, could no longer be used as collateral for loans made by brokers.
Squeeze-Out and Sell-Out
Please see under “The Tender Offers — Terms of the Offers — Squeeze-Out and Sell-Out” above.
8.
Certain Information Concerning Millicom
The information concerning Millicom contained in this section of the Offer to Purchase has been prepared by Atlas and has not been reviewed by the Independent Bid Committee. The information has been taken from, or is based upon, publicly available documents and records on file with the SEC and other public sources, including publicly available information from Millicom’s website, the annual report for the financial year 2023, Millcom’s annual report on Form 20-F for the financial year 2023, the interim report for the period January 1, 2024 – March 31, 2024 and the prospectus regarding admission to trading of Millcom’s SEK 2.25 billion senior unsecured floating rate sustainability notes due 2027. The summary information set forth below is qualified in its entirety by reference to these documents and records. We have not independently verified the accuracy or completeness of the information contained in such documents.
General
Business Overview
Millicom was formed on December 14, 1990, when Industriförvaltnings AB Kinnevik and Millicom Incorporated contributed their respective interests in international cellular joint ventures to form the Millicom group. Today Millicom is one of the leading providers of cable and mobile services dedicated to Latin America. Through its main brands Tigo and Tigo Business, Millicom provides a wide range of digital services in nine countries in Latin America, including, high-speed data, cable TV and direct-to-home satellite TV (“DTH” and when referred to DTH together with cable tv, “pay-TV”), mobile voice, mobile data, SMS, MFS, fixed voice, and business solutions including value-added services (“VAS”). Millicom provides its services on both a business-to-consumer (“B2C”) and a business-to-business (“B2B”) basis and have used the Tigo brand in all its markets since 2004.
Millicom provides both mobile and cable services in eight countries — Bolivia, Colombia, El Salvador, Guatemala, Honduras, Nicaragua, Panama and Paraguay. In addition, Millicom provides cable services in Costa Rica.
Millicom conducts its operations through local holding and operating entities in various countries, which are either Millicom’s subsidiaries (in which Millicom is the sole shareholder or the controlling shareholder) or joint ventures with local partners.
As of March 31, 2024, Millicom had approximately 15,500 employees and provided mobile and fiber-cable services through its digital highways to more than 45 million customers, with a fiber-cable footprint over 13 million homes passed.
Services
Millicom’s services are organized under two principal categories: (i) Mobile and (ii) Fixed and other services, which are further described below. In addition, Millicom sells telephone and other equipment, comprised mostly of mobile handsets. The Company markets these services through a variety of channels, including owned and third-party retail outlets, direct sales, digital and internet advertising, television, and billboards, among others.
Mobile
Millicom provides mobile services, including mobile data, mobile voice, SMS and MFS, to consumers, businesses, and government customers. Mobile is the largest part of Millicom’s business and generated 57 per cent of Millicom’s consolidated service revenue for the financial year ended December 31, 2023.
Mobile Data, Mobile Voice and SMS
Millicom provides its mobile data, mobile voice and SMS services through 2G, 3G and 4G networks in all its mobile markets and has offered 5G in Guatemala since 2022. Millicom provides its mobile data, mobile voice and SMS services on both prepaid and postpaid basis. In prepaid, customers pay for service in advance through the purchase of limited-duration data packages, and they do not sign service contracts. Among various options that Millicom’s customers can choose from, Millicom offer packages that typically begin with a data allowance, and include a combination of voice minutes and SMS, with expiration dates varying in length from one or more days, up to a few weeks or months. In postpaid, customers pay recurring monthly fees for the right to consume up to a predetermined maximum amount of monthly data, voice usage and SMS.
MFS
Millicom provides a broad range of mobile financial services (“MFS”) such as payments, money transfers, international remittances, savings, real-time loans and micro-insurance for critical needs through Millicom’s MFS App, Tigo Money. Tigo Money allows customers to send and receive money, without the need for a bank account. As of December 31, 2023, Millicom provided MFS to 4 million Tigo and non-Tigo customers.
In 2022, Millicom began the process of separating its Tigo Money business from its core telecommunications service operations in order to facilitate the development of new financial and strategic partnerships aimed at accelerating Tigo Money’s growth and enhancing its value creation potential. As of year-end 2023, the separation process was well advanced.
Fixed and Other Service Revenue
Millicom provides fixed services, including broadband, fixed voice and pay-TV, to residential (Home) consumers and to government and business (B2B) customers. Fixed and other service revenue generated 42 per cent of the consolidated service revenue for the year ended December 31, 2023.
Home
Millicom’s fixed-service residential customers (a “customer relationship”) generate revenue for Millicom by purchasing one or more of Millicom’s three fixed services, pay-TV, fixed broadband and fixed telephony. Each service that a customer purchases is referred to as a revenue generating unit (“RGU”), such that a single customer relationship can have up to three RGUs in countries where Millicom is permitted to sell all three services. The Home services are mainly provided through Millicom’s HFC and FTTH networks, but Millicom also offers pay-TV through its DTH platform. In some markets, the Company also provides broadband
services using fixed-wireless access and copper-based technologies. Millicom provides its Home services in every country where it operates and as of December 31, 2023, the Millicom group had 4.4 million customer relationships, of which 3.9 million were connected to the HFC and FTTH networks, and Millicom had 8.6 million HFC and FTTH RGUs.
B2B Fixed
Millicom provides B2B fixed services in all the markets in which Millicom operates, which consists of fixed-voice and data telecommunications services, managed services and cloud and security solutions to small, medium and large businesses and governmental entities.
Strategy
Millicom’s strategy is to continue to expand the reach and capacity of its networks and distribution capabilities to grow the customer base over time. Underpinning this strategy is management’s assessment that penetration rates for both mobile and fixed broadband services in the markets are low relative to penetration rates in other markets globally, and that these have potential to increase over time.
Available Information
The Company’s Common Shares are registered under the Exchange Act. Accordingly, Millicom is subject to the information reporting requirements of the Exchange Act and, in accordance therewith, is required to file periodic reports and other information with the SEC relating to its business, financial condition, and other matters. Information as of particular dates concerning Millicom’s directors and officers, their remuneration, options and other awards granted to them, the principal holders of Millicom’s securities, any material interests of such persons in transactions with Millicom and other matters, is required to be disclosed in Millicom’s periodic reports. Such information will also be available in the Schedule 14D-9 to the extent required to be reported under the rules and regulations of the SEC applicable to the US Offer. Such reports and other information are available at the SEC’s website that contains reports and other information about issuers, such as Millicom, who file electronically with the SEC. The address of that site is http://www.sec.gov. This website address is not intended to function as a hyperlink, and the information contained on the SEC’s website is not incorporated by reference in this Offer to Purchase and it should not be considered to be a part of this Offer to Purchase. Millicom also maintains a website at http://www.millicom.com. The information contained in, accessible from or connected to Millicom’s website is not incorporated into, or otherwise a part of, this Offer to Purchase or any of Millicom’s filings with the SEC.
Millicom’s Financial Information in Summary
The audited financial statements of Millicom as of and for the years ended December 31, 2021, December 31, 2022, and December 31, 2023, are incorporated herein by reference to the consolidated financial statements of Millicom included as Item 8 to Millicom’s most recent annual report on Form 20-F. The unaudited interim condensed consolidated financial statements of Millicom for the three months ended March 31, 2024 are incorporated herein by reference to Millicom’s Form 6-K filed with the SEC on May 8, 2024.
The following information regarding Millicom has been extracted from, and should be read in conjunction with, the audited annual reports for the financial years 2023, 2022 and 2021, as well as the interim report for the period January 1, 2024 – March 31, 2024 (which has neither been audited or reviewed by Millicom’s auditor) with comparative figures for the three-month period ended on March 31, 2023.
The consolidated financial statements have been prepared in accordance with the International Financial Reporting Standards (“IFRS”), issued by the International Accounting Standards Board, as well as the interpretations by the IFRS Interpretations Committee as adopted by the European Union.
The consolidated interim report of Millicom has been prepared in accordance with IAS 34, “Interim Financial Reporting”.
Audited annual reports for Millicom as well as the interim report are available on the Company’s website (www.millicom.com).
Complete information about the Company’s financial development and financial position is available in the annual reports for 2021-2023. Figures stated in this section “Millicom’s Financial Information in Summary” are rounded to USD million whereas the calculations are performed using an extended set of decimals. Some calculations may, therefore, appear to sum incorrectly due to rounding.
Figures included in this section “Millicom’s Financial Information in Summary” include financial measures that are not prepared in accordance with IFRS. These measures are referred to as “non-IFRS” measures, and they are not uniformly or legally defined financial measures. Non-IFRS measures are not substitutes for IFRS measures in assessing Millicom’s overall operating performance. Because non-IFRS measures are not determined in accordance with IFRS, and are susceptible to varying calculations, non-IFRS measures may not be comparable to other similarly titled measures presented by other companies. For more information on these non-IFRS measures, see the sections titled “Use of Non-IFRS Terms” and “Description of Non-IFRS Measures” in Millicom’s latest annual report on Form 20-F.
Consolidated Income Statement in Summary
| |
|
|
January 1 – March 31
|
|
|
January 1 – December 31
|
|
|
USD million (unless otherwise indicated)
|
|
|
2024
|
|
|
2023
|
|
|
2023
|
|
|
2022
|
|
|
202140
|
|
|
Revenue
|
|
|
|
|
1,487 |
|
|
|
|
|
1,369 |
|
|
|
|
|
5,661 |
|
|
|
|
|
5,624 |
|
|
|
|
|
4,261 |
|
|
|
Equipment, programming and other direct costs
|
|
|
|
|
(382) |
|
|
|
|
|
(372) |
|
|
|
|
|
(1,507) |
|
|
|
|
|
(1,506) |
|
|
|
|
|
(1,197) |
|
|
|
Operating expenses
|
|
|
|
|
(473) |
|
|
|
|
|
(490) |
|
|
|
|
|
(2,043) |
|
|
|
|
|
(1,890) |
|
|
|
|
|
(1,546) |
|
|
|
Depreciation
|
|
|
|
|
(247) |
|
|
|
|
|
(244) |
|
|
|
|
|
(978) |
|
|
|
|
|
(999) |
|
|
|
|
|
(804) |
|
|
|
Amortization
|
|
|
|
|
(87) |
|
|
|
|
|
(87) |
|
|
|
|
|
(360) |
|
|
|
|
|
(345) |
|
|
|
|
|
(310) |
|
|
|
Share of profit in joint ventures
|
|
|
|
|
13 |
|
|
|
|
|
11 |
|
|
|
|
|
42 |
|
|
|
|
|
32 |
|
|
|
|
|
210 |
|
|
|
Other operating income (expenses), net
|
|
|
|
|
13 |
|
|
|
|
|
2 |
|
|
|
|
|
10 |
|
|
|
|
|
(2) |
|
|
|
|
|
5 |
|
|
|
Operating profit
|
|
|
|
|
324 |
|
|
|
|
|
190 |
|
|
|
|
|
826 |
|
|
|
|
|
915 |
|
|
|
|
|
619 |
|
|
|
Interest and other financial expenses
|
|
|
|
|
(183) |
|
|
|
|
|
(170) |
|
|
|
|
|
(712) |
|
|
|
|
|
(617) |
|
|
|
|
|
(495) |
|
|
|
Interest and other financial income
|
|
|
|
|
19 |
|
|
|
|
|
5 |
|
|
|
|
|
28 |
|
|
|
|
|
18 |
|
|
|
|
|
23 |
|
|
|
Revaluation of previously held interests in Guatemala
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
670 |
|
|
|
Other non-operating (expenses) income, net
|
|
|
|
|
(7) |
|
|
|
|
|
19 |
|
|
|
|
|
36 |
|
|
|
|
|
(78) |
|
|
|
|
|
(49) |
|
|
|
Profit (loss) from other joint ventures and associates, net
|
|
|
|
|
— |
|
|
|
|
|
(4) |
|
|
|
|
|
(3) |
|
|
|
|
|
— |
|
|
|
|
|
(40) |
|
|
|
Profit (loss) before taxes from continuing operations
|
|
|
|
|
153 |
|
|
|
|
|
39 |
|
|
|
|
|
175 |
|
|
|
|
|
238 |
|
|
|
|
|
728 |
|
|
|
Tax expense
|
|
|
|
|
(71) |
|
|
|
|
|
(59) |
|
|
|
|
|
(424) |
|
|
|
|
|
(222) |
|
|
|
|
|
(158) |
|
|
|
Profit (loss) from continuing operations
|
|
|
|
|
82
|
|
|
|
|
|
(20)
|
|
|
|
|
|
(249)
|
|
|
|
|
|
16
|
|
|
|
|
|
570
|
|
|
|
Profit (loss) from discontinued operations, net of tax
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
4 |
|
|
|
|
|
113 |
|
|
|
|
|
(28) |
|
|
|
Net profit (loss) for the year/period
|
|
|
|
|
82 |
|
|
|
|
|
(20) |
|
|
|
|
|
(245) |
|
|
|
|
|
129 |
|
|
|
|
|
542 |
|
|
40
2023 and 2022 yearly figures are not directly comparable with 2021 yearly figures as Tigo Guatemala is fully consolidated since the acquisition of the remaining 45 per cent shareholding on November 12, 2021.
Consolidated Balance Sheet in Summary
| |
|
|
January 1 – March 31
|
|
|
January 1 – December 31
|
|
|
USD million (unless otherwise indicated)
|
|
|
2024
|
|
|
2023
|
|
|
2023
|
|
|
2022
|
|
|
202141
|
|
|
ASSETS
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total non-current assets
|
|
|
|
|
11,608 |
|
|
|
|
|
12,500 |
|
|
|
|
|
12,601 |
|
|
|
|
|
12,133 |
|
|
|
|
|
12,890 |
|
|
|
Total current assets
|
|
|
|
|
1,802 |
|
|
|
|
|
1,927 |
|
|
|
|
|
1,915 |
|
|
|
|
|
2,065 |
|
|
|
|
|
2,251 |
|
|
|
Assets held for sale
|
|
|
|
|
943 |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
TOTAL ASSETS
|
|
|
|
|
14,353 |
|
|
|
|
|
14,427 |
|
|
|
|
|
14,516 |
|
|
|
|
|
14,198 |
|
|
|
|
|
15,141 |
|
|
|
EQUITY
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
TOTAL EQUITY
|
|
|
|
|
3,509 |
|
|
|
|
|
3,632 |
|
|
|
|
|
3,445 |
|
|
|
|
|
3,634 |
|
|
|
|
|
2,740 |
|
|
|
LIABILITIES
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total non-current liabilities
|
|
|
|
|
7,650 |
|
|
|
|
|
8,728 |
|
|
|
|
|
8,742 |
|
|
|
|
|
8,445 |
|
|
|
|
|
7,914 |
|
|
|
Total current liabilities
|
|
|
|
|
2,338 |
|
|
|
|
|
2,067 |
|
|
|
|
|
2,329 |
|
|
|
|
|
2,119 |
|
|
|
|
|
4,487 |
|
|
|
Liabilities directly associated with assets held for sale
|
|
|
|
|
857 |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
TOTAL LIABILITIES
|
|
|
|
|
10,845 |
|
|
|
|
|
10,795 |
|
|
|
|
|
11,071 |
|
|
|
|
|
10,565 |
|
|
|
|
|
12,401 |
|
|
|
TOTAL EQUITY AND LIABILITIES
|
|
|
|
|
14,353 |
|
|
|
|
|
14,427 |
|
|
|
|
|
14,516 |
|
|
|
|
|
14,198 |
|
|
|
|
|
15,141 |
|
|
Consolidated Cash Flow Statement in Summary
| |
|
|
January 1 – March 31
|
|
|
January 1 – December 31
|
|
|
USD million (unless otherwise indicated)
|
|
|
2024
|
|
|
2023
|
|
|
2023
|
|
|
2022
|
|
|
2021
|
|
|
Net cash provided by operating activities
|
|
|
|
|
240 |
|
|
|
|
|
201 |
|
|
|
|
|
1,223 |
|
|
|
|
|
1,284 |
|
|
|
|
|
956 |
|
|
|
Net cash used in investing activities
|
|
|
|
|
(192) |
|
|
|
|
|
(297) |
|
|
|
|
|
(1,116) |
|
|
|
|
|
(1,104) |
|
|
|
|
|
(2,703) |
|
|
|
Net cash from (used in) financing activities
|
|
|
|
|
(202) |
|
|
|
|
|
(43) |
|
|
|
|
|
(377) |
|
|
|
|
|
(1) |
|
|
|
|
|
1,777 |
|
|
|
Exchange impact on cash and cash equivalents, net
|
|
|
|
|
1 |
|
|
|
|
|
2 |
|
|
|
|
|
6 |
|
|
|
|
|
(11) |
|
|
|
|
|
(10) |
|
|
|
Net increase (decrease) in cash and cash equivalents
|
|
|
|
|
(153) |
|
|
|
|
|
(136) |
|
|
|
|
|
(264) |
|
|
|
|
|
168 |
|
|
|
|
|
20 |
|
|
|
Cash and cash equivalents at the beginning of the period
|
|
|
|
|
775 |
|
|
|
|
|
1,039 |
|
|
|
|
|
1,039 |
|
|
|
|
|
895 |
|
|
|
|
|
875 |
|
|
|
Effects of cash in disposal group held for sale
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
(24) |
|
|
|
|
|
— |
|
|
|
Cash and cash equivalents at the end of the period
|
|
|
|
|
622 |
|
|
|
|
|
903 |
|
|
|
|
|
775 |
|
|
|
|
|
1,039 |
|
|
|
|
|
895 |
|
|
Key Performance Indicators and Data per Share
| |
|
|
January 1 – March 31
|
|
|
January 1 – December 31
|
|
|
USD million (unless otherwise indicated)
|
|
|
2024
|
|
|
2023
|
|
|
2023
|
|
|
2022
|
|
|
2021
|
|
|
KEY PERFORMANCE INDICATORS
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Revenue
|
|
|
|
|
1,487 |
|
|
|
|
|
1,369 |
|
|
|
|
|
5,661 |
|
|
|
|
|
5,624 |
|
|
|
|
|
4,261 |
|
|
|
Operating Profit
|
|
|
|
|
324 |
|
|
|
|
|
190 |
|
|
|
|
|
826 |
|
|
|
|
|
915 |
|
|
|
|
|
619 |
|
|
|
Net Profit (loss) attributable to owners of the Company
|
|
|
|
|
92 |
|
|
|
|
|
3 |
|
|
|
|
|
(82) |
|
|
|
|
|
177 |
|
|
|
|
|
590 |
|
|
|
Non-IFRS measures
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Service Revenue
|
|
|
|
|
1,376 |
|
|
|
|
|
1,264 |
|
|
|
|
|
5,250 |
|
|
|
|
|
5,171 |
|
|
|
|
|
3,997 |
|
|
|
EBITDA
|
|
|
|
|
632 |
|
|
|
|
|
507 |
|
|
|
|
|
2,111 |
|
|
|
|
|
2,228 |
|
|
|
|
|
1,517 |
|
|
|
Capex
|
|
|
|
|
113 |
|
|
|
|
|
185 |
|
|
|
|
|
809 |
|
|
|
|
|
973 |
|
|
|
|
|
922 |
|
|
|
Operating Cash Flow
|
|
|
|
|
519 |
|
|
|
|
|
322 |
|
|
|
|
|
1,302 |
|
|
|
|
|
1,255 |
|
|
|
|
|
595 |
|
|
|
Equity Free Cash Flow
|
|
|
|
|
1 |
|
|
|
|
|
(133) |
|
|
|
|
|
(34) |
|
|
|
|
|
161 |
|
|
|
|
|
10 |
|
|
41
2023 and 2022 yearly figures are not directly comparable with 2021 yearly figures as Tigo Guatemala is fully consolidated since the acquisition of the remaining 45 per cent shareholding on November 12, 2021.
EARNINGS PER COMMON SHARE FOR PROFIT ATTRIBUTABLE TO THE OWNERS OF THE COMPANY
| |
|
|
January 1 – 31 March
|
|
|
January 1 – December 31
|
|
| |
|
|
2024
|
|
|
2023
|
|
|
2023
|
|
|
2022
|
|
|
2021
|
|
|
Basic ($ per share)
|
|
|
|
|
0.54 |
|
|
|
|
|
0.02 |
|
|
|
|
|
(0.48) |
|
|
|
|
|
1.27 |
|
|
|
|
|
4.59 |
|
|
|
Diluted ($ per share)
|
|
|
|
|
0.53 |
|
|
|
|
|
0.02 |
|
|
|
|
|
(0.48) |
|
|
|
|
|
1.27 |
|
|
|
|
|
4.57 |
|
|
Millicom’s Share Capital and Ownership Structure
General
The SDRs are listed on Nasdaq Stockholm and the Common Shares are listed on Nasdaq US. Millicom’s principal listing is on Nasdaq Stockholm.
Shares and Share Capital
As of the date of this Offer to Purchase, the registered share capital of Millicom amounts to USD 258,144,457.50 distributed over a total of 172,096,305 issued Common Shares with a nominal value of USD 1.50 per share. Millicom has one class of shares. Each Share entitles the holder to one vote at the general meeting and all Shares carry equal rights to the Company’s earnings and assets. Each SDR represents one Common Share in Millicom.
Shareholders
The ten largest Shareholders as of January 17, 2024, are shown in the table below.42 At the time of publication of this Offer to Purchase, Atlas’ holds 49,966,734 SDRs43 in Millicom, which corresponds to approximately 29.0344 per cent of the share capital and the total number of votes in Millicom.
|
Owner
|
|
|
% of total
outstanding
share capital
and votes
|
|
|
Atlas Investissement
|
|
|
|
|
29.14 |
|
|
|
Dodge & Cox
|
|
|
|
|
5.14 |
|
|
|
Swedbank Robur Fonder
|
|
|
|
|
2.93 |
|
|
|
T. Rowe Price
|
|
|
|
|
2.83 |
|
|
|
Southeastern Asset Management Inc
|
|
|
|
|
2.82 |
|
|
|
Brandes Investment Partners
|
|
|
|
|
2.55 |
|
|
|
Nordea Funds
|
|
|
|
|
2.37 |
|
|
|
Lannebo Fonder
|
|
|
|
|
2.03 |
|
|
|
Fjärde AP-fonden
|
|
|
|
|
1.68 |
|
|
|
Avanza Pension
|
|
|
|
|
1.57 |
|
|
|
Other Shareholders
|
|
|
|
|
46.94 |
|
|
|
Total
|
|
|
|
|
100.00 |
|
|
Convertibles and Warrants
The Company has no convertibles or warrants outstanding.
42
Source: Monitor by Modular Finance (as of January 17, 2024).
43
Each SDR represents one Common Share in Millicom.
44
Based on 172,096,305 issued Common Shares in Millicom.
Equity Incentive Programs
The Company has several outstanding equity incentive programs, in the form of two annual plans.
2024
The Annual General Meeting held on May 23, 2024, resolved to approve the Board of Directors’ proposal on equity incentive awards for senior executives for 2024, consisting of a deferred share plan (the “2024 DSP”) and a long-term incentive plan (the “2024 LTI”).
Each equity award under the 2024 DSP was granted in the form of a restricted stock unit (“RSU”) that entitles the recipient to a non-transferable right to receive one Share on the applicable vesting date, subject to the participant remaining employed with Millicom at each such vesting date. The RSUs granted pursuant to the 2024 DSP will vest in 30 per cent on each of January 1, 2025, and January 1, 2026, and in 40 per cent on January 1, 2027.
The equity awards granted under the 2024 LTI will vest at the end of a three-year period in the first quarter of 2027, subject to achievement of performance measures and the participant being employed by Millicom at the time of vesting. The 2024 LTI is composed of three separate equity awards, 60 per cent in the form of Stock Appreciation Rights (“SARs”), 30 per cent in the form of time-vested RSUs, and 10 per cent in the form of Performance Share Units (“PSUs”). The number of SARs will be determined using a Black-Scholes valuation of the underlying Shares at grant and the participant will have the eligibility to exercise these Shares during a seven-year period following the vesting date. Upon exercise, the appreciation will be paid in Millicom shares. Each RSU and PSU will vest as one Share, with the PSU payouts subject to achieving a certain ESG target. In the event that the Company achieves between 80 per cent and 100 per cent of the ESG target, the amount of the PSUs that vest will be adjusted in linear pro rata of the achievement starting at a payout of 0 per cent up to 100 per cent.
The Company granted 1,141,873 RSUs under the 2024 DSP and 651,967 2024 LTI awards, including time-based SARs, RSUs and PSUs at target under the 2024 LTI.
2023
The Annual General Meeting held on May 31, 2023, resolved to approve the Board of Directors’ proposal on equity incentive awards for senior executives for 2023, consisting of a deferred share plan (the “2023 DSP”) and a performance share plan (the “2023 PSP”).
Each equity award under the 2023 DSP was granted in the form of an RSU that entitles the recipient to a non-transferable right to receive one Share on the applicable vesting date, subject to the participant remaining employed with Millicom at each such vesting date. The PSUs granted pursuant to the 2023 DSP vest in 30 per cent on each of January 1, 2024, and January 1, 2025, and in 40 per cent on January 1, 2026.
The equity awards granted under the 2023 PSP vest at the end of a three-year period on December 31, 2025. Each equity award was granted in the form of PSUs that entitles the recipient to a non-transferable right to receive one Share on the applicable vesting date, subject to achievement of the applicable performance conditions and the participant remaining employed with Millicom at the vesting date. Payment of the RSUs granted pursuant to the 2023 PSP is based on a linear scale with a minimum, target and maximum level of achievement of the applicable performance measures. In the event that the Company achieves between 90 per cent and in excess of 100 per cent of the performance measures, the amount of the PSUs that vest will be up to 200 per cent of the target PSUs granted.
As of June 2024, the number of equity awards expected to vest under the 2023 DSP was 1,178,255 and the number of equity awards expected to vest under the 2023 PSP was 634,017.
2022
The Annual General Meeting held on May 4, 2022, resolved to approve the Board of Directors proposal on equity incentive awards for senior executives for 2022, consisting of a deferred share award plan (the “2022 DSP”) and a performance share plan (the “2022 PSP”).
Each equity award was granted in the form of an RSU that entitles the recipient to a non-transferable right to receive one Share on the applicable vesting date, subject to the participant remaining employed with Millicom at each such vesting date. The RSUs granted pursuant to the 2022 DSP vest in 30 per cent on each of January 1, 2023, and January 1, 2024, and in 40 per cent on January 1, 2025.
The equity awards granted under the 2022 PSP vest at the end of a three-year period on December 31, 2024. Each equity award was granted in the form of PSUs that entitles the recipient to a non-transferable right to receive one Share on the applicable vesting date, subject to achievement of the applicable performance conditions and the participant remaining employed with Millicom at the vesting date. Payment of the RSUs granted pursuant to the 2022 PSP is based on a linear scale with a minimum, target and maximum level of achievement of the applicable performance measures. In the event that the Company achieves between 90 per cent and in excess of 100 per cent of the performance measures, the amount of the PSUs that vest will be up to 200 per cent of the target PSUs granted.
As of June 2024, the number of equity awards expected to vest under the 2022 DSP was 227,107 and the number of equity awards expected to vest under the 2022 PSP was 283,244.
The foregoing summaries are exclusively based on publicly available information concerning Millicom and certain due diligence materials provided by Millicom, including agreements between Millicom and affiliates of Purchaser.
Dividend Policy
No dividend was paid for the financial years 2023, 2022 and 2021.
The Millicom Group’s shareholder remuneration strategy is share buybacks. The Board of Directors of Millicom has been granted an authorization to repurchase shares by the Annual General Meeting 2024, for more information please see “Authorizations” below.
Shareholders’ Agreements etc.
The Board of Managers of Atlas is not aware of any shareholders’ agreements or equivalent agreements between Shareholders of Millicom with the objective of creating joint influence over Millicom.
Holding of Own Shares
At the time of the publication of this Offer to Purchase, Millicom holds 840,641 shares in treasury.
Authorizations
On May 23, 2024, the Annual General Meeting resolved to authorize the Board of Directors to, at any time between May 23, 2024, and the date of the Annual General Meeting in 2025, repurchase Shares in Millicom (the “Share Repurchase Plan”). The permitted means to carry out transactions under the Share Repurchase Plan, including, but not limited to, entering into market, off-market, over-the-counter and mutual agreement transactions, through payment in cash or kind, using distributable profits, available reserves, new shares issue, derivative financial instruments or any other financing mechanism. The maximum number of Shares permitted to be acquired shall not exceed ten (10) per cent of Millicom’s outstanding share capital as of the date when the start of the Share Repurchase Program is announced by press release.
The primary purpose of the authorization is to provide the Board of Directors with more options in its efforts to deliver long-term shareholder value and total shareholder return, and to provide a method to secure availability of Shares for remuneration to the Board of Directors and Millicom’s equity-based incentive plans.
Material Agreements
Millicom’s Indebtedness
As of the date hereof, the Company has issued an aggregate principal amount of approximately USD 2.7 billion of USD-denominated 7.375% senior notes due 2032, USD-denominated 4.5% senior notes
due 2031, USD-denominated 6.25% senior notes due 2029, USD-denominated 5.125% senior notes due 2028, SEK-denominated floating rate notes due 2027 and USD-denominated 6.625% Senior Notes due 2026 (collectively, the “Senior Notes”). The Senior Notes include customary change of control provisions, including a requirement for the Company to offer to purchase each holder’s Senior Notes at a purchase price of 101% of the principal amount thereof, plus accrued and unpaid interest, following the occurrence of a change of control triggering event. A change of control triggering event is deemed to have occurred under the Senior Notes upon the occurrence of certain customary change of control events together with a rating decline within a certain period of time following any such change of control event. Furthermore, certain subsidiaries of the Company have issued or borrowed additional indebtedness, which may include similar change of control provisions.
Purchaser has entered into the Interim Backstop Term Facility and intends to enter into the Backstop Facilities (each as defined in “The Tender Offers — Source and Amount of Funds”) primarily to refinance certain outstanding indebtedness of the Company and, as the case may be, its subsidiaries. To the extent that the Company, or, as the case may be, any of its subsidiaries, is required to repay indebtedness pursuant to change of control provisions, either (i) the Purchaser will draw the Interim Backstop Term Facility, or a portion thereof (or, if applicable, the Backstop Bridge Facility (as defined in “The Tender Offers — Source and Amount of Funds”), or a portion thereof), see “The Tender Offers — Source and Amount of Funds — Long-Term Financing”) and on-lend the proceeds to the Company or (ii) the Company will accede to the Interim Backstop Term Facility or, if applicable, the Backstop Bridge Facility, as a borrower, and draw under the Interim Backstop Term Facility or backstop bridge facility, as applicable. See “The Tender Offers — Source and Amount of Funds.”
Millicom’s annual report for the financial year 2023 does not mention any material agreements that Millicom is a party to, which may be affected, amended, or terminated if the control of Millicom would change as a result of a public takeover offer.
Millicom’s Board of Directors, Group Management and Auditor
Board of Directors
Mauricio Ramos (born 1968)
Chair of the Board of Directors of Millicom since 202445 and Non-Executive Director since 2020.
Education: Degree in Economics, degree in Law, and postgraduate degree in Financial Law, Universidad de Los Andes.
Other assignments: Co-Chairman of the Partnership for Central America (PCA), board member of Charter Communications (U.S.) and Commissioner at the Broadband Commission for Sustainable Development and the INCAE business school Presidential Advisory Council. He is also a board member of the Board of Trustees of the Meridian International Center.
Shareholding in Millicom: 672,649 Shares.46
Bruce Churchill (born 1957)
Non-Executive Director of the Board of Directors of Millicom since 2021.
Education: MBA, Harvard Business School and B.A. in American Studies, Stanford University.
Other assignments: Board member of Wyndham Hotels and Resorts.
Shareholding in Millicom: 18,167 Shares.47
45
Mauricio Ramos was appointed Interim Chairman in September 2023.
46
Privately and/or through closely related parties.
47
Privately and/or through closely related parties.
Justine Dimovic (born 1981)
Non-Executive Director of the Board of Directors of Millicom since 2024.
Education: Master’s degree in Project Management, International Business Negotiation and Banking from the Ecole Nationale Superieure des Mines de Nancy and a postgraduate degree in Banking and Corporate Finance from EM Lyon Business School.
Other assignments: SVP Corporate Finance & Group Treasurer at L’Oréal.
Shareholding in Millicom: Justine Dimovic does not hold any Shares in Millicom.48
Tomas Eliasson (born 1962)
Non-Executive Director of the Board of Directors of Millicom since 2022.
Education: Bachelor of Science Degree in Business Administration and Economics, University of Uppsala.
Other assignments: Board member of Boliden AB and board member of Telia Company AB.
Shareholding in Millicom: 12,743 Shares.49
Maxime Lombardini (born 1965)
Non-Executive Director of the Board of Directors of Millicom since 2024.
Education: Graduate of the Sciences Po Paris and holder of a master’s degree in business and tax law from the University of Paris II.
Other assignments: Vice-Chairman of the Board of Directors of Iliad Group.
Shareholding in Millicom: Maxime Lombardini does not hold any Shares in Millicom.50
Blanca Treviño de Vega (born 1962)
Non-Executive Director of the Board of Directors of Millicom since 2023.
Education: Bachelor’s degree in Computer Science, Instituto Tecnológico y de Estudios Superiores de Monterrey (ITESM).
Other assignments: President, Chief Executive Officer and co-founder of Softtek, Co-Chair of the Partnership for Central America, Vice-President of the Mexican Business Council, Non-Executive director at the Mexican Stock Exchange, director at Altan Redes and member of the Advisory Council of the MIT School of Engineering.
Shareholding in Millicom: 5,601 Shares.51
Thomas Reynaud (born 1973)
Non-Executive Director of the Board of Directors of Millicom since 2023.
Education: Graduate of HEC business school and New York University.
48
Privately and/or through closely related parties.
49
Privately and/or through closely related parties.
50
Privately and/or through closely related parties.
51
Privately and/or through closely related parties.
Other assignments: Chief Executive Officer and director of Iliad Group, Chairman of the Board of Directors and member of the Nomination Committee of Tele2, member of the Board of Directors of Iliad Italia S.p.A. and partner of several innovative ventures in the agri-food sector.
Shareholding in Millicom: 5,601 Shares.52
María Teresa Arnal (born 1971)
Non-Executive Director of the Board of Directors of Millicom since 2023.
Education: Bachelor’s degree in industrial engineering, Andres Bello Catholic University and MBA, Columbia Business School.
Other assignments: Director of Walmart of Mexico and Central America, Sigma Alimentos S.A. de C.V. and Orbia.
Shareholding in Millicom: 5,601 Shares.53
Aude Durand (born 1992)
Non-Executive Director of the Board of Directors of Millicom since 2024.
Education: MSc in Management Science & Engineering, Stanford University and Engineering Degree, Ecole Polytechnique.
Other assignments: Deputy Chief Executive Officer at Iliad Holding, Deputy Chief Executive Officer at Iliad Group, president of Predictiv Pro S.A.S, Chair of Scaleway, board member of Monaco Telecom, board member and member of the Audit Committee of Tele2.
Shareholding in Millicom: Aude Durand does not hold any Shares in Millicom.54
Group Management
Marcelo Benitez (born 1976)
Chief Executive Officer.
Education: MBA from Pontificia Universidad Católica de Chile, a BBA from Pacific University, and a leadership program at Stanford University.
Shareholding in Millicom: 42,706 Shares.55
Maxime Lombardini (born 1965)
President and Chief Operating Officer.
Education: Graduate of the Sciences Po Paris and holder of a master’s degree in business and tax law from the University of Paris II.
Shareholding in Millicom: Maxime Lombardini does not hold any Shares in Millicom.56
52
Privately and/or through closely related parties.
53
Privately and/or through closely related parties.
54
Privately and/or through closely related parties.
55
Privately and/or through closely related parties.
56
Privately and/or through closely related parties.
Bart Vanharen (born 1979)
Chief Financial Officer.
Education: Master´s Degree in Economics, the Catholic University of Leuven and an MBA, VUB-Solvay.
Shareholding in Millicom: 35,978 Shares.57
Xavier Rocoplan (born 1974)
Chief Commercial and Technology Officer.
Education: Master’s in Engineering, Ecole Nationale Supérieure des Télécommunications de Paris and Master’s in Economics, Université Paris IX Dauphine.
Shareholding in Millicom: 163,907 Shares.58
Karim Lesina (born 1975)
EVP, Chief External Affairs Officer.
Education: Master’s in Economics of Development, Catholic University of Louvain-la-Neuve.
Shareholding in Millicom: 69,348 Shares.59
Salvador Escalón (born 1975)
EVP, Chief Legal and Compliance Officer.
Education: J.D., Columbia Law School and B.B.A. in Finance and International Business, Florida International University.
Shareholding in Millicom: 129,519 Shares.60
Auditor
At the Annual General Meeting held on May 23, 2024, the registered auditing firm KPMG Audit SARL and KMPG LLP were elected as auditor of Millicom for the period until the end of the next Annual General Meeting. Chris McCurdy, CPA in the United States, and Thierry Ravasio, an authorized public accountant in Luxembourg, are responsible for the audit of the Company.
Miscellaneous
Based on publicly available information and except as set out under “Special Factors — Interests of Certain Millicom Directors and Executive Officers in the Offers — Change of Control Severance Protections” Atlas is not aware of any agreements between the Company and its board members and employees stipulating remuneration if such persons’ employment ceases as a result of a public offering to acquire shares in the Company.
57
Privately and/or through closely related parties.
58
Privately and/or through closely related parties.
59
Privately and/or through closely related parties.
60
Privately and/or through closely related parties.
Millicom’s Articles of Association
Registre de Commerce et des Sociétés
Numéro RCS : B40630
Référence de dépôt : L240104696
Déposé et enregistré le 05/06/2024
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MILLICOM INTERNATIONAL CELLULAR S.A.
Société anonyme
Siège social : 2, rue du Fort Bourbon, L-1249 Luxembourg
R.C.S. Luxembourg : B40630
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CONSOLIDATED ARTICLES OF ASSOCIATION
as at May 23th, 2024
STATUTS COORDONNES
à la date du 23 mai 2024
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CONSTITUTION du 16 juin 1992, suivant acte reçu par Maître Joseph KERSCHEN, alors notaire de résidence à Luxembourg-Eich, publié au Mémorial C, Recueil des sociétés et associations, numéro 395 du 11 septembre 1992 ;
et les statuts ont été modifiés à plusieurs reprises par:
—
Maître Danielle KOLBACH, notaire alors de résidence à Redange-sur-Attert (Grand-Duché de Luxembourg), en date du 04 mai 2018, publié au « RESA », Recueil Electronique des Sociétés et Associations du 22 mai 2018 sous le numéro RESA_2018_112.337 ;
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Maître Danielle KOLBACH, notaire de résidence à Junglinster (Grand-Duché de Luxembourg) :
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en date du 07 janvier 2019, publié au RESA, du 06 février 2019 sous le numéro RESA_2019_031.511 ;
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en date du 28 février 2022, publié au RESA, du 29 mars 2022 sous le numéro RESA_2022_067.569 ;
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en date du 17 juin 2022, publié au RESA, du 1er juillet 2022 sous le numéro RESA_2022_137.789 ;
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en date du 28 juin 2022, publié au RESA, du 13 juillet 2022 sous le numéro RESA_2022_145.1369 ; et
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en date du 23 mai 2024, publié au RESA, du 06 juin 2024 sou el numéro RESA_2024_126.861.
CHAPTER I. FORM, NAME, REGISTERED OFFICE, OBJECT, DURATION
Article 1. Form, Name.
There is hereby established among the subscribers and all those who may become owners of the shares hereafter created the Company in the form of a public limited liability company (société anonyme) which will be governed by the laws of the Grand Duchy of Luxembourg (“Luxembourg”), notably the Luxembourg law of 10 August 1915 on commercial companies, as amended (the “Law”), article 1832 of the Luxembourg Civil Code, as amended, and the present articles of association (the “Articles”). The Company will exist under the name of “MILLICOM INTERNATIONAL CELLULAR S.A.”.
Article 2. Registered Office.
The Company will have its registered office in Luxembourg-City.
The registered office of the Company may be transferred to any other place within Luxembourg by a resolution of the board of directors of the Company (the “Board”, its members being the “Director(s)”).
In the event the Board determine that extraordinary political, economic or social developments have occurred or are imminent that would interfere with the normal activities of the Company at its registered office or with the ease of communications with such office or between such office and persons abroad, the registered office may be temporarily transferred abroad until the complete cessation of the abnormal circumstances. Such temporary measures will have no effect on the nationality of the Company, which, notwithstanding the temporary transfer of the registered office, will remain a Luxembourg company. Such temporary measures will be taken and notified to any interested parties by one of the bodies or persons entrusted with the daily management of the Company.
Article 3. Purposes.
The Company’s purpose is to engage in all transactions pertaining directly or indirectly to the acquisition and holding of participating interests, in any form whatsoever, in any Luxembourg or foreign business enterprise, including but not limited to, the administration, management, control and development of any such enterprise.
The Company may, in connection with the foregoing purposes, (i) acquire or sell by way of subscription, purchase, exchange or in any other manner any equity or debt securities or other financial instruments representing ownership rights, claims or assets issued by, or offered or sold to, any public or private issuer, (ii) issue any debt instruments exercise any rights attached to the foregoing securities or financial instruments, and (iii) grant any type of direct or indirect assistance, in any form, to or for the benefit of subsidiaries, affiliates or other companies in which it holds a participation directly or indirectly, including but not limited to loans, guarantees, credit facilities, technical assistance.
In a general fashion the Company may carry out any commercial, industrial or financial operation and engage in such other activities as the Company deems necessary, advisable, convenient, incidental to, or not inconsistent with, the accomplishment and development of the foregoing.
Article 4. Duration.
The Company is formed for an unlimited duration.
CHAPTER II. — CAPITAL, SHARES.
Article 5. Corporate Capital.
The Company has an authorized capital of three hundred million United States dollars (USD 300,000,000) divided into two hundred million (200,000,000) shares with a par value of one United States dollar fifty cents (USD 1.50) each. The Company has an issued capital of two hundred fifty-eight million one hundred forty-four thousand four hundred fifty-seven United States dollars and fifty cents (USD 258,144,457.50) represented by one hundred seventy-two million ninety-six thousand three hundred and five (172,096,305) shares with a par value of one United States dollar and fifty cents (USD 1.50) each, fully paid-in.
The authorized capital of the Company may be increased or reduced by a resolution of the shareholders of the Company (the “Shareholder(s)”) adopted in the manner required by the Law for amendment of these Articles.
The Board is authorized and empowered to:
(i)
realize any increase of the issued capital within the limits of the authorized capital in one or several successive tranches, by issuing of new shares, against payment in cash or in kind, by conversion of claims, integration of distributable reserves or premium reserves, or in any other manner;
(ii)
determine the place and date of the issue or the successive issues, the issue price, the terms and conditions of the subscription of and paying up on the new shares; and
(iii)
remove or limit the preferential subscription right of the Shareholders in case of issue of shares against payment in cash to a maximum of new shares representing 5% of the then outstanding shares (including shares held in treasury by the Company itself).
This authorization is valid until 4 May 2023, and it may be renewed by an extraordinary general meeting of the Shareholders for those shares of the authorized corporate capital which up to then will not have been issued by the Board.
Following each increase of the corporate capital realized and duly stated in the form provided for by the Law, the first paragraph of this article 5 will be modified so as to reflect the actual increase; such modification will be recorded in authentic form by the Board or by any person duly authorized and empowered by it for this purpose.
Article 6. Shares.
The shares will be in the form of registered shares.
The Company’s shares may be held in electronic format in accordance with the requirements of the stock exchanges on which the Company’s shares may be listed from time to time or may be represented by physical share certificates.
Every holder of shares shall be entitled, without payment, to receive one registered certificate for all such shares or to receive several certificates for one or more of such shares upon payment for every certificate after the first of such reasonable out-of-pocket expenses as the Board may from time to time determine. A registered holder who has transferred part of the shares comprised in his registered holding shall be entitled to a certificate for the balance without charge.
Share certificates shall be signed by two Directors. But such signatures may be either manual, or printed, or by facsimile. The Company may issue temporary share certificates in such form as the Board may from time to time determine.
Shares of the Company shall be registered in the register of the Shareholders which shall be kept by the Company or by one or more persons designated therefor by the Company; such register shall contain the name of each holder, his residence or elected domicile and the number of shares held by him. Every transfer and devolution of a share shall be entered in the register of the Shareholders.
The shares shall be freely transferable.
Transfer of shares shall be effected by delivering the certificate or certificates representing the same to the Company along with an instrument of transfer satisfactory to the Company or by written declaration of transfer inscribed in the register of the Shareholders, dated and signed by the transferor, or by persons holding suitable powers of attorney to act therefore.
Every Shareholder must provide the Company with an address to which all notices and announcements from the Company may be sent. Such address will also be entered in the register of the Shareholders.
In the event that such Shareholder does not provide such an address, the Company may permit a notice to this effect to be entered in the register of the Shareholders and the Shareholder’s address will be deemed to be at the registered office of the Company, or such other address as may be so entered by the Company from time to time, until another address shall be provided to the Company by such Shareholder. The Shareholder may, at any time, change his address as entered in the register of the Shareholders by means of a written notification to the Company at its registered office or at such other address as may be set by the Company from time to time and notice thereof given to the Shareholders.
The Company will recognise only one holder of a share of the Company. In the event of joint ownership, the Company may suspend the exercise of any right deriving from the relevant share until one person shall have been designated to represent the joint owners vis-a-vis the Company.
If any shareholder can prove to the satisfaction of the Company that his share certificate has been mislaid, lost, stolen or destroyed, then, at his request, a duplicate certificate may be issued under such conditions as the Company may determine subject to applicable provisions of the Law.
Mutilated share certificates may be exchanged for new ones on the request of any shareholder. The mutilated certificates shall be delivered to the Company and shall be annulled immediately.
The Company may repurchase its shares of common stock using a method approved by the Board of the Company in accordance with the Law and the rules of the stock exchange(s) on which the Company’s common stock may be listed from time to time.
As required by the Luxembourg law on transparency obligations of 11 January 2008 (the “Transparency Law”), any person who acquires or disposes of shares in the Company’s capital must notify the Company’s Board of the proportion of shares held by the relevant person as a result of the acquisition or disposal, where that proportion reaches, exceeds or falls below the thresholds referred to in the Transparency Law. As per the Transparency Law, the above also applies to the mere entitlement to acquire or to dispose of, or to exercise, voting rights in any of the cases referred to in the Transparency Law. As per this article, the requirements of the Transparency Law also apply where the mentioned proportion reaches, exceeds or falls below a threshold of 5%. The penalties provided for in article 28 of the Transparency Law apply to any breach of the above-mentioned obligation, including with respect to the 5% threshold.
CHAPTER III. — BOARD, STATUTORY AUDITORS.
Article 7. Board.
The Company will be administered by a Board composed of at least 6 (six) members. Members of the Board need not be shareholders of the Company. The Directors, and the chair of the Board (the “Chair”), will be elected by the general meeting of shareholders (“General Meeting”), which will determine their number, for a period not exceeding 6 (six) years, and they will hold office until their successors are elected. Where a legal person is appointed as a director (the “Legal Entity”), the Legal Entity must designate a natural person as permanent representative (représentant permanent) who will represent the Legal Entity as a member of the Board in accordance with article 441-3 of the Law. In the event of a vacancy on the Board, the remaining Directors may meet and may elect by majority vote a director to fill such vacancy until the next General Meeting.
In proposing persons to be elected as Directors at the General Meeting, the Company shall comply with the nomination committee rules of the Swedish Code of Corporate Governance, so long as such compliance does not conflict with applicable mandatory law or regulation or the mandatory rules of any stock exchange on which the Company’s shares are listed.
In the event that the Company does not comply with the nomination committee rules of the Swedish Code of Corporate Governance and a committee of the Board is established to propose persons to be elected as Directors at the General Meeting, any Shareholder holding at least 20% of the issued and outstanding shares of the Company, excluding treasury shares, shall have the right to designate:
1.
one of the then-serving Directors to be a member of such committee, so long as such designation and the Director so designated meet the requirements of any applicable mandatory law or regulation or the mandatory rules of any stock exchange on which the Company’s shares are listed, and
2.
one person, who may or may not be a Director, to attend any meeting of such committee as an observer, without the right to vote at such meeting, so long as such attendance does not conflict with applicable mandatory law or regulation or the mandatory rules of any stock exchange on which the Company’s shares are listed. Any designation made pursuant to the provisions of the immediately preceding paragraph shall lapse upon such designating Shareholder holding less than 20% of the issued and outstanding shares of the Company, excluding treasury shares.
Article 8. Meetings of the Board.
The Board may choose a secretary, who need not be a director, and who shall be responsible for keeping minutes of the meetings of the Board and of the resolutions passed at the General Meeting.
The Board will meet upon call by the Chair. A meeting of the board must be convened if any two Directors so require.
The Chair shall preside at all meetings of the Board of the Company, except that in his absence the Board may elect by a simple majority of the Directors present another Director or a duly qualified third party as Chair of the relevant meeting.
Except in cases of urgency or with the prior consent of all those entitled to attend, at least 3 (three) days’ written notice of board meetings shall be given. Any such notice shall specify the time and place of the meeting and the nature of the business to be transacted. No such written notice is required if all the members of the Board are present or represented during the meeting and if they state to have been duly informed, and to have had full knowledge of the agenda of the meeting. The written notice may be waived by the consent in writings, whether in original, by telefax, or e-mail to which an electronic signature (which is valid under the Law) is affixed, of each member of the Board. Separate written notice shall not be required for meetings that are held at times and places determined in a schedule previously adopted by resolution of the Board.
Every Board meeting shall be held in Luxembourg or at such other place as the Board may from time to time determine.
Any member of the Board may act at any meeting of the Board by appointing in writing, whether in original, by telefax, or e-mail to which an electronic signature (which is valid under the Law) is affixed, another Director as his or her proxy.
A quorum of the Board shall be the presence of 4 (four) of the Directors holding office. Decisions will be taken by the affirmative votes of a simple majority of the Directors present or represented. The Chair does not have a casting vote in the event of tie.
Notwithstanding the foregoing, a resolution of the Board may also be passed in writing, in case of urgency or where other exceptional circumstances so require. Such resolution shall be unanimously approved by the Directors and shall consist of one or several documents containing the resolutions either (i) signed manually or electronically by means of an electronic signature which is valid under Luxembourg law or (ii) agreed upon via a consent in writing by e-mail to which an electronic signature (which is valid under Luxembourg law) is affixed. The date of such a resolution shall be the date of the last signature or, if applicable, the last consent.
Any Director may participate in a meeting of the Board by conference call, video conference or similar means of communication equipment whereby (i) the Directors attending the meeting can be identified, (ii) all persons participating in the meeting can hear and speak to each other, (iii) the transmission of the meeting is performed on an on-going basis and (iv) the directors can properly deliberate, and participating in a meeting by such means shall constitute presence in person at such meeting. A meeting of the Board held by such means of communication will be deemed to be held in Luxembourg.
Article 9. Minutes of meetings of the Board.
The minutes of any meeting of the Board will be signed by the Chair of the meeting. Any proxies will remain attached thereto.
Copies or extracts of such minutes of board meetings or written resolutions passed by the Board which may be produced in judicial proceedings or otherwise will be executed by the Chair, any Chair of the relevant meeting of the Board or any two members of the Board.
Article 10. Powers of the Board.
The Board is vested with the broadest powers to perform all acts necessary or useful for accomplishing the corporate object of the Company. All powers not expressly reserved by the Law or by the present Articles to the General Meeting are in the competence of the Board.
Article 11. Delegation of Powers.
The Board may delegate the daily management of the Company and the representation of the Company within such daily management to one or more Directors, officers, executives, employees or other persons who may but need not be Shareholders, or delegate special powers or proxies, or entrust determined permanent or temporary functions to persons or agents chosen by it.
Article 12. Directors’ Remuneration.
Each of the Directors will be entitled to fees for acting as such at such rate as may from time to time be determined by resolution of the General Meeting. Any Director to whom is delegated daily management or
who otherwise hold executive office will also be entitled to receive such remuneration (whether by way of salary, participation in profits or otherwise and including pension salary and including pension contributions) as the Board may from time to time decide.
Article 13. Conflict of Interests.
No contract or other transaction between the Company and any other person shall be affected or invalidated by the fact that any director, officer or employee of the Company has a personal interest in, or is a Director, officer or employee of such other person, except that (x) such contract or transaction shall be negotiated on an arms’ length basis on terms no less favourable to the Company than could have been obtained from an unrelated third party and, in the case of a director, the director shall abstain from voting on any matters that pertain to such contract or transaction at any meeting of the Board of the Company, and (y) any such personal interest shall be fully disclosed to the Company by the relevant director, officer or employee.
In the event that any director or officer of the Company may have any personal interest in any transaction of the Company, he shall make known to the board such personal interest and shall not consider or vote on any such transaction, and such transaction and such director’s or officer’s interest therein shall be reported to the next General Meeting.
Article 14. Indemnification.
The Company shall indemnify any director or officer and his/her heirs, executors and administrators for any damages, compensations and costs to be paid by him/her and any expenses reasonably incurred by him/her as a consequence of, or in connection with any action, suit or proceeding to which he/she may be a party by reason of him/her being or having been a director or officer of the Company, or, at the request of the Company, of any other company of which the Company is a shareholder or creditor, except in relation to matters as to which he/she shall be finally judged in such action, suit or proceeding to be liable for gross negligence or wilful misconduct; in the event of a settlement, indemnification shall be provided only in connection with such matters covered by the settlement as to which the Company is advised by its legal counsel that the person to be indemnified did not commit such breach of duty. The foregoing right of indemnification shall not exclude other rights to which he/she may be entitled.
The indemnification by the Company shall include the right of the Company to pay or reimburse a defendant’s reasonable legal costs before any proceeding or investigation against the defendant shall have resulted in a final judgment, settlement or conclusion, provided the Company’s Directors shall have determined in good faith that the defendant’s actions did not constitute wilful and deliberate violations of the Law and shall have obtained the relevant legal advice to that effect.
Article 15. Representation of the Company.
The Company will be bound towards third parties by the joint signatures of any two Directors or by the individual signature of the person to whom the daily management of the Company has been delegated, within such daily management, or by the joint signatures or single signature of any persons to whom such signatory power has been delegated by the board, but only within the limits of such power.
Article 16. Auditors.
The supervision of the operations of the Company is entrusted to one or more auditors who need not be Shareholders.
The auditors will be elected by the General Meeting by a simple majority of the votes present or represented at such General Meeting, which will determine their number, for a period not exceeding (6) six years. They will hold office until their successors are elected. They are re-eligible, but they may be removed at any time, with or without cause, by a resolution adopted by a simple majority of the Shareholders present or represented at the General Meeting.
CHAPTER IV. — MEETINGS OF SHAREHOLDERS.
Article 17. Powers of the General Meeting.
Any regularly constituted General Meeting of the Company represents the entire body of the Shareholders. It has the powers conferred upon it by the Law.
Article 18.
The Board will determine in the convening notice the formalities to be observed by each Shareholder for admission to a General Meeting.
Article 19. Annual General Meeting.
The annual General Meeting will be held in Luxembourg within six (6) months as of close of the relevant financial year, at the registered office of the Company or at such other place in Luxembourg as may be specified in the notice convening the annual General Meeting. The chair of the annual General Meeting shall be elected by the Shareholders.
Article 20. Other General Meetings.
Such General Meetings must be convened by the Board of the Company if the Shareholders representing at least ten percent (10%) of the Company’s issued share capital so require.
Article 21. Procedure, Vote.
The Shareholders will meet upon call by the Board or the auditor or the auditors made in the forms provided for by the Law. The notice will contain the agenda of the General Meeting.
If all the Shareholders are present or represented at the General Meeting and if they state that they have been informed of the agenda of the General Meeting, the General Meeting may be held without prior notice. A Shareholder may act at any General Meeting by appointing another person who need not be a Shareholder as its proxy in writing whether in original, by telefax, or e-mail to which an electronic signature (which is valid under the Law) is affixed.
The Shareholders may vote in writing (by way of voting bulletins) on resolutions submitted to the General Meeting provided that the written voting bulletins include (i) the last name, first name, address and the signature of the relevant Shareholder, (ii) the indication of the shares for which the shareholder will exercise such right, (iii) the agenda as set forth in the convening notice and (iv) the voting instructions (approval, refusal, abstention) for each point of the agenda. In order to be taken into account, the original or electronic copy of the voting bulletins must be received by the Company within the time period set by the Company’s Board, or, absent any time period set by the Board, at least 72 (seventy-two) hours before the relevant General Meeting.
The Board may authorise and arrange for the Shareholders to exercise, in accordance with article 6 of the law of 24 May 2011 on shareholders’ rights in listed companies, their voting rights and participate in a General Meeting by electronic means, ensuring, notably, any some or all of the following forms of participation:
a)
a real-time transmission of the Shareholders’ General Meeting;
b)
a real-time two-way communication enabling Shareholders to address the General Meeting from a remote location; and
c)
a mechanism for casting votes, whether before or during the General Meeting, without the need to appoint a proxy who is physically present at the General Meeting.
Any Shareholder who participates in a General Meeting through such means shall be deemed to be present at the place of the General Meeting for the purposes of the quorum and majority requirements. The use of electronic means allowing the Shareholders to take part in the General Meeting may be subject only to such requirements as are necessary to ensure the identification of the Shareholders and the security of the electronic communication, and only to the extent that they are proportionate to achieving that objective. The Board may determine the electronic means referred to above in this Article 21 para. 5 and all other conditions that must be fulfilled in order to take part in the General Meeting in accordance with Luxembourg law.
The Shareholders shall be entitled at each General Meeting to one vote for every share.
No quorum is required for the General Meeting and resolutions are adopted at such General Meeting by a simple majority of the votes cast. Unless otherwise required under the Law, an extraordinary General Meeting
convened to amend any provisions of the Articles or the withdrawal of the Company’s shares from public listing in going-private transaction, shall not validly deliberate unless at least one half of the share capital is represented and the agenda indicates the proposed amendments to the Articles. If the first of these conditions is not satisfied, a second extraordinary General Meeting may be convened, in the manner prescribed by the Articles or by the Law. The second extraordinary General Meeting shall validly deliberate regardless of the proportion of capital represented. At both extraordinary General Meetings, resolutions, in order to be adopted, must be adopted by a two-third majority of the votes cast. Copies or extract of the minutes of the General Meetings to be produced in court will be signed by the Chair or by any two Directors.
CHAPTER V. FINANCIAL YEAR, DISTRIBUTION OF PROFITS
Article 22. Financial Year.
The Company’s financial year begins on the first day of January and ends on the last day of December in every year, except that the first financial year will begin on the date of formation of the Company and will end on the last day of December 1992.
The Board shall prepare annual accounts in accordance with the requirements of the Law and accounting practice.
Article 23. Appropriation of Profits.
From the annual net profits of the Company, five per cent (5%) shall be allocated to the reserve required by the Law. That allocation will cease to be required as soon and for as long as such reserve amounts to ten per cent (10%) of the aggregate par value of the issued capital of the Company.
Upon recommendation of the Board, the General Meeting determines how the remainder of the annual net profits will be disposed of. It may decide to allocate the whole or part of the remainder to a reserve or to a provision reserve, to carry it forward to the next following financial year or to distribute it to the Shareholders as dividend.
Subject to the conditions fixed by the Law, the Board may pay out an advance payment on dividends. The Board fixes the amount and the date of payment of any such advance payment.
Dividends may also be paid out of unappropriated net profits brought forward from prior years. Dividends shall be paid in United States Dollars or by free allotment of shares of the Company or otherwise in specie as the Directors may determine, and may be paid at such times as may be determined by the Board. Payment of dividends shall be made to holders of shares at their addresses in the register of Shareholders. No interest shall be due against the Company on dividends declared but unclaimed.
The Shareholders are entitled to share in the profits of the Company pro rata to the paid up par value of their shareholding.
CHAPTER VI. — DISSOLUTION, LIQUIDATION.
Article 24. Dissolution, Liquidation.
The Company may be dissolved by a decision taken in a General Meeting resolving at the same conditions as to a quorum of presence and majority as those imposed by article 20 of the Articles.
Should the Company be dissolved, the liquidation will be carried out by one or more liquidators appointed by the General Meeting, which will determine their powers and their compensation.
The shares carry a right to a repayment (from the assets available for distribution to the Shareholders) of the nominal capital paid up in respect of such shares and the right to share in surplus assets on a winding up of the Company pro rata to the par value paid up on such shares.
CHAPTER VII. — APPLICABLE LAW
Article 25. Applicable Law.
All matters not governed by these Articles shall be determined in accordance with the Law.
Suit la version en langue française du texte qui précède :
CHAPITRE Ier. — FORME, DENOMINATION, SIEGE, OBJET, DUREE.
Article 1. Forme, Dénomination.
Il est formé par les présentes entre les souscripteurs et tous ceux qui deviendront propriétaires des actions ci-après créées une société sous forme de société anonyme qui sera régie par les lois du Grand-Duché de Luxembourg (“Luxembourg”), notamment la loi du 10 août 1915 sur les sociétés commerciales, telle que modifiée (la “Loi”), l’article 1832 du Code civil, tel que modifié et les présents statuts (les “Statuts”).
La Société adopte la dénomination “MILLICOM INTERNATIONAL CELLULAR S.A.”.
Article 2. Siège social.
Le siège social de la Société est établi à Luxembourg-ville.
Il peut être transféré dans tout autre endroit du Luxembourg par une décision du conseil d’administration (le “Conseil”, ses membres étant les “Administrateurs” et individuellement l’“Administrateur”).
Au cas où le Conseil estimerait que des événements extraordinaires d’ordre politique, économique ou social de nature à compromettre l’activité normale au siège social ou la communication aisée avec ce siège ou entre ce siège et l’étranger se sont produits ou sont imminents, il pourra transférer temporairement le siège social à l’étranger jusqu’à cessation complète de ces circonstances anormales. Ces mesures provisoires n’auront aucun effet sur la nationalité de la Société, laquelle, nonobstant ce transfert provisoire du siège, restera luxembourgeoise. Pareilles mesures temporaires seront prises et portées à la connaissance des tiers par l’un des organes exécutifs de la Société ayant qualité de l’engager pour les actes de gestion courante et journalière.
Article 3. Objet.
L’objet pour lequel la Société est constituée est de s’engager dans toute opération relevant directement ou indirectement de l’acquisition de participations dans toute entreprise commerciale, y compris, mais sans que cette énumération soit limitative, l’administration, la gestion, le contrôle et le développement de toute entreprise, et de s’engager dans toutes autres opérations dans lesquelles une société de droit luxembourgeois peut s’engager.
La Société peut, en relation avec l’objet susmentionné, (i) acquérir ou vendre par la souscription, l’achat, l’échange ou tout autre procédé, des actions ou obligations ou tout autre instrument financier représentant des droits de propriété, créances ou actifs émis par, offerts ou vendus au public ou à un émetteur privé, (ii) émettre des instruments de dette et émettre des droits attachés aux actions et obligations mentionnées ci-dessus ou aux instruments financiers, et (iii) accorder tout type d’assistance directe ou indirecte, sous toute forme, à ou pour le bénéfice de succursales, filiales, ou tout autre type de société dans lesquelles elle détient directement ou indirectement une participation, y compris de manière non-exhaustive des prêts, garanties, facilités de crédit, assistance technique.
D’une manière générale, la Société peut effectuer toutes les opérations commerciales, industrielles ou financières et accomplir toute autre activité qu’elle jugera utiles à l’accomplissement et au développement de son objet social susmentionné.
Article 4. Durée.
La Société est constituée pour une durée illimitée.
CHAPITRE II. — CAPITAL, ACTIONS.
Article 5. Capital social.
La Société a un capital autorisé de trois cent millions de dollars des Etats-Unis (300.000.000 USD) divisé en deux cent millions (200.000.000) actions d’une valeur nominale d’un dollar des Etats-Unis d’Amérique cinquante cents (1,50 USD) chacune. La Société a un capital social émis de deux cent cinquante-huit millions cent quarante-quatre mille quatre cent cinquante-sept dollars des Etats-Unis et cinquante cents (258.144.457,50 USD) représenté par cent soixante-douze millions quatre-vingt-seize mille trois cent cinq (172.096.305) actions d’une valeur nominale d’un dollar des Etats-Unis d’Amérique cinquante cents (1,50 USD) chacune, entièrement libérées.
Le capital autorisé de la Société peut être augmenté ou réduit par décision des actionnaires de la Société (les “Actionnaires”) adoptée de la manière requise par la Loi pour la modification de ces Statuts.
Le Conseil est autorisé à et mandaté pour :
(i)
procéder à toute augmentation du capital émis dans les limites du capital autorisé en une ou plusieurs tranches successives, par émission de nouvelles actions, ayant pour contrepartie le paiement en espèces ou en nature, par la conversion de dettes, l’intégration de réserves distribuables ou de réserves de prime d’émission, ou de toute autre manière ;
(ii)
fixer le lieu et la date d’émission ou des émissions successives, le prix d’émission, les conditions et modalités de souscription et de libération des actions nouvelles ; et
(iii)
supprimer ou limiter le droit préférentiel de souscription des Actionnaires en cas d’émission d’actions contre paiement en espèces, jusqu’à un nombre total maximum d’actions nouvelles représentant 5% des actions déjà émises (ce y compris les actions propres détenues par la Société).
Cette autorisation est valable jusqu’au 4 mai 2023, et elle pourra être renouvelée par décision de l’assemblée générale extraordinaire des Actionnaires pour les actions du capital social autorisé qui n’auront pas jusqu’alors été émises par le Conseil.
À la suite de chaque augmentation de capital réalisée et dûment constatée dans la forme prévue par la Loi, le premier alinéa de cet article 5 sera modifié de manière à refléter l’augmentation ; une telle modification sera constatée par acte notarié par le Conseil ou par toute personne dûment autorisée et mandatée par celui-ci a cette fin.
Article 6. Actions.
Les actions sont sous forme nominative.
Les actions de la Société peuvent être détenues sous forme électronique en accord avec les règles des bourses de valeurs sur lesquelles les actions de la Société peuvent être cotées de temps à autre, ou peuvent être représentées par des certificats physiques.
Chaque Actionnaire aura le droit de recevoir gratuitement un certificat nominatif représentant ses actions ou de recevoir plusieurs certificats représentant une ou plusieurs de ses actions après paiement, pour chaque certificat émis après l’établissement du premier certificat, des frais raisonnables que le Conseil arrête de temps à autres. Un actionnaire nominatif qui transfère une partie des actions comprises dans sa participation nominative aura droit sans frais à un certificat représentant le solde de ses actions.
Les certificats d’actions seront signés par deux Administrateurs. Les signatures peuvent être soit manuelles, soit imprimées, soit par facsimile. La Société peut émettre des certificats d’actions temporaires dans la forme que le Conseil détermine de temps à autre.
Les actions de la Société seront enregistrées dans le registre des Actionnaires qui sera tenu par la Société ou par une ou plusieurs personnes désignées à cet effet par la Société ; ce registre renseigne le nom de chaque actionnaire, son adresse ou domicile élu et le nombre d’actions détenues par lui. Toute cession ou dévolution d’une action sera inscrite dans le registre des Actionnaires.
Les actions seront librement cessibles.
La cession d’actions sera effectuée par la délivrance à la Société du ou des certificats représentant celles-ci à l’appui du document de cession dans une forme satisfaisant la Société ou par une déclaration de cession écrite inscrite au registre des Actionnaires, datée et signée par le cessionnaire, ou par les personnes détenant les pouvoirs de représentation appropriés à cet effet.
Tout Actionnaire est tenu de fournir à la Société une adresse à laquelle toute notification et tout avis de la Société pourront être envoyés. Cette adresse sera inscrite dans le registre des Actionnaires.
Au cas où un Actionnaire ne fournirait pas une telle adresse, la Société pourra autoriser l’inscription d’une mention à cet effet dans le registre des Actionnaires et l’adresse de l’Actionnaire sera censée être au siège social de la Société, ou à telle autre adresse que la Société mentionnera de temps à autre dans le registre des Actionnaires, jusqu’à ce qu’une autre adresse soit fournie à la Société par cet Actionnaire. L’Actionnaire pourra, à tout moment, changer son adresse inscrite au registre des Actionnaires au moyen d’une communication écrite envoyée à la Société à son siège social ou à toute autre adresse indiquée de temps à autre par la Société par avis donné aux Actionnaires.
La Société ne reconnaitra qu’un propriétaire par action émise par la Société. Dans le cas d’une copropriété, la Société pourra suspendre l’exercice de tout droit lié à l’action concernée jusqu’à ce qu’une personne soit désignée pour représenter les copropriétaires envers la Société.
Si un Actionnaire peut établir à suffisance de droit envers la Société que son certificat d’action a été détourné, perdu, volé ou détruit, un duplicata pourra lui être délivré à sa demande aux conditions déterminées par la Société sous réserve des dispositions applicables de la Loi.
Les certificats d’actions endommagés pourront être échangés contre des certificats nouveaux à la demande de tout Actionnaire. Les certificats endommagés seront remis à la Société et annulés immédiatement.
La Société peut racheter ses propres actions selon une méthode approuvée par le Conseil en accord avec la Loi et les règles des bourses de valeurs auxquelles les actions de la Société peuvent être cotées de temps à autre.
Comme requis par la loi luxembourgeoise relative aux obligations de transparence du 11 janvier 2008 (la “Loi Transparence”), toute personne qui acquiert ou dispose des actions dans le capital de la Société est tenue de notifier au Conseil le pourcentage d’actions détenues par la personne concernée suite à l’acquisition ou la cession, lorsque ce pourcentage atteint, passe au-dessus ou en dessous des seuils mentionnés par la Loi Transparence. Selon la Loi Transparence, ce qui précède s’applique aussi au seul droit d’acquérir ou de céder ou d’exercer des droits de vote dans chacun des cas auxquels la Loi Transparence fait référence. Selon cet Article, les conditions de la Loi Transparence s’appliquent aussi quand le pourcentage mentionné atteint, passe au-dessus ou en dessous de 5%. Les sanctions édictées par l’article 28 de la Loi Transparence s’appliquent à toute violation de l’obligation susmentionnée, y inclus par rapport au seuil de 5%.
CHAPITRE III. — CONSEIL, COMMISSAIRE AUX COMPTES.
Article 7. Conseil.
La Société est administrée par un Conseil composé de 6 (six) membres au moins. Les membres du Conseil n’ont pas besoin d’être actionnaires de la Société. Les Administrateurs et le/la président(e) du Conseil (le/la “Président(e)”) seront élus par l’assemblée générale des actionnaires (l’“Assemblée Générale”), qui déterminera leur nombre, pour une période n’excédant pas 6 (six) années, et ils resteront en fonction jusqu’à ce que leurs successeurs soient élus. Quand une personne morale sera nommée administrateur (la “Personne Morale”), la Personne Morale devra désigner une personne physique (représentant permanent) qui devra représenter la Personne Morale comme membre du Conseil conformément à l’article 441-3 de la Loi. En cas de vacance d’une ou de plusieurs places d’Administrateurs, les Administrateurs restants ont le droit d’élire par un vote majoritaire un autre Administrateur jusqu’à la prochaine Assemblée Générale.
Lorsqu’elle proposera la nomination de personnes en tant qu’Administrateurs à l’Assemblée Générale, la Société devra se conformer aux règles et procédures du comité de nomination du Code de Gouvernance
d’Entreprise suédois, pour autant que l’observation desdites règles ne soit pas en contradiction avec la loi ou la réglementation impérative applicable, ni avec les règles impératives de tout marché boursier sur laquelle les actions de la société sont cotées.
Dans le cas où la Société ne se conformerait pas aux règles du comité de nomination du Code de Gouvernance d’Entreprise suédois et lorsqu’un comité du Conseil est créé pour proposer la nomination de personnes en tant qu’Administrateurs à l’Assemblée Générale, tout Actionnaire détenant au moins 20% des actions émises et en circulation de la Société, à l’exclusion des actions propres, a le droit de nommer :
1.
un des Administrateurs en fonction, pour devenir membre de ce comité, à condition que cette nomination et l’Administrateur ainsi désigné, respectent les exigences de toute loi ou réglementation impérative applicable ainsi que les règles impératives de tout marché boursier sur laquelle les actions de la société sont cotées, et
2.
une personne, qui peut être ou non un Administrateur, qui assistera aux réunions de ce comité en tant qu’observateur, sans disposer du droit de vote lors de ces réunions, pour autant que cette participation n’entre pas en conflit avec la loi ou la réglementation impérative applicable ou avec les règles impératives de tout marché boursier sur laquelle les actions de la Société sont cotées.
Toute nomination faite en application du paragraphe précédent deviendra caduque à partir du moment où l’actionnaire qui a procédé à la nomination détient moins de 20% des actions émises et en circulation de la Société, à l’exclusion des actions propres.
Article 8. Réunions du Conseil.
Le Conseil peut choisir un secrétaire, qui ne doit pas être Administrateur et qui sera responsable de la rédaction des procès-verbaux des réunions du Conseil et des résolutions prises lors des Assemblées Générales.
Le Conseil se réunira sur convocation du/de la Président(e). Une réunion du Conseil doit être convoquée si deux Administrateurs le demandent.
Le/la Président(e) présidera toutes les réunions du Conseil, mais en son absence le Conseil désignera à la majorité simple des Administrateurs présents un autre Administrateur ou un tiers dûment qualifié comme Président(e) de la réunion concernée.
Avis écrit de toute réunion du Conseil sera donné à tous les Administrateurs au moins 3 (trois) jours avant la date prévue pour la réunion, sauf s’il y a urgence ou avec l’accord de tous ceux qui ont droit d’assister à cette réunion. La convocation indiquera le lieu de la réunion et en contiendra l’ordre du jour. Une telle convocation n’est pas requise si tous les membres du Conseil sont présents ou représentés à l’occasion de la réunion et s’ils précisent qu’ils ont été dûment informés, et avoir eu pleine connaissance de l’ordre du jour de la réunion. La nécessité d’une convocation peut être supprimée si les membres y consentent par écrit, que ce soit par un original, un fax, ou un e-mail sur lequel une signature électronique (valide selon le droit luxembourgeois) est apposée, de chaque membre du Conseil. Une convocation écrite séparée ne sera pas requise pour les réunions qui sont tenues à des moments et des lieux déterminés dans une annexe adoptée antérieurement par une résolution du Conseil.
Toute réunion du Conseil se tiendra à Luxembourg ou à tout autre endroit que le Conseil peut de temps à autres arrêter.
Tout membre du Conseil peut agir à n’importe quelle réunion du Conseil en nommant par écrit, que ce soit par un original, un fax, ou un courriel sur lequel une signature électronique (valide selon le droit luxembourgeois) est apposée, un autre Administrateur comme son mandataire.
Le Conseil ne pourra délibérer et agir valablement que si 4 (quatre) Administrateurs sont présents. Les décisions sont prises à la majorité simple des voix des Administrateurs présents ou représentés. Le/la Président(e) n’a pas de voix prépondérante en cas de partage de voix.
Nonobstant ce qui précède, une résolution du Conseil pourra aussi être adoptée en cas d’urgence ou si d’autres circonstances exceptionnelles le justifient. Une telle résolution devra être approuvée unanimement par les Administrateurs et consistera en un ou plusieurs documents contenant les résolutions soit (i) signées
manuellement ou électroniquement par le biais d’une signature électronique valable en droit luxembourgeois ou (ii) convenues par un consentement écrit par email auquel une signature électronique (valable en droit luxembourgeois) est apposée. La date de cette résolution sera la date de la dernière signature ou, selon le cas, du dernier accord.
Chaque Administrateur pourra participer à une réunion du Conseil par conférence téléphonique, visio-conférence ou tout autre moyen de communication similaire par lequel (i) les Administrateurs présents à la réunion peuvent être identifiés, (ii) toutes les personnes participant à la réunion peuvent entendre et parler à chacun d’entre eux, (iii) la transmission de la réunion est réalisée de manière ininterrompue et (iv) les Administrateurs peuvent débattre comme il se doit, et participent à une réunion par tout moyen qui équivaut à une présence physique à la réunion. Une réunion du Conseil tenue par de tels moyens de communication sera réputée avoir été tenue à Luxembourg.
Article 9. Procès-verbaux des réunions du Conseil.
Les procès-verbaux de toute réunion du Conseil seront signés par le/la Président(e). Les procurations resteront annexées aux procès-verbaux.
Les copies ou extraits de ces procès-verbaux ainsi que des résolutions circulaires adoptées par le Conseil, destinés à servir en justice ou ailleurs, seront signés par le/la Président(e), tout(e) président(e) de la réunion du Conseil concernée ou par deux membres du Conseil.
Article 10. Pouvoirs du Conseil.
Le Conseil a les pouvoirs les plus larges pour accomplir tous les actes nécessaires ou utiles à la réalisation de l’objet social de la Société. Tous les pouvoirs qui ne sont pas réservés expressément à l’Assemblée Générale par la Loi ou les présents statuts sont de la compétence du Conseil.
Article 11. Délégation de pouvoirs.
Le Conseil peut déléguer la gestion journalière de la Société ainsi que la représentation de la Société en ce qui concerne cette gestion à un ou plusieurs Administrateurs, directeurs, fondés de pouvoirs, employés ou autres agents qui n’auront pas besoin d’être Actionnaires, ou conférer des pouvoirs ou mandats spéciaux ou des fonctions permanentes ou temporaires à des personnes ou agents de son choix.
Article 12. Rémunération des Administrateurs.
Chaque Administrateur aura droit à une rémunération pour l’exercice de ses fonctions d’Administrateur au taux qui sera déterminé de temps à autre par l’Assemblée Générale. Un Administrateur à qui est déléguée la gestion journalière ou qui exerce par ailleurs des fonctions exécutives aura également droit à une rémunération (que ce soit sous la forme d’un salaire, d’une participation aux profits ou autrement y compris une pension de retraite, et une contribution à une pension de retraite) telle que le Conseil pourra arrêter de temps à autre.
Article 13. Conflits d’Intérêts.
Aucun contrat ni aucune transaction que la Société pourra conclure avec un tiers ne pourra être affecté ou invalide par le fait qu’un Administrateur, directeur ou employé de la Société ait un intérêt personnel ou soit un Administrateur, directeur ou employé de ce tiers, tant que (x) ce contrat ou transaction sera négocié de plein gré à des termes non moins favorables pour la Société que ceux qui auraient pu être obtenus d’une partie tierce, et dans le cas d’un administrateur, celui-ci devra s’abstenir de voter sur tout sujet qui concerne ce contrat ou cette transaction à toute réunion du Conseil de la Société, et (y) tout intérêt personnel sera notifié à la Société par l’Administrateur, le directeur ou l’employé concerné.
Au cas où un Administrateur ou fondé de pouvoirs aurait un intérêt personnel dans une transaction de la Société, il en avisera le Conseil et il ne pourra prendre part aux délibérations ou émettre un vote au sujet de cette opération, et cette transaction ainsi que l’intérêt personnel de l’Administrateur ou du fondé de pouvoir seront portés à la connaissance de la prochaine Assemblée Générale.
Article 14. Indemnisation.
La Société indemnisera tout Administrateur ou fondé de pouvoirs et leurs héritiers, exécuteurs testamentaires et administrateurs de biens pour tous dommages-intérêts, compensations et dépenses à leur charge ainsi que tous frais raisonnables qu’ils auraient encouru par suite ou en conséquence de leur comparution en tant que défendeurs dans des actions en justice, des procès ou des poursuites judiciaires que leur auront été intentés de par leur fonctions actuelles ou anciennes d’administrateur ou de fondé de pouvoirs de la Société, ou à la demande de la Société, de toute autre société dans laquelle la Société est actionnaire ou créancier exception faite pour les cas où ils auraient été déclarés coupables de négligence grave ou pour avoir volontairement manqué à leurs devoirs envers la Société; en cas d’arrangement transactionnel, l’indemnisation ne portera que sur les matières couvertes par l’arrangement transactionnel et dans ce cas seulement si la Société est informée par son conseiller juridique que la personne à indemniser n’aura pas manqué à ses devoirs envers la Société. Le droit à indemnisation qui précède n’exclut pas pour les personnes susnommées le recours à d’autres droits auxquels elles pourraient prétendre.
L’indemnisation par la Société inclura le droit pour la Société de payer ou rembourser les frais légaux raisonnables d’un défendeur avant que toute procédure ou investigation contre le défendeur ait résulte en un jugement final, une transaction ou conclusion, à condition que les Administrateurs de la Société aient décidé de bonne foi que les actions du défendeur ne constituaient pas des violations intentionnelles et délibérées de la loi et qu’ils ont repo un avis juridique pertinent à ce sujet.
Article 15. Représentation de la Société.
Vis-à-vis des tiers, la Société sera engagée par les signatures conjointes de deux Administrateurs, ou par la signature individuelle de la personne à laquelle la gestion journalière de la Société a été déléguée, dans le cadre de cette gestion journalière, ou par la signature conjointe ou par la signature individuelle de toutes personnes à qui un tel pouvoir de signature aura été délégué par le Conseil, mais seulement dans les limites de ce pouvoir.
Article 16. Commissaire aux comptes.
Les opérations de la Société seront surveillées par un ou plusieurs commissaires aux comptes, Actionnaires ou non.
Le ou les commissaires aux comptes seront nommés par l’Assemblée Générale à la majorité simple des actions présentes ou représentées, qui déterminera leur nombre, pour une durée qui ne peut dépasser 6 (six) ans. Ils resteront en fonction jusqu’à ce que leurs successeurs soient élus. Ils sont rééligibles mais ils peuvent être révoqués à tout moment, avec ou sans motif, par une décision adoptée à une majorité simple des Actionnaires présents ou représentés.
CHAPITRE IV. — ASSEMBLEE GENERALE DES ACTIONNAIRES.
Article 17. Pouvoirs de l’Assemblée Générale.
Toute Assemblée Générale régulièrement constituée représente l’ensemble des Actionnaires. Elle a tous les pouvoirs qui lui sont réservés par la Loi.
Article 18.
Le Conseil déterminera dans l’avis de convocation les formalités devant être observées par chaque Actionnaire pour être admis à l’Assemblée Générale.
Article 19. Assemblée Générale annuelle.
L’Assemblée Générale annuelle se réunit au Grand-Duché de Luxembourg endéans six (6) mois à compter de la clôture de l’exercice social approprié, au siège social de la Société ou à tel autre endroit au Luxembourg indiqué dans l’avis convoquant l’Assemblée Générale annuelle. Le/la président(e) de l’Assemblée Générale annuelle sera élu par les Actionnaires.
Article 20. Autres Assemblées Générales.
De telles Assemblées Générales doivent être convoquées par le Conseil si les Actionnaires représentant au moins 10% du capital social de la Société le demandent.
Article 21. Procédure, vote.
Les Actionnaires seront convoqués par le Conseil ou par le ou le(s) commissaire(s) aux comptes conformément aux conditions fixées par la Loi. La convocation contiendra l’ordre du jour de l’Assemblée Générale.
Si tous les Actionnaires sont présents ou représentés à l’Assemblée Générale et déclarent avoir eu connaissance de l’ordre du jour de l’Assemblée Générale, celle-ci peut se tenir sans convocations préalables.
Un Actionnaire peut agir à une Assemblée Générale en nommant une autre personne qui ne doit pas nécessairement être Actionnaire comme son mandataire, par écrit, que ce soit par un original, un fax, ou un courriel auquel une signature électronique (valide selon le droit luxembourgeois) est apposée.
Les Actionnaires ont la possibilité de voter par écrit (par le biais de bulletins de vote) sur les résolutions soumises à l’Assemblée Générale à la condition que les bulletins de vote écrits incluent (i) le nom, le prénom, l’adresse et la signature de l’Actionnaire concerné, (ii) l’indication des actions pour lesquelles l’Actionnaire exercera ce droit, (iii) l’agenda tel qu’indiqué dans la convocation écrite et (iv) les instructions de vote (approbation, refus, abstention) pour chaque point de l’agenda. Afin d’être pris en compte, les originaux ou copies électroniques des bulletins de vote doivent être reçus par la Société dans un délai décidé par le Conseil ou, en l’absence d’un délai prévu par le Conseil, au moins 72 (soixante-douze) heures avant l’Assemblée Générale en question.
Le Conseil pourra autoriser les Actionnaires à exercer, conformément à l’article 6 de la loi du 24 mai 2011 sur les droits des actionnaires dans les sociétés côtés, leurs droits de vote et participer à une Assemblée Générale par le biais de moyens électroniques, en s’assurant notamment que tout ou partie des formes suivantes de participations soient respectées :
a)
Une transmission en temps réel de l’Assemblée Générale ;
b)
Une communication réciproque permettant aux Actionnaires de s’adresser à l’Assemblée Générale à distance ; et
c)
Un mécanisme de vote, soit avant ou pendant l’Assemblée Générale, ne nécessitant pas la nomination d’un mandataire physiquement présent à l’Assemblée Générale.
Tout Actionnaire participant à une Assemblée Générale par ces moyens sera considéré présent au lieu de l’Assemblée Générale pour les besoins de quorum et de majorité. L’utilisation de moyens électroniques permettant aux Actionnaires de participer à l’Assemblée Générale pourront être soumis seulement à ces exigences car elles sont nécessaires pour assurer l’identification des Actionnaires et la sécurité de la communication électronique, et seulement dans la mesure où ils sont proportionnels pour atteindre cet objectif.
Le Conseil pourra déterminer les moyens électroniques référencés ci-dessus à l’article 21 paragraphe 5 et toutes les autres conditions qui devront être remplies afin de participer à l’Assemblée Générale conformément au droit luxembourgeois.
Les Actionnaires auront à chaque Assemblée Générale droit à un vote pour chaque action.
Aucun quorum n’est exigé pour une réunion de l’Assemblée Générale et les résolutions sont adoptées à une telle Assemblée Générale à la majorité simple des voix. Sauf disposition contraire de la Loi, une Assemblée Générale extraordinaire convoquée pour modifier toute disposition des Statuts ou pour le retrait des actions de la Société de la cotation dans une transaction de retrait de marché ne délibèrera pas valablement à moins qu’au moins la moitié du capital social ne soit représenté et que l’ordre du jour indique les modifications des Statuts proposées. Si la première de ces conditions n’est pas remplie, une deuxième Assemblée Générale extraordinaire peut être convoquée, de la manière prescrite par les Statuts ou la Loi. La deuxième Assemblée Générale extraordinaire délibèrera valablement indépendamment de la proportion du capital représentée. A l’occasion de ces deux Assemblées Générales extraordinaires, les résolutions, afin d’être valables, doivent être
adoptées à la majorité des deux-tiers des votes exprimés. Les copies ou extraits des minutes des Assemblées Générales à produire devant la Cour seront signées par le/la Président(e) ou par deux Administrateurs.
CHAPITRE V. — ANNEE SOCIALE, REPARTITION DES BENEFICES
Article 22. Année sociale.
L’année sociale de la Société commence le premier janvier et finit le dernier jour de décembre de chaque année sauf la première année sociale qui commence à la date de constitution de la Société et finit le dernier jour de décembre 1992.
Le Conseil prépare les comptes annuels suivant les dispositions de la Loi et les pratiques comptables.
Article 23. Affectation des bénéfices.
Sur les bénéfices nets de la Société, il sera prélevé cinq pour cent (5%) pour la formation d’un fonds de réserve légale requis par la Loi. Ce prélèvement cesse d’être obligatoire lorsque et aussi longtemps que la réserve légale atteindra dix pour cent (10%) de la totalité de la valeur nominale du capital social émis de la Société.
Sur recommandation du Conseil, l’Assemblée Générale décidera de l’affection du solde des bénéfices annuels nets. Elle peut décider de verser la totalité ou une partie du solde à un compte de réserve ou de provision, de le reporter à nouveau au prochain exercice social ou de le distribuer aux Actionnaires comme dividendes.
Le Conseil peut procéder à un versement d’acomptes sur dividendes dans les conditions fixées par la Loi.
Il déterminera le montant ainsi que la date de paiement de ces acomptes.
Des dividendes peuvent être distribués à partir des profits nets non distribués reportés en avant des années précédentes. Les dividendes seront payés en dollars des États-Unis d’Amérique ou par distribution gratuite d’actions de la Société ou autrement en nature tel que déterminé par les Administrateurs, et peuvent être payés aux dates arrêtées par le Conseil. Le paiement de dividendes sera fait aux Actionnaires à leur adresse indiquée dans le registre des Actionnaires. Aucun intérêt ne sera dû par la société sur des dividendes déclarés mais non réclamés.
Les Actionnaires ont le droit de participer au profit de la société proportionnellement au montant libéré de valeur nominale de leurs actions.
CHAPITRE VI. — DISSOLUTION, LIQUIDATION.
Article 24. Dissolution, liquidation.
La Société peut être dissoute par décision prise lors d’une Assemblée Générale statuant aux mêmes conditions de présence et de majorité que celles requises par l’article 20 des Statuts.
Lors de la dissolution de la Société, la liquidation s’effectuera par les soins d’un ou de plusieurs liquidateurs nommés par l’Assemblée Générale qui déterminera leurs pouvoirs et leurs émoluments.
Les actions comportent un droit au remboursement (à partir des avoirs disponibles pour la distribution aux Actionnaires) du montant du capital nominal libéré de ces actions et le droit de partager les avoirs supplémentaires dans le cadre d’une liquidation de la Société proportionnellement au montant libéré de la valeur nominale de ces actions.
CHAPITRE VII. — LOI APPLICABLE.
Article 25. Loi applicable.
Toutes les matières qui ne sont pas régies par les présents Statuts seront réglées conformément à la Loi.
CONSOLIDATED ARTICLES OF ASSOCIATION AS AT MAY 23rd, 2024
Signed in Junglinster, this June 4, 2024
STATUTS COORDONNES À LA DATE DU 23 MAI 2024
Signé à Junglinster, le 4 juin 2024
Millicom’s Earnings Release and Interim Financial Report (IAS 34) for the Period January 1, 2024 – March 31, 2024
Luxembourg, May 8, 2024
Millicom (Tigo) Q1 2024 Earnings Release
Highlights*
•
Revenue grew 8.6% driven by Service revenue up 8.8%, due to stronger currencies and organic growth of 3.8%, up from 3.2% in Q4 attributable to large B2B contracts in Panama and a return to positive growth in Guatemala.
•
Operating profit increased 70.6%, reflecting the revenue increase and a 3.4% decline in operating expenses, while EBITDA grew 24.5% (20.0% organically) despite $30 million of restructuring costs incurred in the period.
•
Colombia EBITDA rose 50.3% (24.2% organically) with a record EBITDA margin of 36.5% despite an $18 million restructuring charge. Excluding this one-off, Colombia’s EBITDA margin was 41.4%.
•
Operating cash flow rose 53.0% organically to $519 million, reflecting both the robust EBITDA growth and a 38.9% reduction in capex due mostly to slower phasing of investments in 2024 compared to 2023.
•
Net income of $92 million in Q1 2024 was up strongly from $3 million in Q1 2023, reflecting the significant increase in operating profit.
•
Leverage declined to 3.10x at the end of March 2024 from 3.29x at year-end 2023.
|
Financial highlights ($ millions)
|
|
|
Q1 2024
|
|
|
Q1 2023
|
|
|
% change
|
|
|
Organic
% Change
|
|
|
Revenue
|
|
|
|
|
1,487 |
|
|
|
|
|
1,369 |
|
|
|
|
|
8.6% |
|
|
|
|
|
3.8% |
|
|
|
Operating Profit
|
|
|
|
|
324 |
|
|
|
|
|
190 |
|
|
|
|
|
70.6% |
|
|
|
|
|
|
|
|
|
Net Profit
|
|
|
|
|
92 |
|
|
|
|
|
3 |
|
|
|
|
|
NM |
|
|
|
|
|
|
|
|
|
Non-IFRS measures (*)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Service Revenue
|
|
|
|
|
1,376 |
|
|
|
|
|
1,264 |
|
|
|
|
|
8.8% |
|
|
|
|
|
3.8% |
|
|
|
EBITDA
|
|
|
|
|
632 |
|
|
|
|
|
507 |
|
|
|
|
|
24.5% |
|
|
|
|
|
20.0% |
|
|
|
Capex
|
|
|
|
|
113 |
|
|
|
|
|
185 |
|
|
|
|
|
(38.9)% |
|
|
|
|
|
|
|
|
|
Operating Cash Flow
|
|
|
|
|
519 |
|
|
|
|
|
322 |
|
|
|
|
|
61.0% |
|
|
|
|
|
53.0% |
|
|
|
Equity Free Cash Flow
|
|
|
|
|
1 |
|
|
|
|
|
(133) |
|
|
|
|
|
NM |
|
|
|
|
|
|
|
|
*
See page 10 for a description of non-IFRS measures and for reconciliations to the nearest equivalent IFRS measures.
Millicom Chief Executive Officer Mauricio Ramos commented:
“I am very pleased to report that 2024 is off to a good start, as the combination of key investments and strategic initiatives implemented over the last several years, combined with savings from both phases of Project Everest, produced strong Q1 performance on many fronts:
•
EBITDA grew 20% organically, with all countries up between 8% and 26%;
•
OCF grew even faster, up 53% organically, as we optimized investment and benefited from favorable phasing;
•
Colombia EBITDA margin hit a new record and is on track to generate positive and sustainable EFCF in 2024, after years of heavy investment;
•
Guatemala returned to positive service revenue and EBITDA growth, aided by improved mobile pricing; and,
•
Panama cemented its market leadership with record postpaid mobile net additions, as the third mobile operator ceased operations on April 20.
Q1 benefited from large B2B contracts, favorable capex phasing, stronger FX and other tailwinds, yet Q1 results demonstrate the cash flow generation potential of the business, and strengthen our ability to achieve our 2024 Equity Free Cash Flow target of $550 million.
As recently-communicated, Millicom’s Board of Directors appointed Marcelo Benitez to succeed me as Millicom’s next CEO. I will continue as Chair of the Board of Directors, subject to shareholder approval at the upcoming AGM. The entire Board and I look forward to working with Marcelo to ensure a smooth transition and continued success in his incredible journey with Millicom over the past 30 years.”
Financial Targets
Millicom targets Equity free cash flow of around $550 million in 2024. Excluded from this target are (1) any cash proceeds and related taxes stemming from a potential Lati transaction and (2) cash proceeds from the Colombia tower transaction.
Subsequent Events
On April 2, 2024, MIC SA completed the issuance of 7.375% $450 million Senior Notes due 2032. A portion of the net proceeds was used to repay in full $200 million of certain bank loans with DNB.
On April 25, 2024, our Colombian operation issued a COP160 billion (approximately $40 million) three-year bond with a fixed interest rate of 17.0% payable in Colombian pesos.
During April 2024, we continued to repurchase bonds in the secondary markets. The aggregate principal value repurchased during the month was $15 million of MICSAs 2028s and $25 million of the Telecel 2027s.
As part of the share repurchase program launched during Q4 2023, Millicom has continued to repurchase shares in April 2024, acquiring an additional 147,105 shares during the month.
Group Quarterly Financial Review — Q1 2024
Income statement data (IFRS)
$ millions (except EPS in $ per share)
|
|
|
Q1 2024
|
|
|
Q1 2023
|
|
|
% change
|
|
|
Revenue |
|
|
|
|
1,487 |
|
|
|
|
|
1,369 |
|
|
|
|
|
8.6% |
|
|
|
Equipment, programming and other direct costs
|
|
|
|
|
(382) |
|
|
|
|
|
(372) |
|
|
|
|
|
(2.8)% |
|
|
|
Operating expenses
|
|
|
|
|
(473) |
|
|
|
|
|
(490) |
|
|
|
|
|
3.4% |
|
|
|
Depreciation
|
|
|
|
|
(247) |
|
|
|
|
|
(244) |
|
|
|
|
|
(1.3)% |
|
|
|
Amortization
|
|
|
|
|
(87) |
|
|
|
|
|
(87) |
|
|
|
|
|
0.3% |
|
|
|
Share of profit in Honduras joint venture
|
|
|
|
|
13 |
|
|
|
|
|
11 |
|
|
|
|
|
20.3% |
|
|
|
Other operating income (expenses), net
|
|
|
|
|
13 |
|
|
|
|
|
2 |
|
|
|
|
|
NM |
|
|
|
Operating profit
|
|
|
|
|
324 |
|
|
|
|
|
190 |
|
|
|
|
|
70.6% |
|
|
|
Net financial expenses
|
|
|
|
|
(164) |
|
|
|
|
|
(166) |
|
|
|
|
|
1.0% |
|
|
|
Other non-operating income, (expense) net
|
|
|
|
|
(7) |
|
|
|
|
|
19 |
|
|
|
|
|
NM |
|
|
|
Gains/(losses) from other JVs and associates, net
|
|
|
|
|
— |
|
|
|
|
|
(4) |
|
|
|
|
|
NM |
|
|
|
Profit before tax
|
|
|
|
|
153 |
|
|
|
|
|
39 |
|
|
|
|
|
NM |
|
|
|
Net tax expense
|
|
|
|
|
(71) |
|
|
|
|
|
(59) |
|
|
|
|
|
(18.8)% |
|
|
Income statement data (IFRS)
$ millions (except EPS in $ per share)
|
|
|
Q1 2024
|
|
|
Q1 2023
|
|
|
% change
|
|
|
Non-controlling interests
|
|
|
|
|
10 |
|
|
|
|
|
23 |
|
|
|
|
|
(56.8)% |
|
|
|
Net profit for the period
|
|
|
|
|
92 |
|
|
|
|
|
3 |
|
|
|
|
|
NM |
|
|
|
Weighted average shares outstanding (millions)
|
|
|
|
|
171.35 |
|
|
|
|
|
170.91 |
|
|
|
|
|
0.3% |
|
|
|
EPS
|
|
|
|
|
0.54 |
|
|
|
|
|
0.02 |
|
|
|
|
|
NM |
|
|
In Q1 2024, revenue increased 8.6% year-on-year, reflecting organic growth in most countries and the effect of the stronger Colombian peso and the Costa Rican colon. Excluding the effect of foreign exchange rates, revenue and service revenue both increased 3.8%.
Equipment, programming and other direct costs increased 2.8% due to costs associated with two large B2B projects in Panama, which more than offset lower programming costs, as we streamlined our offerings. Operating expenses declined $17 million, or 3.4% year-on-year, as savings from Project Everest more than offset the impact of inflation and foreign exchange movements as well as $30 million of restructuring charges.
Depreciation increased 1.3% year-on-year to $247 million, as the effect of the stronger Colombian peso more than offset a decline in local currency terms due to a longer assumed useful life of tower assets and to a decline in customer premise equipment investment. Amortization was stable at $87 million.
Share of profit in our Honduras joint venture increased 20.3% to $13 million, as improved operating performance and lower depreciation were partially offset by severance costs in that country. Other operating income of $13 million reflects a gain on the sale of towers in Colombia.
As a result of these and other factors, operating profit increased $134 million, or 70.6%, year-on-year to $324 million.
Net financial expenses declined by $2 million year-on-year to $164 million, as income on bond purchases was largely offset by the impact of a stronger Colombian peso on the net interest expense at our Colombia subsidiary.
Other non-operating expense of $7 million related to foreign exchange losses, mostly in Paraguay, and compares to income of $19 million in Q1 2023 due to foreign exchange gains in that period.
Tax expense of $71 million in Q1 2024 increased from $59 million in Q1 2023 mostly reflecting the increase in profitability. Non-controlling interests of $10 million in Q1 2024 compares to $23 million in Q1 2023, reflecting our partner’s share of net losses in both years in Colombia.
As a result of the above items, net profit attributable to owners of the company was $92 million ($0.54 per share), compared to a net profit of $3 million ($0.02 per share) in Q1 2023. The weighted average number of shares outstanding during the quarter was 171.35 million. As of March 31, 2024, there were 172.10 million shares issued and outstanding, including 0.71 million held as treasury shares.
Cash Flow
|
Cash flow data* ($ millions)
|
|
|
Q1 2024
|
|
|
Q1 2023
|
|
|
% change
|
|
|
EBITDA |
|
|
|
|
632 |
|
|
|
|
|
507 |
|
|
|
|
|
24.5% |
|
|
|
Cash capex (excluding spectrum and licenses)
|
|
|
|
|
(133) |
|
|
|
|
|
(289) |
|
|
|
|
|
53.9% |
|
|
|
Spectrum paid
|
|
|
|
|
(78) |
|
|
|
|
|
(53) |
|
|
|
|
|
(48.6)% |
|
|
|
Changes in working capital
|
|
|
|
|
(202) |
|
|
|
|
|
(124) |
|
|
|
|
|
(63.2)% |
|
|
|
Other non-cash items
|
|
|
|
|
10 |
|
|
|
|
|
13 |
|
|
|
|
|
(24.8)% |
|
|
|
Taxes paid
|
|
|
|
|
(38) |
|
|
|
|
|
(37) |
|
|
|
|
|
(1.4)% |
|
|
|
Operating free cash flow
|
|
|
|
|
190 |
|
|
|
|
|
17 |
|
|
|
|
|
NM |
|
|
|
Finance charges paid, net
|
|
|
|
|
(132) |
|
|
|
|
|
(129) |
|
|
|
|
|
(2.8)% |
|
|
|
Lease payments, net
|
|
|
|
|
(71) |
|
|
|
|
|
(69) |
|
|
|
|
|
(3.5)% |
|
|
|
Cash flow data* ($ millions)
|
|
|
Q1 2024
|
|
|
Q1 2023
|
|
|
% change
|
|
|
Free cash flow
|
|
|
|
|
(14) |
|
|
|
|
|
(180) |
|
|
|
|
|
92.3% |
|
|
|
Repatriation from joint ventures and associates
|
|
|
|
|
15 |
|
|
|
|
|
48 |
|
|
|
|
|
(68.3)% |
|
|
|
Dividends and advances to non-controlling interests
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
NM |
|
|
|
Equity free cash flow
|
|
|
|
|
1 |
|
|
|
|
|
(133) |
|
|
|
|
|
NM |
|
|
*
See page 10 for a description of non-IFRS measures discussed in the above table.
Equity Free Cash Flow (EFCF) in Q1 2024 was $1 million, compared to an outflow of $133 million in Q1 2023. The $134 million improvement in EFCF over the past year is explained primarily by the following items:
Positives:
•
$156 million reduction in cash capex, reflecting lower levels of commercial activity and investment in our Home business unit, especially in Colombia and Bolivia, as well as $39 million of gross proceeds from the Colombia tower sale; and,
•
$125 million increase in EBITDA due to service revenue growth and savings from Project Everest.
Detractors:
•
$78 million increase in working capital, mostly due to severance and other expenses booked in Q4 2023 but paid in Q1 2024;
•
$26 million increase in spectrum payments related to the 1900 MHz band in Colombia; and,
•
$33 million decline in repatriation from joint ventures and associates, reflecting an accelerated payment schedule in 2023 as well as the impact of foreign exchange controls which limited our Honduras joint venture’s ability to pay dividend advances during Q1 2024.
Debt
|
($ millions)
|
|
|
March 31,
2024
|
|
|
December 31,
2023
|
|
|
September 30,
2023
|
|
|
June 30,
2023
|
|
|
March 31,
2023
|
|
|
USD Debt
|
|
|
|
|
3,746 |
|
|
|
|
|
3,859 |
|
|
|
|
|
3,905 |
|
|
|
|
|
3,905 |
|
|
|
|
|
4,103 |
|
|
|
Local Currency Debt
|
|
|
|
|
2,785 |
|
|
|
|
|
2,819 |
|
|
|
|
|
2,817 |
|
|
|
|
|
2,829 |
|
|
|
|
|
2,742 |
|
|
|
Gross Debt
|
|
|
|
|
6,530 |
|
|
|
|
|
6,678 |
|
|
|
|
|
6,721 |
|
|
|
|
|
6,735 |
|
|
|
|
|
6,845 |
|
|
|
Derivatives & Vendor Financing
|
|
|
|
|
66 |
|
|
|
|
|
58 |
|
|
|
|
|
53 |
|
|
|
|
|
51 |
|
|
|
|
|
42 |
|
|
|
Less: Cash
|
|
|
|
|
622 |
|
|
|
|
|
780 |
|
|
|
|
|
765 |
|
|
|
|
|
703 |
|
|
|
|
|
904 |
|
|
|
Net Debt*
|
|
|
|
|
5,975 |
|
|
|
|
|
5,956 |
|
|
|
|
|
6,009 |
|
|
|
|
|
6,083 |
|
|
|
|
|
5,983 |
|
|
|
EBITDAaL* (LTM)
|
|
|
|
|
1,926 |
|
|
|
|
|
1,812 |
|
|
|
|
|
1,809 |
|
|
|
|
|
1,819 |
|
|
|
|
|
1,882 |
|
|
|
Leverage* |
|
|
|
|
3.10x |
|
|
|
|
|
3.29x |
|
|
|
|
|
3.32x |
|
|
|
|
|
3.34x |
|
|
|
|
|
3.18x |
|
|
*
Net Debt, EBITDAaL and Leverage are non-IFRS measures and are IFRS consolidated figures. See page 10 for a description of non-IFRS measures and for reconciliations to the nearest equivalent IFRS measures.
During the quarter, gross debt declined $148 million to $6,530 million as of March 31, 2024, compared to $6,678 million as of December 31, 2023, as a result of debt repayments and repurchases. During the quarter, we repurchased and cancelled approximately $132 million aggregate principal value of our bonds61 for approximately $117 million, consistent with our deleveraging goals.
As of the end of Q1 2024, 43% of gross debt was in local currency62, while 79% of our debt was at fixed rates63 with an average maturity of 4.5 years. Approximately 64% of gross debt was held at our operating entities,
61
Including MICSA, Comcel and Cable Onda bonds
62
Or swapped for local currency
63
Or swapped for fixed rates
while the remaining 36% was at the corporate level. The average interest rate on our debt was 6.5%. On our dollar-denominated debt64, the average interest rate was 5.7% with an average maturity of 4.9 years.
Cash was $622 million as of March 31, 2024, a decrease of $159 million compared to $780 million as of December 31, 2023, and 65% was held in U.S. dollars. As a result, our net debt was $5,975 million as of March 31, 2024, an increase of $19 million during the quarter, due to share repurchases of $27 million, partially offset by the $15 million discount on bond repurchases. Leverage (net debt to EBITDAaL) was 3.10x as of March 31, 2024, down from 3.29x as of December 31, 2023, with the decline due to the significant improvement in EBITDAaL over the last 12 months.
Operating performance
The information contained herein can also be accessed electronically in the Financial & Operating Data Excel file published at www.millicom.com/investors alongside this earnings release.
Business units
We discuss our performance under two principal business units:
1.
Mobile, including mobile data, mobile voice, and mobile financial services (MFS) to consumer, business and government customers;
2.
Fixed services, including broadband, Pay TV, content, and fixed voice services for residential (Home) customers, as well as voice, data and value-added services and solutions to business and government customers.
On occasion, we also discuss our performance by customer type, with B2B referring to our business and government customers, while B2C includes residential and personal consumer groups.
Market environment
The macroeconomic environment remained relatively stable during the period, with little movement in average foreign exchange rates, with the exception of the Costa Rica colón and Colombian peso, which both appreciated approximately 3% during the quarter, having appreciated approximately 10% and 22%, respectively, over the past year. Foreign exchange rates and movements are presented on page 13.
Key Performance Indicators
During Q1 2024, our mobile customer base increased by 16,000 to end at 40.7 million. Postpaid continued to perform very strongly with net additions of 214,000 in Q1, our strongest performance since seasonally-strong Q4 of 2022. In Colombia, we added 133,000 postpaid customers, as we continued to gain customers reflecting our superior network quality and value proposition. Mobile ARPU increased 8.6% year-on-year, with every country seeing positive ARPU growth in local currency terms.
At the end of Q1 2024, our fixed networks passed 13.4 million homes, an increase of 52,000 during the quarter. HFC/FTTH customer relationships declined 13,000 in Q1 2024. Many countries experienced positive customer net additions, while Colombia saw a significant improvement in churn and fewer customer losses during the quarter, even as we continued to prioritize pricing and investment discipline in that market. Home ARPU increased 9.5% year-on-year, with Colombia up almost 10% in local currency and by more than 30% in U.S. dollar terms.
64
Including SEK denominated bonds that have been swapped into US dollars.
|
Key Performance Indicators* (‘000)
|
|
|
Q1 2024
|
|
|
Q4 2023
|
|
|
Q3 2023
|
|
|
Q2 2023
|
|
|
Q1 2023
|
|
|
Q1 2024 vs
Q1 2023
|
|
|
Mobile customers
|
|
|
|
|
40,681 |
|
|
|
|
|
40,665 |
|
|
|
|
|
40,767 |
|
|
|
|
|
40,600 |
|
|
|
|
|
40,565 |
|
|
|
|
|
0.3% |
|
|
|
Of which 4G customers
|
|
|
|
|
22,349 |
|
|
|
|
|
22,350 |
|
|
|
|
|
21,521 |
|
|
|
|
|
21,201 |
|
|
|
|
|
20,971 |
|
|
|
|
|
6.6% |
|
|
|
Of which postpaid subscribers
|
|
|
|
|
7,344 |
|
|
|
|
|
7,130 |
|
|
|
|
|
6,938 |
|
|
|
|
|
6,739 |
|
|
|
|
|
6,550 |
|
|
|
|
|
12.1% |
|
|
|
Mobile ARPU ($)
|
|
|
|
|
6.3 |
|
|
|
|
|
6.2 |
|
|
|
|
|
6.1 |
|
|
|
|
|
6.0 |
|
|
|
|
|
5.8 |
|
|
|
|
|
8.6% |
|
|
|
Homes passed
|
|
|
|
|
13,400 |
|
|
|
|
|
13,348 |
|
|
|
|
|
13,249 |
|
|
|
|
|
13,097 |
|
|
|
|
|
13,001 |
|
|
|
|
|
3.1% |
|
|
|
Of which HFC/FTTH
|
|
|
|
|
13,169 |
|
|
|
|
|
13,112 |
|
|
|
|
|
13,005 |
|
|
|
|
|
12,836 |
|
|
|
|
|
12,731 |
|
|
|
|
|
3.4% |
|
|
|
Customer relationships
|
|
|
|
|
4,392 |
|
|
|
|
|
4,435 |
|
|
|
|
|
4,554 |
|
|
|
|
|
4,660 |
|
|
|
|
|
4,776 |
|
|
|
|
|
(8.0)% |
|
|
|
Of which HFC/FTTH
|
|
|
|
|
3,855 |
|
|
|
|
|
3,868 |
|
|
|
|
|
3,947 |
|
|
|
|
|
4,033 |
|
|
|
|
|
4,124 |
|
|
|
|
|
(6.5)% |
|
|
|
HFC/FTTH revenue generating units
|
|
|
|
|
8,165 |
|
|
|
|
|
8,619 |
|
|
|
|
|
8,360 |
|
|
|
|
|
8,545 |
|
|
|
|
|
8,683 |
|
|
|
|
|
(6.0)% |
|
|
|
Of which Broadband Internet
|
|
|
|
|
3,602 |
|
|
|
|
|
3,602 |
|
|
|
|
|
3,663 |
|
|
|
|
|
3,727 |
|
|
|
|
|
3,768 |
|
|
|
|
|
(4.4)% |
|
|
|
Home ARPU ($)
|
|
|
|
|
28.3 |
|
|
|
|
|
28.1 |
|
|
|
|
|
27.6 |
|
|
|
|
|
26.7 |
|
|
|
|
|
25.9 |
|
|
|
|
|
9.5% |
|
|
*
KPIs exclude our joint venture in Honduras, which is not consolidated in the Group figures.
Financial indicators
In Q1 2024, revenue increased 8.6% year-on-year to $1,487 million, while service revenue increased 8.8% to $1,376 million. Excluding currency movements, organic service revenue growth was up 3.8% year-on-year, with Mobile up 5.3%, fueled by ARPU growth, while Fixed and other services grew 2.3%. The performance in Fixed largely reflects mid-teen growth in B2B, which more than offset a decline in our Home business during the quarter.
EBITDA was $632 million, up 24.5% year-on-year. Excluding the impact of foreign exchange, EBITDA increased 20.0% organically year-on-year. Included in EBITDA were $30 million of one-off restructuring charges.
Capex was $113 million in the quarter, down 38.9% year-on-year, as we continue to optimize capital investment in all our operations. The capex decline also reflected different phasing in our 2024 investment plans compared to 2023.
Operating Cash Flow (OCF) increased 61.0% year-on-year to $519 million in Q1 2024 from $322 million in Q1 2023.
Financial Highlights*
($m, unless otherwise stated)
|
|
|
Q1 2024
|
|
|
Q1 2023
|
|
|
% change
|
|
|
Organic %
change
|
|
|
Revenue
|
|
|
|
|
1,487 |
|
|
|
|
|
1,369 |
|
|
|
|
|
8.6% |
|
|
|
|
|
3.8% |
|
|
|
Service revenue
|
|
|
|
|
1,376 |
|
|
|
|
|
1,264 |
|
|
|
|
|
8.8% |
|
|
|
|
|
3.8% |
|
|
|
Mobile
|
|
|
|
|
787 |
|
|
|
|
|
721 |
|
|
|
|
|
9.1% |
|
|
|
|
|
|
|
|
|
Fixed and other services
|
|
|
|
|
572 |
|
|
|
|
|
526 |
|
|
|
|
|
8.8% |
|
|
|
|
|
|
|
|
|
Other
|
|
|
|
|
17 |
|
|
|
|
|
17 |
|
|
|
|
|
0.9% |
|
|
|
|
|
|
|
|
|
EBITDA
|
|
|
|
|
632 |
|
|
|
|
|
507 |
|
|
|
|
|
24.5% |
|
|
|
|
|
20.0% |
|
|
|
EBITDA margin
|
|
|
|
|
42.5% |
|
|
|
|
|
37.0% |
|
|
|
5.4 pt
|
|
|
|
|
|
|
|
|
Capex
|
|
|
|
|
113 |
|
|
|
|
|
185 |
|
|
|
|
|
(38.9)% |
|
|
|
|
|
|
|
|
|
OCF
|
|
|
|
|
519 |
|
|
|
|
|
322 |
|
|
|
|
|
61.0% |
|
|
|
|
|
53.0% |
|
|
*
Service revenue, EBITDA, EBITDA margin, Capex, OCF and organic growth are non-IFRS measures. Capex is defined as capital expenditures excluding spectrum, license costs and lease capitalizations. See page 10 for a description of non-IFRS measures and for reconciliations to the nearest equivalent IFRS measures.
Country performance
•
Guatemala service revenue grew 2.0%, while EBITDA increased 7.9%, in local currency terms, a material improvement from recent trends, driven by ARPU growth in Mobile.
•
Colombia service revenue was flat in local currency as high-single digit growth in Mobile offset a decline in Home. EBITDA growth accelerated to 24.2% organically due to both Mobile service revenue growth and continued Home price discipline, as well as savings from Project Everest. The EBITDA margin of 36.5% was a new record. Excluding severance, EBITDA margin would have been 41.4%.
•
Paraguay had a 12th consecutive quarter of positive service revenue growth, up 4.3% in local currency, with all business units contributing. EBITDA grew 14.1% organically, and the EBITDA margin was 48.3%.
•
Panama service revenue grew 17.8%, fueled by large B2B contracts, as well as strong growth in Mobile, while EBITDA grew 26.1% year-on-year. During the quarter, the regulator announced that it would wind-down operations of Digicel on April 20, 2024, after unsuccessfully trying to sell the country’s third mobile operator since taking it over two years ago.
•
Bolivia service revenue was flat, with growth in Mobile and B2B offset by a decline in Home, where we continue to prioritize price discipline. EBITDA increased 12.7% due to savings from Project Everest and reduced commercial activity in Home. During the quarter, we continued to experience challenges in converting Bolivianos to U.S. dollars to pay some of our suppliers, forcing us to delay payments totaling approximately $16 million as of March 31, 2024.
•
Service revenue in our Other segment, comprised of El Salvador, Nicaragua and Costa Rica, increased 5.4%, as growth in Mobile and B2B more than offset a decline in Home. EBITDA increased 17.8% driven by revenue growth and savings from Project Everest.
•
Honduras joint venture (not consolidated) service revenue grew 2.8%, while EBITDA rose 10.2% in local currency. As in Bolivia, currency controls introduced over the past year have limited our joint venture’s ability to purchase U.S. dollars, impacting the payment of dividend advances to shareholders.
ESG highlights — Q1 2024
On March 12, we published our 2023 Annual Report, providing a comprehensive overview of our financial performance, corporate governance, and environmental, social, and governance (ESG) initiatives. Aligned with our commitment to transparency and sustainability, we simultaneously published the SASB and GRI indices.
Environment
Likewise during the first quarter, Millicom received the 2023 CDP (formerly Carbon Disclosure Project) rating, maintaining our B score and an unchanged AA rating from MSCI; reflecting our ongoing efforts to measure and manage our environmental impact, mitigate climate risks, and capitalize on opportunities arising from the transition to a low-carbon economy.
Society
Conectadas, our education and digital inclusion program aimed at fostering mobile internet usage and skill development among women trained over 30,000 women in Q1 2024. We provided training to over 1,000 educators via our Maestr@s Conectad@s program, while our Conéctate Segur@ program has positively impacted the lives of more than 15,000 children, 1,000 teachers, and 10,000 parents and caregivers through training and education.
Governance
Aude Durand joined the Board of Millicom on February 26, 2024. On March 22, 2024, Millicom announced that Sheldon Bruha would be stepping down from the role of Chief Financial Officer. He is succeeded by Bart Vanhaeren beginning on April 15, 2024.
On April 23, 2024, Millicom published its convening notice for the annual general meeting (AGM) and an extraordinary general meeting (EGM) of shareholders that will take place on May 23, 2024. Millicom’s Nomination Committee proposed to the AGM, the election of Maxime Lombardini and Justine Dimovic as new Directors of the Board; the re-election of María Teresa Arnal Machado, Bruce Churchill, Aude Durand,
Tomas Eliasson, Mauricio Ramos, Thomas Reynaud, and Blanca Treviño de Vega as Directors of the Board; and the election of Mauricio Ramos as Chair of the Board. Ms. Pernille Erenbjerg and Mr. Michael Golan have declined re-election.
On April 25, Millicom’s Board of Directors announced the appointment of Marcelo Benitez as CEO of Millicom, effective June 1. Benitez has had a distinguished career with Millicom, having joined the company in Paraguay nearly 30 years ago and risen through the Company’s ranks to his most recent role as CEO of TIGO Panama.
Compliance
During Q1, we designed the Compliance KPIs for 2024, which will have a remunerative effect on country General Managers and other bonus-eligible employees. These KPIs are largely the same as in 2023, in order to maintain consistency and alignment, with some incremental changes to support adoption of new program elements or direct additional focus into specific areas.
Video conference details
A video conference to discuss these results will take place on May 8 at 14:00 (Luxembourg/Stockholm) / 13:00 (London) / 08:00 (Miami). Registration for the live event is required and is available at the following link. After registering, participants will receive a confirmation email containing details about joining the video conference. Alternatively, participants can join in a listen-only mode, by dialing any of the following numbers and using webinar ID number 822-3803-6738. Please dial a number base on your location:
| |
US
|
|
|
+1 929 205 6099
|
|
|
Sweden:
|
|
|
+46 850 539 728
|
|
| |
UK:
|
|
|
+44 330 088 5830
|
|
|
Luxembourg:
|
|
|
+352 342 080 9265
|
|
Additional international numbers are available at the following link.
Financial calendar
2024
|
Date
|
|
|
Event
|
|
|
May 23, 2024
|
|
|
AGM & EGM
|
|
|
August 8, 2024
|
|
|
Q2 2024 results
|
|
|
November 7, 2024
|
|
|
Q3 2024 results
|
|
For further information, please contact
| |
Press:
|
|
|
Investors:
|
|
| |
Sofia Corral, Communications Director
|
|
|
Michel Morin, VP Investor Relations
|
|
| |
press@millicom.com
|
|
|
investors@millicom.com
|
|
About Millicom
Millicom (NASDAQ U.S.: TIGO, Nasdaq Stockholm: TIGO_SDB) is a leading provider of fixed and mobile telecommunications services in Latin America. Through our TIGO® and Tigo Business® brands, we provide a wide range of digital services and products, including TIGO Money for mobile financial services, TIGO Sports for local entertainment, TIGO ONEtv for pay TV, high-speed data, voice, and business-to-business solutions such as cloud and security. As of March 31, 2024, Millicom, including its Honduras Joint Venture, employed approximately 15,500 people and provided mobile and fiber-cable services through its digital highways to more than 45 million customers, with a fiber-cable footprint about 14 million homes passed. Founded in 1990, Millicom International Cellular S.A. is headquartered in Luxembourg.
Regulatory Statement
This information was prior to this release inside information and is information that Millicom is obliged to make public pursuant to the EU Market Abuse Regulation. This information was submitted for publication, through the agency of the contact person set out above, at 12:00 CET on May 8, 2024.
Forward-Looking Statements
Statements included herein that are not historical facts, including without limitation statements concerning future strategy, plans, objectives, expectations and intentions, projected financial results, liquidity, growth and prospects, are forward-looking statements. Such forward-looking statements involve a number of risks and uncertainties and are subject to change at any time. In the event such risks or uncertainties materialize, Millicom’s results could be materially adversely affected. In particular, there is uncertainty about global economic activity and inflation, the demand for Millicom’s products and services, and global supply chains. The risks and uncertainties include, but are not limited to, the following:
•
global economic conditions, foreign exchange rate fluctuations and high inflation, as well as local economic conditions in the markets we serve, which can be impacted by geopolitical developments outside of our principal geographic markets, such as the armed conflict between Russia and the Ukraine and related sanctions;
•
potential disruption due to diseases, pandemics, political events, armed conflict, acts by terrorists, including the impact of the COVID-19 virus and the ongoing efforts throughout the world to contain it;
•
telecommunications usage levels, including traffic, customer growth and the accelerated transition from traditional to digital services;
•
competitive forces,including pricing pressures, piracy, the ability to connect to other operators’ networks and our ability to retain market share in the face of competition from existing and new market entrants as well as industry consolidation;
•
the achievement of our operational goals, environmental, social and governance targets, financial targets and strategic plans, including the acceleration of cash flow growth, the expansion of our fixed broadband network, the reintroduction of a share repurchase program and the reduction in net leverage;
•
legal or regulatory developments and changes, or changes in governmental policy, including with respect to the availability and terms and conditions of spectrum and licenses, the level of tariffs, laws and regulations which require the provision of services to customers without charging, tax matters, controls or limits on the purchase of U.S. dollars, the terms of interconnection, customer access and international settlement arrangements;
•
our ability to grow our mobile financial services business in our Latin American markets;
•
adverse legal or regulatory disputes or proceedings;
•
the success of our business, operating and financing initiatives and strategies, including partnerships and capital expenditure plans;
•
our expectations regarding the growth in fixed broadband penetration rates and the return that our investment in broadband networks will yield;
•
the level and timing of the growth and profitability of new initiatives, start-up costs associated with entering new markets, the successful deployment of new systems and applications to support new initiatives;
•
our ability to create new organizational structures for the Tigo Money and Towers businesses and manage them independently to enhance their value;
•
relationships with key suppliers and costs of handsets and other equipment;
•
disruptions in our supply chain due to economic and political instability, the outbreak of war or other hostilities, public health emergencies, natural disasters and general business conditions;
•
our ability to successfully pursue acquisitions, investments or merger opportunities, integrate any acquired businesses in a timely and cost-effective manner, divest or restructure assets and businesses, and achieve the expected benefits of such transactions;
•
the availability, terms and use of capital, the impact of regulatory and competitive developments on capital outlays, the ability to achieve cost savings and realize productivity improvements;
•
technological development and evolving industry standards, including challenges in meeting customer demand for new technology and the cost of upgrading existing infrastructure;
•
cybersecurity threats, a security breach or other significant disruption of our IT systems or those of our business partners, suppliers or customers;
•
the capacity to upstream cash generated in operations through dividends, royalties, management fees and repayment of shareholder loans; and
•
other factors or trends affecting our financial condition or results of operations.
A further list and description of risks, uncertainties and other matters can be found in Millicom’s Registration Statement on Form 20-F, including those risks outlined in “Item 3. Key Information — D. Risk Factors,” and in Millicom’s subsequent U.S. Securities and Exchange Commission filings, all of which are available at www.sec.gov. All forward-looking statements attributable to us or any person acting on our behalf are expressly qualified in their entirety by this cautionary statement. Readers are cautioned not to place undue reliance on these forward-looking statements that speak only as of the date hereof. Except to the extent otherwise required by applicable law, we do not undertake any obligation to update or revise forward-looking statements, whether as a result of new information, future events or otherwise.
Non-IFRS Measures
This press release contains financial measures not prepared in accordance with IFRS. These measures are referred to as “non-IFRS” measures and include: non-IFRS service revenue, non-IFRS EBITDA, and non-IFRS Capex, among others defined below. Annual growth rates for these non-IFRS measures are often expressed in organic constant currency terms to exclude the effect of changes in foreign exchange rates, the adoption of new accounting standards, and are proforma for material changes in perimeter due to acquisitions and divestitures. The non-IFRS financial measures are presented in this press release as Millicom’s management believes they provide investors with an additional information for the analysis of Millicom’s results of operations, particularly in evaluating performance from one period to another. Millicom’s management uses non-IFRS financial measures to make operating decisions, as they facilitate additional internal comparisons of Millicom’s performance to historical results and to competitors’ results, and provides them to investors as a supplement to Millicom’s reported results to provide additional insight into Millicom’s operating performance. Millicom’s Remuneration Committee uses certain non-IFRS measures when assessing the performance and compensation of employees, including Millicom’s executive directors.
The non-IFRS financial measures used by Millicom may be calculated differently from, and therefore may not be comparable to, similarly titled measures used by other companies — refer to the section “Non-IFRS Financial Measure Descriptions” for additional information. In addition, these non-IFRS measures should not be considered in isolation as a substitute for, or as superior to, financial measures calculated in accordance with IFRS, and Millicom’s financial results calculated in accordance with IFRS and reconciliations to those financial statements should be carefully evaluated.
Non-IFRS Financial Measure Descriptions
Service revenue is revenue related to the provision of ongoing services such as monthly subscription fees for mobile and broadband, airtime and data usage fees, interconnection fees, roaming fees, mobile finance service commissions and fees from other telecommunications services such as data services, short message services, installation fees and other value-added services excluding telephone and equipment sales.
EBITDA is operating profit excluding impairment losses, depreciation and amortization, and gains/losses on fixed asset disposals.
EBITDA after Leases (EBITDAaL) represents EBITDA after lease interest expense and depreciation charge.
EBITDA Margin represents EBITDA in relation to Revenue.
Organic growth represents year-on-year growth excluding the impact of changes in FX rates, perimeter, and accounting. Changes in perimeter are the result of acquisitions and divestitures. Results from divested assets
are immediately removed from both periods, whereas the results from acquired assets are included in both periods at the beginning (January 1) of the first full calendar year of ownership.
Net debt is Debt and financial liabilities, including derivative instruments (assets and liabilities), less cash and pledged and time deposits.
Leverage is the ratio of net debt over LTM (Last twelve month) EBITDAaL, proforma for acquisitions made during the last twelve months.
Capex is balance sheet capital expenditure excluding spectrum and license costs and lease capitalizations.
Cash Capex represents the cash spent in relation to capital expenditure, excluding spectrum and licenses costs.
Operating Cash Flow (OCF) is EBITDA less Capex.
Operating Free Cash Flow (OFCF) is EBITDA, less cash capex, less spectrum paid, working capital and other non-cash items, and taxes paid.
Equity Free Cash Flow (EFCF) is OFCF less finance charges paid (net), lease interest payments, lease principal repayments, and advances for dividends to non-controlling interests, plus cash repatriation from joint ventures and associates.
Operating Profit After Tax displays the profit generated from the operations of the company after statutory taxes.
Return on Invested Capital (ROIC) is used to assess the Group’s efficiency at allocating the capital under its control to and is defined as Operating Profit After Tax divided by the average invested Capital during the period.
Average Invested Capital is the capital invested in the company operation throughout the year and is calculated with the average of opening and closing balances of the total assets minus current liabilities (excluding debt, joint ventures, accrued interests, deferred and current tax, cash as well as investments and non-controlling interests), less assets and liabilities held for sale.
Average Revenue per User per Month (ARPU) for our Mobile customers is (x) the total mobile and mobile financial services revenue (excluding revenue earned from tower rentals, call center, data and mobile virtual network operator, visitor roaming, national third parties roaming and mobile telephone equipment sales revenue) for the period, divided by (y) the average number of mobile subscribers for the period, divided by (z) the number of months in the period. We define ARPU for our Home customers as (x) the total Home revenue (excluding equipment sales and TV advertising) for the period, divided by (y) the average number of customer relationships for the period, divided by (z) the number of months in the period. ARPU is not subject to a standard industry definition and our definition of ARPU may be different from other industry participants.
Please refer to our 2023 Annual Report for a list and description of non-IFRS measures.
Non-IFRS Reconciliations
Reconciliation from Reported Growth to Organic Growth for the Group
|
($ millions)
|
|
|
Revenue
Q1 2024
|
|
|
Service Revenue
Q1 2024
|
|
|
EBITDA
Q1 2024
|
|
|
OCF
Q1 2024
|
|
|
A – Current period
|
|
|
|
|
1,487 |
|
|
|
|
|
1,376 |
|
|
|
|
|
632 |
|
|
|
|
|
519 |
|
|
|
B – Prior year period
|
|
|
|
|
1,369 |
|
|
|
|
|
1,264 |
|
|
|
|
|
507 |
|
|
|
|
|
322 |
|
|
|
C – Reported growth (A/B)
|
|
|
|
|
8.6% |
|
|
|
|
|
8.8% |
|
|
|
|
|
24.5% |
|
|
|
|
|
61.0% |
|
|
|
D – FX and other*
|
|
|
|
|
4.8% |
|
|
|
|
|
5.1% |
|
|
|
|
|
4.5% |
|
|
|
|
|
8.0% |
|
|
|
E – Organic Growth (C – D)
|
|
|
|
|
3.8% |
|
|
|
|
|
3.8% |
|
|
|
|
|
20.0% |
|
|
|
|
|
53.0% |
|
|
*
Organic growth calculated by re-basing all periods to the budget FX rates of the current year. This creates small differences captured in “Other”. Capex included in OCF is assumed to be in USD and is not rebased.
EBITDA after Leases reconciliation
|
EBITDA after Leases Reconciliation
|
|
|
Q1 2024
|
|
|
Q4 2023
|
|
|
Q3 2023
|
|
|
Q2 2023
|
|
|
EBITDA
|
|
|
|
|
632 |
|
|
|
|
|
557 |
|
|
|
|
|
533 |
|
|
|
|
|
515 |
|
|
|
Depreciation of right-of-use assets
|
|
|
|
|
(51) |
|
|
|
|
|
(48) |
|
|
|
|
|
(47) |
|
|
|
|
|
(45) |
|
|
|
Interest expense on leases
|
|
|
|
|
(30) |
|
|
|
|
|
(29) |
|
|
|
|
|
(30) |
|
|
|
|
|
(30) |
|
|
|
EBITDA after Leases
|
|
|
|
|
551 |
|
|
|
|
|
479 |
|
|
|
|
|
456 |
|
|
|
|
|
440 |
|
|
One-off Summary — Items above EBITDA
|
Everest restructuring ($ millions)
|
|
|
Q1 2024
|
|
|
Q1 2023
|
|
|
Colombia
|
|
|
|
|
(18) |
|
|
|
|
|
(7) |
|
|
|
Corporate & Others
|
|
|
|
|
(12) |
|
|
|
|
|
(8) |
|
|
|
Group Total
|
|
|
|
|
(30)
|
|
|
|
|
|
(15) |
|
|
ARPU reconciliations
|
Mobile ARPU Reconciliation
|
|
|
Q1 2024
|
|
|
Q1 2023
|
|
|
Mobile service revenue ($m)
|
|
|
|
|
787 |
|
|
|
|
|
721 |
|
|
|
Mobile service revenue ($m) from non-Tigo customers ($m)*
|
|
|
|
|
(14) |
|
|
|
|
|
(12) |
|
|
|
Mobile service revenue ($m) from Tigo customers (A)
|
|
|
|
|
773 |
|
|
|
|
|
709 |
|
|
|
Mobile customers – end of period (000)
|
|
|
|
|
40,681 |
|
|
|
|
|
40,565 |
|
|
|
Mobile customers – average (000) (B) **
|
|
|
|
|
40,673 |
|
|
|
|
|
40,570 |
|
|
|
Mobile ARPU (USD/Month) (A/B/number of months)
|
|
|
|
|
6.3 |
|
|
|
|
|
5.8 |
|
|
*
Refers to production services, MVNO, DVNO, equipment rental revenue, call center revenue, national roaming, equipment sales, visitor roaming, tower rental, DVNE, and other non-customer driven revenue.
**
Average QoQ for the quarterly view is the average of the last quarter.
|
Home ARPU Reconciliation
|
|
|
Q1 2024
|
|
|
Q1 2023
|
|
|
Home service revenue ($m)
|
|
|
|
|
382 |
|
|
|
|
|
379 |
|
|
|
Home service revenue ($m) from non-Tigo customers ($m)*
|
|
|
|
|
(7) |
|
|
|
|
|
(7) |
|
|
|
Home service revenue ($m) from Tigo customers (A)
|
|
|
|
|
375 |
|
|
|
|
|
372 |
|
|
|
Customer Relationships – end of period (000)**
|
|
|
|
|
4,392 |
|
|
|
|
|
4,776 |
|
|
|
Customer Relationships – average (000) (B)***
|
|
|
|
|
4,413 |
|
|
|
|
|
4,793 |
|
|
|
Home ARPU (USD/Month) (A/B/number of months)
|
|
|
|
|
28.3 |
|
|
|
|
|
25.9 |
|
|
Beginning in Q1 2023 the calculation of Home ARPU now includes equipment rental.
*
TV advertising, production services, equipment rental revenue, call center revenue, equipment sales and other non customer driven revenue.
**
Represented by homes connected all technologies (HFC/FTTH + Other Technologies + DTH & Wimax RGUs).
***
Average QoQ for the quarterly view is the average of the last quarter.
OCF (EBITDA — Capex) Reconciliation
|
Group OCF
|
|
|
Q1 2024
|
|
|
Q1 2023
|
|
|
EBITDA
|
|
|
|
|
632 |
|
|
|
|
|
507 |
|
|
|
(-)Capex (Ex. Spectrum)
|
|
|
|
|
113 |
|
|
|
|
|
185 |
|
|
|
OCF |
|
|
|
|
519 |
|
|
|
|
|
322 |
|
|
Capex Reconciliation
|
Capex Reconciliation
|
|
|
Q1 2024
|
|
|
Q1 2023
|
|
|
Consolidated:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Additions to property, plant and equipment
|
|
|
|
|
89 |
|
|
|
|
|
154 |
|
|
|
Additions to licenses and other intangibles
|
|
|
|
|
91 |
|
|
|
|
|
302 |
|
|
|
Of which spectrum and license costs
|
|
|
|
|
67 |
|
|
|
|
|
271 |
|
|
|
Total consolidated additions
|
|
|
|
|
180 |
|
|
|
|
|
456 |
|
|
|
Of which capital expenditures related to headquarters
|
|
|
|
|
— |
|
|
|
|
|
1 |
|
|
Equity Free Cash Flow Reconciliation
|
Cash Flow Data
|
|
|
Q1 2024
|
|
|
Q1 2023
|
|
|
Net cash provided by operating activities
|
|
|
|
|
240 |
|
|
|
|
|
201 |
|
|
|
Purchase of property, plant and equipment
|
|
|
|
|
(131) |
|
|
|
|
|
(228) |
|
|
|
Proceeds from sale of property, plant and equipment
|
|
|
|
|
39 |
|
|
|
|
|
3 |
|
|
|
Purchase of intangible assets and licenses
|
|
|
|
|
(41) |
|
|
|
|
|
(64) |
|
|
|
Purchase of spectrum and licenses
|
|
|
|
|
(78) |
|
|
|
|
|
(53) |
|
|
|
Proceeds from sale of intangible assets
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
Finance charges paid, net
|
|
|
|
|
161 |
|
|
|
|
|
157 |
|
|
|
Operating free cash flow
|
|
|
|
|
190 |
|
|
|
|
|
17 |
|
|
|
Interest (paid), net
|
|
|
|
|
(161) |
|
|
|
|
|
(157) |
|
|
|
Lease Principal Repayments
|
|
|
|
|
(42) |
|
|
|
|
|
(40) |
|
|
|
Free cash flow
|
|
|
|
|
(14) |
|
|
|
|
|
(180) |
|
|
|
Repatriation from joint ventures and associates
|
|
|
|
|
15 |
|
|
|
|
|
48 |
|
|
|
Dividends paid to non-controlling interests
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
Equity free cash flow
|
|
|
|
|
1 |
|
|
|
|
|
(133) |
|
|
Foreign Exchange rates
| |
|
|
|
|
|
Average FX rate (vs. USD)
|
|
|
|
End of period FX rate (vs. USD)
|
|
| |
|
|
|
|
|
Q1 24
|
|
|
Q4 23
|
|
|
QoQ
|
|
|
Q1 23
|
|
|
YoY
|
|
|
|
Q1 24
|
|
|
Q4 23
|
|
|
QoQ
|
|
|
Q1 23
|
|
|
YoY
|
|
|
Bolivia
|
|
|
BOB
|
|
|
|
|
6.91 |
|
|
|
|
|
6.91 |
|
|
|
|
|
0.0% |
|
|
|
|
|
6.91 |
|
|
|
|
|
0.0% |
|
|
|
|
|
|
6.91 |
|
|
|
|
|
6.91 |
|
|
|
|
|
0.0% |
|
|
|
|
|
6.91 |
|
|
|
|
|
0.0% |
|
|
|
Colombia
|
|
|
COP
|
|
|
|
|
3,881 |
|
|
|
|
|
3,979 |
|
|
|
|
|
2.5% |
|
|
|
|
|
4,719 |
|
|
|
|
|
21.6% |
|
|
|
|
|
|
3,842 |
|
|
|
|
|
3,822 |
|
|
|
|
|
(0.5)% |
|
|
|
|
|
4,627 |
|
|
|
|
|
20.4% |
|
|
|
Costa Rica
|
|
|
CRC
|
|
|
|
|
517 |
|
|
|
|
|
535 |
|
|
|
|
|
3.4% |
|
|
|
|
|
567 |
|
|
|
|
|
9.7% |
|
|
|
|
|
|
507 |
|
|
|
|
|
527 |
|
|
|
|
|
4.0% |
|
|
|
|
|
546 |
|
|
|
|
|
7.8% |
|
|
|
Guatemala
|
|
|
GTQ
|
|
|
|
|
7.81 |
|
|
|
|
|
7.84 |
|
|
|
|
|
0.3% |
|
|
|
|
|
7.83 |
|
|
|
|
|
0.2% |
|
|
|
|
|
|
7.79 |
|
|
|
|
|
7.83 |
|
|
|
|
|
0.5% |
|
|
|
|
|
7.80 |
|
|
|
|
|
0.2% |
|
|
|
Honduras
|
|
|
HNL
|
|
|
|
|
24.72 |
|
|
|
|
|
24.72 |
|
|
|
|
|
0.0% |
|
|
|
|
|
24.64 |
|
|
|
|
|
(0.3)% |
|
|
|
|
|
|
24.73 |
|
|
|
|
|
24.71 |
|
|
|
|
|
(0.1)% |
|
|
|
|
|
24.64 |
|
|
|
|
|
(0.3)% |
|
|
|
Nicaragua
|
|
|
NIO
|
|
|
|
|
36.62 |
|
|
|
|
|
36.58 |
|
|
|
|
|
(0.1)% |
|
|
|
|
|
36.30 |
|
|
|
|
|
(0.9)% |
|
|
|
|
|
|
36.62 |
|
|
|
|
|
36.62 |
|
|
|
|
|
0.0% |
|
|
|
|
|
36.35 |
|
|
|
|
|
(0.7)% |
|
|
|
Paraguay
|
|
|
PYG
|
|
|
|
|
7,316 |
|
|
|
|
|
7,367 |
|
|
|
|
|
0.7% |
|
|
|
|
|
7,269 |
|
|
|
|
|
(0.6)% |
|
|
|
|
|
|
7,399 |
|
|
|
|
|
7,278 |
|
|
|
|
|
(1.6)% |
|
|
|
|
|
7,195 |
|
|
|
|
|
(2.7)% |
|
|
Millicom International Cellular S.A.
For the three-month period ended March 31, 2024
May 8, 2024
Unaudited interim condensed consolidated statement of income for the three-month period
ended March 31, 2024
in millions of U.S. dollars except per share data
Continuing Operations
|
|
|
Notes
|
|
|
Three months ended
March 31, 2024
|
|
|
Three months ended
March 31, 2023
|
|
|
Revenue
|
|
|
5
|
|
|
|
|
1,487 |
|
|
|
|
|
1,369 |
|
|
|
Equipment, programming and other direct costs
|
|
|
|
|
|
|
|
(382) |
|
|
|
|
|
(372) |
|
|
|
Operating expenses
|
|
|
|
|
|
|
|
(473) |
|
|
|
|
|
(490) |
|
|
|
Depreciation
|
|
|
|
|
|
|
|
(247) |
|
|
|
|
|
(244) |
|
|
|
Amortization
|
|
|
|
|
|
|
|
(87) |
|
|
|
|
|
(87) |
|
|
|
Share of profit in Honduras joint venture
|
|
|
8
|
|
|
|
|
13 |
|
|
|
|
|
11 |
|
|
|
Other operating income (expenses), net
|
|
|
|
|
|
|
|
13 |
|
|
|
|
|
2 |
|
|
|
Operating profit
|
|
|
|
|
|
|
|
324 |
|
|
|
|
|
190 |
|
|
|
Interest and other financial expenses
|
|
|
11
|
|
|
|
|
(183) |
|
|
|
|
|
(170) |
|
|
|
Interest and other financial income
|
|
|
|
|
|
|
|
19 |
|
|
|
|
|
5 |
|
|
|
Other non-operating (expenses) income, net
|
|
|
6
|
|
|
|
|
(7) |
|
|
|
|
|
19 |
|
|
|
Profit (loss) from other joint ventures and associates, net
|
|
|
|
|
|
|
|
— |
|
|
|
|
|
(4) |
|
|
|
Profit before taxes from continuing operations
|
|
|
|
|
|
|
|
153 |
|
|
|
|
|
39 |
|
|
|
Tax expense
|
|
|
|
|
|
|
|
(71) |
|
|
|
|
|
(59) |
|
|
|
Net profit (loss) for the period
|
|
|
|
|
|
|
|
82 |
|
|
|
|
|
(20) |
|
|
|
Attributable to:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Owners of the Company
|
|
|
|
|
|
|
|
92 |
|
|
|
|
|
3 |
|
|
|
Non-controlling interests
|
|
|
|
|
|
|
|
(10) |
|
|
|
|
|
(23) |
|
|
|
Earnings/(loss) per common share for net profit/ (loss) attributable to the owners of the Company:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic ($ per share)
|
|
|
7
|
|
|
|
|
0.54 |
|
|
|
|
|
0.02 |
|
|
|
Diluted ($ per share)
|
|
|
7
|
|
|
|
|
0.53 |
|
|
|
|
|
0.02 |
|
|
The accompanying notes are an integral part of these unaudited interim condensed consolidated financial statements
Unaudited interim condensed consolidated statement of comprehensive income for the three-month period
ended March 31, 2024
|
in millions of U.S. dollars
|
|
|
Three months ended
March 31, 2024
|
|
|
Three months ended
March 31, 2023
|
|
|
Net profit (loss) for the period
|
|
|
|
|
82 |
|
|
|
|
|
(20) |
|
|
|
Other comprehensive income (to be reclassified to statement of income in
subsequent periods), net of tax:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Exchange differences on translating foreign operations
|
|
|
|
|
9 |
|
|
|
|
|
11 |
|
|
|
Change in value of cash flow hedges, net of tax effects
|
|
|
|
|
(3) |
|
|
|
|
|
(5) |
|
|
|
Total comprehensive income (loss) for the period
|
|
|
|
|
88 |
|
|
|
|
|
(14) |
|
|
|
Attributable to:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Owners of the Company
|
|
|
|
|
98 |
|
|
|
|
|
11 |
|
|
|
Non-controlling interests
|
|
|
|
|
(10) |
|
|
|
|
|
(25) |
|
|
The accompanying notes are an integral part of these unaudited interim condensed consolidated financial statements
Unaudited interim condensed consolidated statement of financial position as at March 31, 2024
|
in millions of U.S. dollars
|
|
|
Notes
|
|
|
March 31,
2024
|
|
|
December 31,
2023
|
|
|
ASSETS
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
NON-CURRENT ASSETS
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Intangible assets, net
|
|
|
4, 10
|
|
|
|
|
6,953 |
|
|
|
|
|
7,785 |
|
|
|
Property, plant and equipment, net
|
|
|
4, 9
|
|
|
|
|
2,884 |
|
|
|
|
|
3,107 |
|
|
|
Right of use assets, net
|
|
|
|
|
|
|
|
941 |
|
|
|
|
|
896 |
|
|
|
Investment in Honduras joint venture
|
|
|
8
|
|
|
|
|
589 |
|
|
|
|
|
576 |
|
|
|
Contract costs, net
|
|
|
|
|
|
|
|
12 |
|
|
|
|
|
12 |
|
|
|
Deferred tax assets
|
|
|
|
|
|
|
|
141 |
|
|
|
|
|
141 |
|
|
|
Other non-current assets
|
|
|
|
|
|
|
|
89 |
|
|
|
|
|
84 |
|
|
|
TOTAL NON-CURRENT ASSETS
|
|
|
|
|
|
|
|
11,608 |
|
|
|
|
|
12,601 |
|
|
|
CURRENT ASSETS
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Inventories
|
|
|
|
|
|
|
|
59 |
|
|
|
|
|
45 |
|
|
|
Trade receivables, net
|
|
|
|
|
|
|
|
431 |
|
|
|
|
|
443 |
|
|
|
Contract assets, net
|
|
|
|
|
|
|
|
80 |
|
|
|
|
|
82 |
|
|
|
Amounts due from non-controlling interests, associates and joint ventures
|
|
|
|
|
|
|
|
14 |
|
|
|
|
|
12 |
|
|
|
Derivative financial instruments
|
|
|
13
|
|
|
|
|
5 |
|
|
|
|
|
6 |
|
|
|
Prepayments and accrued income
|
|
|
|
|
|
|
|
238 |
|
|
|
|
|
168 |
|
|
|
Current income tax assets
|
|
|
|
|
|
|
|
113 |
|
|
|
|
|
118 |
|
|
|
Supplier advances for capital expenditure
|
|
|
|
|
|
|
|
22 |
|
|
|
|
|
21 |
|
|
|
Other current assets
|
|
|
|
|
|
|
|
164 |
|
|
|
|
|
190 |
|
|
|
Restricted cash
|
|
|
|
|
|
|
|
53 |
|
|
|
|
|
56 |
|
|
|
Cash and cash equivalents
|
|
|
|
|
|
|
|
622 |
|
|
|
|
|
775 |
|
|
|
TOTAL CURRENT ASSETS
|
|
|
|
|
|
|
|
1,802 |
|
|
|
|
|
1,915 |
|
|
|
Assets held for sale
|
|
|
4
|
|
|
|
|
943 |
|
|
|
|
|
— |
|
|
|
TOTAL ASSETS
|
|
|
|
|
|
|
|
14,353 |
|
|
|
|
|
14,516 |
|
|
|
EQUITY AND LIABILITIES
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
EQUITY
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Share capital and premium
|
|
|
|
|
|
|
|
1,325 |
|
|
|
|
|
1,334 |
|
|
|
Treasury shares
|
|
|
|
|
|
|
|
(14) |
|
|
|
|
|
(8) |
|
|
|
Other reserves
|
|
|
|
|
|
|
|
(525) |
|
|
|
|
|
(500) |
|
|
|
Retained profits
|
|
|
|
|
|
|
|
2,725 |
|
|
|
|
|
2,785 |
|
|
|
Net profit/ (loss) for the period attributable to owners of the Company
|
|
|
|
|
|
|
|
92 |
|
|
|
|
|
(82) |
|
|
|
Equity attributable to owners of the Company
|
|
|
|
|
|
|
|
3,603 |
|
|
|
|
|
3,529 |
|
|
|
Non-controlling interests
|
|
|
|
|
|
|
|
(94) |
|
|
|
|
|
(84) |
|
|
|
TOTAL EQUITY
|
|
|
|
|
|
|
|
3,509 |
|
|
|
|
|
3,445 |
|
|
|
LIABILITIES
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
NON-CURRENT LIABILITIES
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Debt and financing
|
|
|
11
|
|
|
|
|
6,094 |
|
|
|
|
|
6,476 |
|
|
|
Lease liabilities
|
|
|
4
|
|
|
|
|
937 |
|
|
|
|
|
854 |
|
|
|
Derivative financial instruments
|
|
|
13
|
|
|
|
|
59 |
|
|
|
|
|
46 |
|
|
|
Amounts due to non-controlling interests, associates and joint ventures
|
|
|
|
|
|
|
|
22 |
|
|
|
|
|
12 |
|
|
|
Payables and accruals for capital expenditure
|
|
|
10
|
|
|
|
|
81 |
|
|
|
|
|
885 |
|
|
|
Provisions and other non-current liabilities
|
|
|
|
|
|
|
|
318 |
|
|
|
|
|
330 |
|
|
|
Deferred tax liabilities
|
|
|
|
|
|
|
|
140 |
|
|
|
|
|
140 |
|
|
|
TOTAL NON-CURRENT LIABILITIES
|
|
|
|
|
|
|
|
7,650 |
|
|
|
|
|
8,742 |
|
|
|
CURRENT LIABILITIES
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Debt and financing
|
|
|
11
|
|
|
|
|
449 |
|
|
|
|
|
221 |
|
|
|
Lease liabilities
|
|
|
|
|
|
|
|
203 |
|
|
|
|
|
189 |
|
|
|
Put option liability
|
|
|
|
|
|
|
|
86 |
|
|
|
|
|
86 |
|
|
|
Payables and accruals for capital expenditure
|
|
|
|
|
|
|
|
210 |
|
|
|
|
|
314 |
|
|
|
Other trade payables
|
|
|
|
|
|
|
|
312 |
|
|
|
|
|
390 |
|
|
|
Amounts due to non-controlling interests, associates and joint ventures
|
|
|
|
|
|
|
|
61 |
|
|
|
|
|
62 |
|
|
|
Accrued interest and other expenses
|
|
|
|
|
|
|
|
458 |
|
|
|
|
|
444 |
|
|
|
Current income tax liabilities
|
|
|
|
|
|
|
|
120 |
|
|
|
|
|
93 |
|
|
|
Contract liabilities
|
|
|
|
|
|
|
|
109 |
|
|
|
|
|
156 |
|
|
|
Provisions and other current liabilities
|
|
|
|
|
|
|
|
330 |
|
|
|
|
|
374 |
|
|
|
TOTAL CURRENT LIABILITIES
|
|
|
|
|
|
|
|
2,338 |
|
|
|
|
|
2,329 |
|
|
|
Liabilities directly associated with assets held for sale
|
|
|
4
|
|
|
|
|
857 |
|
|
|
|
|
— |
|
|
|
TOTAL LIABILITIES
|
|
|
|
|
|
|
|
10,845 |
|
|
|
|
|
11,071 |
|
|
|
TOTAL EQUITY AND LIABILITIES
|
|
|
|
|
|
|
|
14,353 |
|
|
|
|
|
14,516 |
|
|
The accompanying notes are an integral part of these unaudited interim condensed consolidated financial statements
Unaudited interim condensed consolidated statement of cash flows for the period
ended March 31, 2024
|
in millions of U.S. dollars
|
|
|
Notes
|
|
|
March 31,
2024
|
|
|
March 31,
2023
|
|
|
Cash flows from operating activities
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Profit before taxes
|
|
|
|
|
|
|
|
153 |
|
|
|
|
|
39 |
|
|
|
Adjustments to reconcile to net cash:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest expense on leases
|
|
|
|
|
|
|
|
30 |
|
|
|
|
|
29 |
|
|
|
Interest expense on debt and other financing
|
|
|
|
|
|
|
|
153 |
|
|
|
|
|
142 |
|
|
|
Interest and other financial income
|
|
|
|
|
|
|
|
(19) |
|
|
|
|
|
(5) |
|
|
|
Adjustments for non-cash items:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Depreciation and amortization
|
|
|
|
|
|
|
|
334 |
|
|
|
|
|
331 |
|
|
|
Share of profit in Honduras joint venture
|
|
|
8
|
|
|
|
|
(13) |
|
|
|
|
|
(11) |
|
|
|
Gain on disposal and impairment of assets, net
|
|
|
|
|
|
|
|
(13) |
|
|
|
|
|
(2) |
|
|
|
Share-based compensation
|
|
|
|
|
|
|
|
10 |
|
|
|
|
|
13 |
|
|
|
Loss from other associates and joint ventures, net
|
|
|
|
|
|
|
|
— |
|
|
|
|
|
4 |
|
|
|
Other non-cash non-operating (income) expenses, net
|
|
|
6
|
|
|
|
|
7 |
|
|
|
|
|
(19) |
|
|
|
Changes in working capital:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Decrease (increase) in trade receivables, prepayments and other current assets, net
|
|
|
|
|
|
|
|
(56) |
|
|
|
|
|
(100) |
|
|
|
Decrease (increase) in inventories
|
|
|
|
|
|
|
|
(15) |
|
|
|
|
|
(14) |
|
|
|
Increase (decrease) in trade and other payables, net
|
|
|
|
|
|
|
|
(85) |
|
|
|
|
|
(6) |
|
|
|
Changes in contract assets, liabilities and costs, net
|
|
|
|
|
|
|
|
(47) |
|
|
|
|
|
(3) |
|
|
|
Total changes in working capital
|
|
|
|
|
|
|
|
(202) |
|
|
|
|
|
(124) |
|
|
|
Interest paid on leases
|
|
|
|
|
|
|
|
(29) |
|
|
|
|
|
(29) |
|
|
|
Interest paid on debt and other financing
|
|
|
|
|
|
|
|
(150) |
|
|
|
|
|
(134) |
|
|
|
Interest received
|
|
|
|
|
|
|
|
18 |
|
|
|
|
|
5 |
|
|
|
Taxes paid
|
|
|
|
|
|
|
|
(38) |
|
|
|
|
|
(37) |
|
|
|
Net cash provided by operating activities
|
|
|
|
|
|
|
|
240 |
|
|
|
|
|
201 |
|
|
|
Cash flows from investing activities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Purchase of spectrum and licenses
|
|
|
10
|
|
|
|
|
(78) |
|
|
|
|
|
(53) |
|
|
|
Purchase of other intangible assets
|
|
|
10
|
|
|
|
|
(41) |
|
|
|
|
|
(64) |
|
|
|
Purchase of property, plant and equipment
|
|
|
9
|
|
|
|
|
(131) |
|
|
|
|
|
(228) |
|
|
|
Proceeds from sale of property, plant and equipment
|
|
|
9
|
|
|
|
|
39 |
|
|
|
|
|
3 |
|
|
|
Dividends and dividend advances received from joint ventures and associates
|
|
|
|
|
|
|
|
8 |
|
|
|
|
|
42 |
|
|
|
Transfer (to) / from pledge deposits, net
|
|
|
|
|
|
|
|
5 |
|
|
|
|
|
— |
|
|
|
Loans granted within the Tigo Money lending activity, net
|
|
|
|
|
|
|
|
(1) |
|
|
|
|
|
(2) |
|
|
|
Cash (used in) provided by other investing activities, net
|
|
|
|
|
|
|
|
7 |
|
|
|
|
|
5 |
|
|
|
Net cash used in investing activities
|
|
|
|
|
|
|
|
(192) |
|
|
|
|
|
(297) |
|
|
|
Cash flows from financing activities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Proceeds from debt and other financing
|
|
|
11
|
|
|
|
|
22 |
|
|
|
|
|
15 |
|
|
|
Repayment of debt and other financing
|
|
|
11
|
|
|
|
|
(155) |
|
|
|
|
|
(17) |
|
|
|
Lease capital repayment
|
|
|
|
|
|
|
|
(42) |
|
|
|
|
|
(40) |
|
|
|
Share repurchase program
|
|
|
|
|
|
|
|
(27) |
|
|
|
|
|
— |
|
|
|
Net cash from (used in) financing activities
|
|
|
|
|
|
|
|
(202) |
|
|
|
|
|
(43) |
|
|
|
Exchange impact on cash and cash equivalents, net
|
|
|
|
|
|
|
|
1 |
|
|
|
|
|
2 |
|
|
|
Net increase (decrease) in cash and cash equivalents
|
|
|
|
|
|
|
|
(153) |
|
|
|
|
|
(136) |
|
|
|
Cash and cash equivalents at the beginning of the year
|
|
|
|
|
|
|
|
775 |
|
|
|
|
|
1,039 |
|
|
|
Cash and cash equivalents at the end of the period
|
|
|
|
|
|
|
|
622 |
|
|
|
|
|
903 |
|
|
The accompanying notes are an integral part of these unaudited interim condensed consolidated financial statements
Unaudited interim condensed consolidated statements of changes in equity for the three-month period
ended March 31, 2024
|
in millions of U.S. dollars
|
|
|
Number of
shares
(000’s)
|
|
|
Number of
shares
held by
the Group
(000’s)
|
|
|
Share
capital
|
|
|
Share
premium
|
|
|
Treasury
shares
|
|
|
Retained
profits(i)
|
|
|
Other
reserves
|
|
|
Total
|
|
|
Non-
controlling
interests
|
|
|
Total
equity
|
|
|
Balance on January 1, 2023
|
|
|
|
|
172,096 |
|
|
|
|
|
(1,213) |
|
|
|
|
|
258 |
|
|
|
|
|
1,085 |
|
|
|
|
|
(47) |
|
|
|
|
|
2,868 |
|
|
|
|
|
(559) |
|
|
|
|
|
3,605 |
|
|
|
|
|
29 |
|
|
|
|
|
3,634 |
|
|
|
Total comprehensive income for the year
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
3 |
|
|
|
|
|
7 |
|
|
|
|
|
11 |
|
|
|
|
|
(25) |
|
|
|
|
|
(14) |
|
|
|
Purchase of treasury shares(ii)
|
|
|
|
|
— |
|
|
|
|
|
(33) |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
(1) |
|
|
|
|
|
1 |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
Share based compensation
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
13 |
|
|
|
|
|
13 |
|
|
|
|
|
— |
|
|
|
|
|
13 |
|
|
|
Issuance of shares under share-based payment schemes
|
|
|
|
|
— |
|
|
|
|
|
71 |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
3 |
|
|
|
|
|
— |
|
|
|
|
|
(2) |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
Effect of the buy-out of non-controlling interests in Panama
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
(1) |
|
|
|
|
|
— |
|
|
|
|
|
(1) |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
Balance on March 31, 2023
|
|
|
|
|
172,096 |
|
|
|
|
|
(1,175) |
|
|
|
|
|
258 |
|
|
|
|
|
1,085 |
|
|
|
|
|
(46) |
|
|
|
|
|
2,871 |
|
|
|
|
|
(541) |
|
|
|
|
|
3,627 |
|
|
|
|
|
4 |
|
|
|
|
|
3,632 |
|
|
|
Balance on December 31, 2023
|
|
|
|
|
172,096 |
|
|
|
|
|
(370) |
|
|
|
|
|
258 |
|
|
|
|
|
1,076 |
|
|
|
|
|
(8) |
|
|
|
|
|
2,703 |
|
|
|
|
|
(500) |
|
|
|
|
|
3,529 |
|
|
|
|
|
(84) |
|
|
|
|
|
3,445 |
|
|
|
Total comprehensive income/ (loss) for the period
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
92 |
|
|
|
|
|
6 |
|
|
|
|
|
98 |
|
|
|
|
|
(10) |
|
|
|
|
|
88 |
|
|
|
Dividends to non-controlling interests
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
(1) |
|
|
|
|
|
(1) |
|
|
|
Purchase of treasury shares(ii)
|
|
|
|
|
— |
|
|
|
|
|
(1,824) |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
(34) |
|
|
|
|
|
1 |
|
|
|
|
|
— |
|
|
|
|
|
(33) |
|
|
|
|
|
— |
|
|
|
|
|
(33) |
|
|
|
Share based compensation
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
9 |
|
|
|
|
|
9 |
|
|
|
|
|
— |
|
|
|
|
|
10 |
|
|
|
Issuance of shares under share-based payment schemes
|
|
|
|
|
— |
|
|
|
|
|
1,488 |
|
|
|
|
|
— |
|
|
|
|
|
(9) |
|
|
|
|
|
29 |
|
|
|
|
|
21 |
|
|
|
|
|
(41) |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
Balance on March 31, 2024
|
|
|
|
|
172,096 |
|
|
|
|
|
(706) |
|
|
|
|
|
258 |
|
|
|
|
|
1,067 |
|
|
|
|
|
(14) |
|
|
|
|
|
2,817 |
|
|
|
|
|
(525) |
|
|
|
|
|
3,603 |
|
|
|
|
|
(94) |
|
|
|
|
|
3,509 |
|
|
(i)
Retained profits — includes profit for the period attributable to equity holders, of which at March 31, 2024, $498 million (2023: $481 million) are not distributable to equity holders.
(ii)
During the three-month period ended March 31, 2024, Millicom repurchased 1,472,620 shares for a total amount of $27 million and withheld approximately 351,295 shares for the settlement of tax obligations on behalf of employees under share-based compensation plans (2023: 33,290 shares withheld).
The accompanying notes are an integral part of these unaudited interim condensed consolidated financial statements
Notes to the unaudited interim condensed consolidated financial statements
1. GENERAL INFORMATION
Millicom International Cellular S.A. (the “Company” or “MIC SA”), a Luxembourg Société Anonyme, and its subsidiaries, joint ventures and associates (the “Group” or “Millicom”) is a provider of cable and mobile services dedicated to emerging markets in Latin America. Millicom provides high speed broadband and innovation around The Digital Lifestyle® services through its principal brand, TIGO.
On May 7, 2024, the Board of Directors authorized these unaudited interim condensed consolidated financial statements for issuance.
2. SUMMARY OF ACCOUNTING POLICIES
I. Basis of presentation
These interim condensed consolidated financial statements of the Group are unaudited. They are presented in US dollars ($) and have been prepared in accordance with International Accounting Standard (“IAS”) 34 ‘Interim Financial Reporting’ as issued by the International Accounting Standards Board (“IASB”) and as adopted by the European Union (“EU”). In the opinion of management, these unaudited interim condensed consolidated financial statements reflect all adjustments that are necessary for a proper presentation of the results for interim periods. Millicom’s operations are not affected by significant seasonal or cyclical patterns.
These unaudited interim condensed consolidated financial statements should be read in conjunction with the audited consolidated financial statements for the period ended December 31, 2023, which have been prepared in accordance with International Financial Reporting Standards (“IFRS”) as issued by the IASB and in conformity with IFRS as adopted by the EU. These financial statements are prepared in accordance with consolidation and accounting policies consistent with the December 31, 2023 consolidated financial statements, except for the changes described in items III below.
We have made rounding adjustments to reach some of the figures included in these unaudited interim condensed consolidated financial statements. Accordingly, numerical figures shown as totals in some tables may not be an arithmetic aggregation of the figures that preceded them and percentage calculations using these adjusted figures may not result in the same percentage values as are shown in these unaudited interim condensed consolidated financial statements.
II. New and amended IFRS standards
The following changes to standards have been adopted by the Group and did not have any significant impact on the Group’s accounting policies or disclosures and did not require retrospective adjustments:
•
Amendments to IFRS 16 ‘Leases: Lease Liability in a Sale and Leaseback’: The amendment specifies the requirements that a seller-lessee uses in measuring the lease liability arising in a sale and leaseback transaction, to ensure the seller-lessee does not recognize any amount of the gain or loss that relates to the right of use it retains.
•
Amendments to IAS 1, ‘Presentation of Financial Statements’: These amendments aim to improve the information an entity provides when its right to defer settlement of a liability is subject to compliance with covenants within twelve months after the reporting period.
•
Amendments to IAS 7, ‘Statement of Cash Flows’ and IFRS 7, ‘Financial Instruments: Disclosures: Supplier Finance Arrangements’ (not yet endorsed by the EU): These amendments require disclosures to enhance the transparency of supplier finance arrangements and their effects on a company’s liabilities, cash flows and exposure to liquidity risk. The disclosure requirements are the IASB’s response to investors’ concerns that some companies’ supplier finance arrangements are not sufficiently visible, hindering investors’ analysis.
The following changes to standards are effective for annual periods starting on January 1, 2025 and their potential impact on the Group consolidated financial statements is currently being assessed by management:
•
Amendments to IAS 21, ‘The Effects of Changes in Foreign Exchange Rates’: Lack of Exchangeability (not yet endorsed by the EU): These amendments help entities to determine whether a currency is exchangeable into another currency, and the spot exchange rate to use when it is not.
The following standards are effective for annual periods starting on January 1, 2027 and their potential impact on the Group consolidated financial statements is currently being assessed by management:
•
IFRS 18, ‘Presentation and Disclosure in Financial Statements’ (not yet endorsed by the EU): IFRS 18 will replace IAS 1. Its aim is to improve the usefulness of information presented and disclosed in financial statements, giving investors more transparent and comparable information about companies’ financial performance.
3. ACQUISITION AND DISPOSAL OF SUBSIDIARIES, JOINT VENTURES, ASSOCIATES AND OTHER NON-CONTROLLING INTERESTS
Acquisitions or Disposals for the three-month period ended March 31, 2024
There were no material acquisitions or disposals during the three-month period ended March 31, 2024.
Acquisitions or Disposal in 2023
There were no material acquisitions or disposals during the year ended December 31, 2023.
4. ASSETS HELD FOR SALE AND DISCONTINUED OPERATIONS
Assets held for sale- Summary
|
Assets and liabilities reclassified as held for sale ($ millions)
|
|
|
March 31,
2024
|
|
|
December 31,
2023
|
|
|
Towers sale in Colombia related to the second batch
|
|
|
|
|
14 |
|
|
|
|
|
— |
|
|
|
Mobile network sharing agreement in Colombia
|
|
|
|
|
929 |
|
|
|
|
|
— |
|
|
|
Total assets of held for sale
|
|
|
|
|
943
|
|
|
|
|
|
— |
|
|
|
Towers sale in Colombia related to the second batch
|
|
|
|
|
2 |
|
|
|
|
|
— |
|
|
|
Mobile network sharing agreement in Colombia
|
|
|
|
|
855 |
|
|
|
|
|
|
|
|
|
Total liabilities directly associated with assets held for sale
|
|
|
|
|
857
|
|
|
|
|
|
— |
|
|
|
Net assets held for sale / book value
|
|
|
|
|
86
|
|
|
|
|
|
— |
|
|
Assets held for sale — Towers sale in Colombia
On January 24, 2024, Colombia Movil S.A. ESP (“Tigo Colombia”) signed an agreement to sell and lease back, under a long-term lease agreement, 1,132 telecommunication towers to Towernex Colombia S.A.S. (“Towernex”), a KKR company. The total sale consideration amounts to $77 million, out of which $19 million will be received in subsequent years. Under IFRS 16, this transaction is considered a sale and leaseback.
The transfer of the towers to Towernex is intended to happen in two batches as follows:
•
First batch (occurred on March 14, 2024): 759 towers were sold, generating proceeds of $38 million, net of transaction costs, for Tigo Colombia. The company also recorded lease obligations and a financing component totaling $48 million related to the towers sold and leased back.
•
Second batch (expected in August 2024): The remaining 373 towers are intended to be sold. In accordance with IFRS 5 the remaining towers have been reclassified as assets held for sale and their depreciation has stopped.
Assets held for sale — Mobile Network sharing agreement in Colombia
On February 26, 2024, Tigo Colombia and Telecomunicaciones S.A. ESP BIC (“ColTel”) signed an agreement to share their mobile networks. This collaboration is subject to certain third party approvals which are still in progress and will involve two new joint arrangements:
•
A ‘NetCo’: This company will hold and manage the radio access network (RAN) infrastructure as well as the site lease agreements. Each operator will own 50% of NetCo.
•
A ‘Unión Temporal’: This temporary joint arrangement will manage the spectrum licenses and related liabilities. Similarly, ownership will be split 50/50 between the two operators.
In accordance with IFRS 5, certain assets and related liabilities have been reclassified as “held for sale” and depreciation has been stopped for the following assets and liabilities
•
RAN assets (equipment used by NetCo);
•
Spectrum licenses and related liabilities (managed by the Union Temporal)
The agreement between Tigo Colombia and ColTel does not currently include how they will handle site lease agreements. Because of this, the assets and liabilities related to these leases have not been classified as “held for sale” yet.
Discontinued operations — Tanzania
As per the sale agreement, the initial sale price (which is still subject to final price adjustment) was adjusted to consider some outstanding tax and legal contingencies which management believes is sufficient to cover any future claims on pre-closing matters. Should the price adjustments not be sufficient, Millicom might be liable and need to make additional provisions that are not covered by the latter. In addition, the agreement also provided an IPO adjustment clause which expired on April 5, 2024.
As of March 31, 2024, no additional provisions have been made by management in respect of the aforementioned items.
5. SEGMENT INFORMATION
As further detailed in note 1, Millicom operates in a single region (Latin America), and more specifically in the following countries: Guatemala, Colombia, Panama, Honduras, Bolivia, Paraguay, El Salvador, Nicaragua and Costa Rica.
The General Managers of the operations report to the Group President and COO in the case of Guatemala and Colombia and to the Group Chief Commercial and Technology Officer in the case of the rest of the operations, who, together with the Group Chief Executive Officer (CEO) and Group Chief Financial Officer (CFO) form the ‘Chief Operating Decision Maker’ (“CODM”).
Millicom’s CODM assesses performance and allocates resources based on individual countries, which are its operating segments. The Honduras joint venture is reviewed by the CODM in a similar manner as for the Group’s controlled operations and is therefore also shown as a separate operating segment at 100%. However, these amounts are subsequently eliminated in order to reconcile with the Group consolidated numbers, as shown in the reconciliations below.
Management evaluates performance and makes decisions about allocating resources to the Group’s operating segments based on financial measures, such as revenue, including service revenue, and EBITDA. Capital expenditures are also a significant aspect for management and in the telecommunication industry as a whole. Management believes that service revenue and EBITDA are essential financial indicators for the CODM and investors. These measures are particularly valuable for evaluating performance over time. Management utilizes service revenue and EBITDA when making operational decisions, allocating resources, and conducting internal comparisons against historical performance and competitor benchmarks. Additionally, these metrics provide deeper insights into the Group’s operating performance. Millicom’s Remuneration Committee also employs service revenue and EBITDA when assessing employees’ performance and compensation, including that of the Group’s executives. A reconciliation of service revenue to revenue and EBITDA to profit before taxes is provided below.
Before the organizational changes which took place in the second half of 2023 (as further explained in the 2023 Group’s Annual Report), the Group reported a single segment, the Group Segment. As aforementioned, and since 2023 year-end, the Group considers the individual countries it operates in as its operating and reportable segments, and the below comparative information has been re-presented accordingly.
Revenue, Service revenue, EBITDA, capital expenditures and other segment information for the three-month periods ended March 31, 2024, and 2023 are shown on the below:
Three months ended March 31, 2024
(in millions of U.S. dollars)
|
|
|
Guatemala
|
|
|
Colombia
|
|
|
Panama
|
|
|
Bolivia
|
|
|
Honduras
|
|
|
Paraguay
|
|
|
Other
reportable
segments(v)
|
|
|
Total for
reportable
segments
|
|
|
Inter-segment
and other
eliminations(iv)
|
|
|
Total
Group
|
|
|
Service revenue(i)
|
|
|
|
|
341 |
|
|
|
|
|
346 |
|
|
|
|
|
187 |
|
|
|
|
|
150 |
|
|
|
|
|
145 |
|
|
|
|
|
137 |
|
|
|
|
|
219 |
|
|
|
|
|
1,526 |
|
|
|
|
|
(150) |
|
|
|
|
|
1,376 |
|
|
|
Telephone and equipment revenue
|
|
|
|
|
57 |
|
|
|
|
|
9 |
|
|
|
|
|
23 |
|
|
|
|
|
2 |
|
|
|
|
|
8 |
|
|
|
|
|
5 |
|
|
|
|
|
16 |
|
|
|
|
|
120 |
|
|
|
|
|
(8) |
|
|
|
|
|
112 |
|
|
|
Revenue |
|
|
|
|
398 |
|
|
|
|
|
355 |
|
|
|
|
|
209 |
|
|
|
|
|
152 |
|
|
|
|
|
153 |
|
|
|
|
|
142 |
|
|
|
|
|
235 |
|
|
|
|
|
1,645 |
|
|
|
|
|
(158) |
|
|
|
|
|
1,487 |
|
|
|
Inter-segment revenue
|
|
|
|
|
2 |
|
|
|
|
|
— |
|
|
|
|
|
1 |
|
|
|
|
|
— |
|
|
|
|
|
1 |
|
|
|
|
|
1 |
|
|
|
|
|
2 |
|
|
|
|
|
7 |
|
|
|
|
|
n/a |
|
|
|
|
|
n/a |
|
|
|
Revenue from external customers
|
|
|
|
|
396 |
|
|
|
|
|
355 |
|
|
|
|
|
209 |
|
|
|
|
|
152 |
|
|
|
|
|
151 |
|
|
|
|
|
141 |
|
|
|
|
|
233 |
|
|
|
|
|
1,638 |
|
|
|
|
|
n/a |
|
|
|
|
|
n/a |
|
|
|
EBITDA(ii) |
|
|
|
|
215 |
|
|
|
|
|
130 |
|
|
|
|
|
90 |
|
|
|
|
|
65 |
|
|
|
|
|
73 |
|
|
|
|
|
69 |
|
|
|
|
|
100 |
|
|
|
|
|
741 |
|
|
|
|
|
(109) |
|
|
|
|
|
632 |
|
|
|
Capital expenditures(iii)
|
|
|
|
|
43 |
|
|
|
|
|
17 |
|
|
|
|
|
16 |
|
|
|
|
|
5 |
|
|
|
|
|
11 |
|
|
|
|
|
10 |
|
|
|
|
|
22 |
|
|
|
|
|
124 |
|
|
|
|
|
(11) |
|
|
|
|
|
113 |
|
|
(i)
Service revenue is revenue related to the provision of ongoing services such as monthly subscription fees for mobile and broadband, airtime and data usage fees, interconnection fees, roaming fees, mobile finance service commissions and fees from other telecommunications services such as data services, short message services, installation fees and other value-added services excluding telephone and equipment sales.
(ii)
EBITDA is operating profit excluding impairment losses, depreciation and amortization and gains/losses on the disposal of fixed assets.
(iii)
Capital expenditures correspond to additions of property, plant and equipment, as well as operating intangible assets, excluding spectrum and licenses. The Group capital expenditure additions for the three-month periods ended March 31, 2024 and 2023 can be reconciled with notes 9 and 10 for amounts of $89 million and $24 million respectively (2023: $154 million and $31 million, respectively).
(iv)
Includes intercompany eliminations, unallocated items and Honduras as a joint venture.
(v)
Includes our operations in El Salvador, Nicaragua and Costa Rica
Three months ended March 31, 2023
(in millions of U.S. dollars)
|
|
|
Guatemala
|
|
|
Colombia
|
|
|
Panama
|
|
|
Bolivia
|
|
|
Honduras
|
|
|
Paraguay
|
|
|
Other
reportable
segments(v)
|
|
|
Total for
reportable
segments
|
|
|
Inter-segment
and other
eliminations(iv)
|
|
|
Total
Group
|
|
|
Service revenue(i)
|
|
|
|
|
334 |
|
|
|
|
|
286 |
|
|
|
|
|
159 |
|
|
|
|
|
150 |
|
|
|
|
|
141 |
|
|
|
|
|
132 |
|
|
|
|
|
208 |
|
|
|
|
|
1,410 |
|
|
|
|
|
(146) |
|
|
|
|
|
1,264 |
|
|
|
Telephone and equipment revenue
|
|
|
|
|
62 |
|
|
|
|
|
13 |
|
|
|
|
|
8 |
|
|
|
|
|
3 |
|
|
|
|
|
9 |
|
|
|
|
|
6 |
|
|
|
|
|
13 |
|
|
|
|
|
115 |
|
|
|
|
|
(9) |
|
|
|
|
|
105 |
|
|
|
Revenue |
|
|
|
|
396 |
|
|
|
|
|
298 |
|
|
|
|
|
167 |
|
|
|
|
|
153 |
|
|
|
|
|
150 |
|
|
|
|
|
139 |
|
|
|
|
|
221 |
|
|
|
|
|
1,524 |
|
|
|
|
|
(155) |
|
|
|
|
|
1,369 |
|
|
|
Inter-segment revenue
|
|
|
|
|
2 |
|
|
|
|
|
1 |
|
|
|
|
|
1 |
|
|
|
|
|
— |
|
|
|
|
|
1 |
|
|
|
|
|
1 |
|
|
|
|
|
2 |
|
|
|
|
|
7 |
|
|
|
|
|
n/a |
|
|
|
|
|
n/a |
|
|
|
Revenue from external customers
|
|
|
|
|
394 |
|
|
|
|
|
298 |
|
|
|
|
|
166 |
|
|
|
|
|
153 |
|
|
|
|
|
149 |
|
|
|
|
|
138 |
|
|
|
|
|
219 |
|
|
|
|
|
1,518 |
|
|
|
|
|
n/a |
|
|
|
|
|
n/a |
|
|
|
EBITDA(ii) |
|
|
|
|
199 |
|
|
|
|
|
86 |
|
|
|
|
|
71 |
|
|
|
|
|
58 |
|
|
|
|
|
66 |
|
|
|
|
|
61 |
|
|
|
|
|
85 |
|
|
|
|
|
626 |
|
|
|
|
|
(119) |
|
|
|
|
|
507 |
|
|
|
Capital expenditures(iii)
|
|
|
|
|
72 |
|
|
|
|
|
38 |
|
|
|
|
|
17 |
|
|
|
|
|
10 |
|
|
|
|
|
29 |
|
|
|
|
|
19 |
|
|
|
|
|
28 |
|
|
|
|
|
213 |
|
|
|
|
|
(28) |
|
|
|
|
|
185 |
|
|
Reconciliation of EBITDA for reportable segments to the Group’s profit before taxes from continuing operations:
|
(US$ millions)
|
|
|
Three months ended
March 31, 2024
|
|
|
Three months ended
March 31, 2023
|
|
|
EBITDA for reportable segments
|
|
|
|
|
741 |
|
|
|
|
|
626 |
|
|
|
Depreciation
|
|
|
|
|
(247) |
|
|
|
|
|
(244) |
|
|
|
Amortization
|
|
|
|
|
(87) |
|
|
|
|
|
(87) |
|
|
|
Share of profit in Honduras joint venture
|
|
|
|
|
13 |
|
|
|
|
|
11 |
|
|
|
Other operating income (expenses), net
|
|
|
|
|
13 |
|
|
|
|
|
2 |
|
|
|
Interest and other financial expenses
|
|
|
|
|
(183) |
|
|
|
|
|
(170) |
|
|
|
Interest and other financial income
|
|
|
|
|
19 |
|
|
|
|
|
5 |
|
|
|
Other non-operating (expenses) income, net
|
|
|
|
|
(7) |
|
|
|
|
|
19 |
|
|
|
Profit (loss) from other joint ventures and associates, net
|
|
|
|
|
— |
|
|
|
|
|
(4) |
|
|
|
Honduras as joint venture
|
|
|
|
|
(73) |
|
|
|
|
|
(66) |
|
|
|
Unallocated expenses and other reconciling items(i)
|
|
|
|
|
(37) |
|
|
|
|
|
(53) |
|
|
|
Profit before taxes from continuing operations
|
|
|
|
|
153 |
|
|
|
|
|
39 |
|
|
(i)
The unallocated expenses are primarily related to centrally managed costs.
6. OTHER NON-OPERATING (EXPENSES) INCOME, NET
The Group’s other non-operating (expenses) income, net comprised the following:
|
in millions of U.S. dollars
|
|
|
Three months
ended March 31,
2024
|
|
|
Three months
ended March 31,
2023
|
|
|
Change in fair value of derivatives (Note 13)
|
|
|
|
|
— |
|
|
|
|
|
(1) |
|
|
|
Change in value of call option and put option liability
|
|
|
|
|
— |
|
|
|
|
|
2 |
|
|
|
Exchange gains (losses), net
|
|
|
|
|
(7) |
|
|
|
|
|
17 |
|
|
|
Other non-operating income (expenses), net
|
|
|
|
|
— |
|
|
|
|
|
1 |
|
|
|
Total |
|
|
|
|
(7) |
|
|
|
|
|
19 |
|
|
7. EARNINGS PER COMMON SHARE
Earnings per common share (EPS) attributable to owners of the Company are comprised as follows:
|
in millions of U.S. dollars
|
|
|
Three months ended
March 31, 2024
|
|
|
Three months ended
March 31, 2023
|
|
|
Basic and Diluted
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net profit (loss) attributable to equity holders to determine the profit (loss) per share
|
|
|
|
|
92 |
|
|
|
|
|
3 |
|
|
|
in thousands
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted average number of ordinary shares for basic and diluted earnings per share
|
|
|
|
|
171,349 |
|
|
|
|
|
170,908 |
|
|
|
Effect of dilutive share-based compensation plans
|
|
|
|
|
916 |
|
|
|
|
|
492 |
|
|
|
Weighted average number of ordinary shares (excluding treasury shares) adjusted for the effect of dilution(i)
|
|
|
|
|
172,265 |
|
|
|
|
|
171,400 |
|
|
|
in U.S. dollars
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Earnings (loss) per common share for profit (loss) for the period attributable to owners of the Company
|
|
|
|
|
0.54 |
|
|
|
|
|
0.02 |
|
|
|
Diluted
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Earnings (loss) per common share for profit (loss) for the period attributable to owners of the Company
|
|
|
|
|
0.53 |
|
|
|
|
|
0.02 |
|
|
(i)
For the purpose of calculating the diluted earnings (loss) per common share, the weighted average outstanding shares used for the basic earnings (loss) per common share were increased only by the portion of the shares which have a dilutive effect on the earnings (loss) per common share.
8. INVESTMENTS IN JOINT VENTURES
Joint ventures are businesses over which Millicom exercises joint control as decisions over the relevant activities of each, such as the ability to upstream cash from the joint ventures, require unanimous consent of shareholders. Millicom determines the existence of joint control by reference to joint venture agreements, articles of association, structures and voting protocols of the board of directors of those ventures. Our investments in joint ventures is comprised solely of Honduras.
At March 31, 2024, the equity accounted net assets of our joint venture in Honduras totaled $401 million (December 31, 2023: $382 million). These net assets do not necessarily represent statutory reserves available for distribution as these include consolidation adjustments (such as goodwill and identified assets and assumed liabilities recognized as part of the purchase accounting). Out of these net assets, $3 million (December 31, 2023: $3 million) represent statutory reserves that are unavailable to be distributed to the Group. During the three-month period ended March 31, 2024, Millicom’s joint venture in Honduras repatriated cash of $15 million under different forms (March 31, 2023: 48 million).
At March 31, 2024, Millicom had $76 million payable to the Honduras joint venture which were mainly comprised of advances (December 31, 2023: $68 million). In addition, as of March 31, 2024, Millicom had a total receivable from the Honduras joint venture of $11 million, (December 31, 2023: $9 million) mainly corresponding to other operating receivables.
The table below summarizes the movements for the period in respect of the Honduras joint venture’s carrying value:
|
in millions of U.S. dollars
|
|
|
2024
Honduras(i)
|
|
|
Opening Balance at January 1, 2024
|
|
|
|
|
576 |
|
|
|
Millicom’s share of the results for the period
|
|
|
|
|
13 |
|
|
|
Closing Balance at March 31, 2024
|
|
|
|
|
589 |
|
|
(i)
Share of profit is recognized under ‘Share of profit in Honduras joint ventures’ in the statement of income for the period ended March 31, 2024.
9. PROPERTY, PLANT AND EQUIPMENT
During the three-month period ended March 31, 2024, Millicom added property, plant and equipment for $89 million (March 31, 2023: $154 million) and received $39 million from disposal of property, plant and equipment (March 31, 2023: $3 million), including $38 million, net of transaction costs, proceeds from the sale and lease back transaction between Tigo Colombia and Towernex (see note 4).
10. INTANGIBLE ASSETS
During the three-month period ended March 31, 2024, Millicom added intangible assets for $91 million of which $67 million related to spectrum and licenses, and $24 million to additions of other intangible assets (March 31, 2023: $302 million of which $271 million related to spectrum and licenses and $31 million to additions of other intangible assets) and did not receive any proceeds from disposal of intangible assets (March 31, 2023: nil).
On February 23, 2024, the Colombia’s Ministerio de Tecnologias de la Informacion y las Comunicaciones (‘MINTIC’) granted the right to use a total of 80 MHz in the 3.5 GHz band to the Unión Temporal formed between Colombia Móvil S.A. E.S.P. — Colombia Telecomunicaciones S.A E.S.P. BIC (see note 4). The 50/50 Unión Temporal agreed a total notional consideration of COP 318 billion (equivalent to approximately US$81 million at initial date’s exchange rate). This includes coverage and social obligations to provide internet to schools and delivery of satellite earth station filters. The license is valid for 20 years, expiring in 2044. The payment will be spread out in annual installments over the entire term and bear interest at a 24-month consumer price index (CPI) rate.
On February 28, 2024, the local regulator in Paraguay, Conatel, granted the renewal of spectrum in the 700 Mhz band operated by Tigo Paraguay, for a total cash consideration of $8 million and subject to certain social obligations. The license is valid for a period of 5 years, expiring in 2029.
11. FINANCIAL OBLIGATIONS
A. Debt and financing
The most material movements in debt and financing for the three-month period ended March 31, 2024 were as follows. When applicable, local currency amounts are translated in USD using the exchange rate at the time of occurrence.
Luxembourg
During the three-month period ended March 31, 2024, Millicom repurchased and cancelled some of the 2031 USD 4.5% Senior Notes on the open market for a total nominal amount of approximately $17 million. The repurchase price discount of approximately $3 million towards the carrying value has been recognized as financial income.
Colombia
On February 20, 2024, UNE EPM Telecomunicaciones S.A. (“UNE”) executed a COP 85 billion (approximately $21 million) working capital loan with Banco Colombia. The loan has a maturity of 1 year.
Guatemala
During the three-month period ended March 31, 2024, Comcel repurchased and cancelled some of the USD Comcel Senior Notes USD 5.125% on the open market for a total nominal amount of approximately $88 million. The repurchase price discount of approximately $9 million towards the carrying value has been recognized as financial income.
Bolivia
In February 2024, Tigo Bolivia early repaid two local bank loans of BOB 17 million and BOB 23 million (approximately $2 million and $3 million, respectively). Also on March 2024 Tigo Bolivia repaid a local bank loan of BOB 136 (approximately $20 million).
Panama
During the three-month period ended March 31, 2024, “Telecomunicaciones Digitales, S.A.” repurchased and cancelled some of the USD 4.500% Senior Notes on the open market for a total amount of approximately $27 million. The repurchase price discount of approximately $3 million with the carrying value has been recognized as a financial income.
B. Analysis of debt and financing by maturity
The total amount of debt and financing is repayable as follows:
|
in millions of U.S. dollars
|
|
|
As at March 31,
2024(i)
|
|
|
As at December 31,
2023(i)
|
|
|
Due within:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
One year
|
|
|
|
|
436 |
|
|
|
|
|
202 |
|
|
|
One-two years
|
|
|
|
|
426 |
|
|
|
|
|
445 |
|
|
|
Two-three years
|
|
|
|
|
836 |
|
|
|
|
|
836 |
|
|
|
Three-four years
|
|
|
|
|
1,275 |
|
|
|
|
|
1,002 |
|
|
|
Four-five years
|
|
|
|
|
1,182 |
|
|
|
|
|
1,002 |
|
|
|
After five years
|
|
|
|
|
2,374 |
|
|
|
|
|
3,191 |
|
|
|
Total debt and financing
|
|
|
|
|
6,530 |
|
|
|
|
|
6,678 |
|
|
(i)
Excluding vendor financing of $12 million, due within one year (December 31, 2023: $18 million).
The table below describes the outstanding and maximum exposure under guarantees and the remaining terms of the guarantees as at March 31, 2024 and December 31, 2023.
| |
|
|
Bank and financing guarantees(i)
|
|
|
Supplier guarantees
|
|
|
in millions of U.S. dollars
Terms
|
|
|
As at March 31, 2024
|
|
|
As at December 31, 2023
|
|
|
As at March 31, 2024
|
|
|
As at December 31, 2023
|
|
| |
Outstanding and Maximum exposure
|
|
|
Outstanding and Maximum exposure
|
|
|
0 – 1 year
|
|
|
|
|
27 |
|
|
|
|
|
15 |
|
|
|
|
|
2 |
|
|
|
|
|
1 |
|
|
|
1 – 3 years
|
|
|
|
|
302 |
|
|
|
|
|
322 |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
3 – 5 years
|
|
|
|
|
158 |
|
|
|
|
|
169 |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
Total |
|
|
|
|
486 |
|
|
|
|
|
505 |
|
|
|
|
|
2 |
|
|
|
|
|
1 |
|
|
(i)
If non-payment by the obligor, the guarantee ensures payment of outstanding amounts by the Group’s guarantor.
The Group’s interest and other financial expenses comprised the following:
|
in millions of U.S. dollars
|
|
|
Three months ended
March 31, 2024
|
|
|
Three months ended
March 31, 2023
|
|
|
Interest expense on bonds and bank financing
|
|
|
|
|
(119) |
|
|
|
|
|
(116) |
|
|
|
Interest expense on leases
|
|
|
|
|
(30) |
|
|
|
|
|
(29) |
|
|
|
Others
|
|
|
|
|
(34) |
|
|
|
|
|
(25) |
|
|
|
Total interest and other financial expenses
|
|
|
|
|
(183) |
|
|
|
|
|
(170) |
|
|
12. COMMITMENTS AND CONTINGENCIES
Litigation & claims
The Company and its operations are contingently liable with respect to lawsuits, legal, regulatory, commercial and other legal risks that arise in the normal course of business. As of March 31, 2024, the total amount of claims brought against MIC SA and its subsidiaries is $304 million (December 31, 2023: $328 million). The Group’s share of the comparable exposure for its joint venture in Honduras is $8 million (December 31, 2023: $9 million).
As at March 31, 2024, $14 million has been provisioned by its subsidiaries for these risks in the unaudited interim condensed consolidated statement of financial position (December 31, 2023: $14 million). The Group’s share of provisions made by the joint venture was $1 million (December 31, 2023: $1 million). While it is not possible to ascertain the ultimate legal and financial liability with respect to these claims and risks, the ultimate outcome is not anticipated to have a material effect on the Group’s financial position and results of operations.
On February 13, 2024, the New York Supreme Court granted summary judgment in favor of a breach of contract claim filed by Telefónica after Millicom terminated the acquisition of Telefónica’s Costa Rican business in 2020. The Court also ruled in favor of Telefónica’s methodology for calculating prejudgment interest. As of the time of the issuance of this report, the Court has not yet determined the exact amount of damages, and a final judgment has not yet been entered. Millicom disagrees with the decision and continues to believe that it has strong arguments in its favor. Millicom plans to file an appeal of the ruling.
Taxation
At March 31, 2024, the tax risks exposure of the Group’s subsidiaries is estimated at $278 million, for which provisions of $53 million have been recorded in tax liabilities; representing management’s assessment of the probable cash outflow of eventual claims and required payments related to those risks (December 31, 2023: $279 million of which provisions of $52 million were recorded). The Group’s share of comparable tax exposure and provisions in its joint venture amounts to $123 million (December 31, 2023: $118 million) and $7 million (December 31, 2023: $7 million), respectively.
Capital commitments
At March 31, 2024, the Company and its subsidiaries had fixed commitments to purchase network equipment, other fixed assets and intangible assets of $304 million of which $257 million are due within one year (December 31, 2023: $350 million of which $254 million are due within one year). The Group’s share of commitments in the Honduras joint venture is $22 million of which $22 million are due within one year. (December 31, 2023: $18 million and $18 million respectively).
13. FINANCIAL INSTRUMENTS
Other than the items disclosed below, the fair values of financial assets and financial liabilities approximate their carrying values as at March 31, 2024 and December 31, 2023:
| |
|
|
Carrying value
|
|
|
Fair value(i)
|
|
|
in millions of U.S. dollars
|
|
|
As at March 31,
2024
|
|
|
As at December 31,
2023
|
|
|
As at March 31,
2024
|
|
|
As at December 31,
2023
|
|
|
Financial liabilities
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Debt and financing(ii)
|
|
|
|
|
6,530 |
|
|
|
|
|
6,678 |
|
|
|
|
|
6,017 |
|
|
|
|
|
6,086 |
|
|
(i)
Fair values are measured with reference to Level 1 (for listed bonds) or 2.
(ii)
Excluding vendor financing of $12 million (December 31, 2023: $18 million).
Derivative financial instruments
Currency and interest rate swap contracts
MIC SA entered into swap contracts in order to hedge the foreign currency and interest rate risks in relation to the 2024 SEK 2 billion bond and the foreign currency risk in relation to the 2027 SEK 2.2 billion bond
(approximately $208 million and $252 million, respectively, using the exchange rate at the time of the issuance of each bond) issued in May 2019 and January 2022 with maturity dates May 2024 and January 2027, respectively. All swap contracts attached to the 2024 SEK 2 billion bond were terminated on May 10, 2023, after the early redemption of the bond and were settled against a cash payment of $26 million.
In January 2023, MIC SA also entered into two currency swap agreements to hedge an intercompany receivable of COP 206 billion (approximately $41 million) owed by Tigo-UNE with maturity date January 2026. These swaps are accounted for as cash flow hedges as hedging relationships are highly effective.
The fair value of the aforementioned swaps amounts to a liability of $59 million as of March 31, 2024 (December 31, 2023: a liability of $46 million).
The Group’s operations in Colombia entered into several swap agreements in order to hedge foreign currency and interest rate risks on certain long-term debts. These swaps are accounted for as cash flow hedges and related fair value changes are recorded through other comprehensive income. The fair value of Colombia swaps amounted to an asset of $5 million as of March 31, 2024 (December 31, 2023: an asset of $6 million).
As a result, the net fair value of the derivative financial instruments for the Group, as of March 31, 2024 amounted to a liability of $54 million (December 31, 2023: a liability of $40 million )
Interest rate and currency swaps are measured with reference to Level 2 of the fair value hierarchy. There are no other derivative financial instruments with a material fair value at March 31, 2024.
14. SUBSEQUENT EVENTS
7.375% $450 million Senior Notes due 2032
On April 2, 2024, MIC SA completed the issuance of its 7.375% $450 million Senior Notes due 2032 (the “Notes”). Millicom used a portion of the net proceeds from the issuance of the Notes to repay in full certain bank loans with DNB for $200 million, and aims to use the remaining net proceeds for the repayment,redemption, retirement or repurchase of existing indebtedness of Millicom and its subsidiaries and for other general corporate purposes.
Share Repurchases
As part of the repurchase program launched during Q4 2023, Millicom has continued to repurchase shares in April 2024, acquiring an additional of 147,105 shares for a total amount of $3 million during the month.
Bond Repurchases
During April 2024, we continued to repurchase bonds in the secondary markets. Telecel Paraguay repurchased and cancelled some of its US$ 5.875% senior notes for a total nominal amount of approximately $25 million while MIC S.A. repurchased and cancelled $15 million of its 5.125% 2028 senior notes.
Colombia Financing
On April 25, 2024, UNE issued a COP 160 billion (approximately $40 million) bond consisting of one tranche with a three year maturity. Interest rate is fixed at 17% and payable in Colombian peso. This bond is intended to refinance the Tranche A (for COP 160 billion) of the bond issued in May 2016, due in May 2024.
Appendix
On August 28, 2023, Millicom designated Tigo-UNE, Colombia Móvil S.A. E.S.P., Edatel S.A. E.S.P., Orbitel Servicios Internacionales S.A.S., Cinco Telecom Corp., Inversiones Telco S.A.S. and Emtelco S.A.S. (collectively, the “Colombia Unrestricted Subsidiaries”), which are the entities constituting its Colombian operations as “Unrestricted Subsidiaries” under the 4.500% Notes, the 6.625% Notes, the 5.125% Notes, the 6.250% Notes, the SEK Bond, COP Bond and several of its financing agreements.
The following supplemental consolidating financial information presents selected statement of income and statement of financial position information of Millicom and its Restricted Subsidiaries (as defined under its outstanding credit instruments) separately from such information for Millicom’s Unrestricted Subsidiaries.
Statement of income
$ millions
|
|
|
Millicom Group
(A)
|
|
|
Colombia
Unrestricted
Subsidiaries
(B)
|
|
|
Intercompany
Eliminations
(C)
|
|
|
Millicom
Restricted
Group
(A) – (B) net of (C)
|
|
|
Three months ended March 31, 2024
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Revenue
|
|
|
|
|
1,487 |
|
|
|
|
|
355 |
|
|
|
|
|
— |
|
|
|
|
|
1,132 |
|
|
|
Equipment, programming and other direct costs
|
|
|
|
|
(382) |
|
|
|
|
|
(92) |
|
|
|
|
|
— |
|
|
|
|
|
(291) |
|
|
|
Operating expenses
|
|
|
|
|
(473) |
|
|
|
|
|
(134) |
|
|
|
|
|
1 |
|
|
|
|
|
(338) |
|
|
|
Depreciation
|
|
|
|
|
(247) |
|
|
|
|
|
(72) |
|
|
|
|
|
— |
|
|
|
|
|
(175) |
|
|
|
Amortization
|
|
|
|
|
(87) |
|
|
|
|
|
(25) |
|
|
|
|
|
— |
|
|
|
|
|
(62) |
|
|
|
Share of profit in Honduras joint venture
|
|
|
|
|
13 |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
13 |
|
|
|
Other operating income (expenses), net
|
|
|
|
|
13 |
|
|
|
|
|
12 |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
Operating profit
|
|
|
|
|
324 |
|
|
|
|
|
46 |
|
|
|
|
|
1 |
|
|
|
|
|
279 |
|
|
|
Net financial expenses
|
|
|
|
|
(164) |
|
|
|
|
|
(63) |
|
|
|
|
|
2 |
|
|
|
|
|
(99) |
|
|
|
Other non-operating (expenses) income, net
|
|
|
|
|
(7) |
|
|
|
|
|
(1) |
|
|
|
|
|
— |
|
|
|
|
|
(6) |
|
|
|
Profit (loss) from other joint ventures and associates, net
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
Profit (loss) before taxes from continuing operations
|
|
|
|
|
153 |
|
|
|
|
|
(19) |
|
|
|
|
|
3 |
|
|
|
|
|
174 |
|
|
|
Tax expense
|
|
|
|
|
(71) |
|
|
|
|
|
(2) |
|
|
|
|
|
— |
|
|
|
|
|
(69) |
|
|
|
Profit (loss) from continuing operations
|
|
|
|
|
82 |
|
|
|
|
|
(20) |
|
|
|
|
|
3 |
|
|
|
|
|
105 |
|
|
|
Profit (loss) from discontinued operations, net of tax
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
Net profit (loss) for the period
|
|
|
|
|
82 |
|
|
|
|
|
(20) |
|
|
|
|
|
3 |
|
|
|
|
|
105 |
|
|
Statement of income
$ millions
|
|
|
Millicom Group
(A)
|
|
|
Colombia
Unrestricted
Subsidiaries
(B)
|
|
|
Intercompany
Eliminations
(C)
|
|
|
Millicom
Restricted
Group
(A) – (B) net of (C)
|
|
|
March 31, 2024
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ASSETS
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
NON-CURRENT ASSETS
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Intangible assets, net
|
|
|
|
|
6,953 |
|
|
|
|
|
345 |
|
|
|
|
|
— |
|
|
|
|
|
6,608 |
|
|
|
Property, plant and equipment, net
|
|
|
|
|
2,884 |
|
|
|
|
|
727 |
|
|
|
|
|
— |
|
|
|
|
|
2,157 |
|
|
|
Right of use assets, net
|
|
|
|
|
941 |
|
|
|
|
|
242 |
|
|
|
|
|
— |
|
|
|
|
|
699 |
|
|
|
Investment in Honduras joint venture
|
|
|
|
|
589 |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
589 |
|
|
|
Contract costs, net
|
|
|
|
|
12 |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
12 |
|
|
|
Deferred tax assets
|
|
|
|
|
141 |
|
|
|
|
|
1 |
|
|
|
|
|
— |
|
|
|
|
|
140 |
|
|
|
Other non-current assets
|
|
|
|
|
89 |
|
|
|
|
|
33 |
|
|
|
|
|
54 |
|
|
|
|
|
110 |
|
|
|
TOTAL NON-CURRENT ASSETS
|
|
|
|
|
11,608 |
|
|
|
|
|
1,348 |
|
|
|
|
|
54 |
|
|
|
|
|
10,314 |
|
|
|
CURRENT ASSETS
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Inventories
|
|
|
|
|
59 |
|
|
|
|
|
9 |
|
|
|
|
|
— |
|
|
|
|
|
50 |
|
|
|
Trade receivables, net
|
|
|
|
|
431 |
|
|
|
|
|
123 |
|
|
|
|
|
— |
|
|
|
|
|
308 |
|
|
|
Contract assets, net
|
|
|
|
|
80 |
|
|
|
|
|
6 |
|
|
|
|
|
— |
|
|
|
|
|
74 |
|
|
|
Amounts due from non-controlling interests, associates and joint ventures
|
|
|
|
|
14 |
|
|
|
|
|
5 |
|
|
|
|
|
— |
|
|
|
|
|
9 |
|
|
|
Prepayments and accrued income
|
|
|
|
|
238 |
|
|
|
|
|
49 |
|
|
|
|
|
— |
|
|
|
|
|
189 |
|
|
|
Current income tax assets
|
|
|
|
|
113 |
|
|
|
|
|
59 |
|
|
|
|
|
— |
|
|
|
|
|
55 |
|
|
|
Supplier advances for capital expenditure
|
|
|
|
|
22 |
|
|
|
|
|
1 |
|
|
|
|
|
— |
|
|
|
|
|
21 |
|
|
|
Other current assets
|
|
|
|
|
169 |
|
|
|
|
|
47 |
|
|
|
|
|
65 |
|
|
|
|
|
187 |
|
|
|
Restricted cash
|
|
|
|
|
53 |
|
|
|
|
|
1 |
|
|
|
|
|
— |
|
|
|
|
|
52 |
|
|
|
Cash and cash equivalents
|
|
|
|
|
622 |
|
|
|
|
|
36 |
|
|
|
|
|
— |
|
|
|
|
|
586 |
|
|
|
TOTAL CURRENT ASSETS
|
|
|
|
|
1,802 |
|
|
|
|
|
336 |
|
|
|
|
|
65 |
|
|
|
|
|
1,531 |
|
|
|
TOTAL ASSETS
|
|
|
|
|
14,353 |
|
|
|
|
|
2,627 |
|
|
|
|
|
119 |
|
|
|
|
|
11,845 |
|
|
Statement of income
$ millions
|
|
|
Millicom Group
(A)
|
|
|
Colombia
Unrestricted
Subsidiaries
(B)
|
|
|
Intercompany
Eliminations
(C)
|
|
|
Millicom
Restricted
Group
(A) – (B) net of (C)
|
|
|
EQUITY
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Share capital and premium
|
|
|
|
|
1,325 |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
1,325 |
|
|
|
Treasury shares
|
|
|
|
|
(14) |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
(14) |
|
|
|
Other reserves
|
|
|
|
|
(525) |
|
|
|
|
|
(374) |
|
|
|
|
|
— |
|
|
|
|
|
(151) |
|
|
|
Retained profits
|
|
|
|
|
2,725 |
|
|
|
|
|
477 |
|
|
|
|
|
117 |
|
|
|
|
|
2,365 |
|
|
|
Net profit/ (loss) for the period/year attributable to owners of the Company
|
|
|
|
|
92 |
|
|
|
|
|
(10) |
|
|
|
|
|
— |
|
|
|
|
|
102 |
|
|
|
Equity attributable to owners of the Company
|
|
|
|
|
3,603 |
|
|
|
|
|
93 |
|
|
|
|
|
117 |
|
|
|
|
|
3,627 |
|
|
|
Non-controlling interests
|
|
|
|
|
(94) |
|
|
|
|
|
(95) |
|
|
|
|
|
— |
|
|
|
|
|
1 |
|
|
|
TOTAL EQUITY
|
|
|
|
|
3,509 |
|
|
|
|
|
(2) |
|
|
|
|
|
117 |
|
|
|
|
|
3,628 |
|
|
|
LIABILITIES
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
NON-CURRENT LIABILITIES
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Debt and financing
|
|
|
|
|
6,094 |
|
|
|
|
|
597 |
|
|
|
|
|
— |
|
|
|
|
|
5,497 |
|
|
|
Lease liabilities
|
|
|
|
|
937 |
|
|
|
|
|
281 |
|
|
|
|
|
— |
|
|
|
|
|
656 |
|
|
|
Derivative financial instruments
|
|
|
|
|
59 |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
59 |
|
|
|
Amounts due to non-controlling interests, associates and joint ventures
|
|
|
|
|
22 |
|
|
|
|
|
54 |
|
|
|
|
|
— |
|
|
|
|
|
(32) |
|
|
|
Payables and accruals for capital expenditure
|
|
|
|
|
81 |
|
|
|
|
|
43 |
|
|
|
|
|
— |
|
|
|
|
|
38 |
|
|
|
Other non-current liabilities – Total
|
|
|
|
|
318 |
|
|
|
|
|
152 |
|
|
|
|
|
— |
|
|
|
|
|
166 |
|
|
|
Deferred tax liabilities
|
|
|
|
|
140 |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
140 |
|
|
|
TOTAL NON-CURRENT LIABILITIES
|
|
|
|
|
7,650 |
|
|
|
|
|
1,126 |
|
|
|
|
|
— |
|
|
|
|
|
6,524 |
|
|
|
Debt and financing
|
|
|
|
|
449 |
|
|
|
|
|
127 |
|
|
|
|
|
— |
|
|
|
|
|
321 |
|
|
|
Lease liabilities
|
|
|
|
|
203 |
|
|
|
|
|
68 |
|
|
|
|
|
— |
|
|
|
|
|
135 |
|
|
|
Put option liability
|
|
|
|
|
86 |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
|
|
86 |
|
|
|
Payables and accruals for capital expenditure
|
|
|
|
|
210 |
|
|
|
|
|
52 |
|
|
|
|
|
— |
|
|
|
|
|
159 |
|
|
|
Other trade payables
|
|
|
|
|
312 |
|
|
|
|
|
91 |
|
|
|
|
|
— |
|
|
|
|
|
221 |
|
|
|
Amounts due to non-controlling interests, associates and joint ventures
|
|
|
|
|
61 |
|
|
|
|
|
70 |
|
|
|
|
|
— |
|
|
|
|
|
(9) |
|
|
|
Accrued interest and other expenses
|
|
|
|
|
458 |
|
|
|
|
|
108 |
|
|
|
|
|
— |
|
|
|
|
|
350 |
|
|
|
Current income tax liabilities
|
|
|
|
|
120 |
|
|
|
|
|
2 |
|
|
|
|
|
— |
|
|
|
|
|
118 |
|
|
|
Contract liabilities
|
|
|
|
|
109 |
|
|
|
|
|
5 |
|
|
|
|
|
— |
|
|
|
|
|
105 |
|
|
|
Provisions and other current liabilities
|
|
|
|
|
330 |
|
|
|
|
|
125 |
|
|
|
|
|
2 |
|
|
|
|
|
207 |
|
|
|
TOTAL CURRENT LIABILITIES
|
|
|
|
|
2,338 |
|
|
|
|
|
647 |
|
|
|
|
|
2 |
|
|
|
|
|
1,693 |
|
|
|
TOTAL LIABILITIES
|
|
|
|
|
10,845 |
|
|
|
|
|
2,630 |
|
|
|
|
|
2 |
|
|
|
|
|
8,217 |
|
|
|
TOTAL EQUITY AND LIABILITIES
|
|
|
|
|
14,353 |
|
|
|
|
|
2,627 |
|
|
|
|
|
119 |
|
|
|
|
|
11,845 |
|
|
9.
Certain Information Concerning Parent and Purchaser
Atlas is a private limited liability company (société à responsabilité limitée) existing under the laws of Luxembourg, having its registered office at 53, boulevard Royal, L-2449 Luxembourg, Luxembourg, with corporate registration number B274990 with the Luxembourg Trade and Companies Registry (R.C.S. Luxembourg). Atlas is a subsidiary of Parent. Atlas was incorporated on February 1, 2023, and registered with the Luxembourg Trade and Companies Registry (R.C.S. Luxembourg) on February 9, 2023. Atlas is a financial holding company. Parent is a simplified joint-stock company (société par actions simplifiée) domiciled in Paris, France, with corporate registration number 908 070 188 with the Paris Trade and Companies Registry (R.C.S Paris).
Atlas and Parent are long-term industrial investors looking to support the development and profitable growth of the telecoms sector through targeted investments in assets that offer opportunities for significant value creation.
Parent is a majority owned subsidiary of NJJ Holding S.A.S, an investment vehicle wholly owned by Xavier Niel, who is also the owner of the Iliad Group. NJJ Holding S.A.S. is an investor in telecom assets with presence in Switzerland, Ireland, Monaco, Cyprus, Malta, Sweden and the Baltics, while Iliad Group is one of the leading telecom providers present in France, Italy, Poland, Sweden and the Baltics. Xavier Niel has significant expertise in the telecoms sector and an outstanding track record of innovation and strategy execution, with a 30-year track record of innovation in the sector.
Today nearly 50 million active subscribers — more than 1 in 10 Europeans — use Iliad or NJJ-owned or affiliated networks.
The name, citizenship, business address, business phone number, principal occupation or employment and five-year employment history for each of the directors, executive officers and control persons of Parent and Purchaser and certain other information is set forth in Schedule I to this Offer to Purchase.
None of Parent, Purchaser or, to the knowledge of Parent or Purchaser after reasonable inquiry, any of the persons listed in Schedule I, has during the last five years (a) been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (b) been a party to any judicial or administrative proceeding (except for matters that were dismissed without sanction or settlement) that resulted in a judgment, decree or final order enjoining the person from future violations of, or prohibiting activities subject to, US federal or state securities laws or a finding of any violation of US federal or state securities laws.
Pursuant to Rule 14d-3 under the Exchange Act and Rule 13e-3 under the Exchange Act, Purchaser has filed with the SEC a Tender Offer Statement and Rule 13e-3 Transaction Statement under cover of Schedule TO, of which this Offer to Purchase forms a part. Purchaser expects to clear any comments with SEC prior to the end of the Offer Period. The Schedule TO and the exhibits thereto, as well as other information filed by Purchaser with the SEC, are available at the SEC’s website at www.sec.gov.
10.
Source and Amount of Funds
The maximum amount of funds required to consummate the Offers is approximately USD 2.9 billion, or SEK 30.9 billion65. The consummation of the Offers is not subject to any financing condition.
The aggregate purchase price for Common Shares and SDRs validly tendered and accepted in the Offers will be funded with borrowings from external debt financing available to Purchaser under the Initial Debt Financing (as defined below) or any replacement thereof with the Long-Term Financing. Because (i) the only consideration to be paid in the Offers is cash, (ii) the Offers are being made to purchase all issued and outstanding Common Shares and SDRs not already owned by the Parent and Purchaser and their affiliates solely for cash, and (iii) there is no financing condition to the completion of the Offers, Parent and Purchaser believe the financial condition of Purchaser is not material to a decision by shareholder whether to participate in the Offers.
Interim Financing
Purchaser has obtained one or more debt commitment letters dated July 1, 2024 with, among others BNP Paribas, Crédit Agricole Corporate and Investment Bank, JPMorgan Chase Bank, N.A., London Branch,
65
Based on an illustrative USD/SEK exchange rate of 10.6 as of June 28, 2024.
J.P. Morgan SE, Natixis and Société Générale, as arrangers and original interim lenders, which include an irrevocable and unconditional undertaking by the relevant financing sources to execute, within 24 hours of written request by Purchaser an English law governed interim facilities agreement in the agreed form (the “Interim Facilities Agreement”) for a maximum aggregate amount of USD 8,000,000,000 (the “Initial Debt Financing”) (the debt commitment letters, together with the Interim Facilities Agreement, the “Debt Commitment Letters”). The full amount of the Initial Debt Financing is initially made available to Purchaser under (i) a senior secured term loan facility in an aggregate amount of USD 2,600,000,000 (“Interim Term Facility 1”), (ii) a senior secured term loan facility in an aggregate amount of USD 900,000,000 (“Interim Term Facility 2”), (iii) a senior secured term loan facility in an aggregate amount of USD 3,800,000,000 (“Interim Backstop Term Facility” and, together with Interim Term Facility 1 and Interim Term Facility 2, “Interim Term Facilities”), (iv) a senior secured revolving facility in an aggregate amount of USD 100,000,000 (“Interim Revolving Facility”) and (v) a senior secured revolving facility in an aggregate amount of USD 600,000,000 (“Interim Backstop Revolving Facility” and, together with Interim Revolving Facility and the Interim Term Facilities, the “Interim Facilities”).
Loans under the Interim Revolving Facility may primarily be used for payment of interest and other debt service costs and expenses. Loans under the Interim Backstop Term Facility may primarily be used to refinance certain outstanding indebtedness of Millicom and, as the case may be, its subsidiaries. Loans under the Interim Backstop Revolving Facility will be available in USD may be used for working capital and general corporate purposes of Millicom.
The following is a summary of certain provisions of the Interim Facilities Agreement. The summary of the Interim Facilities Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Interim Facilities Agreement, a copy of which has been filed by the Parent and Purchaser as Exhibit (b) to the Tender Offer Statement and Rule 13e-3 Transaction Statement under cover of Schedule TO Schedule TO relating to the US Offer and is incorporated by reference herein.
Term
90 days from the first date that the Interim Term Facility is funded.
Prepayment
The Interim Facilities Agreement allows for voluntary prepayments (subject to a notice period). The Interim Facilities Agreement also contains mandatory prepayment provisions, requiring the mandatory prepayment of the utilisations under the Interim Facilities Agreement (i) upon receipt of an acceleration notice following the occurrence of a Major Event of Default, or (ii) upon receipt by Purchaser or the Group of the proceeds of the first utilization made under the Long-Term Financing (to the extent of such proceeds).
Interest Rates
The interest rate under the Initial Debt Financing is the aggregate of the applicable margin, being set at 4.50 per cent. per annum in respect of the Interim Facilities, plus Term SOFR.
Representations and Warranties, Undertakings and Events of Default
The Interim Facilities Agreement contains representations, warranties, undertakings and events of default that are customary for facilities of this type, with such adjustments as are necessary to reflect the transaction structure.
Security
The security package under the Interim Facilities Agreement (the “Interim Security Package”) will include (i) a limited recourse security agreement by Parent over shares it owns in Purchaser, (ii) account pledge agreement by Purchaser in respect of accounts containing the Common Shares and SDRs it owns or acquires pursuant to the Offer and certain related cash accounts, (iii) a limited recourse pledge over receivables owed by Purchaser as borrower to Parent as lender; and (iv) a share pledge by Xavier Niel over 25 per cent of the total issued ordinary shares in Iliad Holding S.A.S.
Governing Law
The Interim Facilities Agreement is governed by English law.
Long-Term Financing
Purchaser intends to replace or refinance all or a substantial part of the Initial Debt Financing entered into by Purchaser in connection with the Offers with long-term financing (the “Long-Term Financing”) to be entered into by Purchaser or its affiliates and, in relation to the Iliad Holding Bridge Facility (as defined below), by Iliad Holding S.A.S., Purchaser and Iliad Holding S.A.S. have obtained one or more separate debt commitment documents dated July 1, 2024 with, among others BNP Paribas, Crédit Agricole Corporate and Investment Bank, Credit Agricole Securities (USA) Inc., JPMorgan Chase Bank, N.A., London Branch, J.P. Morgan SE, Natixis and Société Générale as arrangers and original lenders in relation to the Long-Term Financing (the “Long-Term Financing Commitment Documents”).
The following is a summary of certain terms and provisions of the Long-Term Financing, which remains subject to, among other things, the negotiation, execution and delivery of satisfactory definitive documentation. The Long-Term Financing Commitment Documents may also be subject to customary market flex provisions.
Facilities and Maturity
It is expected that the Long-Term Financing will be comprised of USD 7,100,000,000 financings to be entered into by Purchaser (which, in certain cases, may be substituted by Millicom as borrower) and a USD 500,000,000 bridge facility to be entered into by Iliad Holding S.A.S. with an initial maturity of one year, which, subject to certain conditions, may be extended to an additional four years if it has not been refinanced during the first year (the “Iliad Holding Bridge Facility”). The financing to be entered into by Purchaser will include (i) a USD 2,600,000,000 term loan facility with a maturity of three years (the “Term Facility B”), (ii) a USD 100,000,000 debt service revolving facility with a maturity of three years (the “Debt Service Revolving Facility” and, together with the Iliad Holding Bridge Facility and the Term Facility B, the “Acquisition Facilities”), (iii) a USD 3,800,000,000 backstop bridge facility with an initial maturity of one year, which, subject to certain conditions, may be extended to an additional four years if it has not been refinanced during the first year (the “Backstop Bridge Facility”), and (iv) a USD 600,000,000 revolving credit facility with a maturity of three years (the “Backstop Revolving Facility” and, together with the Backstop Bridge Facility, the “Backstop Facilities”).
Prepayment
The Acquisition Facilities and Backstop Facilities allow for voluntary prepayments (subject to a notice period and applicable prepayment premia) and are expected to contain customary mandatory prepayment provisions, including upon the occurrence of certain events constituting a “change of control” under the relevant facilities, certain debt and equity issuances and certain excess cashflow.
Interest Rates
The interest rate under the Iliad Holding Bridge Facility is the aggregate of the applicable margin, which is expected to be set at 3.50% per annum, with additional step-ups of 0.50% every three months following the first drawdown, plus SOFR. The interest rate under the Term Facility B and the Debt Service Revolving Facility is the aggregate of the applicable margin, which is expected to be set at 3.50% per annum, increasing to 3.75% on the first anniversary of the first drawdown and to 4.00% on the second anniversary of the first drawdown, plus Term SOFR. The interest rate under the Backstop Bridge Facility is the aggregate of the applicable margin, which is expected to be set at 4.50% per annum, with additional step-ups of 0.50% every three months following the first drawdown, plus SOFR. The interest rate under the Backstop Revolving Facility will mirror the relevant interest provisions under the existing revolving facility of Millicom (the “Existing Millicom RCF”).
Guarantees and Security
The guarantee and security package in respect of the Iliad Holding Bridge Facility is expected to include (i) a guarantee from HoldCo II SAS (“Holdco II”), which is the direct subsidiary of Iliad Holding S.A.S., (ii) a
pledge over the shares in Holdco II held by Iliad Holding S.A.S., (iii) a pledge over the shares in Iliad S.A. held by Holdco II, (iv) a pledge over material bank accounts of Iliad Holding S.A.S. and Holdco II and (v) a pledge over structural intercompany receivables owed to Iliad Holding S.A.S. by Holdco II and to Holdco II by Iliad S.A.
The guarantee and security package in respect of the Term Facility B and the Debt Service Revolving Facility (the “Senior Facilities Security Package”) is expected to be aligned with the Interim Security Package and expected to include, in addition, a guarantee from NJJ Holding S.A.S in respect of the Purchaser’s payment obligations under the Term Facility B and the Debt Service Revolving Facility.
The guarantee and security package in respect of the Backstop Revolving Facility is expected to be aligned with the guarantees and security provided under the Existing Millicom RCF, in case Millicom enters as the borrower of the Backstop Revolving Facility. The Backstop Revolving Facility may, at the option of the Purchaser, be instead executed with the Purchaser being the borrower thereunder, in which case it is expected that (x) the Senior Facilities Security Package will guarantee and secure the Backstop Revolving Facility and (y) an additional pledge over receivables that arise from on-lending of proceeds by the Purchaser to Millicom will be entered into.
The Backstop Bridge Facility is expected to be entered into on an unsecured and unguaranteed basis in case Millicom enters as the borrower of the Backstop Bridge Facility, but may benefit from as subset of the Senior Facilities Security Package under certain circumstances. The Backstop Bridge Facility may, at the option of the Purchaser, be instead executed with the Purchaser being the borrower thereunder, in which case it is expected that (x) the Senior Facilities Security Package will guarantee and secure the Backstop Bridge Facility and (y) an additional pledge over receivables that arise from on-lending of proceeds by the Purchaser to Millicom will be entered into.
Representations and Warranties, Undertakings and Events of Default
The documentation relating to the Acquisition Facilities and the Backstop Facilities is expected to contain representations, warranties, undertakings and events of default that are customary for facilities of this type, with such adjustments as are necessary to reflect the transaction structure. The Term Facility B and the Debt Service Revolving Facility are expected to be subject to a proportionate net debt leverage ratio financial maintenance covenant and the financial covenant applicable to the Backstop Revolving Facility is expected to be aligned with the financial covenant of the Existing Millicom RCF. The Iliad Holding Bridge Facility and the Backstop Bridge Facility are not expected to contain a financial covenant.
Governing Law
The Acquisition Facilities and the Backstop Bridge Facility are expected to be governed by English law and the Backstop Revolving Facility is expected to be governed by the law of the state of New York.
11.
Dividends and Distributions in Millicom
No dividends were paid to the Shareholders for the financial years 2023, 2022 and 2021.
Should Millicom, prior to the settlement of the Offers, distribute dividends or in any other way distribute or transfer value to its Shareholders, the Offer Price will be adjusted accordingly. In the event of either of the foregoing, Atlas reserves the right to determine whether this price adjustment mechanism or condition 7 to completion of the Offers will be invoked (see “The Tender Offers — Terms of the Offers — Conditions for Completion of the Offers”).
12.
Legal Matters; Required Regulatory Approvals
General
We are not aware of any pending legal proceeding relating to the Offers. Except as set forth in this Offer to Purchase, based on its examination of publicly available information filed by Millicom with the SEC and other publicly available information concerning Millicom, we are not aware of any licenses or regulatory permits that appear to be material to the business of Millicom and its subsidiaries, taken as a whole, that might
be adversely affected by Purchaser’s acquisition of Shares in the Offers, or of any filings, approvals, or other actions by or with any governmental authority that would be required for our acquisition or ownership of the Shares pursuant to the Offers. Should any such approval or other action be required, we expect to seek such approval or action. There can be no assurance that any such approval or other action, if required, would be obtained without substantial conditions, or that adverse consequences to Millicom business might not result. Except as otherwise described in this Offer to Purchase, although we do not presently intend to delay the acceptance for payment of or payment for Shares tendered into the Offers pending the outcome of any such matter, there can be no assurance that any such approval or other action, if needed, would be obtained or would be obtained without substantial conditions or that the failure to obtain any such approval or other action might not result in consequences adverse to Millicom’s business or other substantial conditions complied with in the event that such approvals were not obtained or such other actions were not taken or in order to obtain any such approval or other action.
Regulatory Approvals
Approval from the SEC
Pursuant to Rule 14d-3 under the Exchange Act and Rule 13e-3 under the Exchange Act, Purchaser has filed with the SEC a Tender Offer Statement and Rule 13e-3 Transaction Statement under cover of Schedule TO, of which this Offer to Purchase forms a part. Purchaser expects to clear any comments with SEC prior to the end of the Offer Period.
United States Antitrust Compliance
Under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 and the rules that have been promulgated thereunder (together, the “HSR Act”) by the Federal Trade Commission (“FTC”), certain transactions may not be consummated until certain information and documents have been furnished to the FTC and the Antitrust Division of the U.S. Department of Justice (the “Antitrust Division”) and certain waiting period requirements have been satisfied. The requirements of the HSR Act apply to Purchaser’s acquisition of Shares in the Offers. The purchase of Shares in the Offers is subject to the provisions of the HSR Act, and therefore cannot be completed until Purchaser files a notification and report form with the FTC and the Antitrust Division and the applicable waiting period has expired or been terminated. Purchaser expects clearance to be obtained prior to the end of the Offer Period.
Colombian Antitrust Compliance
Pursuant to Colombia’s merger control regulations, Purchaser expects to notify the Superintendence of Industry and Commerce (the “SIC”) of the Offers as soon as possible after the Commencement Date of the Offer Period. Pursuant to Colombian law, the SIC must be notified of a transaction depending on the market shares of Colombian Movil S.A. E.S.P and UNE Telecomunicaciones S.A. in Colombia. The notification will require either a simplified filing (short form filing) or a prior authorization filing. If the simplified filing is applicable, the SIC has ten (10) business days following the filing referred to in the preceding sentence to review the filing for completeness and acknowledge receipt of the notification. The transaction will be deemed approved upon submission of a complete filing, if during the ten (10) business days term the SIC does not require additional information. If the prior authorization filing is applicable, the SIC has thirty (30) business days following the filing to conduct the merger control review of the transaction. Purchaser expects clearance to be obtained prior to the end of the Offer Period.
Paraguayan Antitrust Compliance
Pursuant to Paraguay’s merger control regulations, Purchaser expects to notify the National Competition Commission (the “CONACOM”) of the Offers within ten (10) business days after the publication of the Offer to Purchase. The Paraguayan Competition Law establishes that a transaction that entails a direct or indirect change of control in a Paraguayan company and that exceeds certain revenue or market share related thresholds must be notified to CONACOM withing ten (10) business days after the execution or perfection of the agreements or documents that could result in said change of control, however, pursuant to Paraguayan Competition Law, the regulatory authorization must not be obtained before consummation of the Offers.
Considering that Millicom’s subsidiary Tigo Paraguay S.A. exceeds both the revenue and market share thresholds established in the Paraguayan Competition Law, and that the completion of the Offers will entail an indirect change of control in Tigo Paraguay S.A., it must be notified to CONACOM within ten (10) business days after the publication of the Offer to Purchase. The notification procedure consists of two stages: the first stage having a duration of thirty (30) business days, and the second stage having a duration of sixty (60) business days. There is no simplified or fast-track procedure to obtain the regulatory authorization. All additional information requirements have suspensive effects in relation to the term available to CONACOM to issue a final resolution authorizing or rejecting the transaction. Purchaser expects to obtain final approval in the second stage of the procedure and within four (4) months after the notification is performed.
Bolivian Regulatory Approval
Based on the business in which Millicom is engaged, the Offers may not be consummated until receipt of approval from the Bolivian Transport and Telecommunications Authority, Autoridad de Regulación y Fiscalización de Telecomunicaciones y Transportes (“ATT”). Bolivian regulations on telecommunications require that changes in the shareholding composition of a telecommunications operator company, or its holding companies, affecting its effective control, must be previously approved by the ATT through a formal submission of a share transfer authorization request. Purchaser expects clearance to be obtained prior to the end of the Offer Period.
13.
Fees and Expenses
Parent and Purchaser have retained D.F. King & Co., Inc. to act as the Information Agent, Broadridge Corporate Issuer Solutions, LLC to act as the US Tender Agent, and Handelsbanken Issue Department to act as the Swedish Settlement Agent, in connection with the Offers.
The Information Agent may contact holders of Common Shares and SDRs by mail, telephone, facsimile and other methods of electronic communication and may request brokers, dealers, banks, trust companies and other nominees to forward the materials relating to the Offers.
As compensation for acting as Information Agent, the US Tender Agent and Swedish Settlement Agent in connection with the Offers, D.F. King & Co., Inc., Broadridge Corporate Issuer Solutions, LLC and Handelsbanken Issue Department will be paid a reasonable and customary fee for its services and will also be reimbursed for reasonable out-of-pocket expenses and may be indemnified against specified liabilities and expenses in connection with the Offers, including specified liabilities under the federal securities laws.
The Purchaser Group has retained Parent Financial Advisors and Atlas Financial Advisor to act as financial advisors with respect to the Offers.
From time to time during the deliberations described above under the section “Special Factors — Background” upon the request by senior management of members of the Purchaser Group, representatives of Parent Financial Advisors provided strategic advice, and consulted with, senior management of Parent with respect to the Offers. In addition, Parent Financial Advisors acted as a liaison for Parent to the financial advisors engaged by Millicom.
Parent Financial Advisors and Atlas Financial Advisor were not engaged to, and did not, render an opinion as to the fairness, from a financial point of view, of the Offer Price to the Shareholders of Millicom or to the Purchaser Group. In that regard, Parent Financial Advisors and Atlas Financial Advisor did not express any opinion or view as to any consideration received in connection with the Offers by the holders of any class of securities, creditors or other constituencies of any party. Parent Financial Advisors and Atlas Financial Advisor also did not express any opinion or view as to any of the terms or other aspects or implications of the Offers or any arrangements, agreements or understanding entered into in connection with or related to the Offers or otherwise.
It is estimated that the expenses incurred in connection with the Offers will be approximately as set forth below:
| |
Information Agent Fees and Expenses
|
|
|
|
$ |
65,000 |
|
|
| |
US Tender Agent Fees and Expenses
|
|
|
|
$ |
12,500 |
|
|
| |
Swedish Settlement Agent Fees and Expenses
|
|
|
|
$ |
440,000 |
|
|
| |
SEC Filing Fees
|
|
|
|
$ |
429,653.91 |
|
|
| |
SFSA Filing Fees
|
|
|
|
$ |
3,000 |
|
|
| |
Legal Fees
|
|
|
|
$ |
16,000,000 |
|
|
| |
Parent Financial Advisors Fees
|
|
|
|
$ |
90,000,000 |
|
|
| |
Printing and Mailing Costs
|
|
|
|
$ |
15,000 |
|
|
| |
Miscellaneous
|
|
|
|
$ |
200,000 |
|
|
| |
Total
|
|
|
|
$ |
107,165,154.91 |
|
|
Except as set forth above, neither Parent nor Purchaser will pay any fees or commissions to any broker or dealer or other person or entity (other than to the US Tender Agent, Swedish Settlement Agent and the Information Agent) in connection with the solicitation of tenders of Shares pursuant to the Offers. The Purchaser Group will, upon request, reimburse brokers, dealers, commercial banks and trust companies for customary mailing and handling expenses incurred by them in forwarding materials relating to the Offers to their customers.
14.
Miscellaneous
Takeover Squeeze-Out; Takeover Sell-Out and Delisting
If the conditions for completion of the Offers are satisfied and the Offers are successful, Purchaser currently intends to cause the delisting of the Common Shares from Nasdaq US as promptly as practicable after the consummation of the Offers, as permitted by applicable law and the rules of Nasdaq US.
In the event Purchaser, in connection with the Offers or otherwise, has acquired securities representing not less than ninety five (95) per cent of the capital carrying voting rights and ninety five (95) per cent of the voting rights in Millicom, Purchaser will have the right to exercise Takeover Squeeze-Out in accordance with the Luxembourg Takeover Law to acquire all remaining Shares in Millicom. Furthermore, pursuant to the Luxembourg Takeover Law, if following the Offers, the Purchaser holds securities carrying more than ninety (90) per cent of the voting rights in Millicom, the remaining Shareholders may require that the Purchaser purchases the remaining Shares at a fair price by exercising a Takeover Sell-Out. In connection with a Takeover Squeeze-Out or a Takeover Sell-Out, Purchaser intends to promote delisting of the SDRs from Nasdaq Stockholm.
Please see “The Tender Offers — Terms of the Offers — Squeeze-Out and Sell-Out.”
Offer Restrictions
Neither Parent nor Purchaser has authorized any person to give any information or to make any representation on behalf of Parent or Purchaser not contained in this Offer to Purchase or in the related Letter of Transmittal or SDR Acceptance Form, and, if given or made, Shareholders should not rely on any such information or representation as having been authorized.
Neither the delivery of this Offer to Purchase nor any purchase pursuant to the Offers will, under any circumstances, create any implication that there has been no change in the affairs of Parent, Purchaser, Millicom or any of their respective subsidiaries since the date as of which such information is furnished or the date of this Offer to Purchase.
This Offer to Purchase is not an offer, whether directly or indirectly, in Australia, Belarus, Canada, Hong Kong, Japan, New Zealand, Singapore, South Africa or Russia or in any other jurisdiction where such offer
would be prohibited by applicable law pursuant to legislation, restrictions and regulations in such relevant jurisdiction (the “Restricted Territories”). Shareholders not resident in Sweden or the United States who wish to accept the Offers must make inquiries concerning applicable legislation and possible tax consequences.
The Offers are not being made, directly or indirectly, in or into the Restricted Territories by use of mail or any other communication means or instrumentality (including, without limitation, facsimile transmission, electronic mail, telex, telephone and the internet) of interstate or foreign commerce, or of any facility of national securities exchange or other trading venue of the Restricted Territories and the Offers cannot be accepted by any such use or by such means, instrumentality or facility of, in or from, the Restricted Territories. Accordingly, this Offer to Purchase and any documentation relating to the Offers are not being and should not be sent, mailed or otherwise distributed or forwarded in or into the Restricted Territories.
This Offer to Purchase is not being, and must not be, sent to Shareholders with registered addresses in the Restricted Territories. Banks, brokers, dealers and other nominees holding shares for persons in the Restricted Territories must not forward this Offer to Purchase or any other document received in connection with the Offers to such persons. Persons receiving such documents or information (including custodians, nominees and trustees) should not distribute or send them in or into a Restricted Territory or use the mails or any means, within a Restricted Territory in connection with the Offers.
Any failure to comply with these restrictions may constitute a violation of the securities laws of any of the Restricted Territories. It is the responsibility of all persons obtaining this Offer to Purchase, SDR Acceptance Form, Letter of Transmittal or other documents relating to this Offer to Purchase or to the Offers or into whose possession such documents otherwise come, to inform themselves of and observe all such restrictions. Any recipient of this Offer to Purchase who is in any doubt about his or her status in relation to these restrictions should consult his or her professional adviser in the relevant territory.
Neither Atlas, Parent, Parent Financial Advisors, Atlas Financial Advisor, the US Tender Agent, the Swedish Settlement Agent nor the Information Agent accepts or assumes any responsibility or liability for any violation by any person of any such restrictions.
This Offer to Purchase does not represent an offer to acquire or obtain securities other than the Shares of Millicom that are subject to the Offers.
Any purported tender of Shares in the Offers resulting directly or indirectly from a violation of the restrictions described in this Offer to Purchase and the related documents will be invalid. Further, any person purporting to tender Shares pursuant to the Offers will be deemed not to have made a valid tender if such person is unable to make the representations and warranties set out in the section “The Tender Offers — Miscellaneous — Offer restrictions — Certifications as to Restrictions” below and any corresponding representations and warranties in the SDR Acceptance Form for the Swedish Offer and Letter of Transmittal for the US Offer.
Acceptances of the Offers and tenders of Shares made by a person located in a Restricted Territory, by any trustee, representative, fiduciary or other intermediary acting on a non-discretionary basis for a principal giving instructions from within the Restricted Territories, or by the use of mails or any other communication means, within the Restricted Territories, directly or indirectly, will not be accepted (and should not be accepted by any such custodian, nominee, trustee, agent, fiduciary or other intermediary holding Shares for any persons).
Any SDR Acceptance Form or Letter of Transmittal or other communication relating to the Offers that originates from, is postmarked from, bears a return address in, or otherwise appears to have been dispatched from, the Restricted Territories will not be accepted (and should not be accepted by any trustee, representative, fiduciary or other intermediary).
Acceptances of the Offers and tenders of Shares will not be accepted (and should not be accepted by any custodian, nominee, trustee, agent, fiduciary or other intermediary) if the consideration for the Shares is required to be mailed or otherwise delivered in or into a Restricted Territory or if an address within a Restricted Territory is provided for receipt of the price of the Shares in the Offers or the return of the SDR Acceptance Form or Letter of Transmittal.
Each of Atlas, Parent, Parent Financial Advisors, Atlas Financial Advisor, the US Tender Agent, the Swedish Settlement Agent and the Information Agent reserves the right, in its absolute discretion (and without
prejudice to the relevant Shareholder’s responsibility for the representations and warranties made by it), to (a) reject any tender of Shares without investigation because the origin of such tender cannot be determined, or (b) investigate, in relation to any tender of Shares pursuant to the Offers, whether any such representations and warranties given by a Shareholder are correct and, if such investigation is undertaken and as a result Atlas determines (for any reason) that such representations and warranties are not correct, such tender may be rejected.
This Offer to Purchase has not been produced by, and has not been approved by, an “authorised person” for the purposes of section 21 of the UK Financial Services and Markets Act 2000 (as amended, the “FSMA”). The communication of this Offer to Purchase and any other related documents or materials to persons in the United Kingdom is exempt from the restrictions on financial promotions in section 21 of the FSMA on the basis that it is a communication by or on behalf of a body corporate which relates to a transaction to acquire shares in a body corporate and the object of the transaction may reasonably be regarded as being the acquisition of day-to-day control of the affairs of that body corporate, or to acquire 50 per cent or more of the voting shares in that body corporate, within Article 62 (Sale of a body corporate) of the Financial Services and Markets Act 2000 (Financial Promotion) Order 2005.
Certifications as to Restrictions
By accepting the Offers through delivery of a duly executed Letter of Transmittal to the US Tender Agent or SDR Acceptance Form to the Swedish Settlement Agent, the holder of tendered Shares, and any custodian, nominee, trustee, agent, fiduciary or other intermediary submitting the Letter of Transmittal or SDR Acceptance Form or participating in the Offers on behalf of such holder, certifies that such person:
•
was not present or resident in, nor is a citizen of, a Restricted Territory at the time of receiving this Offer to Purchase, the Letter of Transmittal or SDR Acceptance Form or any other document or information relating to the Offers, and has not mailed, transmitted or otherwise distributed any such document or information in or into a Restricted Territory;
•
has not used, directly or indirectly, the mails, or any means or instrumentality (including, without limitation, facsimile transmission, electronic mail, telex and telephone) of interstate or foreign commerce, or the facilities of the securities exchanges, of a Restricted Territory in connection with the Offers;
•
was not present or resident in, nor is a citizen of, a Restricted Territory at the time of accepting the terms of the Offers, at the time of returning the Letter of Transmittal or SDR Acceptance Form or at the time of giving the order or instruction to accept the Offers (whether orally or in writing); and
•
if acting in a custodial, nominee, trust, fiduciary, agency or other capacity as an intermediary, then either (i) has full investment discretion with respect to the Shares covered by the Letter of Transmittal or SDR Acceptance Form or (ii) the person on whose behalf it is acting has authorized it to make the foregoing representations and was not present or resident in, nor is a citizen of, a Restricted Territory at the time the Shareholder instructed such custodian, nominee, trustee, fiduciary, agent or intermediary to accept the Offers on his or her behalf, and such custodian, nominee, trustee, fiduciary, agent or other intermediary is processing that acceptance as part of its normal securities custodial function.
SCHEDULE I
DIRECTORS AND EXECUTIVE OFFICERS OF PARENT AND PURCHASER
Parent
Set forth below are the name and current principal occupation or employment, and material occupations, positions, offices or employment for the past five years of each director and executive officer of Parent. Except as otherwise noted below, (i) the positions specified are positions with Parent and (ii) the business address of each of the persons listed below is 16 Rue de la Ville-l’Évêque, FR-75008 Paris, France.
NJJ Holding S.A.S., a simplified joint-stock company domiciled in Paris, France (société par actions simplifiée) which registered office is located 16, rue de la Ville-l’Evêque, 75008 Paris, France, registered with the Trade and Companies Registrar under number 520 230 590 with the Paris Trade and Companies Registry (R.C.S Paris), is the president (président) of Parent, which is itself represented by Mr Xavier Niel in his capacity as president (président) of NJJ Holding S.A.S., whose current principal occupation or employment, and material occupations, positions, offices or employment for the past five years are also set out below.
|
Name
|
|
|
Principal Employment
|
|
|
Citizenship
|
|
|
Xavier Niel
|
|
|
Xavier Niel has been Chairman and Chief Strategy Officer at Iliad Group since March 2020 and had been Vice Chairman from 2003 to 2020. He has been the Chairman of the board of directors of Iliad S.A. since March 2020.
Xavier Niel has been serving as President at Freebox S.A.S. since December 2000, as President at Iliad Holding S.A.S. since May 2015 as well as President at NJJ Holding S.A.S. since February 2010. Xavier Niel also has management positions within other entities of the group controlled by NJJ Holding S.A.S. He has been President at La Compagnie des Immeubles Parisiens S.A.S. since January 2018.
Xavier Niel has been a board member at Unibail-Rodamco-Westfield since November 2020 and a member of its Governance, Nomination and Remuneration Committee since November 2020. He has been a director at KKR Management LLC since March 2018 and is the current permanent representative of NJJ Capital S.A.S. at the board of directors of Teract.
Xavier Niel has been serving as a Supervisory Board Member at Topco Breteuil S.A.S. since October 2020, at Holdco Breteuil S.A.S. since October 2020, at Mediawan Holding S.A.S. since October 2020, at Société Éditrice du Monde S.A. since November 2010 and at Le Nouvel Observateur du Monde S.A. since June 2014.
Xavier Niel has also been serving as a Board Member at Carraun Telecom Holdings Limited Toohil Telecom Holdings Limited and at Eircom Holdings (Ireland) Limited since April 2018; at Monaco Telecom since may 2014, and at Salt Mobile S.A. since February 2015.
Xavier Niel held management positions within some entities of the group controlled by NJJ Holding S.A.S. He used to be a member of the Supervisory Board of Le Monde S.A. and BlackPills S.A.S (from December 2016 until December 2019) and a director of Groupe Nice Matin S.A.S. (from July 2019 until October 2021) and Salt Network S.A. He was President of Kima Ventures S.A.S (from February 2010 until December 2019), Station F S.A.S. (from July 2013 until December 2019), Golf du Lys Chantilly S.A.S. (from December 2014 until December 2019).
|
|
|
French
|
|
|
Name
|
|
|
Principal Employment
|
|
|
Citizenship
|
|
|
Thomas
Reynaud
|
|
|
Thomas Reynaud has been Iliad Group’s Chief Executive Officer and a director since May 2018. He serves as Chairman of the Board of Directors and as member of the Nomination Committee at Tele2 since May 2024. He is a member of the Board of Directors of Millicom and of its Compensation and Talent Committee since May 2023. He had also served as member of the Board of Directors of Iliad Italia S.p.A. since July 2022. He is also a partner of several innovative ventures in the agri-food sector.
|
|
|
French
|
|
|
Anthony
Maarek
|
|
|
Anthony Maarek has been serving as Managing Director (Directeur Général) of Parent since June 2022. He has been serving as Managing Director (Directeur Général) of Freya Investissement S.A.S. since February 2024. Anthony Maarek has also been serving as Managing Director (Directeur Général) at Const Invest S.A.S. since October 2022; at DVL Telecom S.A.S. since August 2023; at NJJ Garden S.A.S. since January 2024; at NJJ Maine S.A.S. since April 2023; at NJJ Médias S.A.S. since October 2022; at NJJ Presse Services S.A.S. since June 2023; NJJ Projet 5523 S.A.S. since November 2022; at NJJ UPAM S.A.S. since August 2023; at NJJ Vosges S.A.S. since March 2024; at Rock Investment S.A.S. since November 2020; at NJJ Immo Partners S.A.S. since May 2024; at Locfi.fr S.A.S. since December 2021; and at Bidco 22 S.A.S. since May 2022.
Anthony Maarek has been serving as Class A Manager of the Purchaser since February 2023. Anthony Maarek has also been serving as Manager (Gérant) at Lagny Immobilier SARL since December 2019; at Financière L’Illustration SARL since July 2022; at Gilgamesh SNC since February 2022; at SCI Light CF since November 2022; at SNC Genièvres since December 2022; at NM Training SARL since June 2021; SCI Danilana since June 2012; at SCI Naodani since October 2017; and at SC E3J since April 2023.
Anthony Maarek has been serving as President (Président) at Betin S.A.S since November 2022; at Genybet S.A.S since May 2020; at Groupe Nice-Matin S.A.S.; at Matchem S.A.S. since December 2020; at NJJ Presse Sud S.A.S. since April 2020; at Melkart S.A.S. since December 2021; at Sons Holdco S.A.S since November 2022; and at Maskass Holdings since May 2019.
Anthony Maarek has been serving as board member (membre du conseil d’administration) at Société Editrice de l’Informé S.A.S. since September 2022.
Anthony Maarek has also been serving as board member (membre du conseil d’administration) of GAM Holding AG, a publicly listed company in Switzerland since September 2023, respectively.
|
|
|
French
|
|
|
Pierre-Alain
Allemand
|
|
|
Pierre-Alain Allemand has been serving as Managing Director (Directeur Général) of Parent since January 2024.
Pierre-Alain Allemand has also been serving as Director at Eircom Holdings (Ireland) Limited since April 2018; as Board Member at CMC (Compagnie Monégasque de Communication) since February 2020, as Director at Salt Mobile S.A. since September 2019 and as President Managing Partner (associé gérant président) at Althaia Consulting SARL since February 2020.
|
|
|
French
|
|
|
Aude Durand
|
|
|
Aude Durand has been Deputy Chief Executive Officer at Iliad Holding S.A.S. since June 2020 and Deputy Chief Executive Officer of the Iliad Group since March 2024. She serves as president of Predictiv Pro S.A.S. since February 2024. She also has been serving as director of Tele2 and as member of its Audit Committee since May 2024, as Chair of Scaleway since September 2023, as member of the board of directors of Millicom since February 2024 and as board member of Monaco Telecom since July 2023.
|
|
|
French
|
|
Purchaser
Set forth below are the name and current principal occupation or employment, and material occupations, positions, offices or employment for the past five years of each director and executive officer of Purchaser. The business address of each of the persons listed below is 53, boulevard Royal, L-2449 Luxembourg, Grand Duchy of Luxembourg. Except as otherwise noted, positions specified are positions with Purchaser.
|
Name
|
|
|
Principal Employment
|
|
|
Citizenship
|
|
|
Murielle
Brouillet-
McSorley
|
|
|
Murielle Brouillet-McSorley has been serving as Class B Manager of the Purchaser since February 2023.
|
|
|
French
|
|
|
Tigran
Khachatryan
|
|
|
Tigran Khachatryan has been serving as Class B Manager of the Purchaser since February 2023.
Tigran Khachatryan has also been serving as Class A Director at Matterhorn Telecom S.A. since June 2023; as Class A Director at Matterhorn Telecom Holding S.A. since June 2023; as Class A Director at OCH AT Holding S.A. since March 2023; as Class A Manager at OCH Financing S.à r.l. since March 2023; as Class A Manager at Matterhorn Financing S.à r.l. since March 2023; and as Class A Manager at Eircom Finco S.à r.l. since March 2023.
|
|
|
Luxembourgish
|
|
|
Anthony
Maarek
|
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Anthony Maarek has been serving as Managing Director (Directeur Général) of Parent since June 2022. He has been serving as Managing Director (Directeur Général) of Freya Investissement S.A.S. since February 2024. Anthony Maarek has also been serving as Managing Director (Directeur Général) at Const Invest S.A.S. since October 2022; at DVL Telecom S.A.S. since August 2023; at NJJ Garden S.A.S. since January 2024; at NJJ Maine S.A.S. since April 2023; at NJJ Médias S.A.S. since October 2022; at NJJ Presse Services S.A.S. since June 2023; NJJ Projet 5523 S.A.S. since November 2022; at NJJ UPAM S.A.S. since August 2023; at NJJ Vosges S.A.S. since March 2024; at Rock Investment S.A.S. since November 2020; at NJJ Immo Partners S.A.S. since May 2024; at Locfi.fr S.A.S. since December 2021; and at Bidco 22 S.A.S. since May 2022.
Anthony Maarek has been serving as Class A Manager of the Purchaser since February 2023. Anthony Maarek has also been serving as Manager (Gérant) at Lagny Immobilier SARL since December 2019; at Financière L’Illustration SARL since July 2022; at Gilgamesh SNC since February 2022; at SCI Light CF since November 2022; at SNC Genièvres since December 2022; at NM Training SARL since June 2021; SCI Danilana since June 2012; at SCI Naodani since October 2017; and at SC E3J since April 2023.
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French
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Name
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Principal Employment
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Citizenship
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Anthony Maarek has been serving as President (Président) at Betin S.A.S since November 2022; at Genybet S.A.S since May 2020; at Groupe Nice-Matin S.A.S.; at Matchem S.A.S. since December 2020; at NJJ Presse Sud S.A.S. since April 2020; at Melkart S.A.S. since December 2021; at Sons Holdco S.A.S since November 2022; and at Maskass Holdings since May 2019.
Anthony Maarek has been serving as board member (membre du conseil d’administration) at Société Editrice de l’Informé S.A.S. since September 2022.
Anthony Maarek has also been serving as board member (membre du conseil d’administration) of GAM Holding AG, a publicly listed company in Switzerland since September 2023, respectively.
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SCHEDULE II
SECURITY OWNERSHIP AND TRANSACTIONS IN THE SHARES BY PARENT, PURCHASER AND THEIR RESPECTIVE DIRECTORS AND EXECUTIVE OFFICERS
The following table sets forth (i) certain information with respect to the Shares beneficially owned by Parent, Purchaser and, to the best of their knowledge, their respective directors and officers, and (ii) the purchases of Shares by Parent, Purchaser and, to the best of their knowledge, their respective directors and officers, during the past sixty days. The security ownership information in the table below is given as of July 1, 2024, and, in the case of per centage ownership information, is based on 171,255,664 Common Shares outstanding as of June 18, 2024 (172,096,305 Common Shares issued less 840,641 Common Shares held in treasury), in accordance with publicly available information. There have been no transactions in the Common Shares by such persons during the 60 days prior to July 1, 2024, except as set forth below. For further information, reference is also made to the Schedule 13D filings and amendments thereto filed by the Purchaser Group with the SEC on February 24, 2023; March 28, 2023; April 26, 2023; May 12, 2023; May 25, 2023; June 2, 2023; July 24, 2023; August 24, 2023; October 2, 2023; November 8, 2023; January 17, 2024; and, May 23, 2024. Beneficial ownership is determined in accordance with the rules of the SEC (except as noted below):
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Security Ownership
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Person
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Number
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Per cent
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Purchaser(1)
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49,966,734 |
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29.18% |
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Parent(2)
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49,966,734 |
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29.18% |
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NJJ Holding(3)
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49,966,734 |
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29.18% |
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Xavier Niel(4)
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49,966,734 |
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29.18% |
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Thomas Reynaud
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5,601 |
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* |
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(1)
Reflects 49,966,734 SDRs beneficially owned by Purchaser, which may be exchanged for Common Shares on a one-for-one basis.
(2)
Parent, as the majority owner of the Purchaser, may be deemed to have shared beneficial ownership over the Common Shares beneficially owned by the Purchaser.
(3)
NJJ Holding, as the majority owner of Parent, may be deemed to have shared beneficial ownership over the Common Shares beneficially owned by the Purchaser and the Parent.
(4)
Xavier Niel, as the sole owner of NJJ Holding, may be deemed to have shared beneficial ownership over the Common Shares beneficially owned by the Purchaser, the Parent and NJJ Holding.
*
Less than 1%.
Purchases of Shares by Parent and Purchaser
During the Past Two Years
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Calendar Year
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Number of
SDRs
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Average Price Per
Share(1)
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Range of Prices Paid(2)
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2023
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First Quarter
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19,685,450 |
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SEK194.95 |
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SEK175.39 – SEK216.74 |
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Second Quarter
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5,898,115 |
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SEK195.57 |
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SEK176.14 – SEK206.24 |
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Third Quarter
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4,786,599 |
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SEK172.1 |
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SEK162.59 – SEK179.93 |
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Fourth Quarter
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3,226,907 |
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SEK173.78 |
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SEK163.35 – SEK184.73 |
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2024
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First Quarter
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131,587 |
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SEK189.12 |
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SEK184.28 – SEK192.51 |
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Second Quarter
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—
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—
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—
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(1)
Reflects the average of the weighted average price per share.
(2)
Reflects the range of the weighted average price per share.
Atlas Luxco S.à r.l.
53, boulevard Royal
L-2449 Luxembourg
Grand Duchy of Luxembourg
Atlas Investissement S.A.S.
16 Rue de la Ville-l’Évêque,
FR-75008 Paris
France
BNP Paribas S.A.
16 boulevard des italiens
FR-75009 Paris
France
Crédit Agricole Corporate and Investment Bank
12 place des Etats-Unis CS 70052
FR-92547 Montrouge Cedex
France
J.P. Morgan Securities plc
25 Bank Street, Canary Wharf
London, E14 5JP
United Kingdom
J.P. Morgan Securities LLC
1209 Orange Street
Wilmington, Delaware 19801
The United States
Lazard Frères SAS
175 boulevard Haussmann
FR-75008 Paris
France
Société Générale
17 cours Valmy, CS 50318
FR-92972 Paris La Défense cedex
France
Handelsbanken
Blasieholmstorg 11
SE-106 70 Stockholm
Sweden
Skadden, Arps, Slate, Meagher & Flom LLP
68 rue du Faubourg Saint-Honoré
FR-75008 Paris
France
Skadden, Arps, Slate, Meagher & Flom (UK) LLP
22 Bishopsgate
London EC2N 4BQ
United Kingdom
Roschier Advokatbyrå AB
Box 7358
Brunkebergstorg 2
SE-103 90 Stockholm
Sweden
Arendt & Medernach SA
41A avenue JF Kennedy
L-2082 Luxembourg
Grand Duchy of Luxembourg
Broadridge Corporate Issuer Solutions, LLC
Attn: BCIS IWS
51 Mercedes Way
Edgewood, NY 11717
(888) 789-8409
Shareholder@Broadridge.com
D.F. King & Co., Inc. (United States)
48 Wall Street, 22nd Floor
New York, New York 10005
Banks and Brokers Call Collect: (212) 269-5550
All Others Call Toll-Free: (866) 356-6140
Email: Millicom@dfking.com
D.F. King Ltd (Europe)
6th Floor, 65 Gresham Street
London EC2V 7NQ
+ 44 (0) 207 920 9700
Email: Millicom@dfking.com
Millicom International Cellular S.A.
2, Rue du Fort Bourbon
L-1249 Luxembourg
Grand Duchy of Luxembourg
Exhibit (a)(1)(B)
![[MISSING IMAGE: px_24broadpxy01pg01-bw.jpg]](https://www.sec.gov/Archives/edgar/data/1952901/000110465924076505/px_24broadpxy01pg01-bw.jpg)
1CERTIFICATE INFORMATION:Certificate No.SharesCertificate No.SharesShares from other certificates held:V53231-TBDLETTER OF TRANSMITTAL (877) 830-4936 (toll free) www.shareholder.broadridge.comBroadridge Corporate Issuer SolutionsINDICATE IN BOX (1) AND (2) THE CERTIFICATE NUMBERS/SHARES AND OR BOOK ENTRY SHARES TO BE TENDERED PURSUANT TO THE OFFER TO PURCHASE. MARK ONLY ONE BOX.IF MORE THAN ONE BOX IS CHECKED OR NO BOX IS CHECKED, YOUR SHARES WILL NOT BE PROPERLY TENDERED.EXPIRATION IS ONE MINUTE AFTER 10:59 A.M. EST, OR ONE MINUTE AFTER 4:59 P.M. CEST ON AUGUST 16, 2024 UNLESS THE OFFERS ARE EXTENDED.!I DO NOT tender any shares of MILLICOM INTERNATIONAL CELLULAR S.A.3I tender ____________ (insert number of shares in whole numbers) shares of MILLICOM INTERNATIONAL CELLULAR S.A.!!I tender ALL shares of MILLICOM INTERNATIONAL CELLULAR S.A.Certificated shares:Book-Entry shares:Total shares:2COMPANY NAME: MILLICOM INTERNATIONAL CELLULAR S.A.WHERE TO FORWARD YOUR TRANSMITTALThe method of delivery of certificate(s) and all other required documents is at the election and risk of the owner. If you elect to send them
by mail, it is recommended that you send them by certified or registered mail with return receipt requested. If delivering instructions within a week of Expiration, it is recommended to submit via an overnight courier (excluding USPS overnight) to guarantee receipt of instructions prior to cutoff. Delivery will be deemed effective only when received by Broadridge.If using UPS, FedEx or Courier: Broadridge, Inc., Attn: BCIS IWS, 51 Mercedes Way, Edgewood, NY 11717If using a USPS Service: Broadridge, Inc., Attn: BCIS Re-Organization Dept., P.O. Box 1317, Brentwood, NY 11717-0718INSTRUCTIONS FOR COMPLETING THE LETTER OF TRANSMITTALIF YOU NOW RESIDE AT A DIFFERENT ADDRESS FROM THE ADDRESS TO WHICH THIS DOCUMENT WAS MAILED, PLEASE FILL OUT BOX 7, AND CHECK OFF THE BOX INDICATING A PERMANENT ADDRESS CHANGE. NO MEDALLION GUARANTEE WILL BE REQUIRED.1PLEASE INDICATE IN THIS SECTION THE CERTIFICATE NUMBERS AND RESPECTIVE AMOUNT OF SHARES THAT ARE IN YOUR POSSESSION. IF YOU ARE NOT IN POSSESSION OF SOME OR ALL OF YOUR STOCK CERTIFICATES, YOU MUST CALL OR WRITE BROADRIDGE AT THE PHONE NUMBER OR ADDRESS ON THE LETTER OF TRANSMITTAL. YOU WILL BE REQUIRED TO SUBMIT THE NECESSARY FORMS AND CHECK FOR THE POSTING OF A SURETY BOND, THE DETAILS OF WHICH WILL BE PROVIDED BY BROADRIDGE. PLEASE NOTE THAT THIS FORM STILL MUST BE COMPLETED AND REMITTED ALONG WITH YOUR REPLACEMENT FORMS, BOND FEE AND ANY ADDITIONAL CERTIFICATES THAT MAY BE IN YOUR POSSESSION.2PLEASE INDICATE IN THIS SECTION THE TOTAL AMOUNT OF SHARES OWNED BY YOU.3PLEASE REVIEW AND MARK THE APPROPRIATE BOX TO INDICATE YOUR TENDER INSTRUCTIONS.4YOU MUST FILL OUT, SIGN, AND DATE THIS FORM W-9 (OR SUBMIT A FORM W-8, AS APPLICABLE) IN ORDER TO PROVIDE A CERTIFIED TAX ID NUMBER AND PREVENT WITHHOLDING FROM YOUR ENTITLEMENT PROCEEDS.5THIS SECTION MUST BE SIGNED AND DATED BY ALL REGISTERED OWNERS, OTHERWISE YOUR TRANSMITTAL AND ACCOMPANYING DOCUMENTS WILL BE RETURNED TO YOU FOR COMPLETION.6THIS SECTION SHOULD BE COMPLETED AND SIGNED IF YOU WANT YOUR ENTITLEMENT TO BE ISSUED IN ANOTHER NAME. A MEDALLION SIGNATURE GUARANTEE WILL BE REQUIRED (I.E. SIGNATURE IS GUARANTEED BY A BANK, BROKER OR OTHER FINANCIAL INSTITUTION THAT IS A MEMBER OF A SECURITIES TRANSFER ASSOCIATION-APPROVED MEDALLION PROGRAM SUCH AS STAMP, SEMP OR MSP).7THIS SECTION SHOULD BE COMPLETED OR SIGNED IF YOU WANT YOUR ENTITLEMENT TO BE MAILED TO AN ALTERNATIVE ADDRESS THAT IS DIFFERENT THAN YOUR ADDRESS IN THE ACCOUNT REGISTRATION SECTION.
![[MISSING IMAGE: px_24broadpxy01pg02-bw.jpg]](https://www.sec.gov/Archives/edgar/data/1952901/000110465924076505/px_24broadpxy01pg02-bw.jpg)
All questions as to the validity, form and eligibility of any surrender of certificates will be determined by Broadridge or the issuer and such determination shall be final and binding. Broadridge or the issuer reserves the right to waive any irregularities or defects in the surrender of any certificates. A surrender will not be deemed to have been made until all irregularities have been cured or waived.If your certificates are registered in different names, a separate Letter of Transmittal must be submitted for each registration. Additional Letters of Transmittal can be obtained by accessing or by contacting Broadridge at the number listed on the reverse side.If payment for securities is to be made to any person other than the registered holder(s), or if surrendered certificates are registered in the name of any person other than the person(s) signing the Letter of Transmittal, any stock transfer taxes payable as a result of the transfer to such person (whether imposed on the registered holder(s) or such person) shall be paid prior to the submission of this Letter of Transmittal. Broadridge reserves the right to deduct the amount of such taxes from the payment, if satisfactory evidence of the payment of such taxes, or exemption therefrom, is not submitted.If the Letter of Transmittal is signed by a person other than the registered owner (e.g., where the shares have been assigned), the Letter of Transmittal must be accompanied
by a stock power guaranteed by a bank, broker or other financial institution that is a member of a Securities Transfer Association-approved medallion program such as STAMP, SEMP or MSP.SPECIAL ISSUANCE/PAYMENT INSTRUCTIONSTo be completed ONLY if issuance/payment is to be made in a name other than that shown in the Account Registration section on the reverse side of this form. Please note, an appropriate Form W-9 or Form W-8, as applicable, must also be completed for the person receiving the issuance/payment. You may obtain such forms by contacting the agent at the number listed on the reverse side.If you have completed this section, your signature on the face of this Letter of Transmittal must be guaranteed by a bank, broker or other financial institution that is a member of a Securities Transfer Association-approved medallion program such as STAMP, SEMP or MSP.NAME:ADDRESS:SOCIAL SECURITY OR TAXPAYER ID NUMBER OF RECIPIENT:6ISSUE TO:SPECIAL DELIVERY INSTRUCTIONSTo be completed ONLY if delivery is to be made to someone other than the registered holder(s), or to such registered holder(s) at an address other than that shown on the reverse side.ADDRESS:7NAME:MAIL TO:PLEASE CHECK THIS BOX IF THIS IS APERMANENT CHANGE OF ADDRESS!Under penalties of perjury, I certify that: (1) The number shown on this form is my correct Taxpayer Identification Number; (2) I am not subject to backup withholding either because I am exempt from backup withholding, I have not been notified by the Internal Revenue Service ("IRS") that I am subject to backup withholding as a result of failure to report all interest or dividends, or the IRS has notified me that I am not subject to backup withholding; and (3) I am a U.S. Person (or a U.S. resident alien).Certification Instructions - You must cross out Item (2) above if you have been notified by the IRS that you are subject to backup withholding because of underreporting interest or dividends on your tax return. However, if after being notified by the IRS that you were subject to backup withholding you received another notification from the IRS stating that you are no longer subject to backup withholding, do not cross out item (2).SUBSTITUTE FORM W-9REQUEST FOR TAXPAYER IDENTIFICATION NUMBER AND CERTIFICATION4THIS SUBSTITUTE FORM W-9 MUST BE FILLED OUT AND SIGNEDPRINT YOUR TAXPAYER ID OR SOCIAL SECURITY NUMBER HERENOTE: Certain stockholders (including, among others, all corporations and certain foreign individuals) are not subject to these backup withholding and reporting requirements. In order to satisfy the Exchange/Paying Agent that a foreign individual qualifies as an exempt recipient, such stockholder(s) must submit a statement, signed under penalties of perjury, attesting to that individual's exempt status, on the appropriate and properly completed Form W-8, or successor form. Such statements can be obtained from the Exchange/Paying Agent.IF YOU ARE AWAITING A TAXPAYER IDENTIFICATION NUMBER, WRITE "APPLIED FOR" IN THE SUBSTITUTE FORM W-9 ABOVE, AND COMPLETE AND SIGN BOTH THISCERTIFICATION AND THE SUBSTITUTE FORM W-9.I certify under penalties of perjury that a taxpayer identification number has not been issued to me, and either (a) I have mailed or delivered an application to receive a taxpayer identification number to the appropriate Internal Revenue Service Center or Social Security Administration Office or (b) I intend to mail or deliver an application in the near future. I understand that if I do not provide a taxpayer identification number by the time of payment, a percentage (currently 28 percent) of all reportable cash payments made to me will be withheld until I provide a number and such retained amounts will be remitted to the Internal Revenue Service as backup withholding.Signature:Date:Signature:Date:5THIS LETTER OF TRANSMITTALMUST BE SIGNED BY ALLREGISTERED OWNERSEach registered owner must sign here exactly as the name(s) appear(s) in the account registration. If all registered owners have signed this Letter of Transmittal, no endorsementsof certificates or separate stock powers are required.If signature is by a trustee, executor, administrator, guardian, attorney-in-fact, officer of a corporation or other person acting in a fiduciary or representative capacity, it must be so indicated and proper evidence of authority, satisfactory to Broadridge, must be submitted.THE UNDERSIGNED REPRESENTS THAT I (WE) HAVE FULL AUTHORITY TO SURRENDER WITHOUT RESTRICTION THE CERTIFICATE(S) ENCLOSED HEREIN.Signature:Signature:Date:Telephone No. (Required):E-mail Address:You must submit your original certificates with this Letter of Transmittal. If you are not in possession of your certificates, please see Instruction #1 of the accompanying instructions for completing the Letter of Transmittal. You do not need to sign the back of the certificates. Shares held in Book-Entry and Plan form are un-certificated and need not be submitted (although this Letter of Transmittal must still be completed).Place Medallion Stamp HereV53232-TBD
Exhibit (a)(1)(C)
OFFERS TO PURCHASE FOR CASH ALL OF THE OUTSTANDING COMMON SHARES AND SWEDISH DEPOSITARY RECEIPTS REPRESENTING COMMON SHARES
OF
MILLICOM INTERNATIONAL CELLULAR S.A.
FOR
USD 24.00 PER COMMON SHARE AND USD 24.00 PER SWEDISH DEPOSITARY RECEIPT
PURSUANT TO THE OFFER TO PURCHASE DATED JULY 1, 2024
BY
ATLAS LUXCO S.À R.L.
THE OFFERS WILL EXPIRE AT ONE MINUTE AFTER 10:59 A.M. EST, OR ONE MINUTE AFTER
4:59 P.M. CEST ON AUGUST 16, 2024, UNLESS THE OFFERS ARE EXTENDED.
July 1, 2024
To Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees:
We have been engaged by Atlas Investissement S.A.S., a simplified joint-stock company (société par actions simplifiée) having its registered office at 16 Rue de la Ville-l’Évêque, FR-75008 Paris, France with corporate registration number 908 070 188 with the Paris Trade and Companies Registry (R.C.S Paris) (the “Parent”) in connection with the offer to purchase by Atlas Luxco S.à r.l., a private limited liability company (société à responsabilité limitée) existing under the laws of the Grand Duchy of Luxembourg, having its registered office at 53, boulevard Royal, L-2449 Luxembourg, Grand Duchy of Luxembourg (“Luxembourg”), with corporate registration number B274990 with the Luxembourg Trade and Companies Registry (R.C.S. Luxembourg) (“Atlas” or the “Purchaser”), a subsidiary of Parent, which is a majority-owned subsidiary of NJJ Holding S.A.S., a simplified joint-stock company (société par actions simplifiée) domiciled in Paris, France, wholly-owned by Xavier Niel, through separate but concurrent offers in Sweden (the “Swedish Offer”) and the United States (the “US Offer”), all of the outstanding common shares (CUSIP L6388F110), with nominal value USD 1.50 per share (each, a “Common Share,” and collectively, the “Common Shares”), including Swedish Depositary Receipts (ISIN: SE0001174970) representing Common Shares (each Swedish Depositary Receipt represents one Common Share) (each, an “SDR,” and collectively, the “SDRs,” and together with the Common Shares, the “Shares”) of Millicom International Cellular S.A., a public limited liability company (société anonyme) existing under the laws of Luxembourg, having its registered office at 2, rue du Fort Bourbon, L-1249 Luxembourg, with corporate registration number B40630 with the Luxembourg Trade and Companies Registry (R.C.S. Luxembourg) (“Millicom”), for USD 24.00 per Common Share and USD 24.00 per SDR (each such amount, the “Offer Price”), upon the terms and subject to the conditions set forth in the Offer to Purchase, dated July 1, 2024 (together with any amendments or supplements hereto, the “Offer to Purchase”) and for the US Offer the accompanying Letter of Transmittal (together with any amendments or supplements thereto, the “Letter of Transmittal” and together with the Offer to Purchase and other materials related to the Swedish Offer and the US Offer, as each may be amended or supplemented from time to time, the “Offers”). Please furnish copies of the enclosed materials to those of your clients for whom you hold Common Shares registered in your name or in the name of your nominee.
For your information and for forwarding to your clients for whom you hold Common Shares registered in your name or in the name of your nominee, we are enclosing the following documents:
1. The Offer to Purchase;
2. The Letter of Transmittal (including Internal Revenue Service Form W-9) for the information of your clients; and
3. A form of letter which may be sent to your clients for whose accounts you hold Common Shares registered in your name or in the name of your nominee, with space provided for obtaining such clients’ instructions with regard to the Offer.
Certain conditions to the Offers are described under “The Tender Offers — Terms of the Offers — Conditions for Completion of the Offers” in the Offer to Purchase. The Offers are not subject to any financing condition.
Your prompt action is requested. We urge you to contact your clients as promptly as possible. Please note that the Offers will expire at one minute after 10:59 a.m., EST, on August 16, 2024 (the “Expiration Date”), unless the Offers are extended (in which event the “Expiration Date” will mean the latest time and date at which the Offers, as so extended by Purchaser, will expire). Purchaser is not providing for guaranteed delivery procedures. Therefore, Millicom shareholders must allow sufficient time for the necessary tender procedures to be completed prior to the Expiration Date.
For Common Shares to be properly tendered and accepted for payment pursuant to the US Offer, Broadridge Corporate Issuer Solutions, LLC, the depositary and paying agent for the US Offer (the “US Tender Agent”), must be in timely receipt of any tenders through The Depositary Trust Company’s (“DTC”) Automated Tender Program (“ATOP”) or confirmation of a book-entry transfer of such Common Shares into the US Tender Agent’s account at The Depository Trust Company (“DTC”) pursuant to the procedures set forth under “The Tender Offers — Acceptance for Payment and Payment — Common Shares” in the Offer to Purchase.
Neither Parent nor Purchaser will pay any fees or commissions to any broker or dealer or to any other person (other than to the US Tender Agent and the Information Agent) in connection with the solicitation of tenders of Common Shares pursuant to the US Offer. Brokers, dealers, commercial banks, trust companies and other nominees will, upon request, be reimbursed by Purchaser for customary mailing and handling expenses incurred by them in forwarding the Offer materials to their customers. In those jurisdictions where applicable laws or regulations require the Offers to be made by a licensed broker or dealer, the Offers will be deemed to be made on behalf of Purchaser by one or more registered brokers or dealers licensed under the laws of such jurisdiction to be designated by Purchaser. Tendering shareholders who are record owners of their Common Shares and who tender directly to the US Transfer Agent will not be obligated to pay brokerage fees or commissions or, except as otherwise provided in the Letter of Transmittal, stock transfer taxes with respect to the purchase of Common Shares by Purchaser pursuant to the US Offer. Shareholders who hold their Common Shares through a broker, banker or other nominee should consult such institution as to whether it charges any service fees or commissions. Questions or requests for assistance may be directed to the Information Agent at the address and telephone number listed below. Additional copies of the Offer to Purchase, the related Letter of Transmittal, and other materials related to the Offers may be obtained at no cost to shareholders from the Information Agent. Additionally, copies of the Offer to Purchase, the related Letter of Transmittal, and any other materials related to the Offers may be found free of charge at www.sec.gov.
Very truly yours,
D.F. KING & CO., INC.
D.F. KING LTD
Nothing contained herein or in the enclosed documents shall render you, the agent of Purchaser, the Information Agent, the US Tender Agent or any affiliate of any of them or authorize you or any other person to use any document or make any statement on behalf of any of them in connection with the Offers other than the enclosed documents and the statements contained therein.
The Information Agent for the Offer is:
D.F. King & Co., Inc. (United States)
48 Wall Street, 22nd Floor New York, New York 10005
Banks and Brokers Call Collect: (212) 269-5550 All Others Call Toll-Free: (866) 356-6140
Email: Millicom@dfking.com
D.F. King Ltd (Europe)
6th Floor, 65 Gresham Street London EC2V 7NQ
+ 44 (0) 207 920 9700
Email: Millicom@dfking.com
Exhibit (a)(1)(D)
OFFERS TO PURCHASE FOR CASH ALL OF THE OUTSTANDING COMMON
SHARES AND SWEDISH DEPOSITARY RECEIPTS REPRESENTING COMMON SHARES
OF
MILLICOM INTERNATIONAL CELLULAR S.A.
FOR
USD 24.00 PER COMMON SHARE AND USD 24.00 PER SWEDISH DEPOSITARY RECEIPT
PURSUANT TO THE OFFER TO PURCHASE DATED JULY 1, 2024
BY
ATLAS LUXCO S.À R.L.
THE OFFERS WILL EXPIRE AT ONE MINUTE AFTER 10:59 A.M. EST, OR ONE MINUTE AFTER
4:59 P.M. CEST ON AUGUST 16, 2024, UNLESS THE OFFERS ARE EXTENDED.
July 1, 2024
To Our Clients:
Enclosed for your consideration are the Offer to Purchase, dated July 1, 2024 (together with any amendments or supplements thereto, the “Offer to Purchase”), and the related Letter of Transmittal in connection with the offer by Atlas Luxco S.à r.l., a private limited liability company (société à responsabilité limitée) existing under the laws of the Grand Duchy of Luxembourg, having its registered office at 53, boulevard Royal, L-2449 Luxembourg, Grand Duchy of Luxembourg (“Luxembourg”), with corporate registration number B274990 with the Luxembourg Trade and Companies Registry (R.C.S. Luxembourg) (“Atlas” or the “Purchaser”), a subsidiary of Atlas Investissement S.A.S., a simplified joint-stock company (société par actions simplifiée), having its registered office at 16 Rue de la Ville-l’Évêque, FR-75008 Paris, France with corporate registration number 908 070 188 with the Paris Trade and Companies Registry (R.C.S Paris) (the “Parent”), which is a majority-owned subsidiary of NJJ Holding S.A.S., a simplified joint-stock company (société par actions simplifiée) domiciled in Paris, France, wholly-owned by Xavier Niel, to purchase, through separate but concurrent offers in Sweden (the “Swedish Offer”) and the United States (the “US Offer”), all of the outstanding common shares (CUSIP L6388F110), with nominal value USD 1.50 per share (each, a “Common Share,” and collectively, the “Common Shares”), including Swedish Depositary Receipts (ISIN: SE0001174970) representing Common Shares (each Swedish Depositary Receipt represents one Common Share) (each, an “SDR,” and collectively, the “SDRs,” and together with the Common Shares, the “Shares”) of Millicom International Cellular S.A., a public limited liability company (société anonyme) existing under the laws of Luxembourg, having its registered office at 2, rue du Fort Bourbon, L-1249 Luxembourg, with corporate registration number B40630 with the Luxembourg Trade and Companies Registry (R.C.S. Luxembourg) (“Millicom” or the “Company”), for USD 24.00 per Common Share and USD 24.00 per SDR (each such amount, the “Offer Price”), upon the terms and subject to the conditions set forth in the Offer to Purchase, and for the US Offer the accompanying Letter of Transmittal (together with any amendments or supplements thereto, the “Letter of Transmittal” and together with the Offer to Purchase and other materials related to the Swedish Offer and the US Offer, as each may be amended or supplemented from time to time, the “Offers”).
We or our nominees are the holder of record of Common Shares held for your account. A tender of such Common Shares can be made only by us as the holder of record and pursuant to your instructions. The Letter of Transmittal accompanying this letter is furnished to you for your information only and cannot be used by you to tender Common Shares held by us or our nominees for your account.
We request instructions as to whether you wish us to tender any or all of the Common Shares held by us or our nominees for your account, upon the terms and subject to the conditions set forth in the enclosed Offer to Purchase and the Letter of Transmittal.
Please note carefully the following:
1.
The Offer Price for the US Offer is $24.00 per Common Share, in cash, without interest and less any applicable tax withholding.
2.
The US Offer is being made for all issued and outstanding Common Shares.
3.
The Offers will expire at the Expiration Date. The term “Expiration Date” means one minute following 10:59 a.m., Eastern Time, on August 16, 2024, unless Purchaser has extended the Offer (in which event the “Expiration Date” will mean the latest time and date at which the Offers, as so extended by Purchaser, will expire).
4.
The obligation of Purchaser to accept for payment and pay for Common Shares validly tendered (and not properly withdrawn) pursuant to the US Offer is subject to the conditions set forth in under “The Tender Offers — Terms of the Offers — Conditions for Completion of the Offers” in the Offer to Purchase. The Offers are not subject to any financing condition.
If you wish to have us tender any or all of your Common Shares, please so instruct us by completing, executing, detaching and returning to us the Instruction Form on the detachable part hereof. An envelope to return your instructions to us is enclosed. If you authorize tender of your Common Shares, all such Common Shares will be tendered unless otherwise specified on the Instruction Form.
Your prompt action is requested. Your Instruction Form should be forwarded to us in ample time to permit us to submit the tender on your behalf before the Expiration Date.
The US Offer is being made to all holders of Common Shares. Other than as disclosed in the Offer to Purchase, Purchaser is not aware of any jurisdiction in which the making of the Offer or the acceptance thereof would be prohibited by securities, “blue sky” or other valid laws of such jurisdiction. If Purchaser becomes aware of any US state in which the making of the US Offer or the acceptance of Common Shares pursuant thereto would not be in compliance with an administrative or judicial action taken pursuant to a US state statute, Purchaser will make a good faith effort to comply with any such law. If, after such good faith effort, Purchaser cannot comply with any such law, the US Offer will not be made to (nor will tenders be accepted from or on behalf of) the holders of Common Shares in such state. In any jurisdictions where applicable laws require the US Offer to be made by a licensed broker or dealer, the US Offer shall be deemed to be made on behalf of Purchaser by one or more registered brokers or dealers licensed under the laws of such jurisdiction to be designated by Purchaser.
INSTRUCTION FORM WITH RESPECT TO
OFFERS TO PURCHASE FOR CASH ALL OF THE OUTSTANDING COMMON
SHARES AND SWEDISH DEPOSITARY RECEIPTS REPRESENTING COMMON SHARES
OF
MILLICOM INTERNATIONAL CELLULAR S.A.
FOR
USD 24.00 PER COMMON SHARE AND USD 24.00 PER SWEDISH DEPOSITARY RECEIPT
PURSUANT TO THE OFFER TO PURCHASE DATED JULY 1, 2024
BY
ATLAS LUXCO S.À R.L.
The undersigned acknowledge(s) receipt of your letter and the enclosed Offer to Purchase, dated July 1, 2024 (as amended or supplemented, the “Offer to Purchase”), and the related Letter of Transmittal in connection with the offer by Atlas Luxco S.à r.l., a private limited liability company (société à responsabilité limitée) existing under the laws of the Grand Duchy of Luxembourg, having its registered office at 53, boulevard Royal, L-2449 Luxembourg, Grand Duchy of Luxembourg (“Luxembourg”), with corporate registration number B274990 with the Luxembourg Trade and Companies Registry (R.C.S. Luxembourg) (“Atlas” or the “Purchaser”), is a subsidiary of Atlas Investissement S.A.S., a simplified joint-stock company (société par actions simplifiée), having its registered office at 16 Rue de la Ville-l’Évêque, FR-75008 Paris, France with corporate registration number 908 070 188 with the Paris Trade and Companies Registry (R.C.S Paris) (the “Parent”), which is a majority-owned subsidiary of NJJ Holding S.A.S., a simplified joint-stock company (société par actions simplifiée) domiciled in Paris, France, wholly-owned by Xavier Niel, to purchase, through separate but concurrent offers in Sweden (the “Swedish Offer”) and the United States (the “US Offer”), all of the outstanding common shares (CUSIP L6388F110), with nominal value USD 1.50 per share (each, a “Common Share,” and collectively, the “Common Shares”), including Swedish Depositary Receipts (ISIN: SE0001174970) representing Common Shares (each Swedish Depositary Receipt represents one Common Share) (each, an “SDR,” and collectively, the “SDRs,” and together with the Common Shares, the “Shares”) of Millicom International Cellular S.A., a public limited liability company (société anonyme) existing under the laws of Luxembourg, having its registered office at 2, rue du Fort Bourbon, L-1249 Luxembourg, with corporate registration number B40630 with the Luxembourg Trade and Companies Registry (R.C.S. Luxembourg) (“Millicom” or the “Company”), for USD 24.00 per Common Share and USD 24.00 per SDR (each such amount, the “Offer Price”), upon the terms and subject to the conditions set forth in the Offer to Purchase, and for the US Offer the accompanying Letter of Transmittal (together with any amendments or supplements thereto, the “Letter of Transmittal” and together with the Offer to Purchase and other materials related to the Swedish Offer and the US Offer, as each may be amended or supplemented from time to time, the “Offers”).
The undersigned hereby instruct(s) you to tender to Purchaser the number of Common Shares indicated below (or, if no number is indicated, all Common Shares) which are held by you or your nominees for the account of the undersigned, upon the terms and subject to the conditions set forth in the US Offer.
The undersigned understands and acknowledges that all questions as to the validity, form, eligibility (including time of receipt) and acceptance for payment of any tender of Common Shares will be determined by Purchaser, in its sole discretion, which determination will be final and binding. In addition, the undersigned understands and acknowledges that:
1.
Purchaser reserves the absolute right to reject any and all tenders determined by it not to be in proper form or the acceptance for payment of which may, in the opinion of Purchaser, be unlawful and waive any defect or irregularity in the tender of any Common Shares by any particular shareholder, whether or not similar defects or irregularities are waived in the case of other shareholders.
2.
No tender of Common Shares will be deemed to have been validly made until all defects and irregularities have been cured or waived to the satisfaction of Purchaser.
3.
None of Parent, Purchaser, Millicom or any of their respective affiliates or assigns, Broadridge Corporate Issuer Solutions, LLC, in its capacity as the depositary and paying agent, D.F. King & Co., Inc. and D.F. King Ltd, in its capacity as the information agent, or any other person will be under any duty to give notice of any defects or irregularities in tenders or incur any liability for failure to give any such notification.
The method of delivery of this document is at the election and risk of the tendering shareholder. If delivery is by mail, then registered mail with return receipt requested, properly insured, is recommended. In all cases, sufficient time should be allowed to ensure timely delivery.
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Number of Shares to be Tendered:
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SIGN HERE
Signature(s)
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Shares*
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Account No.:
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Dated: , 2024
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Please Print Name(s) and Address(es) Here
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Area Code and Phone Number
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Tax Identification Number or Social Security Number
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Unless otherwise indicated, it will be assumed that all Common Shares held by us for your account are to be tendered.
Exhibit (a)(1)(E)
This announcement
is not an offer, whether directly or indirectly, in Australia, Belarus, Canada, Hong Kong, Japan, New Zealand, Singapore, South Africa
or Russia or in any other jurisdiction where such offer would be prohibited by applicable law pursuant to legislation, restrictions and
regulations in the relevant jurisdiction. Shareholders not resident in Sweden or the United States who wish to accept the Offers (as
defined below) must make inquiries concerning applicable legislation and possible tax consequences. Shareholders should refer to the
offer restrictions included in the section titled “Important notice” at the end of this announcement and in the Offer to
Purchase (as defined below) that will be published shortly before the beginning of the acceptance period for the Offers. United States
shareholders should refer to the section titled “Important Information” and “Special Notice to Shareholders in the
United States” at the end of this announcement.
Press release
July 1,
2024
Atlas Luxco
S.à r.l., a subsidiary of Atlas Investissement S.A.S., announces public offers to purchase all of the outstanding common shares
and SDRs of Millicom International Cellular S.A. for USD 24.00 in cash per Common Share and per SDR
Atlas
Luxco S.à r.l.1 (“Atlas” or the “Purchaser”),
a subsidiary of Atlas Investissement S.A.S.1, hereby announces separate but concurrent public offers in Sweden (the “Swedish
Offer”) and the United States (the “US Offer”, and together with the Swedish Offer, the “Offers”) to the
shareholders in Millicom International Cellular S.A.2 (“Millicom”
or the “Company”) to tender all of their common shares, with nominal value USD 1.50 per share (each, a “Common Share,”
and collectively, the “Common Shares”), including Swedish Depositary Receipts representing Common Shares (each Swedish Depositary
Receipt represents one Common Share) (each, an “SDR” and collectively, the “SDRs,” and together with the Common
Shares, the “Shares”) in Millicom3 to Atlas.
The Common Shares are listed on the Nasdaq Stock Market (“Nasdaq US”) and the SDRs are listed on Nasdaq Stockholm, Large
Cap (“Nasdaq Stockholm”). Holders of Common Shares and SDRs will collectively be referred to herein as “Shareholders.”
Key
Highlights
Atlas firmly believes
that the Offers bring (i) compelling value; (ii) high transaction certainty; and (iii) a unique liquidity opportunity
to the Company’s Shareholders, as detailed below:
| · | Compelling
value: The price in the Offers of USD 24.00 per Common Share and USD 24.00 per SDR4 (the “Offer Price”)
represents the highest share price for the Shares reached by Millicom over the last two years until early May 2024, a 18.8 per cent premium
compared to the volume weighted average trading price for the Shares during the last 90 calendar days ended on May 22, 20245,
a 27.1 per cent premium compared to the volume weighted average trading price for the Shares during the last 180 calendar days ended
on May 22, 20246 and a 37.8 per cent premium compared
to the volume weighted average trading price for the Shares during the last 365 calendar days ended on May 22, 20247.8 |
1
Atlas Luxco S.à r.l., a private limited liability company (société
à responsabilité limitée) existing under the laws of the Grand Duchy of Luxembourg (“Luxembourg”),
having its registered office at 53, boulevard Royal, L-2449 Luxembourg, Luxembourg with corporate registration number B274990 with the
Luxembourg Trade and Companies Registry (R.C.S. Luxembourg), is a subsidiary of Atlas Investissement S.A.S., a simplified joint-stock
company (société par actions simplifiée), having its registered office at 16 Rue de la Ville-l’Évêque,
FR-75008 Paris, France, with corporate registration number 908 070 188 with the Paris Trade and Companies Registry (R.C.S
Paris) (the “Parent”). The Parent is a majority owned subsidiary of NJJ Holding S.A.S., a simplified joint-stock
company (société par actions simplifiée) domiciled in Paris, France, wholly owned by Xavier Niel (Atlas Luxco
S.à r.l., Atlas Investissement S.A.S., NJJ Holding S.A.S. and Xavier Niel are together referred to as the “Purchaser
Group”).
2 Millicom
International S.A., a public limited liability company (société anonyme) existing under the laws of Luxembourg,
having its registered office at 2, rue du Fort Bourbon, L-1249 Luxembourg, with corporate registration number B40630 with the Luxembourg
Trade and Companies Registry (R.C.S. Luxembourg).
3
Excluding 840,641 Common Shares and/or SDRs held in treasury by Millicom.
4
Corresponding to SEK 254.67 per SDR, based on an illustrative USD/SEK exchange rate of 10.6
as of June 28, 2024. The Offer Price per SDR in SEK that will be paid to the holders of SDRs will be set based on the USD/SEK exchange
rate as close to the settlement date as the Purchaser is able.
5
The last day of trading prior to market speculation regarding a potential public offer for
the Company.
6
The last day of trading prior to market speculation regarding a potential public offer for
the Company.
7
The last day of trading prior to market speculation regarding a potential public offer for
the Company.
8
The blended share price premium is calculated using the daily volume-weighted average share
prices of the Common Shares on Nasdaq US and the SDRs on Nasdaq Stockholm expressed in USD, with the SDR price converted from SEK to
USD using the daily SEK/USD exchange rate.
| · | High
transaction certainty: The Offers are fully financed, and Atlas believes that the conditions
for completion of the Offers are customary for this type of transaction. |
| · | A
unique liquidity opportunity: The Offers allow all Millicom Shareholders to benefit from
full cash liquidity at an attractive price in an environment where Atlas believes that liquidity
has been weak for holders of SDRs and Common Shares. |
Atlas acknowledges the Company’s press release
published on June 27, 2024 (the “Pre-Commencement Press Release”), in which the committee of independent directors
of the Board of Directors of Millicom (the “Independent Bid Committee”) stated that, on a preliminary basis, it did
not believe that the Offer Price was in the best interest of the Shareholders. This last-minute communication does not contain any valuation
arguments and only contains the Independent Bid Committee’s updated forecasts as to select features of Millicom’s results
of operations for 2024, which continues to be subject to review by Millicom’s management and auditor. Millicom is, under US law,
required to make a formal recommendation or state that it is neutral or is unable to take a position with respect to the Offers within
ten business days from the date of the publication of the Offer to Purchase (as defined below) and, pursuant to the Takeover Rules for
Nasdaq Stockholm and Nordic Growth Market NGM (the “Swedish Takeover Rules”), required to announce its formal opinion
regarding the Offers and obtain a fairness opinion from independent experts no later than two weeks prior to the expiry of the Offer Period
(as defined below). As such, this preliminary communication does not have a material impact on Atlas’ assessment of the Company.
Atlas believes
that the evolution of the Company’s share price since Atlas’ intentions concerning the Offers were made public is a clear
indication that the Offer Price is attractive.
Summary
of the Offers
| · | Shareholders
are being offered USD 24.00 per Common Share and USD 24.00 per SDR9. |
| · | The
Offers value Millicom, based on all outstanding 171,255,66410
Shares, at approximately USD 4.1 billion. The total value of the Offers,
based on the 121,288,93011
outstanding Shares in Millicom, which are not directly or indirectly owned by
Atlas or its closely related parties, amounts to approximately USD 2.9 billion12. |
9
Corresponding to SEK 254.67 per SDR, based on an illustrative USD/SEK exchange rate of 10.6
as of June 28, 2024. The Offer Price per SDR in SEK that will be paid to the holders of SDRs will be set based on the USD/SEK exchange
rate as close to the settlement date as the Purchaser is able.
10
Based on 172,096,305 issued Common Shares in Millicom, less 840,641 Common Shares and/or SDRs
held in treasury by Millicom.
11
Based on 172,096,305 issued Common Shares in Millicom, less 840,641 Common Shares and/or SDRs
held in treasury by Millicom and 49,966,734 SDRs held by the Purchaser.
12
Corresponding to approximately SEK 30.9 billion, based on an illustrative USD/SEK exchange
rate of 10.6 as of June 28, 2024.
| · | In
the US Offer, the Offer Price represents a premium of:13 |
| o | 1.8
per cent compared to the closing price of the Common Shares of USD 23.6 on May 22, 2024
(the last day of trading prior to market speculation14
regarding a potential public offer for the Company);15 |
| o | 17.2
per cent compared to the volume weighted average trading price of USD 20.5 for the Common
Shares during the last ninety (90) calendar days ended on May 22, 2024 (the last day
of trading prior to market speculation regarding a potential public offer for the Company); |
| o | 24.4
per cent compared to the volume weighted average trading price of USD 19.3 for the Common
Shares during the last one hundred eighty (180) calendar days ended on May 22, 2024
(the last day of trading prior to market speculation regarding a potential public offer for
the Company); and |
| o | 37.0
per cent compared to the volume weighted average trading price of USD 17.5 for the Common
Shares during the last three hundred sixty-five (365) calendar days ended on May 22,
2024 (the last day of trading prior to market speculation regarding a potential public offer
for the Company). |
| · | In
the Swedish Offer, the Offer Price16
represents a premium of:17 |
| o | 1.2
per cent compared to the closing price of the SDRs of SEK 251.6 on May 22, 2024 (the
last day of trading prior to market speculation regarding a potential public offer for the
Company);18 |
| o | 19.3
per cent compared to the volume weighted average trading price of SEK 213.4 for the SDRs
during the last ninety (90) calendar days ended on May 22, 2024 (the last day of trading
prior to market speculation regarding a potential public offer for the Company); |
| o | 29.3
per cent compared to the volume weighted average trading price of SEK 197.0 for the SDRs
during the last one hundred eighty (180) calendar days ended on May 22, 2024 (the last
day of trading prior to market speculation regarding a potential public offer for the Company);
and |
| o | 37.4
per cent compared to the volume weighted average trading price of SEK 185.3 for the SDRs
during the last three hundred sixty-five (365) calendar days ended on May 22, 2024 (the
last day of trading prior to market speculation regarding a potential public offer for the
Company). |
13
Source for Millicom’s Common Share prices: Nasdaq US.
14
On May 23, 2024, in response to the market speculation, the Parent announced through a press
release that it was exploring a potential all-cash tender offer for Millicom securities.
15
Representing a premium of -2.2 per cent compared to the closing price of the Common Shares
of USD 24.6 on June 28, 2024 (the last day of trading prior to the announcement of the Offers).
16
Based on the Offer Price of USD 24.00 per SDR, corresponding to SEK 254.67 per SDR, based on
an illustrative USD/SEK exchange rate of 10.6 as of June 28, 2024.
17
Source for Millicom’s SDR prices: Nasdaq Stockholm.
18
Representing a premium of -1.3 per cent compared to the closing price of the SDRs of SEK 258.0
on June 28, 2024 (the last day of trading prior to the announcement of the Offers).
| · | An
offer document regarding the Offers (the “Offer to Purchase”) is expected
to be made public on or about July 1, 2024.19
The initial acceptance period for the Offers (the “Offer Period”)
is expected to commence on July 1, 2024, and expire at one minute after 10:59 a.m. EST,
or one minute after 4:59 p.m. CEST, on August 16, 2024, unless the Offer Period
is extended. |
| · | The
Offers are, inter alia, conditional upon the Offers being accepted to such extent
that Atlas becomes the owner of Shares representing ninety-five (95) per cent or more of
the Shares in Millicom. Further, the Offers will be made on the terms and subject to the
conditions 2 – 7 set out below in this announcement. |
Background and
reasons for the Offers
The Purchaser has
identified Millicom as an attractive investment opportunity due to its position as a regional market leader in Latin America and its
strong position in South America, its high-quality assets and strong brand. Millicom has also demonstrated a long-term commitment to
the region with its significant investments, which are expected to support digital development for the relevant populations and economies
as well as the achievement of its ambitious ESG targets.
The purpose of
the Offers is for Atlas to continue to support the Company in the execution of its strategic plan. Specifically, Atlas wants to continue
expanding the reach and capacity of Millicom’s networks and distribution capabilities to grow its customer base and better leverage
its comprehensive telecom expertise. Atlas believes that the Company will benefit from the Purchaser Group’s long-term knowledge
and experience in the telecoms sector across numerous jurisdictions, as well as the creation of potential synergies that will allow Millicom
to be better equipped to focus on long-term business goals, including pursuing any potential strategic transactions and acquisitions.
The Purchaser Group will conduct a detailed review of Millicom and will consider what specific changes would be appropriate to achieve
this objective following completion of the Offers.
Following completion of the Offers, the Purchaser
will conduct a detailed review of Millicom and its assets, corporate structure, dividend policy, capitalization, indebtedness, operations,
properties, policies, management and personnel, obligations to report under Section 15(d) of the Securities and Exchange Act of 1934
(the “Exchange Act”) and the delisting of its securities from a registered national securities exchange, and will
consider what, if any, changes would be desirable in light of the circumstances that exist following completion of the Offers. The Purchaser
will evaluate the business and operations of Millicom following the consummation of the Offers and will take such actions as the Purchaser
deems appropriate under the circumstances then existing. Thereafter, the Purchaser intends to analyze such information as part of a comprehensive
review of Millicom’s business, operations, capitalization and management with a view to continue enhancing the development of Millicom’s
potential. Possible changes could include changes in Millicom’s business, corporate structure, organizational documents, capitalization,
management, business development opportunities, indebtedness, dividend policy or to the Board of Directors of Millicom (the “Millicom
Board”). While the Purchaser’s plans with respect to Millicom do not currently include changing its business and general
strategy, the Purchaser will consider what, if any, changes would be desirable in light of its review and the circumstances that exist
after the completion of the Offers.
19
The Offer to Purchase is prepared in English only in accordance with a language exemption granted
by the Swedish Financial Supervisory Authority in respect of the requirement to prepare the Offer to Purchase in the Swedish language.
As an effect, this press release and any subsequent press releases and other communication concerning the Offers will be prepared only
in the English language.
If the conditions
for completion of the Offers are satisfied and the Offers are successful, following the consummation of the Offers and to the extent
legally permitted by applicable law, the Purchaser currently intends to delist the Common Shares from Nasdaq US and the SDRs from Nasdaq
Stockholm, to terminate the registration of the Common Shares under Section 12(g)(4) of the Exchange Act and to suspend Millicom’s
reporting obligations under Section 15(d) of the Exchange Act.
Initially
following the consummation of the Offers, Millicom’s business and operations will be continued substantially as they are currently
being conducted and, except with respect to any transactions that may result from the Company’s ongoing discussions or negotiations
involving the Company or certain subsidiaries in Central and South America, neither the Purchaser nor the Purchaser Group nor, to the
best of their knowledge, any of the directors or executive officers of the Purchaser or the Parent, has any current plans, proposals
or negotiations that relate to or would result in the following: (a) an extraordinary corporate transaction, such as a merger, reorganization
or liquidation involving the Company or any of its subsidiaries, (b) any purchase, sale or transfer of a material amount of assets
of the Company or any of its subsidiaries, (c) any material change in the Company’s present dividend rate or policy, or indebtedness
or capitalization, (d) any change in the present Millicom Board or management of the Company, including, but not limited to, any
plans or proposals to change the number or the term of directors or to fill any existing vacancies on the Millicom Board, any changes
concerning the Company’s management or employees, or to change any material term of the employment contract of any executive officer
or other employee, (e) any other material change in the Company’s corporate structure, business or with regard to Millicom’s
operational sites, (f) any class of security of the Company to be de-listed from a national securities exchange or cease to be authorized
to be quoted in an automated quotations system operated by a national securities association or (g) any class of equity securities
of the Company becoming eligible for termination of registration under section 12(g)(4) of the Exchange Act.
The
Purchaser does not at this point in time anticipate that Millicom’s business will be materially affected as a result of the Offers,
though as noted above, upon completion of the Purchaser’s
detailed review following completion of the Offers, the Purchaser intends to leverage the Purchaser Group’s long-term knowledge
and experience in the telecoms sector across numerous jurisdictions to explore potential synergies, focus on long-term business goals
and pursue any potential strategic transactions and acquisitions that may arise.
Furthermore,
at this point in time there are no employees in Atlas, implying that the Offers will not entail any changes for the management and employees
in Atlas. The Purchaser does not anticipate that the Offers will affect Atlas’ business.
The
Offer
Consideration
Shareholders are
being offered USD 24.00 per Common Share and USD 24.00 per SDR20.
20
Corresponding to SEK 254.67 per SDR, based on an illustrative USD/SEK exchange rate of 10.6
as of June 28, 2024. The Offer Price per SDR in SEK that will be paid to the holders of SDRs will be set based on the USD/SEK exchange
rate as close to the settlement date as the Purchaser is able.
In the US Offer, the Offer Price is payable net
to the seller in cash, without interest, less any withholding taxes that may be applicable. In the Swedish Offer, settlement will be made
in SEK and the Offer Price will be set, based on the obtained USD/SEK exchange rate, as close to the settlement date as the Purchaser
is able. The conversion of USD to SEK will be made in connection with the Purchaser making the consideration available to the Swedish
settlement agent (expected around three business days following an announcement that the Purchaser declares the Offers unconditional and
will complete the Offers), by the Swedish settlement agent at the prevailing market rates. The conversion may be affected by the availability
of currency and the amount of SEK to be settled. This further means that the conversion may need to take place over more than one day.
Should Millicom,
prior to the settlement of the Offers, distribute dividends or in any other way distribute or transfer value to its Shareholders, the
Offer Price will be adjusted accordingly. In the event of either of the foregoing, Atlas reserves the right to determine whether this
price adjustment mechanism or condition 7 to completion of the Offers (see below) will be invoked.
No commission will
be charged in respect of the settlement of the Shares in Millicom tendered to Atlas under the Offers.
Premium
In the US Offer,
the Offer Price represents a premium of:21
| · | 1.8
per cent compared to the closing price of the Common Shares of USD 23.6 on May 22, 2024
(the last day of trading prior to market speculation22 regarding a potential
public offer for the Company);23 |
| · | 17.2
per cent compared to the volume weighted average trading price of USD 20.5 for the Common
Shares during the last ninety (90) calendar days ended on May 22, 2024 (the last day
of trading prior to market speculation regarding a potential public offer for the Company); |
| · | 24.4
per cent compared to the volume weighted average trading price of USD 19.3 for the Common
Shares during the last one hundred eighty (180) calendar days ended on May 22, 2024
(the last day of trading prior to market speculation regarding a potential public offer for
the Company); and |
| · | 37.0
per cent compared to the volume weighted average trading price of USD 17.5 for the Common
Shares during the last three hundred sixty-five (365) calendar days ended on May 22,
2024 (the last day of trading prior to market speculation regarding a potential public offer
for the Company). |
In the Swedish
Offer, the Offer Price24 represents a premium of:25
| · | 1.2
per cent compared to the closing price of the SDRs of SEK 251.6 on May 22, 2024 (the
last day of trading prior to market speculation regarding a potential public offer for the
Company);26 |
21 Source for Millicom’s
Common Share prices: Nasdaq US.
22
On May 23, 2024, in response to the market speculation, the Parent announced through a press
release that it was exploring a potential all-cash tender offer for Millicom securities.
23
Representing a premium of -2.2 per cent compared to the closing price of the Common Shares
of USD 24.6 on June 28, 2024 (the last day of trading prior to the announcement of the Offers).
24 Based
on the Offer Price of USD 24.00 per SDR, corresponding to SEK 254.67 per SDR, based on an illustrative USD/SEK exchange rate of 10.6
as of June 28, 2024.
25 Source for Millicom’s
SDR prices: Nasdaq Stockholm.
26
Representing a premium of -1.3 per cent compared to the closing price of the SDRs of SEK 258.0
on June 28, 2024 (the last day of trading prior to the announcement of the Offers).
| · | 19.3
per cent compared to the volume weighted average trading price of SEK 213.4 for the SDRs
during the last ninety (90) calendar days ended on May 22, 2024 (the last day of trading
prior to market speculation regarding a potential public offer for the Company); |
| · | 29.3
per cent compared to the volume weighted average trading price of SEK 197.0 for the SDRs
during the last one hundred eighty (180) calendar days ended on May 22, 2024 (the last
day of trading prior to market speculation regarding a potential public offer for the Company);
and |
| · | 37.4
per cent compared to the volume weighted average trading price of SEK 185.3 for the SDRs
during the last three hundred sixty-five (365) calendar days ended on May 22, 2024 (the
last day of trading prior to market speculation regarding a potential public offer for the
Company). |
On a blended basis
to illustrate one premium for both Offers, the Offer Price represents a premium of:27
| · | 18.8
per cent compared to the volume weighted average trading price of USD 20.2 for the Shares
during the last ninety (90) calendar days ended on May 22, 2024 (the last day of trading
prior to market speculation regarding a potential public offer for the Company); |
| · | 27.1
per cent compared to the volume weighted average trading price of USD 18.9 for the Shares
during the last one hundred eighty (180) calendar days ended on May 22, 2024 (the last
day of trading prior to market speculation regarding a potential public offer for the Company);
and |
| · | 37.8
per cent compared to the volume weighted average trading price of USD 17.4 for the Shares
during the last three hundred sixty-five (365) calendar days ended on May 22, 2024 (the
last day of trading prior to market speculation regarding a potential public offer for the
Company). |
The total value
of the Offers
The
Offers value Millicom, based on all outstanding 171,255,66428
Shares, at approximately USD 4.1 billion. The total value of the Offers, based on the 121,288,93029
outstanding Shares in Millicom, which are not directly or indirectly owned by Atlas or its closely related parties, amounts to
approximately USD 2.9 billion30.
Statement
by the independent bid committee and fairness opinion
Atlas has been informed that the Millicom Board
has established an Independent Bid Committee consisting entirely of directors independent from the Purchaser and the Parent.
27
The blended share price premium is calculated using the daily volume-weighted average share
prices of the Common Shares on Nasdaq US and the SDRs on Nasdaq Stockholm expressed in USD, with the SDR price converted from SEK to
USD using the daily SEK/USD exchange rate.
28
Based on 172,096,305 issued Common Shares in Millicom, less 840,641 Common
Shares and/or SDRs held in treasury by Millicom.
29
Based on 172,096,305 issued Common Shares in Millicom, less 840,641 Common
Shares and/or SDRs held in treasury by Millicom and 49,966,734 SDRs held by the Purchaser.
30
Corresponding to approximately SEK 30.9 billion, based on an illustrative USD/SEK exchange
rate of 10.6 as of June 28, 2024.
As
of the date of this announcement, the Millicom Board, through the Independent Bid Committee,
has not made a formal recommendation regarding the Offers and has not stated whether the Offers, as outlined in the Offer to
Purchase, which is expected to be made public on or around July 1, 2024, are fair or in the best interests of the Company and
its “unaffiliated security holders” as defined in Rule 13e-3 under the Exchange Act. Though the Independent Bid
Committee shared its preliminary views in the Pre-Commencement Press Release, the Independent Bid Committee is, in accordance with
the Swedish Takeover Rules, required to announce its formal opinion regarding the Offers and obtain a fairness opinion from
independent experts no later than two weeks prior to the expiry of the Offer Period. Under US law, Millicom is required to make a
formal recommendation or state that it is neutral or is unable to take a position with respect to the Offers in a
Solicitation/Recommendation Statement on Schedule 14D-9, and to publish such recommendation or send it to holders of Common Shares
within ten US business days from the date of the Offer to Purchase. In each case the Independent Bid Committee is required to
explain the reasons for its position. The Pre-Commencement Press Release does not constitute any such formal opinion or
recommendation.
The Independent Bid Committee consists of the
Millicom Non-Executive Directors Mauricio Ramos, Bruce Churchill, Justine Dimovic, Tomas Eliasson, Blanca Treviño de Vega and María
Teresa Arnal. The Millicom Non-Executive Directors Thomas Reynaud, Aude Durand and Maxime Lombardini have not participated in, and will
not participate in, the Independent Bid Committee’s handling of or decisions regarding the Offers as they have a conflict of interest
pursuant to Rule II.18 of the Swedish Takeover Rules (see “Certain closely related parties” below).
Atlas’
shareholding in Millicom
As
of the date of this announcement, Atlas holds 49,966,734 Shares (composed entirely of SDRs)31
in Millicom, which corresponds to approximately 29.0332
per cent of the share capital and the total number of votes in Millicom. Atlas is an affiliate (as defined under US federal
securities laws) of Millicom and has during the six (6) months preceding the announcement of the Offers acquired 131,587 SDRs at
a price per SDR not exceeding the Offer Price. The highest price paid per SDR during the six (6) months preceding the announcement
of the Offers was SEK 192.51.
Apart from the
above, neither Atlas nor any of its closely related companies or closely related parties owns or controls any Shares in Millicom, nor
any financial instruments that give financial exposure equivalent to holding Shares in Millicom, at the time of this announcement. Neither
Atlas nor any of its closely related companies or closely related parties have acquired or agreed to acquire any Shares or any other
financial instruments in Millicom that give financial exposure equivalent to holding Shares in Millicom at a price above the Offer Price
during the six (6) months preceding the announcement of the Offers.
To the extent permissible
under applicable laws and regulations, Atlas and its closely related companies or closely related parties may acquire, or take measures
to acquire, Shares in other ways than through the Offers. Information about such acquisitions of Shares, or measures to acquire Shares,
will be disclosed in accordance with applicable laws and regulations.
31 Each SDR represents one
Common Share in Millicom.
32 Based on 172,096,305 issued
Common Shares in Millicom.
Conditions for
completion of the Offers
The completion
of the Offers is conditional upon:
| 1. | the
Offers being accepted to such extent that Atlas becomes the owner of Shares representing
ninety five (95) per cent or more of the Shares in Millicom;33 |
| 2. | no
other party announcing an offer to acquire Shares on terms that are more favorable to the
Shareholders than the Offers; |
| 3. | with
respect to the Offers and completion of the acquisition of Millicom, receipt of all necessary
regulatory, governmental or similar clearances, approvals, decisions and other actions from
authorities or similar, including from competition authorities, being obtained, in each case
on terms which, in Atlas’ opinion, are acceptable; |
| 4. | neither
the Offers nor the acquisition of Millicom being rendered wholly or partially impossible
or significantly impeded as a result of legislation or other regulation, any decision of
a court or public authority, or any similar circumstance; |
| 5. | no
circumstances having occurred which could have a material adverse effect or could reasonably
be expected to have a material adverse effect on Millicom’s financial position or operations,
including Millicom’s sales, results, liquidity, equity ratio, equity or assets; |
| 6. | no
information made public by Millicom, or otherwise made available to Atlas by Millicom, being
inaccurate, incomplete or misleading, and Millicom having made public all information which
should have been made public; and |
| 7. | Millicom
not taking any action that is likely to impair the prerequisites for making or completing
the Offers. |
Atlas reserves
the right to withdraw the Offers in the event that it is clear that any of the above conditions are not satisfied or cannot be satisfied.
However, with regard to conditions 2 – 7 above, the Offers may only be withdrawn where the non-satisfaction of such condition
is of material importance to Atlas’ acquisition of Millicom or if otherwise approved by the Swedish Securities Council (Sw. Aktiemarknadsnämnden).
Atlas reserves
the right to waive, in whole or in part, one, several or all of the conditions 1 - 7 set out above, including, with respect
to condition 1 above, to complete the Offers at a lower level of acceptance.
Certain
closely related parties
The Millicom Non-Executive
Director Thomas Reynaud is the Chief Executive Officer and member of the Board of Directors of Iliad Group,34 the Millicom
Non-Executive Director Aude Durand is the Deputy Chief Executive Officer of Iliad Holding and Iliad Group and the Millicom Non-Executive
Director, President and Chief Operating Officer Maxime Lombardini is the Vice-Chairman of the Board of Directors of Iliad Group, and
they are therefore not considered independent in relation to Atlas pursuant to the Swedish Takeover Rules. Consequently, Thomas Reynaud,
Aude Durand and Maxime Lombardini have a conflict of interest pursuant to Rule II.18 of the Swedish Takeover Rules. For this reason,
they have not participated, and will not participate, in Millicom’s handling of matters regarding the Offers.
33
Excluding 840,641 Common Shares and/or SDRs held in treasury by Millicom.
34
Xavier Niel, the owner of NJJ Holding S.A.S. which is the parent company of the Parent, is
also the owner of Iliad Group.
The above means
that Section III of the Swedish Takeover Rules is applicable to the Swedish Offer, entailing that the Offer Period shall be
at least four weeks and that Millicom is obliged to obtain and make public a valuation opinion (a fairness opinion) regarding the Shares
from independent experts.
Certain information
concerning the Parent and the Purchaser
Atlas
is a private limited liability company (société à responsabilité limitée) existing under the
laws of Luxembourg, having its registered office at 53, boulevard Royal, L-2449 Luxembourg, Luxembourg,
with corporate registration number B274990 with the Luxembourg Trade and Companies Registry (R.C.S. Luxembourg). Atlas is a subsidiary
of the Parent. Atlas was incorporated on February 1, 2023, and registered with the Luxembourg Trade and Companies Registry (R.C.S.
Luxembourg) on February 9, 2023. Atlas is a financial holding company.
The Parent is a simplified joint-stock company (société par actions simplifiée) domiciled in Paris, France, with
corporate registration number 908 070 188 with the Paris Trade and Companies Registry (R.C.S Paris).
Atlas and the Parent
are long-term industrial investors looking to support the development and profitable growth of the telecoms sector through targeted investments
in assets that offer opportunities for significant value creation.
The
Parent is a majority owned subsidiary of NJJ Holding S.A.S., an investment vehicle wholly owned
by Xavier Niel, who is also the owner of the Iliad Group. NJJ Holding S.A.S. is an investor in telecom assets with presence in
Switzerland, Ireland, Monaco, Cyprus, Malta, Sweden and the Baltics, while Iliad Group is one of the leading telecom providers
present in France, Italy, Poland, Sweden and the Baltics. Xavier Niel has significant expertise in the telecoms sector and an
outstanding track record of innovation and strategy execution, with a 30-year track record of innovation in the sector.
Today
nearly 50 million active subscribers – more than 1 in 10 Europeans – use Iliad or NJJ-owned
or affiliated networks.
Financing
of the Offers
The consideration
payable in respect of the Offers is financed in full through funds available to the Purchaser pursuant to financing provided by BNP Paribas,
Crédit Agricole Corporate and Investment Bank, JPMorgan Chase Bank, N.A., London Branch, J.P. Morgan SE, Natixis and Société
Générale under the debt commitment letters and related interim facilities agreement, on terms customary for financing of
public offers on the US and Swedish markets.
The above-mentioned
financing provides Atlas with sufficient cash resources to satisfy in full the consideration payable in respect of the Offers and, accordingly,
completion of the Offers is not subject to any financing condition.
Review
of information in connection with the Offers
Atlas has been
permitted by the Independent Bid Committee to carry out a limited confirmatory due diligence review of Millicom in connection with the
preparation of the Offers. To Atlas’ knowledge, no material non-public or inside information has been disclosed to Atlas
during the process.
Approvals
from authorities
The completion
of the Offers is conditional upon all necessary clearances, approvals, decisions, and other actions from authorities or similar, including
approvals from competition authorities, being obtained, in each case on terms which, in Atlas’ opinion, are acceptable.
According to Atlas’
assessment, the Offers will require customary regulatory approvals in the United States, Bolivia and Colombia. Atlas has initiated the
work on filings relevant for the transaction. Atlas expects necessary clearances to be obtained prior to the end of the Offer Period.
Preliminary
timetable35
| Publication of
the Offer to Purchase | July 1, 2024 |
| | |
| Offer
Period | July 1,
2024 – August 16, 2024 |
| | |
| Estimated date of settlement | On or around August 29,
2024 |
The Purchaser reserves
the right to extend the Offer Period, as well as to postpone the settlement date. If the Swedish Offer is extended in
accordance with Swedish law, the US Offer is expected to be extended so that it will expire on the same day as, and simultaneously with,
the Swedish Offer. If the US Offer is extended in accordance with US law, the Swedish Offer is expected to be extended so that it will
expire on the same day as, and simultaneously with, the US Offer.
Takeover
squeeze-out, takeover sell-out and delisting
If the conditions
for completion of the Offers are satisfied and the Offers are successful, the Purchaser currently intends to cause the delisting of the
Common Shares from Nasdaq US as promptly as practicable after the consummation of the Offers, as permitted by applicable law and the
rules of Nasdaq US.
In
the event the Purchaser, in connection with the Offers or otherwise, has acquired securities representing not less than ninety five (95)
per cent of the capital carrying voting rights and ninety five (95) per cent of the voting rights in Millicom, the Purchaser will have
the right to exercise takeover squeeze-out in accordance with the Luxembourg law of 19 May 2006 transposing Directive 2004/25/EC
of the European Parliament and of the Council of 21 April 2004 on takeover bids (the “Luxembourg
Takeover Law”) to acquire all remaining Shares in Millicom. Furthermore,
pursuant to the Luxembourg Takeover Law, if following the Offers, the Purchaser holds securities carrying more than ninety (90) per cent
of the voting rights in Millicom, the remaining Shareholders may require that the Purchaser purchases the remaining Shares at a fair
price by exercising a takeover sell-out. In connection with a takeover squeeze-out or a takeover sell-out, the Purchaser intends to promote
delisting of the SDRs from Nasdaq Stockholm.
35 All
dates are preliminary and may be subject to change.
Applicable
law and disputes
The Swedish Offer, as well as any agreements entered
into between Atlas and the Shareholders in Millicom as a result of the Swedish Offer, shall be governed and construed in accordance with
substantive Swedish law, save for certain corporate law aspects which are governed by Luxembourg law. Any dispute regarding the Swedish
Offer or agreements in connection therewith shall be settled exclusively by Swedish courts, and the District Court of Stockholm (Sw. Stockholms
tingsrätt) shall be the court of first instance. The US Offer shall be governed and construed in accordance with US federal securities
laws, as well as Swedish law pursuant to certain exemptions where applicable, and Luxembourg law for certain corporate law aspects.
The Swedish Takeover Rules and the Swedish Securities
Council’s statements and rulings regarding the interpretation and application of the Swedish Takeover Rules are applicable to the
Swedish Offer. Furthermore, Atlas has, in accordance with the Swedish Takeovers Act (Sw. lag (2006:451) om offentliga uppköpserbjudanden
på aktiemarknaden), on June 30, 2024, contractually undertaken, in writing, towards Nasdaq Stockholm AB to comply with said
rules and statements and to accept any sanctions that can be imposed by Nasdaq Stockholm AB in the event of a breach of the Swedish Takeover
Rules. On July 1, 2024, Atlas informed the Swedish Financial Supervisory Authority about the Offers and the above-mentioned undertaking
towards Nasdaq Stockholm AB.
Advisors
BNP
Paribas S.A., Crédit Agricole Corporate and Investment Bank, J.P. Morgan Securities plc, J.P. Morgan Securities LLC, Lazard Frères
S.A.S. and Société Générale are acting as financial advisors to Atlas
Investissement S.A.S. and Handelsbanken is acting as financial advisor to Atlas. Skadden, Arps, Slate, Meagher & Flom LLP, Roschier
Advokatbyrå AB and Arendt & Medernach SA are legal advisors to Atlas and Atlas Investissement S.A.S. in connection with
the Offers.
Atlas Luxco S.à
r.l.
The Board of
Managers
Information
about the Offers:
Information about
the Offers is made available at:
www.atlas-investissement.com/en/offers
For additional information, please contact:
Cornelia Schnepf,
FinElk
Cornelia.Schnepf@finelk.eu
+44 7387 108 998
Louise Tingström,
FinElk
Louise.tingstrom@finelk.eu
+44 7899 066 995
For administrative
questions regarding the Swedish Offer, please contact your bank or the nominee registered as holder of your SDRs.
The
information in this press release was submitted for publication by Atlas in accordance with the Swedish Takeover Rules. The information
was submitted for publication on July 1, 2024 at 07.30 a.m. (CEST).
Important information:
In the US Offer,
this communication is for informational purposes only and is neither an offer to purchase nor a solicitation of an offer to sell securities
of Millicom. It is also not a substitute for the tender offer materials that Atlas will file with the SEC upon commencement of the US
Offer. At the time that the US Offer is commenced, Atlas will file a Tender Offer Statement and Rule 13e-3 Transaction Statement
under cover of Schedule TO with the SEC, and Millicom will file a Solicitation/Recommendation Statement on Schedule 14D-9 with the SEC
with respect to the US Offer. THE TENDER OFFER MATERIALS (INCLUDING AN OFFER TO PURCHASE, A RELATED LETTER OF TRANSMITTAL AND CERTAIN
OTHER TENDER OFFER DOCUMENTS), THE SOLICITATION/RECOMMENDATION STATEMENT AND TRANSACTION STATEMENT WILL CONTAIN IMPORTANT INFORMATION
THAT SHOULD BE READ CAREFULLY AND BE CONSIDERED BY MILLICOM’S SECURITYHOLDERS BEFORE ANY DECISION IS MADE WITH RESPECT TO THE OFFERS.
The Tender Offer Statement, Rule 13e-3 Transaction Statement and Solicitation/Recommendation Statement will be made available to
Millicom’s investors and security holders free of charge. A free copy of the Tender Offer Statement, Rule 13e-3 Transaction
Statement and Solicitation/Recommendation Statement will also be made available to all of Millicom’s investors and security holders
by visiting Atlas’ website at www.atlas-investissement.com/en/offers. In addition, the Tender Offer Statement, Rule 13e-3
Transaction Statement and Solicitation/Recommendation Statement (and all other documents filed by Millicom with the SEC) will be available
at no charge on the SEC’s website (www.sec.gov) upon filing with the SEC. MILLICOM’S INVESTORS AND SECURITY HOLDERS ARE ADVISED
TO READ THE TENDER OFFER STATEMENT, RULE 13E-3 TRANSACTION STATEMENT AND THE SOLICITATION/RECOMMENDATION STATEMENT, AS EACH MAY BE
AMENDED OR SUPPLEMENTED FROM TIME TO TIME, AND ANY OTHER RELEVANT DOCUMENTS FILED BY ATLAS OR MILLICOM WITH THE SEC WHEN THEY BECOME
AVAILABLE BEFORE THEY MAKE ANY DECISION WITH RESPECT TO THE OFFERS. THESE MATERIALS WILL CONTAIN IMPORTANT INFORMATION ABOUT THE OFFERS,
ATLAS AND MILLICOM.
Cautionary
Note Regarding Forward-Looking Statements
This announcement
and other related documents delivered to you and/or incorporated by reference herein include “forward-looking statements,”
including statements regarding the Purchaser Group, any member of the Purchaser Group’s future prospects, developments and business
strategies, timing and completion of the Offers, compelling value of the Offers and the Offer Price, purpose of the Offers, future performance,
plans, growth and other trend projections and other benefits of the Offers, certainty of the Offers and the potential to satisfy the
conditions for completion of the Offers, regulatory approvals required for completion of the Offers, the possibility that competing offers
will be made, potential adverse reactions or changes to business relationships as a result of the Offers and costs, charges or expenses
relating to the Offers. These statements may generally, but not always, be identified by the use of words such as “anticipates,”
“intends,” “expects,” “believes,” or similar expressions.
By their
nature, forward-looking statements involve risk and uncertainty because they relate to events and depend on assumptions and circumstances
that may occur in the future. Actual results could differ materially from those set forth in forward-looking statements due to a variety
of factors, many of which are outside the control of Atlas, the Purchaser Group and Millicom, including changes in domestic and foreign
economic and market conditions; the effect of changes in governmental regulations; any natural disaster, public health crisis or other
catastrophic event; and the effect of laws and regulations governing government contracts, as well as the possibility that expected benefits
related to recent or pending acquisitions, including the Offers, may not materialize as expected; the Offers not being timely completed,
if completed at all; regulatory approvals required for the transaction not being timely obtained, if obtained at all, or being obtained
subject to conditions; prior to the completion of the transaction, Millicom’s business experiencing disruptions due to transaction-related
uncertainty or other factors making it more difficult to maintain relationships with employees, customers, licensees, other business
partners or governmental entities; difficulty retaining key employees; the outcome of any legal proceedings related to the Offers; the
parties being unable to successfully implement integration strategies or to achieve expected synergies and operating efficiencies within
the expected time frames or at all and other risk factors listed in Millicom’s most recent annual report on Form 20-F. There
can be no assurance that actual results will not differ materially from those expressed or implied by these forward-looking statements.
Any forward-looking
statements made herein speak only as of the date on which they are announced, and you should not rely on these forward-looking statements
as representing Atlas’ or the Purchaser Group’s views as of any date after today. Except as required by the Swedish Takeover
Rules or applicable law or regulation, Atlas and the Purchaser Group expressly disclaims any obligation or undertaking to publicly
announce updates or revisions to any forward-looking statements contained in this announcement to reflect any change in expectations
with regard thereto or any change in events, conditions or circumstances on which any such statement is based. The reader should, however,
consult any additional disclosures that Atlas, the Purchaser Group or Millicom have made or may make.
Important
notice
The
Offers are not being made, directly or indirectly, in Australia, Belarus, Canada,
Hong Kong, Japan, New Zealand, Singapore, South Africa or Russia or in any other jurisdiction where such offer would be prohibited by
applicable law pursuant to legislation, restrictions and regulations in the relevant jurisdiction, by use of mail or any other communication
means or instrumentality (including, without limitation, facsimile transmission, electronic mail, telex, telephone and the internet)
of interstate or foreign commerce, or of any facility of national securities exchange or other trading venue, of Australia, Belarus,
Canada, Hong Kong, Japan, New Zealand, Singapore, South Africa or Russia or in any other jurisdiction where such offer would be prohibited
by applicable law pursuant to legislation, restrictions and regulations in the relevant jurisdiction, and the Offers cannot be accepted
by any such use or by such means, instrumentality or facility of, in or from, Australia, Belarus, Canada, Hong Kong, Japan, New Zealand,
Singapore, South Africa or Russia or in any other jurisdiction where such offer would be prohibited by applicable law pursuant to legislation,
restrictions and regulations in the relevant jurisdiction. Accordingly, this press release or any documentation relating to the Offers
are not being and should not be sent, mailed or otherwise distributed or forwarded in or into Australia, Belarus, Canada, Hong Kong,
Japan, New Zealand, Singapore, South Africa or Russia or in any other jurisdiction where such offer would be prohibited by applicable
law pursuant to legislation, restrictions and regulations in the relevant jurisdiction.
This
press release is not being, and must not be, sent to shareholders with registered addresses in Australia,
Belarus, Canada, Hong Kong, Japan, New Zealand, Singapore, South Africa or Russia. Banks, brokers, dealers and other nominees holding
shares for persons in Australia, Belarus, Canada, Hong Kong, Japan, New Zealand, Singapore, South Africa or Russia must not forward this
press release or any other document received in connection with the Offers to such persons.
The Offers,
the information and documents contained in this press release are not being made and has not been produced by, and has not been approved
by, an “authorised person” for the purposes of section 21 of the UK Financial Services and Markets Act 2000 (as amended,
the “FSMA”). The communication of the information and documents or materials contained in this press release to persons in
the United Kingdom is exempt from the restrictions on financial promotions in section 21 of the FSMA on the basis that it is a communication
by or on behalf of a body corporate which relates to a transaction to acquire shares in a body corporate and the object of the transaction
may reasonably be regarded as being the acquisition of day-to-day control of the affairs of that body corporate, or to acquire fifty
(50) per cent or more of the voting shares in that body corporate, within Article 62 (Sale of a body corporate) of the Financial
Services and Markets Act 2000 (Financial Promotion) Order 2005.
BNP Paribas
S.A., authorized and lead-supervised by the European Central Bank in Frankfurt-am-Main (Germany) and the Autorité de Contrôle
Prudentiel et de Résolution in Paris (France), Crédit Agricole Corporate and Investment Bank, authorized and lead-supervised
regulated by the European Central Bank (ECB) in Frankfurt-am-Main (Germany) and the Autorité de Contrôle Prudentiel et de
Résolution (ACPR) in Paris (France), J.P. Morgan Securities plc, authorized by the Prudential Regulation Authority and regulated
by the Financial Conduct Authority and the Prudential Regulation Authority the United Kingdom, J.P. Morgan Securities LLC, subject to
regulatory supervision by a variety of US regulators including the Federal Reserve Bank, the SEC, FINRA, NYSE, CBOE and other exchanges
and state regulatory organizations in the United States, Lazard Frères S.A.S., and Société Générale,
authorized and supervised by the European Central Bank (ECB) and the Autorité de Contrôle Prudentiel et de Résolution
(the French Prudential Control and Resolution Authority) (ACPR) and regulated by the Autorité des Marchés Financiers (the
French financial markets regulator) (AMF) (each a “Parent Financial Advisor”, and together the “Parent Financial Advisors”).
The Parent Financial Advisors are the financial advisors to Parent and to no one else in connection with the Offers and will not regard
any other person as their client in relation to the Offers. The Parent Financial Advisors are not responsible to anyone other than Parent
for providing the protections afforded to their clients, nor for providing advice in connection with the Offers. The Parent Financial
Advisors were not requested to, and did not, render an opinion with respect to the fairness of the Offers or any consideration to be
paid in the Offers, including the Offer Price, or as to valuation or otherwise. The Parent Financial Advisors have not recommended any
specific Offer Price to Parent or Purchaser or their respective directors, shareholders, creditors or other relevant parties.
Svenska Handelsbanken
AB (publ) which is authorized and regulated by the Swedish Financial Supervisory Authority in Sweden (the “Atlas Financial Advisor”),
is the financial advisor to Atlas and to no one else in connection with the Offers and will not regard any other person as its client
in relation to the Offers. The Atlas Financial Advisor is not responsible to anyone other than Atlas for providing the protections afforded
to its clients, nor for providing advice in connection with the Offers. The Atlas Financial Advisor was not requested to, and did not,
render an opinion with respect to the fairness of the Offers or any consideration to be paid in the Offers, including the Offer Price,
or as to valuation or otherwise. The Atlas Financial Advisor has not recommended any specific Offer Price to Parent or Purchaser or their
respective directors, shareholders, creditors or other relevant parties.
Special notice
to Shareholders in the United States
US
Holders, as defined in Rule 14d-1 of the Exchange Act (“US Holders”), of SDRs are advised that the SDRs are not registered
under the US Securities Act of 1933, as amended. The Offers are being made in the United States in accordance with US federal securities
laws, including Regulation 14D and Regulation 14E promulgated under the Exchange Act, subject to the exemptions provided by Rule 14d-1(d) (the
“Tier II Exemptions”) under the Exchange Act, and otherwise in accordance
with the requirements of Swedish law. Accordingly, the Offers are subject to disclosure and other procedural requirements, including
with respect to notice of extensions, withdrawal rights, settlement procedures and timing of payments, that are different from those
applicable under US domestic tender offer procedures and law, and certain rules applicable to US tender offers made in the United
States do not apply. Accordingly, US Holders of SDRs are advised of the risk that they may not be afforded the same rights under US federal
securities laws by participating in the Swedish Offer. US Holders are encouraged to consult with their own advisors regarding the Offers.
As permitted
under the Tier II Exemptions, notices of extensions of the Offers and the settlement of the Offers are based on the applicable Swedish
and Luxembourg law provisions which differ from the extension and settlement procedures customary in the United States, particularly
as regards the time when notice must be given and payment of the consideration is rendered, respectively. The Offers, which are subject
to Swedish law and Luxembourg law, are being made to holders of Common Shares and holders of SDRs in accordance with the applicable United
States securities laws, and the exemptions applicable thereunder, in particular the Tier II Exemptions.
It may be
difficult for US Holders or other Shareholders participating in the Swedish Offer to enforce their rights and any claims they may have
arising under the US federal or state securities laws in connection with the Swedish Offer, since the Company and Atlas are located in
countries other than the United States, and some or all of their officers and directors may be residents of countries other than the
United States. US Holders may not be able to sue the Company or Atlas or their respective officers or directors in a non-US court for
violations of US securities laws. Further, it may be difficult to compel the Company or Atlas and/or their respective affiliates to subject
themselves to the jurisdiction or judgment of a US court.
To the extent
permissible under applicable law and regulations, including Rule 14e-5 under the Exchange Act, Atlas and its affiliates or brokers
(acting as agents for Atlas or its affiliates, as applicable) may from time to time after the date hereof directly or indirectly purchase
or arrange to purchase SDRs outside the United States, or any securities that are convertible into, exchangeable for or exercisable for
such Shares, other than pursuant to the Offers, during the period in which the Offers remain open for acceptance. These purchases may
occur either in the open market at prevailing prices or in private transactions at negotiated prices. In addition, the financial advisors
to Parent and/or the Atlas Financial Advisor may also engage in ordinary course trading activities in securities of the Company, which
may include purchases or arrangements to purchase such securities as long as such purchases or arrangements are in compliance with the
applicable law, including Rule 14e-5 under the Exchange Act. Any information about such purchases will be announced to US Holders
through relevant electronic media if, and to the extent, such announcement is required under applicable Swedish or US law, rules or
regulations.
THE OFFERS HAVE
NOT BEEN APPROVED OR DISAPPROVED BY THE SEC OR ANY US STATE SECURITIES COMMISSION, NOR HAS THE SEC OR ANY US STATE SECURITIES COMMISSION
PASSED UPON THE FAIRNESS OR MERITS OF THE OFFERS OR UPON THE ACCURACY OR ADEQUACY OF THE INFORMATION CONTAINED IN THIS PRESS RELEASE
OR WHETHER THE CONTENT IN THIS PRESS RELEASE IS CORRECT OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS UNLAWFUL AND A CRIMINAL OFFENSE
IN THE UNITED STATES.
Exhibit (a)(1)(F)
This
announcement is not an offer, whether directly or indirectly, in Australia, Belarus, Canada, Hong Kong, Japan, New Zealand, Singapore,
South Africa or Russia or in any other jurisdiction where such offer would be prohibited by applicable law pursuant to legislation, restrictions
and regulations in the relevant jurisdiction. Shareholders not resident in Sweden or the United States who wish to accept the Offers
(as defined below) must make inquiries concerning applicable legislation and possible tax consequences. Shareholders should refer to
the offer restrictions included in the section titled “Important notice” at the end of this announcement and in the Offer
to Purchase (as defined below) which was published today. United States shareholders should refer to the section titled “Important
Information” and “Special Notice to Shareholders in the United States” at the end of this announcement.
Press
release
July
1, 2024
Offer
document regarding Atlas Luxco S.à r.l.’s public offers to the shareholders of Millicom International Cellular S.A. has
been made public
Today,
on July 1, 2024, Atlas Luxco S.à r.l.1 (“Atlas” or the “Purchaser”), a subsidiary of Atlas
Investissement S.A.S.1, announced separate but concurrent public offers in Sweden (the “Swedish Offer”) and the
United States (the “US Offer”, and together with the Swedish Offer, the “Offers”) to the shareholders in Millicom
International Cellular S.A.2 (“Millicom” or the “Company”) to tender all of their common shares, with
nominal value USD 1.50 per share (each, a “Common Share,” and collectively, the “Common Shares”), including Swedish
Depositary Receipts representing Common Shares (each Swedish Depositary Receipt represents one Common Share) (each, an “SDR”
and collectively, the “SDRs,” and together with the Common Shares, the “Shares”) in Millicom3 to
Atlas. Holders of Common Shares and SDRs will collectively be referred to herein as “Shareholders.”
The
offer document (the “Offer to Purchase”) relating to the Offers has today been approved and registered by the Swedish
Financial Supervisory Authority (Sw. Finansinspektionen) (the “SFSA”). The Purchaser has, pursuant to Rule
14d-3 and Rule 13e-3 under the Securities and Exchange Act of 1934 (the “Exchange Act”), filed with the Securities
and Exchange Commission (the “SEC”) a combined Tender Offer Statement and Rule 13e-3 Transaction Statement under cover
of Schedule TO of which the Offer to Purchase forms a part.
The
Offer to Purchase is available on Atlas’ website (www.atlas-investissement.com/en/offers). The Offer to Purchase will also be available
on the SFSA’s website (www.finansinspektionen.se).4 A pre-printed acceptance form for SDRs will be sent out to holders
of SDRs in Millicom who are directly registered with Euroclear Sweden AB as of July 1, 2024, except for those domiciled in the excluded
jurisdictions (see above). In relation to the US Offer, additional copies of the Offer to Purchase and the accompanying Letter of Transmittal
and other related materials may be obtained from D.F. King & Co., Inc., as information agent for the US Offer or on the website maintained
by the SEC at www.sec.gov. Holders of Common Shares may also contact their broker, dealer, commercial bank, trust company or other securities
intermediary for copies of these documents.
1
Atlas Luxco S.à r.l., a private limited liability company (société à responsabilité limitée)
existing under the laws of the Grand Duchy of Luxembourg (“Luxembourg”), having its registered office at 53, boulevard
Royal, L-2449 Luxembourg, Luxembourg with corporate registration number B274990 with the Luxembourg Trade and Companies Registry (R.C.S.
Luxembourg), is a subsidiary of Atlas Investissement S.A.S., a simplified joint-stock company (société par actions
simplifiée), having its registered office at 16 Rue de la Ville-l’Évêque, FR-75008 Paris, France, with
corporate registration number 908 070 188 with the Paris Trade and Companies Registry (R.C.S Paris) (the “Parent”).
The Parent is a majority owned subsidiary of NJJ Holding S.A.S., a simplified joint-stock company (société par actions
simplifiée) domiciled in Paris, France, wholly owned by Xavier Niel (Atlas Luxco S.à r.l., Atlas Investissement S.A.S.,
NJJ Holding S.A.S. and Xavier Niel are together referred to as the “Purchaser Group”).
2
Millicom International S.A., a public limited liability company (société anonyme) existing under the laws
of Luxembourg, having its registered office at 2, rue du Fort Bourbon, L-1249 Luxembourg, with corporate registration number B40630 with
the Luxembourg Trade and Companies Registry (R.C.S. Luxembourg).
3
Excluding 840,641 Common Shares and/or SDRs held in treasury by Millicom.
4
The Offer to Purchase is prepared in English only in accordance with a language exemption granted by the Swedish Financial Supervisory
Authority in respect of the requirement to prepare the Offer to Purchase in the Swedish language. As an effect, this press release and
any subsequent press releases and other communication concerning the Offers will be prepared only in the English language.
The
initial acceptance period for the Offers (the “Offer Period”) has commenced today on July 1, 2024, in connection with
the publication of the Offer to Purchase, and expires at one minute after 10:59 a.m. EST, or one minute after 4:59 p.m. CEST, on August
16, 2024, unless the Offer Period is extended. Provided that the conditions for the Offers have been fulfilled or Atlas otherwise has
decided to complete the Offers, settlement is expected to be initiated on or around August 29, 2024.
Atlas
has reserved the right to extend the Offer Period, as well as to postpone the settlement date. If the Swedish Offer is extended in accordance
with Swedish law, the US Offer is expected to be extended so that it will expire on the same day as, and simultaneously with, the Swedish
Offer. If the US Offer is extended in accordance with US law, the Swedish Offer is expected to be extended so that it will expire on
the same day as, and simultaneously with, the US Offer.
Information
about the Offers:
Information
about the Offers is made available at:
www.atlas-investissement.com/en/offers
For
additional information, please contact:
Cornelia
Schnepf, FinElk
Cornelia.Schnepf@finelk.eu
+44
7387 108 998
Louise
Tingström, FinElk
Louise.tingstrom@finelk.eu
+44
7899 066 995
For
administrative questions regarding the Swedish Offer, please contact your bank or the nominee registered as holder of your SDRs.
The
information in this press release was submitted for publication by Atlas in accordance with the Takeover rules for Nasdaq Stockholm and
Nordic Growth Market NGM (the “Swedish Takeover Rules”). The information was submitted for publication on July 1,
2024 at 12.01 p.m. (CEST).
Important
information:
In
the US Offer, this communication is for informational purposes only and is neither an offer to purchase nor a solicitation of an offer
to sell securities of Millicom. It is also not a substitute for the Tender Offer Statement and Rule 13e-3 Transaction Statement that
Atlas has filed under cover of Schedule TO. Millicom will also file a Solicitation/Recommendation Statement on Schedule 14D-9 with the
SEC with respect to the US Offer. THE TENDER OFFER MATERIALS (INCLUDING AN OFFER TO PURCHASE, A RELATED LETTER OF TRANSMITTAL AND CERTAIN
OTHER TENDER OFFER DOCUMENTS), THE SOLICITATION/RECOMMENDATION STATEMENT CONTAIN OR WILL CONTAIN, AS APPLICABLE, IMPORTANT INFORMATION
THAT SHOULD BE READ CAREFULLY AND BE CONSIDERED BY MILLICOM’S SECURITYHOLDERS BEFORE ANY DECISION IS MADE WITH RESPECT TO THE OFFERS.
The Tender Offer Statement and Rule 13e-3 Transaction Statement have been, and the Solicitation/Recommendation Statement will be, made
available to Millicom’s investors and security holders free of charge. A free copy of the Tender Offer Statement and Rule 13e-3
Transaction Statement is available, and the Solicitation/Recommendation Statement will be made available, to all of Millicom’s
investors and security holders by visiting Atlas’ website at www.atlas-investissement.com/en/offers. In addition, the Tender Offer
Statement and Rule 13e-3 Transaction Statement are available, and the Solicitation/Recommendation Statement (and all other documents
filed by Millicom with the SEC) will be available upon filing with the SEC, in each case at no charge on the SEC’s website (www.sec.gov).
MILLICOM’S INVESTORS AND SECURITY HOLDERS ARE ADVISED TO READ THE TENDER OFFER STATEMENT, RULE 13E-3 TRANSACTION STATEMENT AND
THE SOLICITATION/RECOMMENDATION STATEMENT, AS EACH MAY BE AMENDED OR SUPPLEMENTED FROM TIME TO TIME, AND ANY OTHER RELEVANT DOCUMENTS
FILED BY ATLAS OR MILLICOM WITH THE SEC WHEN THEY BECOME AVAILABLE BEFORE THEY MAKE ANY DECISION WITH RESPECT TO THE OFFERS. THESE MATERIALS
CONTAIN OR WILL CONTAIN, AS APPLICABLE, IMPORTANT INFORMATION ABOUT THE OFFERS, ATLAS AND MILLICOM.
Cautionary
Note Regarding Forward-Looking Statements
This
announcement and other related documents delivered to you and/or incorporated by reference herein include “forward-looking statements,”
including statements regarding the Purchaser Group, any member of the Purchaser Group’s future prospects, developments and business
strategies, timing and completion of the Offers, compelling value of the Offers and the Offer Price, purpose of the Offers, future performance,
plans, growth and other trend projections and other benefits of the Offers, certainty of the Offers and the potential to satisfy the
conditions for completion of the Offers, regulatory approvals required for completion of the Offers, the possibility that competing offers
will be made, potential adverse reactions or changes to business relationships as a result of the Offers and costs, charges or expenses
relating to the Offers. These statements may generally, but not always, be identified by the use of words such as “anticipates,”
“intends,” “expects,” “believes,” or similar expressions.
By
their nature, forward-looking statements involve risk and uncertainty because they relate to events and depend on assumptions and circumstances
that may occur in the future. Actual results could differ materially from those set forth in forward-looking statements due to a variety
of factors, many of which are outside the control of Atlas, the Purchaser Group and Millicom, including changes in domestic and foreign
economic and market conditions; the effect of changes in governmental regulations; any natural disaster, public health crisis or other
catastrophic event; and the effect of laws and regulations governing government contracts, as well as the possibility that expected benefits
related to recent or pending acquisitions, including the Offers, may not materialize as expected; the Offers not being timely completed,
if completed at all; regulatory approvals required for the transaction not being timely obtained, if obtained at all, or being obtained
subject to conditions; prior to the completion of the transaction, Millicom’s business experiencing disruptions due to transaction-related
uncertainty or other factors making it more difficult to maintain relationships with employees, customers, licensees, other business
partners or governmental entities; difficulty retaining key employees; the outcome of any legal proceedings related to the Offers; the
parties being unable to successfully implement integration strategies or to achieve expected synergies and operating efficiencies within
the expected time frames or at all and other risk factors listed in Millicom’s most recent annual report on Form 20-F. There can
be no assurance that actual results will not differ materially from those expressed or implied by these forward-looking statements.
Any
forward-looking statements made herein speak only as of the date on which they are announced, and you should not rely on these forward-looking
statements as representing Atlas’ or the Purchaser Group’s views as of any date after today. Except as required by the Swedish
Takeover Rules or applicable law or regulation, Atlas and the Purchaser Group expressly disclaims any obligation or undertaking to publicly
announce updates or revisions to any forward-looking statements contained in this announcement to reflect any change in expectations
with regard thereto or any change in events, conditions or circumstances on which any such statement is based. The reader should, however,
consult any additional disclosures that Atlas, the Purchaser Group or Millicom have made or may make.
Important
notice
The
Offers are not being made, directly or indirectly, in Australia, Belarus, Canada, Hong Kong, Japan, New Zealand, Singapore, South Africa
or Russia or in any other jurisdiction where such offer would be prohibited by applicable law pursuant to legislation, restrictions and
regulations in the relevant jurisdiction, by use of mail or any other communication means or instrumentality (including, without limitation,
facsimile transmission, electronic mail, telex, telephone and the internet) of interstate or foreign commerce, or of any facility of
national securities exchange or other trading venue, of Australia, Belarus, Canada, Hong Kong, Japan, New Zealand, Singapore, South Africa
or Russia or in any other jurisdiction where such offer would be prohibited by applicable law pursuant to legislation, restrictions and
regulations in the relevant jurisdiction, and the Offers cannot be accepted by any such use or by such means, instrumentality or facility
of, in or from, Australia, Belarus, Canada, Hong Kong, Japan, New Zealand, Singapore, South Africa or Russia or in any other jurisdiction
where such offer would be prohibited by applicable law pursuant to legislation, restrictions and regulations in the relevant jurisdiction.
Accordingly, this press release or any documentation relating to the Offers are not being and should not be sent, mailed or otherwise
distributed or forwarded in or into Australia, Belarus, Canada, Hong Kong, Japan, New Zealand, Singapore, South Africa or Russia or in
any other jurisdiction where such offer would be prohibited by applicable law pursuant to legislation, restrictions and regulations in
the relevant jurisdiction.
This
press release is not being, and must not be, sent to shareholders with registered addresses in Australia, Belarus, Canada, Hong Kong,
Japan, New Zealand, Singapore, South Africa or Russia. Banks, brokers, dealers and other nominees holding shares for persons in Australia,
Belarus, Canada, Hong Kong, Japan, New Zealand, Singapore, South Africa or Russia must not forward this press release or any other document
received in connection with the Offers to such persons.
The
Offers, the information and documents contained in this press release are not being made and has not been produced by, and has not been
approved by, an “authorised person” for the purposes of section 21 of the UK Financial Services and Markets Act 2000 (as
amended, the “FSMA”). The communication of the information and documents or materials contained in this press release to
persons in the United Kingdom is exempt from the restrictions on financial promotions in section 21 of the FSMA on the basis that it
is a communication by or on behalf of a body corporate which relates to a transaction to acquire shares in a body corporate and the object
of the transaction may reasonably be regarded as being the acquisition of day-to-day control of the affairs of that body corporate, or
to acquire fifty (50) per cent or more of the voting shares in that body corporate, within Article 62 (Sale of a body corporate) of the
Financial Services and Markets Act 2000 (Financial Promotion) Order 2005.
BNP
Paribas S.A., authorized and lead-supervised by the European Central Bank in Frankfurt-am-Main (Germany) and the Autorité de Contrôle
Prudentiel et de Résolution in Paris (France), Crédit Agricole Corporate and Investment Bank, authorized and lead-supervised
regulated by the European Central Bank (ECB) in Frankfurt-am-Main (Germany) and the Autorité de Contrôle Prudentiel et de
Résolution (ACPR) in Paris (France), J.P. Morgan Securities plc, authorized by the Prudential Regulation Authority and regulated
by the Financial Conduct Authority and the Prudential Regulation Authority the United Kingdom, J.P. Morgan Securities LLC, subject to
regulatory supervision by a variety of US regulators including the Federal Reserve Bank, the SEC, FINRA, NYSE, CBOE and other exchanges
and state regulatory organizations in the United States, Lazard Frères S.A.S., and Société Générale,
authorized and supervised by the European Central Bank (ECB) and the Autorité de Contrôle Prudentiel et de Résolution
(the French Prudential Control and Resolution Authority) (ACPR) and regulated by the Autorité des Marchés Financiers (the
French financial markets regulator) (AMF) (each a “Parent Financial Advisor”, and together the “Parent Financial Advisors”).
The Parent Financial Advisors are the financial advisors to Parent and to no one else in connection with the Offers and will not regard
any other person as their client in relation to the Offers. The Parent Financial Advisors are not responsible to anyone other than Parent
for providing the protections afforded to their clients, nor for providing advice in connection with the Offers. The Parent Financial
Advisors were not requested to, and did not, render an opinion with respect to the fairness of the Offers or any consideration to be
paid in the Offers, including the Offer Price, or as to valuation or otherwise. The Parent Financial Advisors have not recommended any
specific Offer Price to Parent or Purchaser or their respective directors, shareholders, creditors or other relevant parties.
Svenska
Handelsbanken AB (publ) which is authorized and regulated by the Swedish Financial Supervisory Authority in Sweden (the “Atlas
Financial Advisor”), is the financial advisor to Atlas and to no one else in connection with the Offers and will not regard any
other person as its client in relation to the Offers. The Atlas Financial Advisor is not responsible to anyone other than Atlas for providing
the protections afforded to its clients, nor for providing advice in connection with the Offers. The Atlas Financial Advisor was not
requested to, and did not, render an opinion with respect to the fairness of the Offers or any consideration to be paid in the Offers,
including the Offer Price, or as to valuation or otherwise. The Atlas Financial Advisor has not recommended any specific Offer Price
to Parent or Purchaser or their respective directors, shareholders, creditors or other relevant parties.
Special
notice to Shareholders in the United States
US
Holders, as defined in Rule 14d-1 of the Exchange Act (“US Holders”), of SDRs are advised that the SDRs are not registered
under the US Securities Act of 1933, as amended. The Offers are being made in the United States in accordance with US federal securities
laws, including Regulation 14D and Regulation 14E promulgated under the Exchange Act, subject to the exemptions provided by Rule 14d-1(d)
(the “Tier II Exemptions”) under the Exchange Act, and otherwise in accordance with the requirements of Swedish law. Accordingly,
the Offers are subject to disclosure and other procedural requirements, including with respect to notice of extensions, withdrawal rights,
settlement procedures and timing of payments, that are different from those applicable under US domestic tender offer procedures and
law, and certain rules applicable to US tender offers made in the United States do not apply. Accordingly, US Holders of SDRs are advised
of the risk that they may not be afforded the same rights under US federal securities laws by participating in the Swedish Offer. US
Holders are encouraged to consult with their own advisors regarding the Offers.
As
permitted under the Tier II Exemptions, notices of extensions of the Offers and the settlement of the Offers are based on the applicable
Swedish and Luxembourg law provisions which differ from the extension and settlement procedures customary in the United States, particularly
as regards the time when notice must be given and payment of the consideration is rendered, respectively. The Offers, which are subject
to Swedish law and Luxembourg law, are being made to holders of Common Shares and holders of SDRs in accordance with the applicable United
States securities laws, and the exemptions applicable thereunder, in particular the Tier II Exemptions.
It
may be difficult for US Holders or other Shareholders participating in the Swedish Offer to enforce their rights and any claims they
may have arising under the US federal or state securities laws in connection with the Swedish Offer, since the Company and Atlas are
located in countries other than the United States, and some or all of their officers and directors may be residents of countries other
than the United States. US Holders may not be able to sue the Company or Atlas or their respective officers or directors in a non-US
court for violations of US securities laws. Further, it may be difficult to compel the Company or Atlas and/or their respective affiliates
to subject themselves to the jurisdiction or judgment of a US court.
To
the extent permissible under applicable law and regulations, including Rule 14e-5 under the Exchange Act, Atlas and its affiliates or
brokers (acting as agents for Atlas or its affiliates, as applicable) may from time to time after the date hereof directly or indirectly
purchase or arrange to purchase SDRs outside the United States, or any securities that are convertible into, exchangeable for or exercisable
for such Shares, other than pursuant to the Offers, during the period in which the Offers remain open for acceptance. These purchases
may occur either in the open market at prevailing prices or in private transactions at negotiated prices. In addition, the financial
advisors to Parent and/or the Atlas Financial Advisor may also engage in ordinary course trading activities in securities of the Company,
which may include purchases or arrangements to purchase such securities as long as such purchases or arrangements are in compliance with
the applicable law, including Rule 14e-5 under the Exchange Act. Any information about such purchases will be announced to US Holders
through relevant electronic media if, and to the extent, such announcement is required under applicable Swedish or US law, rules or regulations.
THE
OFFERS HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SEC OR ANY US STATE SECURITIES COMMISSION, NOR HAS THE SEC OR ANY US STATE SECURITIES
COMMISSION PASSED UPON THE FAIRNESS OR MERITS OF THE OFFERS OR UPON THE ACCURACY OR ADEQUACY OF THE INFORMATION CONTAINED IN THIS PRESS
RELEASE OR WHETHER THE CONTENT IN THIS PRESS RELEASE IS CORRECT OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS UNLAWFUL AND A CRIMINAL
OFFENSE IN THE UNITED STATES.
Exhibit (b)
AGREED
FORM
| To: | Atlas Luxco S.à r.l., a private limited company (société à responsabilité
limitée) incorporated and existing under the laws of Luxembourg, having its registered office at 53, Boulevard Royal, L-2449
Luxembourg and registered with the Luxembourg Trade and Companies Register (Registre de commerce et des sociétés, Luxembourg)
under number B274990 (the "Company" or "you") |
Dated: ________ 2024
Project Meria – Commitment Letter: Interim
Facilities
| 1.1 | We are pleased to set out in this deed (this "letter") (which shall be executed and delivered
by each of us as a deed) and the other Commitment Documents the terms and conditions on which we are willing to arrange and underwrite
100% of $8,000 million (in the amounts specified opposite our name in paragraph 3.2 below) of senior secured facilities comprising: |
| (a) | a $2,600 million senior secured term loan facility ("Interim Facility B1"); |
| (b) | a $900 million senior secured term loan facility ("Interim Facility B2"); |
| (c) | a $3,800 million senior secured term loan facility ("Interim Facility B3"); |
| (d) | a $100 million senior secured revolving credit facility ("Interim Revolving Facility 1");
and |
| (e) | a $600 million senior secured revolving credit facility ("Interim Revolving Facility 2",
together with Interim Facility B1, Interim Facility B2, Interim Facility B3 and Interim Revolving Facility 1, the "Interim
Facilities"). |
| 1.2 | The Interim Facilities are to be provided in connection, inter alia, with the Acquisitions, refinancing
existing indebtedness of the Group (including the Margin Loan and any indebtedness of the Target Group) and paying any fees, costs and
expenses payable in connection with such Acquisitions or refinancing (together with such refinancing, payment of such fees, costs and
expenses and all related steps, the "Transaction") by the Company or certain other members of the Group in each case
in accordance with the purposes set out in the Agreed Form Interim Facilities Agreement (as defined below). |
| 1.3 | The Company will be indirectly owned and controlled by: |
| (a) | the Initial Investor; and |
| (b) | any other investors within the definition of Permitted Holders (as defined in the Agreed Form Interim
Facilities Agreement) (together with the Initial Investor, the "Investors"). |
| 1.4 | Our commitments are provided on the terms and conditions set out in: |
| (b) | the agreed form of interim facilities agreement attached to this letter as Appendix A (Agreed Form Interim
Facilities Agreement) (the "Agreed Form Interim Facilities Agreement"); and |
| (c) | the fee letter dated on or around the date of this letter between the parties to this letter in respect
of the Interim Facilities (the "Fee Letter"), |
the documents described in this paragraph
1.4 (other than paragraph (b) above) together with the Interim Facilities Agreement (as defined in paragraph 2.1 below), as such
documents may be amended, amended and restated, supplemented, modified, varied or replaced from time to time in accordance with the amendment
provisions contained within the relevant document, being the "Commitment Documents".
| 1.5 | In the Commitment Documents, unless otherwise specified, references to: |
"Additional Commitment Party"
means each Additional Arranger and each Additional Underwriter.
"Affiliate" means,
in relation to any person:
| (a) | a Subsidiary of that person or a Holding Company of that person or any other Subsidiary of that Holding
Company; |
| (b) | any other person (including any limited partnership) which owns or controls or is owned or controlled
by that person or is under common ownership or control with that person; and |
| (c) | in respect of any Commitment Party, any of its Related Funds. |
"Arranger" means each
Initial Arranger and each Additional Arranger (as applicable).
"Business Day" has
the meaning given to it in the Agreed Form Interim Facilities Agreement.
"Commitment Party"
means each Initial Commitment Party and each Additional Commitment Party.
"Group" has the meaning
given to that term in the Agreed Form Interim Facilities Agreement.
"Holding Company" means
in relation to any person, any other body corporate or other entity of which it is a Subsidiary.
"including" means including
without limitation, and "includes" and "included" shall be construed accordingly.
"Initial Commitment Party"
means the Initial Arranger and the Initial Underwriter.
"Initial Investor"
means Mr. Xavier NIEL, of French nationality, born on 25 August 1967, in Maisons-Alfort (France).
"Interim Closing Date"
means the first date on which Interim Facility B1, Interim Facility B2 and/or Interim Facility B3 is drawn in order to complete any
Acquisition.
"Interim Lender" has
the meaning given to it in the Agreed Form Interim Facilities Agreement.
"Investor Affiliate"
means (i) an Investor and each of its Affiliates, (ii) any sponsor, limited partnerships or entities managed or advised by an
Investor or any of its Affiliates, (iii) any trust of an Investor or any of its Affiliates or in respect of which any such persons
are a trustee, (iv) any partnership of an Investor or any of its Affiliates or in respect of which any such persons are a partner
and (v) any trust, fund or other entity which is managed by, or is under the control of, an Investor or any of its Affiliates, but
excluding (in each case) (A) any fund or entity that is affiliated with or managed and/or advised by any Investor where the principal
business of such affiliated fund or entity is investing in debt, (B) any unrestricted Subsidiary and (C) any member of the Group.
"Margin Loan" has the
meaning given to it in the Agreed Form Interim Facilities Agreement.
"Offer Termination Date"
has the meaning given to it in the Agreed Form Interim Facilities Agreement.
"Related Fund" means,
in relation to a fund (the "first fund"), any other fund which is managed or advised by (i) the same investment
manager or investment adviser as the first fund or (ii) an Affiliate of the investment manager or investment adviser of the first
fund.
"Subsidiary" means
an entity of which a person has direct or indirect control or owns directly or indirectly more than 50% of the voting share capital or
similar or equivalent ownership interests, provided that "control" for this purpose means the power to direct the management
and policies of the entity whether through the ownership of share capital or similar or equivalent ownership interests, contract or otherwise.
"Target" means Millicom
International Cellular S.A.
"Target Group" means
the Target and its Subsidiaries.
"Underwriter" means
each Initial Underwriter and each Additional Underwriter (as applicable).
| 1.6 | Words and expressions defined in a Commitment Document (or, prior to the execution of the Interim Facilities
Agreement, the Agreed Form Interim Facilities Agreement) have the same meaning in this letter and each other Commitment Document
unless otherwise provided or the context otherwise requires. |
| 1.7 | In addition, in this letter and the other Commitment Documents, unless otherwise provided or if the context
requires, a reference to "we", "us", "our" or the like shall be construed as a reference
to the Commitment Parties each acting individually or together as the context requires. |
| 2. | Financing and Commitment |
| 2.1 | We are pleased to confirm our unconditional and irrevocable undertaking to enter into and execute (and/or
to procure that any relevant Affiliate of ours enters into and executes) by no later than twenty-four (24) hours following written request
by the Company (or such shorter time as we agree to), an interim facilities agreement (the "Interim Facilities Agreement")
in respect of the Interim Facilities in substantially the form of the Agreed Form Interim Facilities Agreement and including: |
| (a) | such conforming amendments as shall be required to give effect to the appointment of any person which
is to act as Interim Facility Agent and/or Interim Security Agent (each as defined in the Agreed Form Interim Facilities Agreement);
and |
| (b) | such other amendments which the parties hereto have agreed. |
| 2.2 | The obligations under the Interim Facilities Agreement shall be separately enforceable in accordance with
its terms and subject only to the conditions set out in the Interim Facilities Agreement. The provisions of this letter will also remain
in full force and effect notwithstanding the entry into the Interim Facilities Agreement and the advance of funds thereunder, unless this
letter has been terminated in accordance with its terms. |
| 2.3 | We further refer to the letter from us dated on or around the date of this letter relating to the conditions
precedent set out in Schedule 3 (Conditions Precedent) to the Agreed Form Interim Facilities Agreement, as such letter may
be amended, amended and restated, supplemented, modified, varied or replaced from time to time (the "Interim CP Satisfaction Letter"). |
| 2.4 | The terms and conditions of this letter shall continue to apply for the purposes of paragraph (b) of
clause 3.1 (Conditions Precedent) of the Interim Facilities Agreement (once executed) and accordingly, we confirm, in our various
capacities under the Interim Facilities Agreement, that: |
| (a) | all documents, evidence and other conditions to first utilisation of the Interim Facilities referred to
in paragraph 2.2(a) of the Interim CP Satisfaction Letter have been received by us, are in form and substance satisfactory to us
and as such the corresponding conditions precedent have been satisfied; and |
| (b) | all documents, evidence and other conditions to first utilisation of the Interim Facilities referred to
in paragraph 2.2(b) of the Interim CP Satisfaction Letter: |
| (i) | are in an agreed form and each Commitment Party will enter into (and/or instruct the Interim Facility
Agent and/or the Interim Security Agent (each as defined in the Agreed Form Interim Facilities Agreement) to enter into) any such
documents in such agreed form (where applicable); and |
| (ii) | once executed and/or delivered in such agreed form (together with such amendments as are not materially
adverse to the interests of the Original Interim Lenders (taken as a whole) under the Interim Finance Documents (as defined in the Agreed
Form Interim Facilities Agreement) or any other changes or additions approved by the Arrangers (acting reasonably and in good faith)),
as the case may be, by the Company (or such other relevant party): |
| (A) | will be in form and substance satisfactory to us; and |
| (B) | will be accepted by us in satisfaction of the corresponding conditions precedent in the Interim Facilities
Agreement, which will be treated as having been satisfied on the date of such execution and/or delivery and following which the Interim
Facilities shall be unconditionally available for utilisation. |
| 2.5 | In addition, each Commitment Party agrees that to the extent it or any of its Affiliates (each a "Relevant
Affiliate") is the provider of or party to any Existing Facilities (as defined in the Agreed Form Interim Facilities Agreement)
or any bank guarantee, letter of credit, hedging arrangement, ancillary facility arrangement, credit support arrangement, working capital
facility or similar arrangement under or in connection with any existing indebtedness of the Group and/or the Target Group or any other
local, working capital, liquidity arrangement or financial accommodation provided to the Group and/or the Target Group, without prejudice
to any requirement or obligation that the Margin Loan is repaid on or about the Settlement Date (each an "Existing Arrangement")
it will (and will cause its Relevant Affiliates to), if so requested by the Company and/or the Target, grant any consent which may be
necessary and/or desirable in connection with the Transaction to extend, continue and rollover any such Existing Arrangement to which
it or any of its Relevant Affiliates is a party and/or (as applicable) make such Existing Arrangement available in full under (or pursuant
to the ‘bank guarantee’ provisions of) the Interim Facilities, provided that no additional fees, compensation or other
economics shall be due in connection with such consent. |
| 3.1 | Upon acceptance of the offer set out in this letter and subject to the terms of this letter (including
paragraphs 3.3 and 15.4 below), and except as otherwise provided in the Commitment Documents, the Company: |
| (a) | appoints each Arranger as an arranger, mandated lead arranger, global coordinator and bookrunner of the
Interim Facilities and the Arranger hereby agrees to act in such capacity (each an "Initial Arranger"); |
| (b) | appoints each Underwriter as an underwriter and original lender of the Interim Facilities and the Underwriter
hereby agrees to act in such capacities (each an "Initial Underwriter"); and |
| (c) | subject to paragraph 3.3 below, agrees that no additional arrangers, bookrunners, underwriters or original
lenders of the Interim Facilities will be appointed other than in accordance with this letter or the other Commitment Documents. |
| 3.2 | Each Initial Arranger shall arrange and each Initial Underwriter shall underwrite and make available the
Interim Facilities as follows: |
Arranger /
Underwriter |
Interim
Facility B1
($) |
Interim
Facility B2
($) |
Interim
Facility B3
($) |
Interim
Revolving
Facility 1
($) |
Interim
Revolving
Facility 2
($) |
| BNP Paribas |
650,000,000 |
225,000,000 |
950,000,000 |
25,000,000 |
150,000,000 |
| Crédit Agricole Corporate and Investment Bank |
650,000,000 |
225,000,000 |
950,000,000 |
25,000,000 |
150,000,000 |
| J.P. Morgan SE / JPMorgan Chase Bank, N.A., London Branch |
390,000,000 |
135,000,000 |
570,000,000 |
15,000,000 |
90,000,000 |
| Natixis |
260,000,000 |
90,000,000 |
380,000,000 |
10,000,000 |
60,000,000 |
| Société Générale |
650,000,000 |
225,000,000 |
950,000,000 |
25,000,000 |
150,000,000 |
| Total |
2,600,000,000 |
900,000,000 |
3,800,000,000 |
100,000,000 |
600,000,000 |
| 3.3 | Notwithstanding any other provision in the Commitment Documents, the Agreed Form Interim Facilities
Agreement and/or the Interim Finance Documents, the Commitment Parties acknowledge and agree that the Company may, by no later than the
date falling twenty (20) Business Days from (and excluding) the Countersignature Date (as such date may be extended from time to time
with the consent of the Commitment Parties (each acting reasonably)), mandate and appoint one or more other banks, financial institutions
or other persons as Additional Commitment Parties under each of the Interim Facilities , provided that: |
| (a) | any reduction in the commitments of the Original Commitment Parties and any Additional Commitment Party
previously appointed in accordance with this paragraph 3.3 (the "Existing Commitment Parties") in the Interim Facilities
in order to accommodate an Additional Commitment Party's participation shall be made pro rata across the commitments of the Existing Commitment
Parties in the Interim Facilities, unless otherwise agreed with the Existing Commitment Parties; |
| (b) | such Additional Commitment Parties are awarded no better titles than the Original Commitment Parties (as
determined by the Company, in good faith); |
| (c) | the aggregate amount of commitments allocated to Additional Commitment Parties shall not exceed an amount
equal to twenty-five per cent. (25%) across all of the Interim Facilities; |
| (d) | no Additional Commitment Party shall be allocated any greater percentage of commitments in either Interim
Facility B3 or Interim Revolving Facility 2 than the percentage of commitments allocated to such Additional Commitment Party in the Interim
Facility B1, Interim Facility B2 and Interim Revolving Facility 1; |
| (e) | we and any Additional Commitment Party participate in the Facilities on the same terms contained within
this letter (or terms more favourable to the Commitment Parties) (other than with respect to the amount of our and any Additional Commitment
Party's commitments in the Interim Facilities which may be different) and the other Commitment Documents with the same pro rata economics
in relation to their commitments under the relevant Interim Facility with all such fees in respect of a Facility being split pro rata
to our and any Additional Commitment Party's respective commitments under that Facility (other than (i) any agency or similar fees
payable to us or (ii) an Additional Commitment Party pursuant to any agency fee letters); and |
| (f) | an Additional Commitment Party is not an Investor Affiliate. |
| 3.4 | The Company agrees to use commercially reasonable efforts including using its existing lending relationships
to mandate and appoint such Additional Commitment Parties pursuant to paragraph 3.3. |
| 3.5 | We hereby undertake, upon the request of the Company, to enter into new Commitment Documents and any other
documents reasonably requested by the Company to amend or replace the Commitment Documents, the Agreed Form Interim Facilities Agreement
and/or the Interim Finance Documents to reflect any changes necessary to facilitate the appointment of any Additional Commitment Party
and (where applicable) to join such Additional Commitment Party as a party to the relevant document, provided that no such changes
shall be materially adverse to us. |
| 3.6 | We acknowledge that the Interim Facility Agent and the Interim Security Agent shall be appointed by the
Company in accordance with this letter and the Interim Facilities Agreement as agreed between the parties at the relevant time. |
| 3.7 | The obligations of the Commitment Parties are several. No Commitment Party is responsible for the obligations
of any other Commitment Party. |
| 4.1 | The commitment of (i) each Arranger to arrange and manage the Interim Facilities and (ii) each
Underwriter to underwrite, provide and act as original lender in respect of the relevant proportion of the Interim Facilities, on the
terms and subject to the conditions set out in the Interim Facilities Agreement (including our undertaking in paragraph 2.1 above), is
not subject to any conditions, express or implied other than the absence of any illegality in respect of the Arrangers or Underwriters
arranging or underwriting the Interim Facilities after the date of this letter and provided that where applicable, such illegality
alone will not excuse any other Arranger or Underwriter from participating in the relevant Interim Utilisation and will not in any way
affect the obligations of any other Arranger or Underwriter. |
| 4.2 | For the avoidance of doubt and notwithstanding any provision to the contrary in the Commitment Documents,
we hereby acknowledge and agree that, upon signing the Interim Facilities Agreement, our obligation to provide the Interim Facilities
is subject only to the terms and conditions set out in the Interim Facilities Agreement and nothing in the Commitment Documents (including,
without limitation, any breach or termination of this letter or any failure to agree any documents pursuant to paragraph 2 (Financing
and Commitment)) above shall prevent us from funding, participating or making available the Interim Facilities in accordance with
the provisions of the Interim Facilities Agreement. |
| 4.3 | Each Commitment Party confirms that: |
| (a) | it has completed and is satisfied with the results of: |
| (i) | all client identification procedures in respect of the Topco (as defined in the Agreed Form Interim
Facilities Agreement) and the Company (as defined in the Agreed Form Interim Facilities Agreement) that it is required to carry out
in connection with making the Interim Facilities available in connection with the Transaction and assuming its other liabilities and assuming
and performing its obligations under the Commitment Documents and otherwise in respect of the Transaction, in each case in compliance
with all applicable laws, regulations and internal requirements (including all applicable anti-corruption, anti-money laundering, anti-terrorist
financing and other "know your customer" laws, regulations, rules and/or requirements); and |
| (ii) | all due diligence which has been carried out by it, or on its behalf, in connection with the Transaction
(and assuming its liabilities and assuming and performing its obligations under the Commitment Documents), the Group and the Target Group
and other agreed purposes and that it has no further due diligence requirements; |
| (b) | it has obtained all necessary approvals (including credit committee approvals and all other relevant internal
approvals) to allow it, and it is not illegal in any applicable jurisdiction for it, to (and there are no further internal impediments
to) arrange, manage, underwrite and/or make available the Interim Facilities in the amounts specified in this letter and does not require
any further internal credit sanctions or other approvals in order to do so; and |
| (c) | it has received, reviewed and is satisfied with the form of: |
| (i) | each of the legal opinions set out in paragraph 3 of Part I (Conditions Precedent to Signing)
of Schedule 3 (Conditions Precedent) to the Agreed Form Interim Facilities Agreement; |
| (ii) | the Offer Announcement; and |
| (iii) | the Tax Structure Memorandum; |
in each case, in such form provided to
the Commitment Parties on or prior to the date of this letter; and
| (d) | it will accept in satisfaction of any condition precedent to the availability of the Interim Facilities
requiring delivery of any document described in paragraph (c) above, a final version of that document which is not different in respects
which are materially adverse to interests of the Underwriter in its capacity as original lender of the Interim Facilities compared to
the version of that document accepted pursuant paragraph (c) above. |
| (e) | For the avoidance of doubt, no reliance will be given on the Tax Structure Memorandum as a condition to
utilisation of any Interim Facility. |
| 5. | Fees, Costs and Expenses |
| 5.1 | All fees, costs and expenses of the Commitment Parties shall be paid in accordance with the provisions
of the Fee Letter. |
| 5.2 | Subject to paragraph 5.3 below, no fees or other closing payments (including arrangement, underwriting,
market participation, ticking and commitment fees), costs or expenses will be payable unless the Settlement Date has occurred. |
| 5.3 | Reasonable, properly incurred and pre-agreed legal costs, expenses and disbursements in connection with
the drafting and the negotiating of the Commitment Documents and any other pre-agreed costs or expenses, in each case, up to an amount
agreed between the Commitment Parties and the Company (or on its behalf) and subject to a broken deal discount will be payable by the
Company (or on its behalf) even if the Interim Closing Date or the Settlement Date do not occur. |
| 6.1 | All payments to be made under the Commitment Documents: |
| (a) | shall be paid in the currency of invoice and in immediately available, freely transferable cleared funds
to such account with such bank as the relevant Commitment Party shall notify to the Company with at least five (5) Business Days'
prior written notice; |
| (b) | shall be paid without set off or counterclaim and free and clear from any deduction or withholding for
or on account of any tax (a "Tax Deduction") unless a Tax Deduction is required by law; and |
| (c) | are exclusive of any value added tax or similar charge ("VAT"), except where a Commitment
Party (or any of its Affiliates) has exercised an option to treat any of the supplies as subject to VAT, in which case all amounts payable
hereunder shall be inclusive of VAT to the extent such VAT arises from the exercising of such option. |
| 6.2 | Subject to paragraph 6.3 below: |
| (a) | if a Tax Deduction is required to be made by law on a payment under any Commitment Document, the amount
of the payment due shall be increased to an amount which (after making any Tax Deduction) leaves an amount equal to the payment which
would have been due if no Tax Deduction had been required, except to the extent that: |
| (i) | (in the case of a Tax Deduction imposed by a jurisdiction other than France) such Tax Deduction would
not have arisen but for: (i) the beneficiary of such payment (or any of its Affiliates) being resident in or having any present or
former connection with the jurisdiction imposing the relevant tax, other than any connection arising solely as a result of receiving payments
hereunder; or (ii) the failure of the beneficiary of such payment (or any of its Affiliates) to provide any form, certificate, document
or other information that would have reduced or eliminated such Tax Deduction where such form, certificate, document or other information
was reasonably requested in writing by the Company except where the beneficiary of such payment (or any of its Affiliates) is not legally
permitted to provide the requested form, certificate, document or other information; or |
| (ii) | (in the case of a Tax Deduction imposed by France) such Tax Deduction is imposed because: (1) the
recipient: (x) is not a resident of a jurisdiction that has entered into a tax treaty with France containing a "Business Profits"
clause similar to the "Business Profits" clause contained in the OECD Model Tax Convention on Income and on Capital and/or is
not fully entitled to the benefits of such tax treaty in respect of such payment; or (y) is either domiciled or established in a
non-cooperative state or territory as set out in the list referred to in Article 238-0 A of the French Code général
des impôts, as such list may be amended from time to time (a "Non-Cooperative Jurisdiction"); or (2) such
payment is made to an account held by the recipient with a financial institution established in a Non-Cooperative Jurisdiction; or such
Tax Deduction would not have arisen but for the failure of the recipient of such payment to comply with the immediate following sentence.
Upon reasonable request from the Company, (A) each recipient not acting from France shall, no later than five (5) Business Days
prior to the date on which a relevant payment is due to be made: (x) provide the Company with a valid and current tax residency certificate
from such recipient's jurisdiction of residence confirming that it is resident of that jurisdiction within the meaning of the relevant
tax treaty entered into between that jurisdiction and France; and (y) confirm that it is fully entitled to the benefits of such tax
treaty; and (B) each recipient shall confirm that it is not incorporated, organised or acting from a Non-Cooperative Jurisdiction; |
| (b) | subject to sub-paragraph (c) of paragraph 6.1 above, if VAT is or becomes chargeable in respect of
an amount payable by the Company to a Commitment Party under the Commitment Documents which constitutes consideration for any supply for
VAT purposes and such Commitment Party (or a member of a group which it is part of for VAT purposes) is required to account to the relevant
tax authority for the VAT, the Company shall pay (or procure the payment of) (in addition to any other consideration for the relevant
supply) an amount equal to the VAT chargeable on that supply to the relevant Commitment Party (subject to such Commitment Party promptly
providing an appropriate VAT invoice to the recipient of the supply to which such VAT relates) in accordance with applicable laws; and |
| (c) | for the avoidance of doubt, where a Commitment Document requires that a Commitment Party or Indemnified
Person is to be reimbursed or indemnified for any cost or expenses, such reimbursement or indemnification (as the case may be) shall include
any VAT incurred on such cost or expense, save to the extent that the relevant Commitment Party or Indemnified Person reasonably determines
(acting reasonably and in good faith) that it (or a member of a group for VAT purposes of which it is part) is entitled to credit or repayment
in respect of such VAT from a tax authority. |
| 6.3 | Paragraphs 6.1 and 6.2 above shall not apply in respect of any amounts paid or payable under the Interim
Facilities Agreement, which shall be made in accordance with the terms of the Interim Facilities Agreement. |
| 7.1 | At the times set out in paragraph 7.2 below, the Company represents and warrants to the Commitment Parties
that, to its knowledge: |
| (a) | the material written factual information (taken as a whole) provided to the Commitment Parties by, or
on behalf of, any other member of the Group (excluding the Target Group) in connection with the Transaction (the "Information")
is true and accurate in all material respects on: |
| (i) | where such Information is dated, the date of such Information; |
| (ii) | where such Information is stated to be accurate as at a particular date or stated to be given by reference
to the facts and circumstances existing on a particular date, the date such Information is stated to be accurate or the date of the facts
and circumstances by reference to which such Information is stated to be given; or |
| (iii) | otherwise, the date on which such Information is provided; and |
| (b) | nothing has occurred or been omitted and no information has been given or withheld that results in the
Information being untrue or misleading in any material respect (taken as a whole) in light of the circumstances under which such statements
were or are made. |
| 7.2 | The representations and warranties set out in paragraph 7.1 above are deemed to be made by the Company
on the date of this letter and by reference to the facts and circumstances then existing on the date hereof (or otherwise in respect of
the period to which the relevant Information or projections are expressed to relate or the representations in respect thereof are expressed
to be given). |
| 7.3 | The Company acknowledges that the Commitment Parties will be relying on the Information without carrying
out independent verification. |
| 8.1 | Subject to paragraphs 8.2 to 8.6 below, the Company shall within ten (10) Business Days of written
demand (together with reasonably detailed back up documentation supporting such demand) indemnify and hold harmless the Commitment Parties
and any of their respective Affiliates and any of their (or their respective Affiliates') directors, officers, agents, advisers and employees
(as applicable) in each case in their capacity as an arranger, underwriter and/or original lender (each an "Indemnified Person")
against any cost, expense, loss, liability incurred by or awarded against such Indemnified Person as a result of any action, claim, investigation
or proceeding (including any action, claim, investigation or proceeding to preserve or enforce rights), commenced or threatened, in relation
to the Commitment Documents (including the arranging or underwriting of the Interim Facilities), except to the extent such cost, expense,
loss or liability resulted: |
| (a) | directly from the fraud, gross negligence or wilful misconduct of an Indemnified Person; |
| (b) | from an Indemnified Person breaching a term of or not complying with any of its obligations under any
Commitment Document, Interim Finance Document or Confidentiality Undertaking (as defined in paragraph 10.3 below); or |
| (c) | from or relates to any disputes solely among Indemnified Persons and not arising out of any act or omission
of the Company or any of its Affiliates. |
This
paragraph 8.1 shall not apply to the extent that the relevant cost, expense, loss or liability incurred by or awarded against the Indemnified
Person falls within any of the categories set out in clause 10.2 (Exceptions from gross-up), paragraph (b) of clause
10.3 (Tax Indemnity) or paragraph (b) of clause 11.1 (Increased Costs) of the Agreed Form Interim Facilities Agreement.
| 8.2 | If any event occurs in respect of which indemnification may be sought from the Company, the relevant Indemnified
Person shall only be indemnified if (where legally permissible to do so, and where possible for the relevant Indemnified Person to do
so without breaching any confidentiality obligations it owes to any person) it: |
| (a) | notifies the Company in writing within a reasonable time after the relevant Indemnified Person becomes
aware of such event and this provision; |
| (b) | consults with the Company fully and promptly with respect to the conduct of the relevant claim, action
or proceeding; |
| (c) | conducts such claim, action or proceeding properly and diligently; and |
| (d) | does not settle any such claim, action or proceeding without the Company's prior written consent (such
consent not to be unreasonably withheld or delayed). |
| 8.3 | The indemnity in paragraph 8.1 above shall, in the case of legal fees, costs and expenses, be limited
to legal fees, costs and expenses of: |
| (a) | one lead legal counsel of appropriate experience and expertise to the Indemnified Persons (taken as a
whole); |
| (b) | where reasonably necessary, one local legal counsel of appropriate experience and expertise in any applicable
jurisdiction outside the jurisdiction in which the lead legal counsel described in paragraph (a) above is instructed; and |
| (c) | in the case of a conflict of interest: |
| (i) | one additional lead counsel of appropriate experience and expertise to the affected Indemnified Persons
similarly situated (taken as a whole); and |
| (ii) | where reasonably necessary, one additional local legal counsel of appropriate experience and expertise
to the affected Indemnified Persons similarly situated (taken as a whole), in any applicable jurisdiction outside the jurisdiction in
which the lead legal counsel described in paragraph (c)(i) above is instructed. |
| 8.4 | The indemnity in paragraph 8.1 above: |
| (a) | shall not apply to any cost, expense, loss or liability falling within any of the categories set out in
clause 10.2 (Exceptions from gross up) or paragraph (b) of clause 11.1 (Increased Costs) of the Agreed Form Interim
Facilities Agreement; or |
| (b) | shall not extend to any indirect, special, punitive or consequential losses or damages. |
| 8.5 | The Contracts (Rights of Third Parties) Act 1999 shall apply to this paragraph 8 so that each Indemnified
Person may rely on it, subject always to the terms of paragraphs 9 (Third Party Rights) and 23 (Contractual Recognition of Bail-In)
below. |
| 8.6 | No Commitment Party shall have any duty or obligation, whether as fiduciary for any Indemnified Person
or otherwise, to recover any payment made or required to be made under paragraph 8.1 above. |
| 8.7 | Neither (x) any Indemnified Person, nor (y) the Investors (or any of their respective subsidiaries
or Affiliates), the Company (or any of its Subsidiaries or Affiliates), any member of the Group or Target Group or any other Borrower
(or any of their respective Subsidiaries or Affiliates) shall be liable for any indirect, special, punitive or consequential losses or
damages in connection with its activities related to the Interim Facilities or the Commitment Documents. |
| 9.1 | Except as otherwise expressly provided in the Commitment Documents, the terms of the Commitment Documents
may be enforced only by a party to such Commitment Documents and the operation of the Contracts (Rights of Third Parties) Act 1999 is
excluded. |
| 9.2 | Notwithstanding any term of the Commitment Documents, no consent of a third party is required for any
termination or amendment of the relevant Commitment Documents. |
| 10.1 | Each of the parties to this letter acknowledges that the Commitment Documents and all Confidential Information
(as defined in paragraph 10.3 below) are confidential and may include price-sensitive and/or material non-public information. |
| 10.2 | No party to this letter shall (and each party shall ensure that none of its Affiliates (or any of their
respective directors, officers, employees and agents) shall), without the prior written consent of each of the other parties to this letter,
disclose the Commitment Documents or their contents or any Confidential Information to any other person except: |
| (a) | as required by applicable law or as requested by any applicable governmental, tax or other regulatory
authority (including any Applicable Securities Law or Relevant Regulator) or by any applicable stock exchange or if required in connection
with any legal, administrative or arbitration proceedings, provided that the person to whom Confidential Information is to be given
is informed of its confidential nature and that some or all of such Confidential Information may be price-sensitive information except
that there shall be no requirement to so inform if, in the opinion of that disclosing party (acting reasonably and in good faith), it
is not practicable so to do in the circumstances; |
| (b) | to its Affiliates and each of their (or their respective Affiliates') respective directors, officers,
partners, auditors, insurance brokers, employees, agents and professional advisers (and employees of each of the foregoing) on a confidential
and need-to-know basis for the purposes of the Interim Facilities, provided that the person to whom the Confidential Information
is to be given has entered into a Confidentiality Undertaking (unless such person is an employee of a party or such party's Affiliate)
and has been made aware of and agreed to be bound by the obligations under this paragraph 10 or is in any event subject to confidentiality
obligations as a matter of law or professional practice; |
| (c) | to any bank, financial institution or other person and any of their respective Affiliates and professional
advisers with whom it is discussing the transfer, assignment or participation of any commitment or obligation under any Commitment Document
in compliance with the terms of the Commitment Documents, provided that: |
| (i) | the disclosing party must obtain the prior written consent of the Company prior to providing Confidential
Information to such person; and |
| (ii) | the person to whom the Confidential Information is to be given has entered into a Confidentiality Undertaking,
unless the recipient is a professional adviser and is subject to professional obligations to maintain the confidentiality of the Confidential
Information; |
| (d) | to any rating agencies or reputable actual or potential providers of credit risk insurance in relation
to the Interim Facilities, who, in each case, have been made aware of, and agree to be bound by, the obligations under this paragraph
10 or are in any event subject to confidentiality obligations as a matter of law or professional practice; |
| (e) | as part of any "due diligence" defence where the recipients have been made aware of, and agree
to be bound by, the obligations under this paragraph 10 or are in any event subject to confidentiality obligations as a matter of law
or professional practice; |
| (f) | by the Company (or any of its Affiliates or any of their respective directors, officers, employees and
agents) (provided that fee amounts and other economics within the Commitment Documents (as relevant) are redacted or otherwise
withheld, but only to the extent permitted by Applicable Securities Laws, any Relevant Regulator, other applicable laws and/or directors’
duties), to: |
| (i) | any actual or potential direct or indirect investor in the Company, any Investor or any of their respective
Affiliates and/or advisers; |
| (ii) | management or shareholders of the Group (including the Target Group) and/or any of their professional
advisers in connection with the Acquisitions; and/or |
| (iii) | any person who may join as an Additional Commitment Party or otherwise as an arranger, underwriter, manager,
bookrunner or lender of the Interim Facilities, |
in each case, provided that the
person to whom the Confidential Information is to be given has been made aware of and agreed to be bound by the obligations under this
paragraph 10, has entered into a Confidentiality Undertaking or is in any event subject to confidentiality obligations as a matter of
law or professional practice or by virtue of the provisions of the governing documents of the Investors; and/or
| (g) | with the prior written consent of the Company. |
"Confidential Information"
means:
| (a) | the Commitment Documents and all of their terms; and |
| (b) | all information relating to the Company, the Group, the Investors, the Target Group, the Transaction,
the Interim Finance Documents, the Interim Facilities which is provided to a Commitment Party or any of their Affiliates or advisers (the
"Receiving Party") in relation to the Transaction, the Interim Finance Documents, the Interim Facilities by the Company,
the Group, the Investors, the Target Group or any of their Affiliates or advisers (the "Providing Party"), in whatever
form, and includes information given orally and any document, electronic file or any other way of representing or recording information
which contains or is derived or copied from such information but excludes information that: |
| (i) | is or becomes public information other than as a direct or indirect result of any breach by the Receiving
Party of a confidentiality agreement to which that Receiving Party is party; |
| (ii) | is identified in writing at the time of delivery as non-confidential by the Providing Party; or |
| (iii) | is known by the Receiving Party before the date the information is disclosed to the Receiving Party by
the Providing Party or is lawfully obtained by the Receiving Party after that date, from a source which is, as far as the Receiving Party
is aware, unconnected with the Providing Party, the Company, the Investors, the Group or the Target Group and which, in either case, as
far as the Receiving Party is aware, has not been obtained in breach of, and is not otherwise subject to, any obligation of confidentiality. |
"Confidentiality Undertaking"
means a confidentiality undertaking substantially in the form of the latest version of such undertaking recommended by the Loan Market
Association or in any other form reasonably agreed by the Company and in each case capable of being relied upon by, and not capable of
being materially amended without the consent of, the Company.
| 11. | Publicity and Announcements |
| 11.1 | All publicity in connection with the Interim Facilities shall be managed jointly by the Commitment Parties
and the Company. |
| 11.2 | Subject to paragraph 3 (Appointment) above, no public announcements regarding the Interim Facilities
or any appointment of any Commitment Party shall be made without the prior written consent of the Commitment Parties and the Company. |
| 12.1 | The provisions of this paragraph 12 are without prejudice to and subject to the obligations of the parties
under paragraph 10 (Confidentiality). |
| 12.2 | Each Commitment Party agrees that it will use the information supplied by the Company (or any other person
on the Company's behalf) in connection with the Transaction for the sole purpose of providing advice and/or financing to the Company (and
its Affiliates) in its capacity as a Commitment Party. |
| 12.3 | No Commitment Party shall (and each Commitment Party shall procure that any of its Affiliates to which
Confidential Information is disclosed will not) use any Confidential Information in connection with providing services to other persons
or furnish such information to such other persons. |
| 12.4 | The Company acknowledges that the Commitment Parties have no obligation to use any information obtained
from another source for the purposes of the Interim Facilities or to furnish such information to the Company or its Affiliates. |
| 12.5 | Neither the relationship described in this letter nor the services provided by the Commitment Parties
or any of our respective Affiliates to the Company or its Affiliates or any other matter will give rise to any fiduciary, equitable or
contractual duties (including any duty of confidence) which could prevent or hinder the Commitment Parties or their respective Affiliates
providing similar services to other customers, or otherwise acting on behalf of other customers or for their own account, subject at all
times to the provisions of paragraphs 12.2 and 12.3 being complied with. However, the Commitment Parties shall not use any Confidential
Information in connection with providing services to other persons or furnish such information to such other persons. No Commitment Party
or any of their respective Affiliates shall be required to account to the Company for any payment, remuneration, profit or benefit obtained
by it as a result of providing services to or otherwise acting on behalf of other customers or for its own account in accordance with
this paragraph 12.5. |
| 12.6 | The Commitment Parties reserve the right to employ the services of certain of their respective Affiliates
(the "Arranger Affiliates") in providing services incidental to performance of their obligations under the Commitment
Documents, provided that to the extent that a Commitment Party employs the services of any of its Arranger Affiliates, it will
procure that such Arranger Affiliate performs its obligations as if such Arranger Affiliate were a party to this letter in the relevant
capacity. |
| 12.7 | Each Commitment Party and the Company acknowledges that any of the Commitment Parties and their Affiliates
may act in more than one capacity in relation to this transaction and may, unless otherwise agreed with the Company, provide debt financing,
equity capital or other services to other persons with whom the Company or its Affiliates) may have conflicting interests in respect of
the Transaction and the Facilities. |
| 13.1 | Subject to the other provisions of this paragraph 13: |
| (a) | a Commitment Party may assign any of its rights or transfer any of its rights or obligations under the
Commitment Documents to an Affiliate, provided that the Commitment Party remains responsible for the performance by such Affiliate
of all of that Commitment Party's obligations under the Commitment Documents and for any loss or liability suffered by the Company or
its Affiliates as a result of such Affiliate's failure to perform such obligations (an Affiliate to whom rights are assigned or rights
and obligations are transferred being a "Permitted Lender Transferee") without the prior written consent of the Company
(in its sole and absolute discretion) and provided further that: |
| (i) | each Permitted Lender Transferee shall assume and acquire the same rights and obligations against the
other parties to the Commitment Documents as if it was an original party to this letter (including in relation to the status of all documentary
conditions precedent under the Interim Facilities Agreement); and |
| (ii) | the Commitment Party shall remain responsible for the performance by each such Permitted Lender Transferee
of that Commitment Party's obligations under the Commitment Documents and for any loss or liability suffered by the Company or its Affiliates
as a result of such Permitted Lender Transferee's failure to perform such obligations, |
and any purported assignment or transfer
to a person other than a Permitted Lender Transferee without the prior written consent of the Company (in its sole and absolute discretion)
or not otherwise in accordance with this paragraph 13, shall be null and void; and
| (b) | the Company may not assign any of its rights or transfer any of its rights or obligations under the Commitment
Documents. |
| 13.2 | Each Commitment Party may delegate any or all of its rights and obligations under the Commitment Documents
to any of its Affiliates or between any of its offices or branches (each a "Delegate") and may designate any Delegate
as responsible for the performance of its appointed functions under the Commitment Documents, provided that such Commitment Party
shall remain responsible for the performance by each Delegate of any such functions under the Commitment Documents and for any loss or
liability suffered by the Company or its Affiliates as a result of such Delegate's failure to perform such obligations. Each Delegate
may rely on the terms of this letter. |
| 14.1 | The offer set out in this letter shall remain open for acceptance until 11:59 p.m. (in London) on
the date falling three (3) Business Days after (and excluding) the date of this letter (the "Countersignature Date"). |
| 14.2 | Our commitments and other obligations set out in this letter are irrevocable and may not (and we hereby
undertake shall not) be revoked or rescinded prior to the Countersignature Date. |
| 14.3 | The Company may accept the offer set out in this letter by delivering (including by way of PDF email attachment)
countersigned copies of: |
to the applicable contact details identified
on the Commitment Parties' signature pages below or to the Commitment Parties' legal counsel on their behalf. Such acceptance shall
be effective only when the applicable contacts at each of the Commitment Parties have received countersigned and dated copies of this
letter and the Fee Letter.
| 14.4 | Our commitments and other obligations set out in this letter (other than our obligation not to revoke
or rescind the offer set out in this letter pursuant to paragraph 14.2 above) shall become effective only if the offer contained in this
letter is accepted by the Company in accordance with this paragraph 14. |
| 15.1 | Subject to paragraphs 15.2 and 16 (Survival) below and provided that the Commitment Parties have
received, in readable form, complete, dated and countersigned copies of this letter and the Fee Letter, our commitment and other obligations
set out in this letter (but not the commitment to provide the Interim Facilities or the rights and obligations of the parties under the
Interim Facilities Agreement, which shall terminate only in accordance with its terms) shall terminate at 11:59 p.m. (in London)
on the earliest to occur of: |
| (a) | the date falling fifteen (15) Business Days after (and excluding) the Countersignature Date if the Offer
Announcement has not been made on or prior to such date; |
| (b) | the Offer Termination Date; |
| (c) | the date falling twelve (12) months after (and excluding) the date of the Offer Announcement (or, if such
date is not a Business Day, the next succeeding Business Day); and |
| (d) | the date on which each of the Interim Facilities has been funded in an aggregate principal amount of not
less than the total commitments for that Interim Facility set out in the Commitment Documents (free of any escrow arrangements) to the
Company and/or any of its Affiliates, |
or,
in each case, such later date as agreed by the Arrangers (acting reasonably and in good faith).
| 15.2 | Notwithstanding paragraph 15.1 above or anything to the contrary in this letter or the other Commitment
Documents, in the event that any of the Interim Facilities are utilised, our commitments and other obligations set out in this letter
shall not terminate prior to the Final Repayment Date (as defined in the Agreed Form Interim Facilities Agreement). |
| 15.3 | Notwithstanding paragraph 15.1 above, the Company and the Commitment Parties agree that in the event that
the first Settlement Date occurs and the Target Share Ownership Percentage on the Settlement Date is fifty per cent. (50%) or less, the
commitments of the Commitment Parties to arrange, underwrite and provide Interim Facility B3 and the Interim Revolving Facility 2 will
be automatically and irrevocably cancelled, provided that, for the avoidance of doubt, the operation of this paragraph 15.3 shall
not otherwise limit or affect the obligations of any Commitment Party to arrange, underwrite and provide any other Interim Facility and
to comply with all other terms of the Commitment Documents, the Interim Facilities Agreement and/or the Interim Finance Documents. |
| 15.4 | In addition, and subject to paragraph 15.5 below, the Company shall have the right to terminate its obligations
under this letter and the other Commitment Documents in respect of any individual Commitment Party upon at least two (2) Business
Days prior written notice if: |
| (a) | such Commitment Party is in breach of any material provision of the Commitment Documents; or |
| (b) | the Company, acting reasonably and in good faith, has requested amendments (including, for the avoidance
of doubt, any amendment required to give effect to the provisions of paragraph 3.3 above) to any Commitment Document, Debt Financing Document,
Finance Document or Interim Finance Document or (in each case) any other documents delivered or to be delivered thereunder that, in the
reasonable opinion of the Company, are necessary to implement or complete the Offer or any Acquisition or have arisen as a part of the
negotiations with the shareholders of the Target, board of directors or senior management of the Target Group (as a whole) or any anti-trust
or competition authority, the Securities and Exchange Commission, the Swedish Financial Supervisory Authority (Sw. Finansinspektionen),
any regulatory authority (including any Relevant Regulator), pensions trustee, pensions insurer, works council or trade union (or any
similar or equivalent person to any of the foregoing in any jurisdiction) and such Commitment Party has not consented to such amendments. |
| 15.5 | If the Company exercises its termination rights pursuant to paragraph 15.4 above in respect of any Commitment
Party (a "Defaulting Commitment Party"): |
| (a) | the Company's rights against and obligations to the other Commitment Parties (other than that Defaulting
Commitment Party) under the Commitment Documents shall remain in full force and effect; |
| (b) | the Company shall have the right to appoint one or more banks, financial institutions or other persons
as additional Commitment Parties in respect of the Commitments of that Defaulting Commitment Party, with the same pro rata economics as
the Defaulting Commitment Party as set out in the Fee Letter (or economics more favourable to the other Commitment Parties); and |
| (c) | each Commitment Party hereby undertakes, upon the request of the Company, to enter into new Commitment
Documents and any other appropriate documentation to amend or replace any Commitment Document, the Interim Facilities Agreement and any
Interim Finance Document to reflect any changes required to reflect the appointment of any additional Commitment Party pursuant to this
paragraph 15.5 and (where applicable) to join such additional Commitment Party as a party to the relevant document. |
The rights and obligation of the parties
hereto under this paragraph 16, paragraphs 5 (Fees, Costs and Expenses) to 13 (Assignments) (inclusive) above and paragraphs
17 (Service of Process) to 23 (Contractual Recognition of Bail-In) (inclusive) below shall survive and continue after any
expiry or termination of the Commitment Parties' obligations (and those of their permitted successors and/or assigns) under the Commitment
Documents but shall:
| (a) | in the case of paragraphs 7 (Information), 8 (Indemnity) and 10 (Confidentiality),
terminate on the execution of the Interim Facilities Agreement to the extent that substantially equivalent provisions are contained therein
(but without prejudice to the accrued rights and obligations at the time of termination); and |
| (b) | to the extent the Interim Facilities Agreement is not signed, in the case of paragraph 10 (Confidentiality),
terminate on the second anniversary of the date of this letter. |
| 17.1 | Without prejudice to any other mode of service allowed under any relevant law, the Company: |
| (a) | irrevocably appoints Kirkland & Ellis International LLP of 30 St Mary Axe, London EC3A 8AF, United
Kingdom (Attention: Cedric van den Borren, Evgeny Zborovsky, Antoine Lebienvenu, James Collins) as its agent for service of process in
relation to any proceedings before the English courts in connection with the Commitment Documents; and |
| (b) | agrees that failure by an agent for service of process to notify the Company of the process will not invalidate
the proceedings concerned. |
| 17.2 | If any person appointed as process agent is unable for any reason to act as an agent for service of process,
the Company must promptly (and in any event within ten (10) Business Days of such event taking place) appoint another process agent
on terms acceptable to the Commitment Parties (acting reasonably). |
| 18.1 | The failure to exercise or delay in exercising a right or remedy under the Commitment Documents will not
constitute a waiver of that right or remedy or a waiver of any other right or remedy and no single or partial exercise of any right or
remedy will preclude any further exercise of that right or remedy, or the exercise of any other right or remedy. |
| 18.2 | Except as expressly provided in the Commitment Documents, the rights and remedies contained in the Commitment
Documents are cumulative and not exclusive of any rights or remedies provided by law. |
| 18.3 | The Commitment Parties acknowledge that the Company may seek specific performance by the Commitment Parties
and any other finance parties (howsoever described) in respect of each Commitment Party's commitments and of its agreement to enter into
and to make advances under the Interim Finance Documents for the funding of the Acquisition in addition to any other available remedies
and that damages are not an adequate remedy with respect to these matters. |
If, at any time, any provision of the
Commitment Documents is or becomes illegal, invalid or unenforceable in any respect under any law of any jurisdiction, neither the legality,
validity or enforceability of the remaining provisions nor the legality, validity or enforceability of such provision under the law of
any other jurisdiction will in any way be affected or impaired.
| 20.1 | The Commitment Documents set out the entire agreement between the Commitment Parties and the Company with
regards to the arranging, managing, underwriting and/or making available (as relevant) of the Interim Facilities and supersede any prior
oral and/or written understandings or arrangements relating to the Interim Facilities. |
| 21. | Amendments and Waivers |
| 21.1 | Any provision of the Commitment Documents (other than the Interim Facilities Agreement) may only be amended
or waived by way of a written amendment or waiver signed by the Commitment Parties and the Company, or otherwise in accordance with the
terms of such Commitment Document. |
| 21.2 | Any provision of the Interim Facilities Agreement may only be amended or waived in accordance with its
terms. |
The Commitment Documents may be executed
in any number of counterparts and all those counterparts taken together shall be deemed to constitute one and the same Commitment Document.
Delivery of a counterpart of a Commitment Document by email attachment shall be an effective mode of delivery.
| 23. | Contractual Recognition of Bail-In |
| 23.1 | Notwithstanding any other term of the Commitment Documents or any other agreement, arrangement or understanding
between the parties to the Commitment Documents, each of the parties to this letter and the other Commitment Documents acknowledges and
accepts that any liability of any party to the Commitment Documents to any other party under or in connection with the Commitment Documents
may be subject to Bail-In Action by the relevant Resolution Authority and acknowledges and accepts to be bound by the effect of: |
| (a) | any Bail-In Action in relation to any such liability, including (without limitation): |
| (i) | a reduction, in full or in part, in the principal amount, or outstanding amount due (including any accrued
but unpaid interest) in respect of any such liability; |
| (ii) | a conversion of all, or part of, any such liability into shares or other instruments of ownership that
may be issued to, or conferred on, it; and |
| (iii) | a cancellation of any such liability; and |
| (b) | a variation of any term of the Commitment Documents to the extent necessary to give effect to any Bail-In
Action in relation to any such liability. |
| 23.2 | For the purposes of this paragraph 23: |
"Article 55 BRRD"
means Article 55 of Directive 2014/59/EU establishing a framework for the recovery and resolution of credit institutions and investment
firms.
"Bail-In Action" means
the exercise of any Write-down and Conversion Powers.
"Bail-In Legislation"
means:
| (a) | in relation to an EEA Member Country which has implemented, or which at any time implements, Article 55
BRRD, the relevant implementing law or regulation as described in the EU Bail-In Legislation Schedule from time to time; |
| (b) | in relation to any state other than such an EEA Member Country and the United Kingdom, any analogous law
or regulation from time to time which requires contractual recognition of any Write-down and Conversion Powers contained in that law or
regulation; and |
| (c) | in relation to the United Kingdom, the UK Bail-in Legislation. |
"EEA Member Country"
means any member state of the European Union, Iceland, Liechtenstein and Norway.
"EU Bail-In Legislation Schedule"
means the document described as such and published by the Loan Market Association (or any successor person) from time to time.
"Resolution Authority"
means any body which has authority to exercise any Write-down and Conversion Powers.
"UK Bail-In Legislation"
means Part I of the United Kingdom Banking Act 2009 and any other law or regulation applicable in the United Kingdom relating to
the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (otherwise than through
liquidation, administration or other insolvency proceedings).
"Write-down and Conversion Powers"
means:
| (a) | in relation to any Bail-In Legislation described in the EU Bail-In Legislation Schedule from time to time,
the powers described as such in relation to that Bail-In Legislation in the EU Bail-In Legislation Schedule; |
| (b) | in relation to any other applicable Bail-In Legislation other than the UK Bail-In Legislation: |
| (i) | any powers under that Bail-In Legislation to cancel, transfer or dilute shares issued by a person that
is a bank or investment firm or other financial institution or affiliate of a bank, investment firm or other financial institution, to
cancel, reduce, modify or change the form of a liability of such a person or any contract or instrument under which that liability arises,
to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any
such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that
liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers; and |
| (ii) | any similar or analogous powers under that Bail-In Legislation; and |
| (c) | in relation to the UK Bail-In Legislation, any powers under that UK Bail-In Legislation to cancel, transfer
or dilute shares issued by a person that is a bank or investment firm or other financial institution or affiliate of a bank, investment
firm or other financial institution, to cancel, reduce, modify or change the form of a liability of such a person or any contract or instrument
under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any
other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend
any obligation in respect of that liability or any of the powers under that UK Bail-In Legislation that are related to or ancillary to
any of those powers. |
We
hereby notify you that pursuant to the requirements of the USA PATRIOT Act, Title III of Pub. L. 107-56 (signed into law October 26,
2001) (as the same may be amended and in effect from time to time, the "PATRIOT Act"), each Commitment Party is required
to obtain, verify and record information that identifies the Obligors (as defined in the Agreed Form Interim Facilities Agreement),
which information includes the name, address, tax identification number, certification regarding beneficial ownership required by 31 C.F.R.
§ 1010.230 and other information regarding the Obligors (as defined in the Agreed Form Interim Facilities Agreement) that will
allow the Commitment Parties to identify the Borrower and the Guarantors in accordance with the PATRIOT Act. This notice is given in accordance
with the requirements of the PATRIOT Act and is effective as to each Commitment Party. You hereby acknowledge and agree that the Commitment
Parties shall be permitted to share any or all such information with the Interim Lenders.
| 25. | Governing Law and Jurisdiction |
| 25.1 | Each Commitment Document and any non-contractual obligations arising out of or in connection with it shall
be governed by and construed in accordance with English law unless otherwise specified in the Commitment Documents. |
| 25.2 | Each of the parties to this letter agrees: |
| (a) | that the courts of England have exclusive jurisdiction to settle any disputes in connection with the Commitment
Documents and any non-contractual obligation arising out of or in connection with it and each of the parties to this letter accordingly
submits to the jurisdiction of the English courts; |
| (b) | to waive any objection to the English courts on grounds of inconvenient forum or otherwise as regards
proceedings in connection with the Commitment Documents and any non-contractual obligation arising out of or in connection with the Commitment
Documents; and |
| (c) | that a judgment or order of an English court in connection with the Commitment Documents and any non-contractual
obligation arising out of or in connection with it is conclusive and binding on it and may be enforced against it in the courts of any
other jurisdiction. |
This letter has been executed and delivered
as a deed on the date stated at the beginning of this Commitment Letter and shall take effect as a deed notwithstanding the fact that
the Company may countersign underhand.
| Yours faithfully, |
|
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| |
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| INITIAL ARRANGER |
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| EXECUTED as a DEED by |
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) |
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| acting by |
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| |
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| being persons who, in accordance |
) |
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| with the laws of the territory in which the |
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| company is incorporated is |
) |
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| acting under the authority of the company |
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| INITIAL UNDERWRITER |
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| EXECUTED as a DEED by |
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| acting by |
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| being persons who, in accordance |
) |
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| with the laws of the territory in which the |
) |
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| company is incorporated is |
) |
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| acting under the authority of the company |
) |
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| Accepted and agreed |
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| For and on behalf of |
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| Atlas Luxco S.à r.l. |
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| By: |
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Manager A |
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Manager B |
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Date:
Appendix
A
Agreed Form Interim Facilities Agreement
AGREED
FORM
Date:
[●]
INTERIM FACILITIES AGREEMENT
Atlas
Investissement
(as Topco)
Atlas Luxco S.à r.l.
(as Company)
arranged by
[●]
(as Arranger)
with
[●]
(as Interim Facility Agent)
and
[●]
(as Interim Security Agent)
KIRKLAND & ELLIS INTERNATIONAL LLP
30
St. Mary Axe
London EC3A 8AF
Tel: +44 (0)20 7469 2000
Fax: +44 (0)20 7469 2001
www.kirkland.com
Table
of Contents
Page
| 1. |
Interpretation |
1 |
| 2. |
The Interim Facilities - Availability |
1 |
| 3. |
The Making of the Interim Utilisations |
2 |
| 4. |
Obligors' Agent |
5 |
| 5. |
Nature of an Interim Finance Party's Rights and Obligations |
6 |
| 6. |
Utilisation |
7 |
| 7. |
Repayment and Prepayment |
9 |
| 8. |
Interest |
12 |
| 9. |
Market Disruption |
14 |
| 10. |
Taxes |
15 |
| 11. |
Increased Costs |
21 |
| 12. |
Payments |
24 |
| 13. |
Fees and Expenses |
26 |
| 14. |
Indemnities |
28 |
| 15. |
Subordination |
31 |
| 16. |
Security and Guarantee |
32 |
| 17. |
Agents and Arrangers |
35 |
| 18. |
Pro Rata Payments |
41 |
| 19. |
Set-Off |
42 |
| 20. |
Notices |
42 |
| 21. |
Confidentiality |
44 |
| 22. |
Know Your Customer Requirements |
45 |
| 23. |
Representations, Undertakings and Events of Default |
46 |
| 24. |
Changes to Parties |
47 |
| 25. |
French law provisions |
52 |
| 26. |
Impairment and Replacement of Interim Finance Parties |
53 |
| 27. |
Conduct of Business by the Interim Finance Parties |
53 |
| 28. |
Amendments and Waivers |
53 |
| 29. |
Miscellaneous |
55 |
| 30. |
Governing Law |
56 |
| 31. |
Jurisdiction |
56 |
| 32. |
Acknowledgment regarding any supported QFCs |
58 |
| Schedule 1 Definitions and Interpretation |
60 |
| Schedule 2 Requests |
87 |
| Schedule 3 Conditions Precedent and Subsequent |
89 |
| Schedule 4 Guarantee and Indemnity |
94 |
| Schedule 5 Major Representations, Undertakings and Events of Default |
98 |
| Schedule 6 Impairment and Replacement of Interim Finance Parties |
105 |
| Schedule 7 Form of Transfer Certificate |
117 |
| Schedule 8 Form of Assignment Agreement |
120 |
| Schedule 9 Bank Guarantees |
123 |
| Schedule 10 Form of Bank Guarantee |
130 |
| Schedule 11 The Original Interim Lenders |
133 |
THIS
AGREEMENT is made on [●] 2024 between:
| (1) | Atlas Investissement, a private limited liability company (société par actions
simplifiée à associé unique) organised under the laws of France, with registered office at 16 rue de la Ville
L'Evêque - 75008 Paris, France, registered with the trade and companies register (Registre de commerce et des sociétés)
of Paris under number 908 070 188 (Topco); |
| (2) | Atlas Luxco S.à r.l., a
private limited company (société à responsabilité limitée) incorporated and existing under the laws
of Luxembourg, having its registered office at 53, Boulevard Royal, L-2449 Luxembourg and registered with the Luxembourg Trade and Companies
Register (Registre de commerce et des sociétés, Luxembourg) under number B274990 (the Company, Borrower
and the Guarantor); |
| (3) | [●], [●] as arrangers (the Arrangers); |
| (4) | THE FINANCIAL INSTITUTIONS listed in Schedule 11 (The Original Interim Lenders) as lenders
(the Original Interim Lenders); |
| (5) | [●] as agent of the other Interim Finance Parties (the Interim Facility Agent);
and |
| (6) | [●] as security agent for the Interim Finance Parties (the Interim Security Agent). |
Terms defined in Schedule 1 (Definitions
and Interpretation) to this Agreement have the same meanings when used in this Agreement. Each Schedule to this Agreement forms part
of the terms of this Agreement.
| 2. | The Interim Facilities - Availability |
| 2.1 | The Interim Facilities |
Subject to the terms of this Agreement,
the Interim Lenders make available to the Borrower:
| (a) | an interim term loan facility in an aggregate amount equal to the Total Interim Facility B1 Commitments
(Interim Facility B1) available to be utilised in US Dollars; |
| (b) | an interim term loan facility in an aggregate amount equal to the Total Interim Facility B2 Commitments
(Interim Facility B2) available to be utilised in US Dollars; |
| (c) | an interim term loan facility in an aggregate amount equal to the Total Interim Facility B3 Commitments
(Interim Facility B3) available to be utilised in US Dollars; |
| (d) | an interim revolving facility in an aggregate amount equal to the Total Interim Revolving Facility 1 Commitments
(the Interim Revolving Facility 1) available to be utilised in US Dollars and any other currency agreed between the Obligors'
Agent and the Interim Facility Agent (acting on the instructions of the Interim Revolving Facility Lenders) and |
| (e) | an interim revolving facility in an aggregate amount equal to the Total Interim Revolving Facility 2 Commitments
(the Interim Revolving Facility 2) available to be utilised in US Dollars and any other currency agreed between the Obligors'
Agent and the Interim Facility Agent (acting on the instructions of the Interim Revolving Facility Lenders). |
| (a) | The undrawn Interim Commitments of each Interim Lender under Interim Facility B will be automatically
cancelled at 11:59 p.m. in London on the last day of the applicable Certain Funds Period. |
| (b) | The undrawn Interim Commitments of each Interim Revolving Facility Lender will be automatically cancelled
at 11:59 p.m. in London on the earlier of: |
| (i) | the last day of the applicable Interim Revolving Facility Availability Period; and |
| (ii) | if the Interim Closing Date has not occurred on or prior to the last day of the Certain Funds Period,
the last day of the Certain Funds Period. |
| 2.3 | Voluntary Cancellation |
The
Borrower (or the Obligors' Agent on its behalf) may, by two (2) Business Days' prior written notice to the Interim Facility
Agent, at any time cancel any undrawn amount of any Interim Facility.
| 3. | The Making of the Interim Utilisations |
| (a) | It is expressly acknowledged and agreed that as at the date of this Agreement, the Interim Facility Agent
has received all of the documents and evidence referred to in Part I (Conditions Precedent to Signing) of Schedule 3 (Conditions
Precedent) and that these conditions precedent to the making of any Interim Utilisation are irrevocably and unconditionally satisfied. |
| (b) | The obligations of each Interim Lender to participate in each Interim Utilisation are subject only to
the conditions precedent that on the date on which that Interim Utilisation is to be made: |
| (i) | the Interim Facility Agent has received or waived the requirement to receive all of the documents and
evidence referred to in Part II (Conditions Precedent to Interim Closing Date) Schedule 3 (Conditions Precedent); |
| (ii) | no Major Event of Default is continuing or would result from the making of any Interim Utilisation; |
| (iii) | it has not, since the date on which such Interim Lender first became a Party, become illegal for such
Interim Lender to make, or to allow to remain outstanding, that Interim Utilisation provided that such illegality alone will not excuse
any other Interim Lender from participating in the relevant Interim Utilisation and will not in any way affect the obligations of any
other Interim Lender; |
| (iv) | in relation to an Interim Utilisation under Interim Facility B2 only, the Borrower has confirmed in the
Drawdown Request for such Interim Utilisation that pro forma for such Interim Utilisation and completion of all Acquisitions in connection
with which the LTV Ratio is calculated, the LTV Ratio is not greater than 45%; and |
| (v) | in relation to an Interim Utilisation under Interim Facility B3 or Interim Revolving Facility 2 only,
the Settlement Date has occurred. |
| (c) | The Interim Facility Agent shall notify the Obligors' Agent and the Interim Lenders promptly upon being
satisfied that the conditions described in paragraph (b)(i) above have been received by it or waived. The Interim Lenders authorise
(but do not require) the Interim Facility Agent to give that notification. |
Notwithstanding any other provision
of any Interim Finance Document, during the Certain Funds Period none of the Interim Finance Parties shall:
| (a) | refuse to participate in or make available any Interim Utilisation, provided that the condition
in paragraph (b)(i) of Clause 3.1 (Conditions Precedent) above has been satisfied or waived in accordance with Clause 3.1
(Conditions Precedent); |
| (b) | be entitled to take any action to rescind, terminate or cancel this Agreement (or any provision hereof
or obligation hereunder) or any Interim Utilisation or any Interim Commitment; |
| (c) | exercise any right of set-off or counterclaim in respect of any Interim Utilisation or Interim Commitment; |
| (d) | accelerate any Interim Utilisation or otherwise demand or require repayment or prepayment of any sum from
any Obligor; |
| (e) | enforce (or instruct the Interim Security Agent to enforce) any Security Interest under any Interim Finance
Document; |
| (f) | declare that cash cover in relation to a Bank Guarantee is immediately due and payable on demand; or |
| (g) | take any other action or make or enforce any claim (in its capacity as an Interim Lender) which would
directly or indirectly prevent any Interim Utilisation from being made, |
unless
at any time any of the conditions in paragraphs (b)(i) to (b)(iv) (to the extent applicable to such Interim Utilisation) of
Clause 3.1 (Conditions Precedent) above are not satisfied (which, in respect of paragraph (b)(iii) of Clause 3.1 (Conditions
Precedent) above, shall allow the relevant Interim Lender to take such action in respect of itself only), provided that, immediately
upon the expiry of the Certain Funds Period, all such rights, remedies and entitlements shall be available to the Interim Finance Parties,
notwithstanding that they may not have been used or been available for use during the Certain Funds Period.
| (a) | The proceeds of each Interim Facility B1 Loan and each Interim Facility B2 Loan are to be applied in or
towards the financing or refinancing (directly or indirectly): |
| (i) | any amounts paid or payable in connection with any Acquisition (including (x) replenishing any balance
sheet cash utilised to finance any Acquisitions and/or (y) any Permitted Payment to refinance amounts paid from the proceeds of any
Equity Contribution in connection with any Acquisition); |
| (ii) | the repayment, redemption, purchase or other discharge of indebtedness of the Group (but excluding the
Target Group), including under the Margin Loan (the Group Existing Facilities) (together with any accrued interest, broken
funding costs, redemption premia, prepayment fees, fees, costs and/or expenses and other amounts payable in connection with that repayment,
redemption, purchase or discharge) (the Group Refinancing); |
| (iii) | financing or refinancing other related amounts, including fees, costs, expenses and taxes (including stamp
duties) incurred in connection with any Acquisition, the Group Refinancing and/or other transactions contemplated under the Transaction
Documents (including any financing fees); and/or |
| (iv) | the payment of other amounts identified in the Tax Structure Memorandum, |
including, in each case, drawing cash
onto balance sheet and/or pre-funding any amounts (including Interim Pre-Funding Loans) pending its application towards any of the purposes
described in this paragraph (a), provided that an Interim Facility B1 Loan shall not be utilised for any Target Share Post-Settlement
Open Market Acquisition.
| (b) | The proceeds of each Interim Facility B3 Loan are to be applied in or towards: |
| (i) | the repayment, redemption, purchase or other discharge of indebtedness of the Target Group (the Target
Existing Facilities) (together with any accrued interest, broken funding costs, redemption premia, prepayment fees, fees, costs
and/or expenses and other amounts payable in connection with that repayment, redemption, purchase or discharge) (the Target Refinancing);
and |
| (ii) | financing or refinancing other related amounts, including fees, costs, expenses and taxes (including stamp
duties) incurred in connection with the Target Refinancing and/or other transactions contemplated under the Transaction Documents (including
any financing fees). |
| (c) | The proceeds of the Interim Revolving Facility 1 Loans are to be applied in or towards financing or refinancing
(directly or indirectly) the payment of interest and any other fees, costs and expenses in relation to Interim Facility B2 and the Interim
Revolving Facility 1 and any taxes payable by the Company and/or Topco. |
| (d) | The proceeds of the Interim Revolving Facility 2 Loans are to be applied in or towards financing or refinancing
(directly or indirectly) the working capital and/or general corporate purposes of the Target Group and for the avoidance of doubt, excluding
the financing of any Acquisition or the payment of interest due and payable under any Interim Facility. |
The Interim Revolving Facility 2 shall
also be available for utilisation by way of Bank Guarantees. The provisions of Schedule 9 (Bank Guarantees) shall form part of
this Agreement and bind each Party.
Notwithstanding any other term of this
Agreement or any other Interim Finance Document,
| (i) | any steps, circumstances, actions, merger, payments, transactions or events contemplated by or relating
to the Transaction Documents, the Funds Flow Statement, the Tax Structure Memorandum (other than any exit steps described therein) or
the Long-term Financing Agreements (or other refinancing of the Interim Facilities) (and related documentation) (or, in each case, the
actions or intermediate steps necessary to implement or arising in connection with any of those steps, circumstances, actions, transactions
or events); |
| (ii) | any steps, circumstances, actions, payments, transactions or events arising under or in connection with
or related to any regulatory, anti-trust or competition approval, licence, consent or authorisation necessary or desirable to be obtained
in connection with the Transaction (including any local and/or operational carve-out or hold separate structures or mechanisms) and/or
any steps, circumstances, actions, payments, transactions or events arising under or in connection with or related to any request or other
action or step by any regulatory, anti-trust or competition authority, the US Securities and Exchange Commission, the Swedish Financial
Supervisory Authority or any other Relevant Regulator (or any similar or equivalent person to any of the foregoing in any jurisdiction)
(or, in each case, the actions or intermediate steps necessary to implement any of those steps, circumstances, actions, payments, transactions
or events); |
| (iii) | any steps, circumstances, actions, payments, transactions or events arising under, contemplated by or
relating to any Delisting and/or Squeeze-Out (or, in each case, any intermediate steps or actions necessary to implement such steps, circumstances,
actions, payments, transactions or events); |
| (iv) | any steps, circumstances, actions, payments, transactions or events not prohibited by or permitted under
the Existing Facilities; and/or |
| (v) | any other Permitted Transaction, |
in
any case, shall constitute, or result in, a breach of any representation, warranty, undertaking or other term of the Interim Finance Documents
or a Default or a Major Event of Default, actual or potential, and each such event shall be expressly permitted under the terms of the
Interim Finance Documents, including the use of the proceeds of any Interim Utilisation for any purpose set out in the Tax Structure Memorandum
or the Funds Flow Statement; and
| (b) | notwithstanding anything in any Interim Finance Document, prior to the Control Date: |
| (i) | to the extent that the Company undertakes under the Interim Finance Documents to procure compliance by
members of the Target Group to any term of the Interim Finance Documents or where any term, representation, warranty, undertaking or requirement
(including any Event of Default) of the Interim Finance Documents is expressed directly or indirectly to apply to a member of the Target
Group, such term, representation, warranty, undertaking or requirement (including any Events of Default) will be subject to all limitations
and restrictions on the influence the Company may exercise merely as a shareholder of the Target by voting its shares (or the access it
has to the relevant information in such capacity, as applicable) in accordance with Applicable Securities Law, Luxembourg corporate law
but without any obligation to compensate or to offer any compensation to any Minority Shareholders of the Target and without any obligation
to exercise its rights as a shareholder to influence the composition of any board (and, for the avoidance of doubt, no breach of any such
term, representation, warranty, undertaking or requirement and no Default or Event of Default shall occur if, having exercised all such
influence, the relevant term, undertaking or requirement is nevertheless breached); and |
| (ii) | no representations, warranties or undertakings shall be, in each case, given or deemed to be given directly
or indirectly by a member of the Target Group. |
| (a) | Each Obligor (other than the Company) and Topco, by its execution of this Agreement, irrevocably (to the
extent permitted by law) appoints the Obligors' Agent to act severally on its behalf as its agent in relation to the Interim Finance Documents
and irrevocably (to the extent permitted by law) authorises: |
| (i) | the Obligors' Agent on its behalf to supply all information concerning itself contemplated by the Interim
Finance Documents to the Interim Finance Parties and to give and receive all notices, instructions and other communications under the
Interim Finance Documents (including, where relevant, Drawdown Requests) and to make such agreements and to effect the relevant amendments,
supplements and variations capable of being given, made or effected by any Obligor or Topco (as applicable) notwithstanding that they
may affect the Obligor or Topco (as applicable), without further reference to or the consent of that Obligor or Topco (as applicable)
(including, by increasing the obligations of such Obligor howsoever fundamentally, whether by increasing the liabilities, guaranteed or
otherwise); and |
| (ii) | each Interim Finance Party to give any notice, demand or other communication to that Obligor pursuant
to the Interim Finance Documents to the Obligors' Agent, |
and in each case the Obligor or Topco
(as applicable) shall be bound as though the Obligor or Topco itself (as applicable) had given the notices and instructions (including
any Drawdown Requests) or executed or made the agreements or effected the amendments, supplements or variations, or received the relevant
notice, demand or other communication and each Interim Finance Party may rely on any action taken by the Obligors' Agent on behalf of
that Obligor or Topco (as applicable).
| (b) | Every act, omission, agreement, undertaking, settlement, waiver, amendment, supplement, variation, notice
or other communication given or made by the Obligors' Agent or given to the Obligors' Agent under any Interim Finance Document on behalf
of another Obligor or Topco (as applicable) or in connection with any Interim Finance Document (whether or not known to any other Obligor
or Topco (as applicable) and whether occurring before or after such other Obligor or Topco (as applicable) became an Obligor or Topco
(as applicable) under any Interim Finance Document shall be binding for all purposes on that Obligor or Topco (as applicable) as if that
Obligor or Topco (as applicable) had expressly made, given or concurred with it (to the extent permitted by law). In the event of any
conflict between any notices or other communications of the Obligors' Agent and any other Obligor or Topco (as applicable), those of the
Obligors' Agent shall prevail. |
| (c) | If (notwithstanding the fact that the guarantees granted under Schedule 4 (Guarantee and Indemnity)
are and the Interim Security is, intended to guarantee and secure, respectively, all obligations arising under the Interim Finance Documents),
any guarantee or Interim Security does not automatically extend from time to time to any (however fundamental and of whatsoever nature
and whether or not more onerous) variation, increase, extension or addition of or to any of the Interim Finance Documents and/or any facility
or amount made available under any of the Interim Finance Documents, each Obligor expressly confirms that the Obligors' Agent is authorised
to confirm such guarantee and/or Interim Security on behalf of such Obligor. |
| (d) | For the purpose of this Clause 4, each Obligor or Topco (as applicable) other than the Obligors' Agent
(to the extent necessary under applicable law) shall grant a specific power of attorney (notarised and apostilled to the extent necessary
under applicable law) to the Obligors' Agent and comply with any necessary formalities in connection therewith. |
| (e) | The Obligors' Agent shall be released from the restrictions of self-dealing (howsoever described) to the
extent legally possible and from any restrictions under any applicable laws of any jurisdiction. |
| 5. | Nature of an Interim Finance Party's Rights and Obligations |
| (a) | No Interim Finance Party is bound to monitor or verify any Interim Utilisation nor be responsible for
the consequences of such Interim Utilisation. |
| (b) | The obligations of each Interim Finance Party under the Interim Finance Documents are several. |
| (c) | Failure by an Interim Finance Party to perform its obligations does not affect the obligations of any
other Party under the Interim Finance Documents. |
| (d) | No Interim Finance Party is responsible for the obligations of any other Interim Finance Party under the
Interim Finance Documents. |
| (e) | The rights of each Interim Finance Party under the Interim Finance Documents are separate and independent
rights. |
| (f) | An Interim Finance Party may, except as otherwise stated in the Interim Finance Documents, separately
enforce its rights under the Interim Finance Documents. |
| (g) | A debt arising under the Interim Finance Documents to an Interim Finance Party is a separate and independent
debt. |
| (h) | Each Interim Lender will promptly notify the Obligors' Agent if it becomes aware of any matter or circumstance
which would entitle it not to advance or participate in any Interim Utilisation. |
| 6.1 | Giving of Drawdown Requests |
| (a) | The Borrower may borrow an Interim Loan or an Interim Pre-Funding Loan by giving to the Interim Facility
Agent a duly completed Drawdown Request. A Drawdown Request is, once given, irrevocable. |
| (b) | Unless the Interim Facility Agent otherwise agrees, the latest time for receipt by the Interim Facility
Agent of a duly completed Drawdown Request is 9.00 a.m. (in London) on the date falling one (1) Business Day before the proposed
Drawdown Date or such later time and/or date as agreed by the Interim Facility Agent. |
| (c) | The Interim Revolving Facility may not be utilised unless Interim Facility B1 has been utilised (but,
for the avoidance of doubt, the Interim Revolving Facility may be utilised contemporaneously with the Interim Facility B1, including on
the Interim Closing Date). |
| (d) | The Borrower may only draw ten (10) Interim Facility B Loans. |
| (e) | The Interim Revolving Facility may be drawn during the Interim Revolving Facility Availability Period. |
| (f) | No more than twenty (20) Interim Revolving Facility 1 Loans and twenty (20) Interim Revolving Facility
2 Loans may be outstanding at any time. Any separate Interim Revolving Facility Loans with Interest Periods ending on the same date shall
be deemed one loan for these purposes. |
| 6.2 | Completion of Drawdown Requests |
A Drawdown Request for an Interim Loan
will not be regarded as having been duly completed unless:
| (a) | in the case of an Interim Facility B Loan: |
| (i) | the Drawdown Date is a Business Day within the Certain Funds Period and |
| (ii) | the amount of such Interim Facility B Loan does not exceed the Total Interim Commitments in respect of
Interim Facility B1, Interim Facility B2 or Interim Facility B3 (as applicable); |
| (b) | in the case of an Interim Revolving Facility Loan: |
| (i) | the Drawdown Date is a Business Day within the Interim Revolving Facility Availability Period; and |
| (ii) | the Base Currency Amount of the Interim Revolving Facility Loan requested (when aggregated with the Base
Currency Amount of any other Interim Revolving Facility Utilisations made or due to be made on or before the proposed Drawdown Date but
excluding any part of any Interim Revolving Facility Utilisation prepaid or due to be prepaid on or before the proposed Drawdown Date)
does not exceed the Total Interim Revolving Facility Commitments; and |
| (c) | the currency of the Interim Loan complies with paragraph (f) of Clause 6.3 (Advance of Interim
Loans) and the proposed Interest Period complies with paragraph (b) of Clause 8.2 (Payment of interest). |
| 6.3 | Advance of Interim Loans |
| (a) | The Interim Facility Agent must promptly notify each Interim Lender of the details of the requested Interim
Loan and the amount of its share in that Interim Loan. |
| (b) | Each Interim Lender will participate in each Interim Facility B Loan in the proportion which its Interim
Commitment under the applicable Interim Facility bears to the Total Interim Commitments under that Interim Facility, immediately before
the making of that Interim Facility B Loan. |
| (c) | Each Interim Lender will participate in each Interim Revolving Facility Utilisation in the proportion
which its Interim Revolving Facility Commitment bears to the Total Interim Revolving Facility Commitments immediately before the making
of that Interim Revolving Facility Utilisation. |
| (d) | No Interim Lender is obliged to participate in any Interim Facility B Loan if as a result the Base Currency
Amount of its share in the Interim Facility B Loan would exceed its Interim Commitments under the Interim Facility B. |
| (e) | No Interim Lender is obliged to participate in any Interim Revolving Facility Loan if as a result the
Base Currency Amount of its share in the outstanding Interim Revolving Facility Utilisations (other than to the extent due to be repaid
or prepaid on or before the proposed Drawdown Date) would exceed its applicable Interim Revolving Facility Commitments. |
| (f) | Each Interim Loan may only be denominated in the currency or currencies in which the applicable Interim
Facility is stated to be available under Clause 2.1 (The Interim Facilities) above, unless otherwise agreed in writing by all the
Interim Lenders under the applicable Interim Facility. |
| (g) | If the applicable conditions set out in this Agreement have been met, each applicable Interim Lender shall
make its participation in each relevant Interim Loan available to the Interim Facility Agent for the account of the Borrower by 2.00 p.m. (in
London) on the Drawdown Date through its Facility Office. |
| (h) | If an Interim Pre-Funding Loan has been made: |
| (i) | the Company shall notify the Interim Facility Agent promptly upon the occurrence of the Settlement Date
(and, upon receipt of such notification, the Interim Facility Agent shall promptly notify the Interim Lenders of the same); and |
| (ii) | if the Settlement Date has not occurred by 11:59 p.m. on the Proposed Settlement Date, then the relevant
Borrower shall (unless the Settlement Date occurs on or prior to the Pre-Funding Repayment Date) repay or procure the repayment of the
Pre-Funding Repayment Amount on or prior to the Pre-Funding Repayment Date (and, for the avoidance of doubt, no prior notice shall be
required to be given in respect of such repayment). |
| (i) | If an Interim Pre-Funding Loan has been made: |
| (i) | this shall not constitute the occurrence of the "Interim Closing Date" and instead the "Interim
Closing Date" shall be deemed to occur on the Settlement Date; |
| (ii) | no original issue discount, arrangement fees, upfront fees, ticking fees, closing payments or other fees,
costs or expenses shall be payable relating to any Interim Pre-Funding Loans during any period prior to the Settlement Date; |
| (iii) | if any such fees or other amounts referred to in paragraph (ii) above have been paid, retained or
deducted from the proceeds of any such pre-funding loans by or on behalf of the Interim Facility Agent or any Interim Lender or their
Affiliates and the Settlement Date has not occurred on or prior to the Pre-Funding Repayment Date, then such fees or other amounts shall
be immediately deemed to be refunded to the Interim Facility Agent for the account of the Borrower and applied towards repayment of such
Interim Pre-Funding Loan; and |
| (iv) | interest shall be payable on any Interim Pre-Funding Loan from the Pre-Funding Date for that Interim Pre-Funding
Loan and shall be payable whether or not the Settlement Date occurs. |
| (j) | Notwithstanding anything to the contrary in this Agreement (including Clause 7.1 (Repayment), if
any part of Interim Facility B is repaid prior to the Settlement Date: |
| (i) | no Interim Lender's Interim Facility B Commitment shall be reduced or cancelled by the amount repaid;
and |
| (ii) | each Interim Lender's Interim Facility B Commitment shall remain available for borrowing and/or reborrowing,
as applicable, on one or more occasions in accordance with the terms of this Agreement subject to Clause 3.1 (Conditions Precedent). |
| 7. | Repayment and Prepayment |
| (a) | Subject to paragraph (b) of Clause 8 of Part II (Bank Guarantees) of Schedule 9 (Bank
Guarantees) with respect to Bank Guarantees, each Borrower must repay all outstanding Interim Utilisations (together with all interest
and all other unpaid amounts accrued or outstanding under or in connection with the Interim Finance Documents) on the earliest to occur
of: |
| (i) | the date which falls ninety (90) days after the Interim Closing Date (the Final Repayment Date); |
| (ii) | the date of receipt by the Borrower of a written demand (an Acceleration Notice) from the
Interim Facility Agent following the occurrence of a Major Event of Default which is continuing in accordance with paragraph (b) below;
or |
| (iii) | the date of receipt by the Borrower or any Group Company of the proceeds from the first utilisation made
under the equivalent Long-term Financing Agreement (free of any escrow or similar arrangements), to the extent of such proceeds. |
| (b) | Subject to Clause 3 (The Making of the Interim Utilisations), if a Major Event of Default has occurred
and is continuing the Interim Facility Agent may, but only if so directed by the Majority Interim Lenders, by service of an Acceleration
Notice to the Obligors' Agent: |
| (i) | cancel all or any of the commitments hereunder; |
| (ii) | declare that all or part of any outstanding Interim Loans together with accrued interest and any other
amounts accrued or outstanding be immediately due and payable, whereupon such amounts shall become immediately due and payable; |
| (iii) | declare that all or any part of the outstanding Interim Loans be payable on demand, whereupon the same
shall become payable on demand; and/or |
| (iv) | require the provision of cash cover whereupon the Borrower shall immediately provide cash cover in an
amount equal to the total contingent liability of the Interim Lenders under all Bank Guarantees issued under this Agreement for its account, |
and any such Acceleration Notice shall
take effect in accordance with its terms.
| (c) | In addition and subject to paragraph (j) below, the Borrower must repay each outstanding Interim
Revolving Facility Loan made to it on the last day of its Interest Period. |
| (d) | If an Interim Utilisation is, or is declared to be, due and payable, all interest and all other amounts
accrued or outstanding in respect of that Interim Utilisation shall be immediately due and payable. |
| (e) | If an Interim Utilisation is, or is declared to be, due and payable on demand, all interest and all other
amounts accrued or outstanding in respect of that Interim Utilisation shall be immediately due and payable on demand by the Interim Facility
Agent on the instructions of the Majority Interim Lenders. |
| (f) | If an Interim Utilisation is, or is declared to be, due and payable, the Interim Facility Agent may, and
shall if so directed by the Majority Interim Lenders, by notice to the Obligors' Agent, exercise or direct the Interim Security Agent
to exercise any or all of its rights, remedies, powers or discretions under the Interim Finance Documents. |
| (g) | For the avoidance of doubt, break costs shall be payable for any prepayment or repayment of an Interim
Loan. |
| (h) | Any part of the Interim Revolving Facility which is repaid may be redrawn in accordance with the terms
of this Agreement. |
| (i) | Amounts repaid under the Interim Facility B may not be redrawn. |
| (j) | Without prejudice to the Borrower's obligation under paragraph (c) above, if one or more Interim
Revolving Facility Loans are to be made available to the Borrower: |
| (i) | on the same day that a maturing Interim Revolving Facility Loan is due to be repaid by the Borrower; |
| (ii) | in the same currency as the maturing Interim Revolving Facility Loan; and |
| (iii) | in whole or in part for the purpose of refinancing the maturing Interim Revolving Facility Loan, |
the aggregate amount of new Interim Revolving
Facility Loans shall be treated as if applied in or towards repayment of the maturing Interim Revolving Facility Loan so that:
| (A) | if the amount of the maturing Interim Revolving Facility Loan exceeds the aggregate amount of the new
Interim Revolving Facility Loans: |
| (1) | the Borrower will only be required to pay an amount in cash in the relevant currency equal to that excess;
and |
| (2) | each Interim Lender's participation (if any) in the new Interim Revolving Facility Loans shall be treated
as having been made available and applied by the Borrower in or towards repayment of that Interim Lender's participation (if any) in the
maturing Interim Revolving Facility Loan and that Interim Lender will not be required to make its participation in the new Interim Revolving
Facility Loans available in cash; and |
| (B) | if the amount of the maturing Interim Revolving Facility Loan is equal to or less than the aggregate amount
of the new Interim Revolving Facility Loans: |
| (1) | the Borrower will not be required to make any payment in cash; and |
| (2) | each Interim Lender will be required to make its participation in the new Interim Revolving Facility Loans
available in cash only to the extent that its participation (if any) in the new Interim Revolving Facility Loans exceeds that Interim
Lender's participation (if any) in the maturing Interim Revolving Facility Loan and the remainder of that Interim Lender's participation
in the new Interim Revolving Facility Loans shall be treated as having been made available and applied by the Borrower in or towards repayment
of that Interim Lender's participation in the maturing Interim Revolving Facility Loan. |
| (k) | The Borrower consents, to the extent reasonably practicable, to any refinancing of an Interim Utilisation
with the proceeds of the first utilisation made under the equivalent Long-term Financing Agreement (free of any escrow or similar arrangements)
in which the Interim Lenders participate being effected by means of a "cashless roll" or "cashless exchange". |
| (a) | The Borrower may prepay the whole or any part of any outstanding Interim Utilisation (including, for the
avoidance of doubt, the whole or any part of any outstanding Interim Utilisation owed to a particular Interim Lender to the extent provided
for by the terms of this Agreement), together with accrued but unpaid interest, at any time, on giving one (1) Business Days' prior
notice in writing to the Interim Facility Agent. |
| (b) | Any part of the Interim Revolving Facility which is prepaid pursuant to paragraph (a) above may be
redrawn in accordance with the terms of this Agreement. |
| (c) | Amounts prepaid under the Interim Facility B may not be redrawn. |
| 8.1 | Calculation of interest |
The rate of interest on each Interim
Loan for its Interest Period is the percentage rate per annum equal to the aggregate of:
| (b) | the Funding Cost for that Interest Period. |
| (a) | The period for which each Interim Loan is outstanding shall be divided into successive interest periods
(each, an Interest Period) (save that for each Interim Revolving Facility Loan there shall only be one Interest Period),
each of which will start on the expiry of the previous Interest Period or, in the case of the first Interest Period for an Interim Facility
B Loan (or the Interest Period for each Interim Revolving Facility Loan), on the relevant Drawdown Date. |
| (b) | The Borrower shall select an Interest Period of (x) one (1) week in respect of an Interim Pre-Funding
Loan and (y) one (1) or three (3) months in respect of an Interim Loan in each Drawdown Request and (in relation to subsequent
Interest Periods for the Interim Facility B Loans) thereafter no later than 11.00 a.m. one (1) Business Day prior to applicable
Rate Fixing Day. |
| (c) | If the Borrower does not select an Interest Period for an Interim Loan, the default Interest Period shall
(subject to paragraph (e) below) be four (4) weeks (or, if earlier, a period ending on the Final Repayment Date). |
| (d) | The Borrower must pay accrued interest on each Interim Loan made to it on the last day of each Interest
Period in respect of that Interim Loan and on any date on which that Interim Loan is repaid or prepaid. |
| (e) | Notwithstanding paragraphs (a), (b) and (c) above, no Interest Period will extend beyond the
Final Repayment Date. |
| (f) | If an Interest Period would otherwise end on a day which is not a Business Day, that Interest Period will
instead end on the next Business Day in that calendar month (if there is one) or the preceding Business Day (if there is not), provided
that no Interest Period will extend beyond the Final Repayment Date. |
| 8.3 | Interest on overdue amounts |
| (a) | If the Borrower fails to pay when due any amount payable by it under the Interim Finance Documents, it
must immediately on demand by the Interim Facility Agent pay interest on the overdue amount from its due date up to the date of actual
payment, both before, on and after judgment. |
| (b) | Interest on an overdue amount is payable at a rate determined by the Interim Facility Agent to be one
(1) per cent. per annum above the rate which would have been payable if the overdue amount had, during the period of non-payment,
constituted part of that Interim Loan. |
| (c) | Interest (if unpaid) on an overdue amount will be compounded with that overdue amount on the last day
of each Interest Period (or such duration as selected by the Interim Facility Agent acting reasonably) to the extent permitted under any
applicable law and regulation. |
| (a) | Interest shall be paid in the currency of the relevant Interim Loan and shall accrue from day to day and
be calculated on the basis of the actual number of days elapsed and a 360 day year (or, where practice in the relevant interbank market
differs, in accordance with that market practice). |
| (b) | The Interim Facility Agent shall promptly notify each relevant Party of the determination of a rate of
interest under this Agreement. |
| 8.5 | Replacement of Screen Rate |
| (a) | Subject to paragraph (c) below, any amendment, replacement or waiver proposed by the Company and
delivered in writing to the Interim Facility Agent which relates to a change to (i) the benchmark rate, base rate or reference rate
(the "Benchmark Rate") to apply in relation to a currency in place of the existing Benchmark Rate for such currency under
an applicable Interim Facility, or (ii) the method of calculation of any Benchmark Rate, (in each case including any amendment, replacement
or waiver to the definition of "Term SOFR" including an alternative or additional page, service or method for the determination
thereof, or which relates to aligning any provision of an Interim Finance Document to the use of that Benchmark Rate, including making
appropriate adjustments to this Agreement for basis, duration, time and periodicity for determination of that Benchmark Rate for any Interest
Period and making other consequential and/or incidental changes) (a Benchmark Rate Change), as agreed by the Company and
the Interim Facility Agent (acting on the instructions of the Majority Interim Lenders), may and shall be made provided. |
| (b) | If no Benchmark Rate Change for such currency has been made or implemented pursuant to paragraph (a) above
and the Company or the Interim Facility Agent (acting on the instructions of the Majority Interim Lenders) requests the making of a Benchmark
Rate Change and notifies the Interim Facility Agent or the Company (as applicable) thereof, then the Company and the Interim Facility
Agent (acting on the instructions of the Majority Interim Lenders) shall enter into consultations in respect of a Benchmark Rate Change;
provided that if such Benchmark Rate Change cannot be agreed upon by the earlier of (x) the end of a consecutive period of
thirty (30) days and (y) the date which is five (5) Business Days before the end of the current Interest Period, (or in the
case of a new Interim Utilisation, the date which is five (5) Business Days before the date upon which the Drawdown Request will
be served, as notified by the Company to the Interim Facility Agent), the Benchmark Rate applicable to any Interim Lender's share of an
Interim Loan for each Interest Period which commences after the Trigger Date (as defined below) for the currency of such Interim Loan
and prior to (or during) the date on which a Benchmark Rate Change for that currency has been agreed shall (unless otherwise agreed by
the Company and the Interim Facility Agent (acting on the instructions of the Majority Interim Lenders participating in the applicable
Interim Facility)) be replaced by the rate certified to the Interim Facility Agent by that Interim Lender as soon as practicable (and
in any event by the date falling two (2) Business Days before the date on which interest is due to be paid in respect of the relevant
Interest Period) to be that which expresses as a percentage rate per annum the cost to the relevant Interim Lender of funding its participation
in that Interim Loan in the Relevant Market. Notwithstanding the foregoing, the Interim Facility Agent shall consult with any affected
Interim Lenders with any Benchmark Rate Change. |
| (c) | Notwithstanding the other provisions of this Clause 8.5, no Benchmark Rate Change or other amendments
or waivers in connection therewith shall be made without the prior written consent of the Company (which may be given, withheld, conditioned
or delayed in its sole and absolute discretion and shall not, under any circumstances, be deemed given) which: |
| (i) | would result in an increase in the weighted average cost of the applicable Interim Facility (whether by
an increase in the Margin, fees or otherwise but taking into account, to the extent reasonably practicable, any transfer of economic value
from one Party to another as a result of the application of any Benchmark Rate Change to such applicable Interim Facility (including any
spread adjustment to reflect the differential between the weighted average Benchmark Rate before and after such Benchmark Rate Change))
to the Obligors; |
| (ii) | are a change to the date of an interest payment date; |
| (iii) | would result in any Obligor being subject to more onerous obligations under the Interim Finance Documents; |
| (iv) | would result in any rights or benefits of any Obligor under the Interim Finance Documents being lost or
reduced; or |
| (v) | would include a credit spread adjustment (or similar) or a fallback cost of funds for market disruption. |
| (d) | For the purposes of this Clause 8.5: |
"Trigger Date" in respect
of Term SOFR or other rate used to calculate any Benchmark Rate means the earliest of:
| (i) | the date upon which the administrator of Term SOFR or other rate publicly announces that it has ceased
to provide Term SOFR or other rate permanently or indefinitely and, at that time, there is no successor administrator to continue to provide
that Term SOFR or other rate; or |
| (ii) | the date upon which the supervisor of the administrator of that Term SOFR or other rate publicly announces
that Term SOFR or other rate has been permanently or indefinitely discontinued. |
If the Funding Cost (other than in respect
of a USD Term Rate Loan) is to be determined by reference to the Reference Banks but a Reference Bank does not supply a quotation by 12.00
noon on the Rate Fixing Day the applicable Funding Cost shall be determined on the basis of the quotations of the remaining Reference
Banks, subject to Clause 9.2 (Market Disruption Notice). For the avoidance of doubt, this clause 9.1 shall not apply to USD Term
Rate Loans.
| 9.2 | Market Disruption Notice |
If, in relation to any actual or proposed
Interim Loan (a Disrupted Loan):
| (a) | the Funding Cost is to be determined by reference to rates supplied by Reference Banks and none or only
one of the Reference Banks supplies a rate by 12.00 noon on the Rate Fixing Day; or |
| (b) | before close of business in London on the Rate Fixing Day for the relevant Interest Period, one or more
Interim Lenders whose participations in that Disrupted Loan equal or exceed in aggregate fifty (50) per cent. of the amount of that Disrupted
Loan notify the Interim Facility Agent that by reason of circumstances affecting the relevant interbank market generally the cost to those
Interim Lenders of obtaining matching deposits in the relevant interbank market would be in excess of the Funding Cost, |
the Interim Facility Agent will promptly
give notice of that event to the Obligors' Agent and the Interim Lenders (a Market Disruption Notice).
| 9.3 | Proposed Disrupted Loans |
If a Market Disruption Notice is given
in respect of a proposed Disrupted Loan, the interest rate applicable on each Interim Lender's participation in that Disrupted Loan will
be the rate certified by that Interim Lender to the Interim Facility Agent no later than five (5) Business Days after the Rate Fixing
Day to be its cost of funds (from any source which it may reasonably select) plus the Margin.
| (a) | Each Obligor must make all payments under the Interim Finance Documents without any Tax Deduction, unless
a Tax Deduction is required by law. |
| (b) | If the Obligors' Agent or an Interim Lender becomes aware that an Obligor must make a Tax Deduction (or
that there is any change in the rate or the basis of a Tax Deduction), it shall promptly notify the Interim Facility Agent. If the Interim
Facility Agent receives such notification from an Interim Lender it shall promptly notify the Obligors' Agent and (if different) the relevant
Obligor. If the Interim Facility Agent receives such notification from the Obligors' Agent it shall promptly notify the relevant Interim
Lender. |
| (c) | Each Interim Lender shall promptly provide to the Interim Facility Agent (if requested by the Interim
Facility Agent): |
| (i) | a written confirmation that it is or, as the case may be, is not, a Qualifying Interim Lender; and |
| (ii) | such documents and other evidence as the Interim Facility Agent may reasonably require to support any
confirmation given pursuant to sub-paragraph (i) above, |
and until such time as an Interim Lender
has complied with any request pursuant to this paragraph (c), the Interim Facility Agent and each Obligor shall be entitled to treat such
Interim Lender as not being a Qualifying Interim Lender for all purposes under the Interim Finance Documents.
| (d) | If any Tax Deduction is required by law to be made by an Obligor from any payment under an Interim Finance
Document: |
| (i) | except as provided in Clause 10.2 (Exceptions from gross-up), the amount of the payment due from
that Obligor under an Interim Finance Document will be increased to an amount which (after taking into account any Tax Deduction) leaves
an amount equal to the amount which would have been due if no Tax Deduction had been required; and |
| (ii) | the relevant Obligor will: |
| (A) | ensure that the Tax Deduction and any payment required in connection with it does not exceed the minimum
amount required by law; |
| (B) | make the Tax Deduction and any payment required in connection with such tax deduction within the time
allowed by law; and |
| (C) | within thirty (30) days of making any Tax Deduction or any payment to the relevant Tax authorities required
in connection with it, deliver to the Interim Facility Agent (for the Interim Finance Party entitled to the payment) evidence satisfactory
to that Interim Finance Party (acting reasonably and in good faith) that such Tax Deduction has been made or (as applicable) such payment
paid to the appropriate authority, provided that the relevant Obligor will not be in breach of this sub-paragraph (C) if it
delivers such evidence as soon as reasonably practicable after the expiry of such period. |
| (e) | Each Interim Lender shall co-operate with each Obligor that makes a payment to that Interim Lender in
completing, or assisting with the completion of, all procedural formalities necessary for that Obligor to obtain authorisation to make
a payment either without a Tax Deduction or, where a payment cannot be made without a Tax Deduction, with a reduced Tax Deduction, and
maintain or re-obtain that authorisation where an authorisation expires or otherwise ceases to have effect. |
| (i) | a Tax Deduction should have been made in respect of a payment made by or on account of an Obligor to an
Interim Lender under an Interim Finance Document; |
| (A) | the relevant Obligor (or the Interim Facility Agent, if it is the applicable withholding agent) was unaware
that the Tax Deduction was required and as a result does not make the Tax Deduction or made a Tax Deduction at a reduced rate; |
| (B) | in reliance on the notifications and confirmation provided by the relevant Finance Party pursuant to Clause
10.5 (Interim Lender Status Confirmation), the relevant Obligor did not make such Tax Deduction or made a Tax Deduction at a reduced
rate; or |
| (C) | the relevant Finance Party has not complied with its obligation under paragraphs (b) or (c) above
and as a result the relevant Obligor did not make the Tax Deduction or made a Tax Deduction at a reduced rate; and |
| (iii) | the relevant Obligor would not have been required to make an increased payment under paragraph (d) above
in respect of that Tax Deduction, |
then the Interim Lender that received
the payment in respect of which the Tax Deduction should have been made or made at a higher rate undertakes to promptly reimburse the
Obligor for the amount of the Tax Deduction that should have been made (including any penalty, interest or expenses payable in connection
with any failure to pay or any delay in paying any of the same).
| 10.2 | Exceptions from gross-up |
No Obligor is required to make any increased
payment to an Interim Lender under Clause 10.1 (Gross-up) in respect of a Tax Deduction imposed by Luxembourg if, on the date the
payment falls due:
| (a) | that Interim Lender is not or has ceased to be a Qualifying Interim Lender (unless that Interim Lender
has ceased to be a Qualifying Interim Lender as a result of a Change of Law); |
| (b) | such Tax Deduction is the result of, or has been increased by, that Interim Lender's failure to comply
with its obligations under paragraph (e) of Clause 10.1 (Gross-up); or |
| (c) | such Tax Deduction is required by virtue of the Luxembourg law dated 23 December 2005 as amended
from time to time. |
| (a) | The Obligors' Agent shall pay (or procure payment) (within five (5) Business Days of written demand
by the Interim Facility Agent) to an Interim Finance Party an amount equal to the loss, liability or cost which that Interim Finance Party
determines (acting reasonably and in good faith) will be or has been suffered for or on account of Tax by that Interim Finance Party in
relation to a payment received or receivable (or deemed for Tax purposes to be received or receivable) from an Obligor under an Interim
Finance Document. |
| (b) | Paragraph (a) above shall not apply: |
| (i) | to any Tax assessed on an Interim Finance Party under the law of the jurisdiction or jurisdictions (or
any political subdivision thereof) in which: |
| (A) | that Interim Finance Party is incorporated or, if different, in which that Interim Finance Party is treated
as resident for tax purposes; or |
| (B) | that Interim Finance Party's Facility Office or other permanent establishment is located in respect of
amounts received or receivable under the Interim Finance Documents in that jurisdiction (or in respect of amounts attributable or allocable
to the permanent establishment), |
if that Tax is imposed on or calculated
by reference to the income, profits or gains or interest margin received or receivable (but not any sum deemed to be received or receivable)
by that Interim Finance Party or if that Tax is considered a franchise Tax (imposed in lieu of net income Tax) or a branch profits or
similar Tax;
| (ii) | to the extent a loss or liability: |
| (A) | is compensated for by payment of an amount under Clause 10.1 (Gross-up); |
| (B) | would have been compensated for by payment of an increased amount under Clause 10.1 (Gross-up)
but was not so compensated because any of the exclusions in Clause 10.2 (Exceptions from gross-up) applied; |
| (C) | is compensated for by payment of an amount under Clause 10.6 (Stamp Taxes) or Clause 10.7 (Value
added taxes) or would have been compensated for by payment of an increased amount under such Clauses but was not so compensated because
any of the exclusions in such Clauses applied; |
| (D) | is suffered or incurred by an Interim Lender as a result of such Interim Lender's failure to comply with
its obligations under Clause 10.5 (Interim Lender Status Confirmation); |
| (E) | is increased as a result of the Interim Finance Party not complying with paragraph (c) below; |
| (F) | (for the avoidance of doubt) is suffered or incurred in respect of any Bank Levy (or any payment attributable
to, or liability arising as a consequence of, a Bank Levy); or |
| (G) | relates to a FATCA Deduction required to be made by a party. |
| (c) | An Interim Finance Party making, or intending to make a claim under paragraph (a) above shall promptly
notify the Obligors' Agent and the Interim Facility Agent on becoming aware of the event which has given, or will give, rise to the claim. |
If an Obligor pays an additional amount
under Clause 10.1 (Gross-up) or Clause 10.3 (Tax indemnity) and an Interim Finance Party determines (acting reasonably and
in good faith) that it (or one of its Affiliates) has, either on a standalone or an affiliated basis, received and utilised a Tax Credit
of similar Tax benefit attributable to that payment or the Tax giving rise to that payment, that Interim Finance Party and/or the applicable
Affiliate shall pay to that Obligor within five (5) Business Days upon the utilisation of any Tax Credit or similar Tax benefit an
amount which that Interim Finance Party determines (acting reasonably and in good faith), providing such evidence to the Obligor in respect
of such amounts as the Obligor may reasonably request in writing, will leave such Interim Finance Party or the applicable Affiliate (after
that payment by it) in the same after-Tax position as it would have been in if the payment of that additional amount by that Obligor had
not been required to be made.
| 10.5 | Interim Lender Status Confirmation |
| (a) | Each Original Interim Lender shall confirm in Schedule 11 (The Original Interim Lenders) which
of the following categories it falls in: |
| (i) | not a Qualifying Interim Lender; |
| (ii) | a Qualifying Interim Lender (other than by virtue of being a Treaty Interim Lender); or |
| (iii) | a Qualifying Interim Lender by virtue of being a Treaty Interim Lender (on the assumption that all procedural
formalities have been completed). |
| (b) | Each Interim Lender which becomes a Party to this Agreement after the date of this Agreement shall indicate,
in the Transfer Certificate, Assignment Agreement or Increase Confirmation which it executes on becoming a Party, which of the following
categories it falls in: |
| (i) | not a Qualifying Interim Lender; |
| (ii) | a Qualifying Interim Lender (other than by virtue of being a Treaty Interim Lender); or |
| (iii) | a Qualifying Interim Lender by virtue of being a Treaty Interim Lender (on the assumption that all procedural
formalities have been completed). |
| (c) | If a New Interim Lender or Increase Lender fails to indicate its status in accordance with this Clause
10.5 then such New Interim Lender or Increase Lender (as applicable) shall be treated for the purposes of this Agreement (including by
each Obligor) as if it is not a Qualifying Interim Lender until such time as it notifies the Interim Facility Agent which category applies
(and the Interim Facility Agent, upon receipt of such notification, shall promptly inform the Obligors' Agent). |
| (d) | For the avoidance of doubt, a Transfer Certificate, Assignment Agreement or Increase Confirmation shall
not be invalidated by any failure of an Interim Lender to comply with this Clause 10.5. |
| (e) | Each Interim Lender which must complete procedural formalities in order to receive payments under this
Agreement without a Tax Deduction being imposed or with a minimum Tax Deduction under applicable law, shall notify the Interim Facility
Agent and the Obligor promptly on completion of all such formalities. |
The Obligors' Agent shall pay (or shall
procure payment) (within five (5) Business Days of written demand by the Interim Facility Agent) and indemnify each Interim Finance
Party against all losses, costs and liabilities which that Interim Finance Party (directly or indirectly) suffers or incurs in relation
to any stamp duty, registration, documentary or other similar transfer Tax payable in respect of any Interim Finance Document except for:
| (a) | (for the avoidance of doubt) any such Tax payable in respect of any transfer, assignment, novation, sub-participation,
sub-contract or other disposal of an Interim Finance Party's rights or obligations (or part thereof) under an Interim Finance Document;
or |
| (b) | any such Tax to the extent it becomes payable upon a voluntary registration made by any Interim Finance
Party if such registration is not necessary to evidence, prove, maintain, enforce, compel or otherwise assert the rights of such Interim
Finance Party under an Interim Finance Document. |
| (a) | All amounts expressed to be payable under an Interim Finance Document by any party to an Interim Finance
Party which (in whole or in part) constitute the consideration for a supply or supplies for VAT purposes shall be deemed to be exclusive
of any VAT which is chargeable on such supply or supplies and accordingly, subject to paragraph (b) below if VAT is or becomes chargeable
on any supply or supplies made by any Interim Finance Party to any party in connection with an Interim Finance Document: (i) if such
Interim Finance Party is required to account to the relevant tax authority for the VAT, that party shall pay to the Interim Finance Party
(in addition to and at the same time as paying the consideration for that supply or supplies) an amount equal to the amount of the VAT
(upon such Interim Finance Party providing an appropriate VAT invoice to such party); or (ii) if such Party is required to directly
account for such VAT under the reverse charge procedure provided for by any relevant VAT provisions of the jurisdiction in which such
party receives such supply, then such Party shall account for the VAT at the appropriate rate (and the relevant Interim Finance Party
must promptly provide an appropriate VAT invoice to such Party stating that the amount is charged in respect of a supply that is subject
to VAT but that the reverse charge procedure applies). |
| (b) | If VAT is or becomes chargeable on any supply made by any Interim Finance Party (the Supplier)
to any other Interim Finance Party (the Recipient) under an Interim Finance Document, and any party other than the Recipient
(the Relevant Party) is required by the terms of any Interim Finance Document to pay an amount equal to the consideration
for that supply to the Supplier (rather than being required to reimburse or indemnify the Recipient in respect of that consideration): |
| (i) | (where the Supplier is the person required to account to the relevant tax authority for the VAT) the Relevant
Party must also pay to the Supplier (at the same time as paying that amount) an additional amount equal to the amount of the VAT. The
Recipient must (where this paragraph (i) applies) promptly pay to the Relevant Party an amount equal to any credit or repayment the
Recipient receives from the relevant tax authority which the Recipient determines (acting reasonably and in good faith) relates to the
VAT chargeable on that supply; and |
| (ii) | (where the Recipient is the person required to account to the relevant tax authority for the VAT) the
Relevant Party must promptly, following demand from the Recipient, pay to the Recipient an amount equal to the VAT chargeable on that
supply but only to the extent that the Recipient determines (acting reasonably and in good faith) that it is not entitled to credit or
repayment from the relevant tax authority in respect of that VAT. |
| (c) | Where an Interim Finance Document requires any party to reimburse or indemnify an Interim Finance Party
for any costs or expenses, that party shall reimburse or indemnify (as the case may be) the Interim Finance Party against any VAT incurred
by the Interim Finance Party in respect of the costs or expenses, to the extent that the Interim Finance Party determines (acting reasonably
and in good faith) that neither it nor any group of which it is a member for VAT purposes is entitled to credit or receive repayment in
respect of the VAT from the relevant tax authority. |
| (d) | Any reference in Clause 10.7 to any party shall, at any time when such party is treated as a member of
a group or fiscal unity for VAT purposes, include (where appropriate and unless the context otherwise requires) a reference to the person
who is treated as making the supply or (as appropriate) receiving the supply under the grouping rules (as provided for in Article 11
of the Council Directive 2006/112/EC (or as implemented by the relevant member state of the European Union or any other similar provision
in any jurisdiction which is not a member state of the European Union)) so that a reference to a party shall be construed as a reference
to that party or the relevant group or unity (or fiscal unity) of which that party is a member for VAT purposes at the relevant time or
the relevant member (or head) of that group or unity (or fiscal unity) at the relevant time (as the case may be). |
| (e) | In relation to any supply made by an Interim Finance Party to any party under an Interim Finance Document,
if reasonably requested by such Interim Finance Party, that party must promptly provide such Interim Finance Party with details of that
party's VAT registration and such other information as is reasonably requested in connection with such Interim Finance Party's VAT reporting
requirements in relation to such supply. |
| (a) | Subject to paragraph (c) below, each Party shall, within ten (10) Business Days of a reasonable
request by another Party: |
| (i) | confirm to that other Party whether it is: |
| (A) | a FATCA Exempt Party; or |
| (B) | not a FATCA Exempt Party; |
| (ii) | supply to that other Party such forms, documentation and other information relating to its status under
FATCA as that other Party reasonably requests for the purposes of that other Party's compliance with FATCA; and |
| (iii) | supply to that other Party such forms, documentation and other information relating to its status as that
other Party reasonably requests for the purposes of that other Party's compliance with any other law, regulation or exchange of information
regime. |
| (b) | If a Party confirms to another Party pursuant to paragraph (a)(i) above that it is a FATCA Exempt
Party and it subsequently becomes aware that it is not, or has ceased to be a FATCA Exempt Party, that Party shall notify that other Party
reasonably promptly. |
| (c) | Paragraph (a) above shall not oblige any Party to do anything, which would or might in its reasonable
opinion constitute a breach of: |
| (i) | any law or regulation; |
| (ii) | any fiduciary duty; or |
| (iii) | any duty of confidentiality. |
| (d) | If a Party fails to confirm whether or not it is a FATCA Exempt Party or to supply forms, documentation
or other information requested in accordance with paragraphs (a)(i) or (a)(ii) above (including, for the avoidance of doubt,
where paragraph (c) above applies), then such Party shall be treated for the purposes of the Interim Finance Documents (and payments
under them) as if it is not a FATCA Exempt Party until such time as the Party in question provides the requested confirmation, forms,
documentation or other information. |
| (a) | Each Party may make any FATCA Deduction it is required to make by FATCA, and any payment required in connection
with that FATCA Deduction, and no Party shall be required to increase any payment in respect of which it makes such a FATCA Deduction
or otherwise compensate the recipient of the payment for that FATCA Deduction. |
| (b) | Each Party shall promptly, upon becoming aware that it must make a FATCA Deduction (or that there is any
change in the rate or the basis of such FATCA Deduction), notify the Party to whom it is making the payment and, in addition, shall notify
the Obligors' Agent and the Interim Facility Agent, and the Interim Facility Agent shall notify the other Interim Finance Parties. |
| (a) | If the introduction of, or a change in, or a change in the interpretation, administration or application
of, any law, regulation or treaty occurring after the date on which it becomes Party, or compliance with any law, regulation or treaty
made after the date on which it becomes Party, results in any Interim Finance Party (a Claiming Party) or any Affiliate
of it incurring any Increased Cost (as defined in paragraph (c) below): |
| (i) | the Claiming Party will notify the Obligors' Agent and the Interim Facility Agent of the circumstances
giving rise to that Increased Cost as soon as reasonably practicable after becoming aware of it and will as soon as reasonably practicable
provide a certificate confirming the amount of that Increased Cost with (to the extent available) appropriate supporting evidence; and |
| (ii) | within five (5) Business Days of demand by the Claiming Party, the Obligors' Agent will (or shall
procure that another Group Company will) pay to the Claiming Party the amount of any Increased Cost incurred by it (or any Affiliate of
it). |
| (b) | No Group Company will be obliged to compensate any Claiming Party under paragraph (a) above in relation
to any Increased Cost: |
| (i) | to the extent already compensated for by a payment under Clause 10 (Taxes) (or would have been
so compensated but for an exclusion in Clauses 10.2 (Exceptions from gross-up), 10.3 (Tax indemnity), 10.6 (Stamp Taxes)
or 10.7 (Value added taxes)); |
| (ii) | attributable to the breach by the Claiming Party of any law, regulation or treaty or any Interim Finance
Document; |
| (iii) | attributable to a Tax Deduction required by law to be made by an Obligor; |
| (iv) | attributable to any penalty having been imposed by the relevant central bank or monetary or fiscal authority
upon the Claiming Party (or any Affiliate of it) by virtue of its having exceeded any country or sector borrowing limits or breached any
directives imposed upon it; |
| (v) | attributable to the implementation or application of or compliance with the "International Convergence
of Capital Measurement and Capital Standards, a Revised Framework" published by the Basel Committee on Banking Supervision in June 2004
in the form existing on the date of this Agreement (but excluding any amendment to Basel II arising out of Basel III (as defined in paragraph
(c)(ii) below)) (Basel II) or any other law or regulation which implements Basel II (whether such implementation, application
or compliance is by a government, regulator, Interim Finance Party or any of its Affiliates) but excluding any Increased Cost attributable
to Basel III or any other law or regulation which implements Basel III (in each case, unless an Interim Finance Party was or reasonably
should have been aware of that Increased Cost on the date on which it became an Interim Finance Party under this Agreement); |
| (vi) | attributable to a change (whether of basis, timing or otherwise) in the Tax on the overall net income
of the Interim Finance Party (or any Affiliate of it) or of the branch or office through which it participates in any Interim Loan; |
| (vii) | attributable to any Bank Levy (or any payment attributable to, or liability arising as a consequence of,
a Bank Levy); |
| (viii) | attributable to a FATCA Deduction required to be made by a Party; or |
| (ix) | not notified to the Obligors' Agent in accordance with paragraph (a)(i) above. |
| (A) | an additional or increased cost; |
| (B) | a reduction in any amount due, paid or payable to the Claiming Party under any Interim Finance Document;
or |
| (C) | a reduction in the rate of return from an Interim Facility or on the Claiming Party's (or its Affiliates')
overall capital, |
suffered or incurred by a Claiming Party
(or any Affiliate of it) as a result of it having entered into or performing its obligations under any Interim Finance Document or making
or maintaining its participation in any Interim Loan; and
| (A) | the agreements on capital requirements, a leverage ratio and liquidity standards contained in "Basel
III: A global regulatory framework for more resilient banks and banking systems", "Basel III: International framework for liquidity
risk measurement, standards and monitoring" and "Guidance for national authorities operating the countercyclical capital buffer"
published by the Basel Committee on Banking Supervision in December 2010, each as amended, supplemented or restated; |
| (B) | the rules for global systemically important banks contained in "Global systemically important
banks: assessment methodology and the additional loss absorbency requirement Rules text" published by the Basel Committee on
Banking Supervision in November 2011, as amended, supplemented or restated; and |
| (C) | any further guidance or standards published by the Basel Committee on Banking Supervision relating to
Basel III. |
| (a) | If circumstances arise which entitle an Interim Finance Party: |
| (i) | to receive payment of an additional amount under Clause 10 (Taxes); |
| (ii) | to demand payment of any amount under Clause 11.1 (Increased Costs); or |
| (iii) | to require cancellation or prepayment to it of any amount under Clause 11.3 (Illegality) (including
for the avoidance of doubt if an Interim Finance Party is not obliged to fund in circumstances where paragraph (b)(iii) of Clause
3.1 (Conditions Precedent) applies), |
then that Interim Finance Party will,
in consultation with the Obligors' Agent, take all reasonable steps to mitigate the effect of those circumstances (including by transferring
its rights and obligations under the Interim Finance Documents to an Affiliate or changing its Facility Office or transferring its Interim
Commitments and participation (if any) in each Interim Utilisation for cash at par plus all accrued but unpaid interest thereon to another
bank, financial institution or other person nominated for such purpose by the Obligors' Agent).
| (b) | No Interim Finance Party will be obliged to take any such steps or action if to do so is likely in its
opinion (acting in good faith) to be unlawful or to have an adverse effect on its business, operations or financial condition or breach
its banking policies or require it to disclose any confidential information. |
| (c) | The Obligors' Agent shall (or shall procure that another Group Company will), within five (5) Business
Days of demand by the relevant Interim Finance Party, indemnify such Interim Finance Party for any costs or expenses reasonably incurred
by it as a result of taking any steps or action under this Clause 11.2. |
| (d) | This Clause 11.2 does not in any way limit, reduce or qualify the obligations of the Obligors' Agent under
the Interim Finance Documents. |
If it is or will become unlawful in
any applicable jurisdiction for an Interim Finance Party to participate in an Interim Facility, maintain its Interim Commitment or participation
in any Interim Utilisation or perform any of its obligations under any Interim Finance Documents, then:
| (a) | that Interim Finance Party shall promptly so notify the Interim Facility Agent and the Obligors' Agent
upon becoming aware of that event; and |
| (b) | following such notification, the Obligors' Agent shall (or shall procure that a Group Company will) prepay
that Interim Finance Party's participation in all outstandings under the relevant Interim Facility (together with any related accrued
interest) and pay (or procure payment of) all other amounts due to that Interim Finance Party under the Interim Finance Documents and
that Interim Finance Party's Interim Commitment will be cancelled, in each case, to the extent necessary to cure the relevant illegality
and, on the date specified by that Interim Finance Party in such notice (being the last Business Day immediately prior to the illegality
taking effect or the latest date otherwise allowed by the relevant law (taking into account any applicable grace period)) unless otherwise
agreed or required by the Obligors' Agent, provided that on or prior to such date the Obligors' Agent shall have the right to require
that Interim Lender to transfer its Interim Commitments and participation in each Interim Utilisation to another bank, financial institution
or other person nominated for such purpose by the Obligors' Agent which has agreed to purchase such rights and obligations at par plus
accrued interest. |
| (a) | Unless otherwise specified in an Interim Finance Document, on each date on which payment is to be made
by any Party (other than the Interim Facility Agent) under an Interim Finance Document, such Party shall pay, in the required currency,
the amount required to the Interim Facility Agent, for value on the due date at such time and in such funds as the Interim Facility Agent
may specify to the Party concerned as being customary at that time for settlement of transactions in the relevant currency in the place
of payment. All such payments shall be made to the account specified by the Interim Facility Agent for that purpose in the principal financial
centre of the country of the relevant currency (or in relation to US Dollars, London). |
| (b) | Each payment received by the Interim Facility Agent under the Interim Finance Documents for another Party
shall, subject to paragraphs (c) and (d) below and to Clause 12.3 (Assumed receipt), be made available by the Interim
Facility Agent as soon as practicable after receipt to the Party entitled to receive payment in accordance with this Agreement (in the
case of an Interim Lender, for the account of its Facility Office), to such account as that Party may notify to the Interim Facility Agent
by not less than five (5) Business Days' notice with a bank in the principal financial centre of the country of that currency (or,
in relation to US Dollars, London). |
| (c) | The Interim Facility Agent may with the consent of the Obligors' Agent (or in accordance with Clause 19
(Set-Off)) apply any amount received by it for the Borrower in or towards payment (as soon as practicable after receipt) of any
amount then due and payable by the Borrower under the Interim Finance Documents or in or towards purchase of any amount of any currency
to be so applied. |
| (d) | Each Agent may deduct from any amount received by it for another Party any amount due to such Agent from
that other Party but unpaid and apply the amount deducted in payment of the unpaid debt owed to it. |
| (a) | Subject to paragraphs (b) to (e) (inclusive) below, US Dollars is the currency of account and
payment of any sum due from an Obligor under any Interim Finance Documents shall be made in US Dollars. |
| (b) | Each payment in respect of costs, expenses or Taxes shall be made in the currency in which the costs,
expenses or Taxes were incurred. |
| (c) | Each repayment of an Interim Utilisation or overdue amount or payment of interest thereon shall be made
in the currency of the Interim Utilisation or overdue amount. |
| (d) | Each payment under Clauses 10.1 (Gross-up), 10.3 (Tax indemnity) or 11.1 (Increased Costs)
shall be made in the currency specified by the Interim Finance Party making the claim (being the currency in which the Tax or losses were
incurred). |
| (e) | Any amount expressed in the Interim Finance Documents to be payable in a particular currency shall be
paid in that currency. |
| (a) | Where an amount is or is required to be paid to the Interim Facility Agent under any Interim Finance Document
for the account of another person (the Payee), the Interim Facility Agent is not obliged to pay that amount to the Payee
until the Interim Facility Agent is satisfied that it has actually received that amount. |
| (b) | If the Interim Facility Agent nonetheless pays that amount to the Payee (which it may do at its discretion)
and the Interim Facility Agent had not in fact received that amount, then the Payee will on demand refund that amount to the Interim Facility
Agent (together with interest on that amount at the rate determined by the Interim Facility Agent to be equal to the cost to the Interim
Facility Agent of funding that amount for the period from payment by the Interim Facility Agent until refund to the Interim Facility Agent
of that amount), provided that no Obligor will have any obligation to refund any such amount received from the Interim Facility
Agent and paid by it (or on its behalf) to any third party for a purpose set out in Clause 3.3 (Purpose). |
| 12.4 | No set-off or counterclaim |
All
payments made or to be made by an Obligor under the Interim Finance Documents must be paid in full without (and free and clear of any
deduction for) set-off or counterclaim (save to the extent contemplated in Clause 10 (Taxes)).
| (a) | If any payment would otherwise be due under any Interim Finance Document on a day which is not a Business
Day, that payment shall be due on the next Business Day in the same calendar month (if there is one) or the preceding Business Day (if
there is not). |
| (b) | During any such extension of the due date for payment of any principal or overdue amount, or any extension
of an Interest Period, interest shall accrue and be payable at the rate payable on the original due date. |
| (a) | Unless otherwise prohibited by law, if more than one currency or currency unit are at the same time recognised
by the central bank of any country as the lawful currency of that country: |
| (i) | any reference in any Interim Finance Document to, and any obligations arising under any Interim Finance
Document in, the currency of that country shall be translated into, and paid in, the currency or currency unit designated by the Interim
Facility Agent (after consultation with the Obligors' Agent); and |
| (ii) | any translation from one currency or currency unit to another shall be at the official rate of exchange
recognised by the central bank of that country for the conversion of that currency or currency unit into the other, rounded up or down
by the Interim Facility Agent (acting reasonably). |
| (b) | If a change in any currency of a country occurs, the Interim Finance Documents will, to the extent the
Interim Facility Agent specifies is necessary (acting reasonably and after consultation with the Obligors' Agent), be amended to comply
with any generally accepted conventions and market practice in any relevant interbank market and otherwise to reflect the change in currency.
The Interim Facility Agent will notify the other Parties to the relevant Interim Finance Documents of any such amendment, which shall
be binding on all the Parties. |
| 12.7 | Application of proceeds |
| (a) | If the Interim Facility Agent receives a payment that is insufficient to discharge all amounts then due
and payable by an Obligor under any Interim Finance Document, the Interim Facility Agent shall apply that payment towards the obligations
of such Obligor under the Interim Finance Documents in the following order: |
| (i) | first, in payment pro rata of any fees, costs and expenses of the Agents and the Arrangers due but unpaid; |
| (ii) | second, in payment pro rata of any fees, costs and expenses of the Interim Lenders due but unpaid; |
| (iii) | third, in payment pro rata of any accrued interest in respect of the Interim Facilities due but unpaid; |
| (iv) | fourth, in payment pro rata of any principal due but unpaid under the Interim Facilities and any amount
due but unpaid under paragraph 7 (Indemnities) of Schedule 9 (Bank Guarantees); |
| (v) | fifth, in payment pro rata of any other amounts due but unpaid under the Interim Finance Documents to
the extent such sum constitutes Interim Liabilities; and |
| (vi) | the balance, if any, in payment to the relevant Obligor. |
| (b) | The Interim Facility Agent shall if directed by all the Interim Lenders, vary the order set out in sub-paragraphs
(a)(ii) to (a)(v) inclusive above. |
| (c) | Any such application by the Interim Facility Agent will override any appropriation made by an Obligor. |
| (d) | Any amount recovered under the Interim Security Documents or otherwise in connection with the realisation
or enforcement of all or any part of the Interim Security will be paid to the Interim Facility Agent to be applied as set out in paragraph
(a) above. |
The Obligors' Agent shall (or shall
procure that another Group Company will) pay to the Interim Facility Agent, within ten (10) Business Days of demand, for the account
of the Interim Finance Parties the amount of all reasonable costs and expenses (including legal fees subject to any agreed limits) properly
incurred by them or any of their Affiliates in connection with:
| (a) | the negotiation, preparation, printing, execution and perfection of any Interim Finance Document and other
documents contemplated by the Interim Finance Documents executed after the date of this Agreement; and |
| (b) | any amendment, waiver or consent made or granted in connection with the Interim Finance Documents, |
provided
that if the Interim Facility is not drawn no such costs and expenses will be payable (other than legal costs up to a cap separately
agreed in writing).
The Obligors' Agent shall (or shall
procure that another Group Company will) pay to each Interim Finance Party, within five (5) Business Days of demand, the amount of
all costs and expenses (including legal fees reasonably incurred) properly incurred by it in connection with the enforcement of, or the
preservation of any rights under, any Interim Finance Document and any proceedings instituted by or against the Interim Security Agent
as a consequence of taking or holding the Interim Security or enforcing these rights.
The Obligors' Agent shall (or shall
procure that another Group Company will) pay to the Interim Facility Agent, within ten (10) Business Days of demand, all reasonable
costs and expenses (including reasonable legal fees) properly incurred by the Interim Facility Agent or Interim Security Agent in connection
with responding to, evaluating, negotiating or complying with any amendment, waiver or consent requested or required by the Obligors'
Agent, subject always to any limits as agreed between the Obligors' Agent and the Arrangers from time to time.
The Borrower shall (or shall procure
that another Group Company will) pay the Interim Finance Parties' fees in accordance with the Fee Letters and the Interim Agency Fee Letters.
| (a) | The Borrower shall pay (or procure there is paid) to the Interim Facility Agent, for the account of each
Interim Revolving Facility Lender, a fee in US Dollars computed at the rate of thirty (30) per cent. of the applicable Margin on that
Interim Revolving Facility Lender's Available Interim Revolving Facility Commitment under the Interim Revolving Facility for the period
commencing on (and excluding) the later of (x) the Settlement Date and (y) the Interim Closing Date and ending on the last day
of the Interim Revolving Facility Availability Period. |
| (b) | The accrued commitment fee is payable on the last day of the applicable Interim Revolving Facility Availability
Period and, if cancelled in full, on the cancelled amount of the relevant Interim Revolving Facility Lender's Interim Revolving Facility
Commitment at the time the cancellation is effective. |
| (c) | No commitment fee is payable to the Interim Facility Agent (for the account of an Interim Revolving Facility
Lender) on any Available Interim Revolving Facility Commitment of that Interim Revolving Facility Lender for any day on which that Interim
Lender is a Defaulting Lender. |
| (d) | No accrued commitment fee shall be payable unless the Settlement Date has occurred. |
Notwithstanding anything to the contrary
in any Interim Finance Document (including Clauses 13.1 (Costs and expenses) to 13.4 (Other fees) above):
| (a) | no fees, costs, expenses or other amount shall be payable by any Group Company to any Interim Finance
Party under any Interim Finance Document unless the Settlement Date has occurred save, in the case of legal fees, as otherwise agreed
prior to the date of this Agreement; |
| (b) | any demand for reimbursement of costs and expenses incurred by an Interim Finance Party must be accompanied
by reasonable details of the amount demanded (including, at the request of the Obligors' Agent, hours worked, rates charged and individuals
involved); and |
| (c) | if an Interim Lender assigns or transfers any of its rights, benefits or obligations under the Interim
Finance Documents, no Group Company shall be required to pay any fees, costs, expenses or other amounts relating to or arising in connection
with that assignment or transfer (including any stamp duty, transfer or registration Taxes and any amounts relating to the perfection
or amendment of the Interim Security Documents). |
The
Obligors' Agent will (or shall procure that another Group Company will) indemnify each Interim Finance Party within ten (10) Business
Days of demand (which demand must be accompanied by reasonable details and calculations of the amount demanded) against any loss or liability
(not including loss of future Margin and/or profit) which that Interim Finance Party incurs as a result of:
| (a) | the occurrence of any Major Event of Default; |
| (b) | the operation of Clause 18 (Pro Rata Payments); |
| (c) | any failure by any Obligor to pay any amount due under an Interim Finance Document on its due date; |
| (d) | any Interim Loan not being made for any reason (other than as a result of the fraud, default or negligence
of that Interim Finance Party) on the Drawdown Date specified in the Drawdown Request requesting that Interim Loan; |
| (e) | any Interim Loan or overdue amount under an Interim Finance Document being repaid or prepaid otherwise
than in accordance with a notice of prepayment given by an Obligor or otherwise than on the last day of the then current Interest Period
relating to that Interim Loan or overdue amount, other than as a result of that Interim Lender failing to advance its participation pursuant
to any Long-term Financing Agreement for the purposes of refinancing the Interim Facilities; or |
| (f) | making arrangements to issue a Bank Guarantee requested by an Obligor in a Bank Guarantee Request but
not issued by reason of the operation of any one or more provisions of this Agreement (other than by reason of the fraud, default or negligence
of that Interim Finance Party), |
including any loss on account of funds
borrowed, contracted for or utilised to fund any Interim Loan or amount payable under any Interim Finance Document. The indemnities contained
in this Clause 14.1 shall not apply to the extent a cost, loss, liability or expense is of a description falling in the categories set
out in paragraph (b) of Clause 10.3 (Tax indemnity) or paragraph (b) of Clause 11.1 (Increased Costs).
| (i) | any amount payable by an Obligor under or in connection with any Interim Finance Document is received
by any Interim Finance Party (or by an Agent on behalf of any Interim Finance Party) in a currency (the Payment Currency)
other than that agreed in the relevant Interim Finance Document (the Agreed Currency), and the amount produced by such Interim
Finance Party converting the Payment Currency so received into the Agreed Currency is less than the required amount of the Agreed Currency;
or |
| (ii) | any amount payable by an Obligor under or in connection with any Interim Finance Document has to be converted
from the Agreed Currency into another currency for the purpose of making, filing, obtaining or enforcing any claim, proof, order or judgment, |
that Obligor shall, as an independent
obligation, within ten (10) Business Days of demand indemnify the relevant Interim Finance Party for any loss or liability incurred
by it as a result of the conversion, provided that, if the amount produced or payable as a result of the conversion is greater
than the relevant amount due, that Interim Finance Party will promptly refund such excess amount to the relevant Obligor.
| (b) | Any conversion required will be made at the prevailing rate of exchange on the date and in the market
determined by the relevant Interim Finance Party, acting reasonably, as being most appropriate for the conversion. The relevant Obligor
will also, within ten (10) Business Days of demand, pay the reasonable costs of the conversion. |
| (c) | Each Obligor waives any right it may have in any jurisdiction to pay any amount under any Interim Finance
Document in a currency other than that in which it is expressed to be payable in that Interim Finance Document. |
| 14.3 | Indemnity to the Interim Facility Agent |
The
Obligors' Agent shall (or shall procure that another Group Company will) within ten (10) Business Days of demand (which demand
must be accompanied by reasonable details and calculations of the amount demanded), indemnify the Interim Facility Agent against any cost,
loss or liability incurred by the Interim Facility Agent (acting reasonably) as a result of:
| (a) | investigating any event which it reasonably believes is a Major Event of Default (provided that,
if after doing so it is established that such event is not a Major Event of Default, the cost, loss or liability of investigation shall
be for the account of the Interim Lenders); and |
| (b) | acting or relying on any notice, request or instruction which it reasonably believes to be genuine, correct
and appropriately authorised, |
except where the cost, loss or liability
incurred by the Interim Facility Agent is a result of fraud, wilful misconduct, gross negligence or default of the Interim Facility Agent.
| 14.4 | Indemnity to the Interim Security Agent |
| (a) | The Obligors' Agent shall (or shall procure that another Group Company will) within ten (10) Business
Days of demand (which demand must be accompanied by reasonable details and calculations of the amount demanded), indemnify the Interim
Security Agent and every Receiver and Delegate against any cost, loss or liability incurred by the Interim Security Agent, Receiver or
Delegate (acting reasonably) as a result of: |
| (i) | the taking, holding, protection or enforcement of the Interim Security; |
| (ii) | the exercise of any of the rights, powers, discretions and remedies vested in the Interim Security Agent
and each Receiver and Delegate by the Interim Finance Documents or by law; and |
| (iii) | any default by any Obligor in the performance of any of the obligations expressed to be assumed by it
in the Interim Finance Documents, |
except where, as the case may be, the
cost, loss or liability incurred by the Interim Security Agent, Receiver and/or Delegate is a result of fraud, wilful misconduct, gross
negligence or default of the Interim Security Agent, Receiver and/or Delegate.
| (b) | The Interim Security Agent and, to the extent relevant, each other Interim Finance Party may, in priority
to any payment to the Interim Finance Parties, indemnify itself out of the Charged Property over which it holds Interim Security in respect
of, and pay and retain, all sums necessary to give effect to the indemnity in this Clause 14.4 and shall have a lien on the Interim Security
held by it and the proceeds of the enforcement of the Interim Security held by it for all moneys payable to it. |
| 14.5 | Acquisition Indemnity for the Interim Security Agent |
| (a) | The Obligors' Agent shall (or shall procure that another Group Company will) within ten (10) Business
Days of demand indemnify and hold harmless the Interim Security Agent and any of their respective Affiliates and any of their directors,
officers, agents, advisers and employees (as applicable) (each an Indemnified Person) against any cost, expense, loss, liability
(including, except as specified below, reasonably incurred legal fees and limited, in the case of legal fees and expenses, to one counsel
to such Indemnified Persons taken as a whole and in the case of a conflict of interest, one additional counsel to the affected Indemnified
Persons similarly situated, taken as a whole and, if reasonably necessary one local counsel in any relevant jurisdiction) incurred by
or awarded against such Indemnified Person in each case arising out of or in connection with any action, claim, investigation or proceeding
(including any action, claim, investigation or proceeding to preserve or enforce rights), commenced or threatened, relating to this Agreement,
the Interim Facilities or any Acquisition or the use or proposed use of proceeds of the Interim Facilities (except to the extent such
cost, expense, loss or liability resulted (x) directly from fraud, the gross negligence or wilful misconduct of such Indemnified
Person or results from such Indemnified Person breaching a term of or any of its obligations under this Agreement, the Interim Finance
Documents, or the Commitment Documents or any confidentiality undertaking given by that Indemnified Person or (y) from or relates
to any disputes solely among Indemnified Persons and not arising out of any act or omission of the Obligors or any other entity controlled
by the Investors). |
| (b) | If any event occurs in respect of which indemnification may be sought from the Obligors' Agent, the relevant
Indemnified Person shall only be indemnified if (where legally permissible to do so and without being under any obligation to so act to
the extent that it is not lawfully permitted to do so) it: |
| (i) | notifies the Obligors' Agent in writing within a reasonable time after the relevant Indemnified Person
becomes aware of such event and this provision; |
| (ii) | consults with the Obligors' Agent fully and promptly with respect to the conduct of the relevant claim,
action or proceeding; |
| (iii) | conducts such claim, action or proceeding properly and diligently; and |
| (iv) | does not settle any such claim, action or proceeding without the Obligors' Agent's prior written consent
(such consent not to be unreasonably withheld). |
| (c) | The Indemnified Person shall also be entitled to appoint their own legal counsel in each applicable jurisdiction
in respect of any such claim, action or proceeding. |
| (d) | The Contracts (Rights of Third Parties) Act 1999 shall apply to this Clause 14.5 so that each Indemnified
Person may rely on it, subject always to the terms of Clause 29.6 (Third party rights) and 30 (Governing Law). |
| (e) | The Interim Finance Parties shall not have any duty or obligation, whether as fiduciary for any Indemnified
Person or otherwise, to recover any payment made or required to be made under this Clause 14.5. |
| (f) | No Indemnified Person shall be responsible or have any liability to the Obligors' Agent or any of its
Affiliates or anyone else for consequential losses or damages. |
| (g) | Neither (x) any Indemnified Person, nor (y) the Investors, Topco, any member of the Group or
any member of the Target Group (or any of their respective Affiliates), shall be liable for any indirect, special, punitive or consequential
losses or damages in connection with its activities related to the Interim Facilities or the Interim Finance Documents. |
| (a) | All Subordinated Shareholder Liabilities shall be subordinated and postponed to all Interim Liabilities
and any amounts received in respect of the Subordinated Shareholder Liabilities shall be applied in accordance with Clause 12.7 (Application
of proceeds). |
| (b) | If paragraph (a) above applies, Topco will: |
| (i) | pay all payments under or in respect of the Subordinated Shareholder Documents in cash or in kind received
by or on behalf of it from any Obligor (or any liquidator, administrator, receiver or similar official of such debtor or its assets) over
to the Interim Facility Agent for application in the order set out in Clause 12.7 (Application of proceeds); and |
| (ii) | direct the trustee in bankruptcy, liquidator, administrator, receiver or other person distributing the
assets of any Obligor or their proceeds to make payments in respect of the Subordinated Shareholder Documents directly to the Interim
Facility Agent until all Interim Liabilities have been paid in full. |
| (c) | To the fullest extent permitted under mandatory provisions of applicable law, and if an Obligor is or
becomes the subject of an event referred to in paragraphs 5, 6 or 7 of Part III (Major Events of Default) of Schedule 5 (Major
Representations, Undertakings and Events of Default) following an Acceleration Notice, the Interim Security Agent is hereby irrevocably
authorised on behalf of Topco to, until all Interim Liabilities have been paid in full: |
| (i) | claim, enforce and prove for liabilities in respect of the Subordinated Shareholder Liabilities owed by
each Obligor to Topco; |
| (ii) | exercise all powers of convening meetings, voting and representation in respect of liabilities in respect
of the Subordinated Shareholder Liabilities and the Obligors' Agent under the Subordinated Shareholder Documents will provide all forms
of proxy and of representation requested by the Interim Security Agent for that purpose; |
| (iii) | file claims and proofs, give receipts and take all such proceedings and do all such things as the Interim
Security Agent considers reasonably necessary to recover any liabilities in respect of the Subordinated Shareholder Liabilities; and |
| (iv) | receive all distributions in respect of the Subordinated Shareholder Documents for application in accordance
with this Agreement. |
| 16. | Security and Guarantee |
The Interim Security Agent is not liable
or responsible to any other Interim Finance Party for:
| (a) | any failure in perfecting or protecting the Security Interest created by any Interim Security Document;
or |
| (b) | any other action taken or not taken by it in connection with an Interim Security Document. |
| 16.2 | Possession of documents |
The Interim Security Agent is not obliged
to hold in its own possession any Interim Security Document, title deed or other document in connection with any asset over which a Security
Interest is intended to be created by an Interim Security Document. Without prejudice to the above, the Interim Security Agent may allow
any bank providing safe custody services or any professional adviser to the Interim Security Agent to retain any of those documents in
its possession.
Except as otherwise provided in any
Interim Security Document, all moneys received by the Interim Security Agent under the Interim Finance Documents may be:
| (a) | invested in the name of, or under the control of, the Interim Security Agent in any investment for the
time being authorised by English law for the investment by trustees of trust money or in any other investments which may be selected by
the Interim Security Agent with the consent of the Majority Interim Lenders; or |
| (b) | placed on deposit in the name of, or under the control of, the Interim Security Agent at such bank or
institution (including any other Interim Finance Party) and upon such terms as the Interim Security Agent may think fit. |
| 16.4 | Conflict with Interim Security Documents |
If there is any conflict between the
provisions of this Agreement and any Interim Security Document with regard to instructions to or other matters affecting the Interim Security
Agent, this Agreement will prevail.
| 16.5 | Enforcement of Interim Security Documents |
| (a) | Except as otherwise expressly provided in the relevant Interim Security Document, the Security Interests
granted pursuant to the Interim Security Documents may only be enforced if an Acceleration Notice has been given to an Obligor and remains
outstanding. |
| (b) | If the Interim Security is being enforced pursuant to paragraph (a) above, the Interim Security Agent
shall enforce the Interim Security in such manner as the Majority Interim Lenders shall instruct, or, in the absence of any such instructions,
as the Interim Security Agent sees fit. |
| (c) | Subject to Clause 17 (Agents and Arrangers), each Interim Finance Party (other than the Interim
Security Agent) agrees not to enforce independently or exercise any rights or powers arising under an Interim Security Document except
through the Interim Security Agent and in accordance with the Interim Finance Documents. |
| (i) | a disposal to a person or persons outside the Group of any asset over which a Security Interest has been
created by any Interim Security Document is: |
| (A) | being effected at the request of the Majority Interim Lenders in circumstances where any of the security
created by the Interim Security Documents has become enforceable; or |
| (B) | being effected by enforcement of the Interim Security Documents; or |
| (ii) | the Interim Liabilities are repaid in full, |
the
Interim Security Agent is irrevocably authorised to execute on behalf of each Interim Finance Party, Topco and each Obligor (and at the
cost of the Obligors' Agent) the releases and disposals referred to in paragraph (b) below.
| (b) | The releases and other actions referred to in paragraph (a) above are: |
| (i) | any release of any Security Interest created by the Interim Security Documents over that asset; and |
| (ii) | if that asset comprises all of the shares in the capital of any Group Company (or any direct or indirect
holding company of any Group Company): |
| (A) | a release of that Group Company and its respective Subsidiaries from all present and future liabilities
under the Interim Finance Documents or the Subordinated Shareholder Documents (both actual and contingent and including any liability
to any other Group Company under the Interim Finance Documents or the Subordinated Shareholder Documents by way of contribution or indemnity)
and a release of all Security Interests granted by that Group Company and its Subsidiaries under the Interim Security Documents; or |
| (B) | in respect of a disposal under paragraph (a)(i) above only, a disposal of all or any part of the
present and future liabilities of that Group Company and its respective Subsidiaries under the Interim Finance Documents or the Subordinated
Shareholder Documents (both actual and contingent and including any liability to any other Group Company under the Interim Finance Documents
or the Subordinated Shareholder Documents by way of contribution or indemnity) owed by that Group Company and its respective Subsidiaries. |
| (c) | In the case of paragraph (a) above, the net cash proceeds of the disposal must be applied in accordance
with Clause 12.7 (Application of proceeds). |
| (d) | If the Majority Interim Lenders instruct the Interim Security Agent to effect any of the releases or disposals
in circumstances permitted under paragraph (b) above, each Interim Finance Party, Topco and the relevant Obligor must promptly execute
(at the cost of the Obligors' Agent) any document which is reasonably required to achieve that release or disposal. Each Obligor and Topco
irrevocably authorises the Interim Security Agent to promptly execute any such document. Any release will not affect the obligations of
any other Group Company under the Interim Finance Documents. |
If applicable to any trust created in
this Agreement, the perpetuity period for that trust is 125 years.
| 16.8 | Guarantee and indemnity |
The provisions of Schedule 4 (Guarantee
and Indemnity) are incorporated into this Clause 16 by reference.
| 16.9 | Appointment of Interim Security Agent in relation to French Interim Security Documents |
| (a) | Without limiting any other right and obligation of the Interim Security Agent under this Agreement, this
Clause 16.9 shall apply in relation to the French Interim Security Documents and the French Interim Security. |
| (b) | Each Interim Finance Party: |
| (i) | irrevocably and unconditionally appoints the Interim Security Agent to act as security agent (agent
des sûretés) pursuant to articles 2488-6 and following of the French Civil Code in respect of the French Interim Security; |
| (ii) | irrevocably authorises, empowers and directs the Interim Security Agent (by itself or by such person(s) as
it may nominate) acting in such capacity within the meaning of article 2488-6 of the French Civil Code, without limitation and notwithstanding
any other rights conferred upon the Interim Security Agent under this Agreement to: |
| (A) | take, register, manage and enforce any French Interim Security in the name of the Interim Security Agent
for the benefit of (au profit de) such Interim Finance Party; |
| (B) | negotiate and execute, in its name and for the benefit of the Interim Finance Parties, the French Interim
Security Documents (and any ancillary document in connection therewith); |
| (C) | perform the duties and exercise the rights, powers, prerogatives and discretions that are specifically
granted to it under or in connection with the French Interim Security Documents; |
| (D) | release the French Interim Security following the occurrence of the final discharge in full of all obligations
under the Interim Facilities or as otherwise provided in the Interim Finance Documents; and |
| (E) | take any action and exercise any right, power, prerogative and discretion upon the terms and conditions
set out in this Agreement or under or in connection with the French Interim Security Documents, |
in each case, in accordance with, and
subject to, the terms of this Agreement and/or the relevant French Interim Security Agreement; and
| (iii) | confirms that the appointment of the Interim Security Agent under this Clause 16.9 shall remain in full
force and effect until the occurrence of the final discharge in full of all obligations under the Interim Facilities. |
| (c) | The Interim Security Agent: |
| (i) | accepts its appointment as security agent (agent des sûretés) pursuant to this Clause
16.9; and |
| (ii) | acknowledges that it shall act in its own name for the benefit of the Interim Finance Parties for the
purposes of the French Interim Security and the French Interim Security Documents, |
in each case, in accordance with articles
2488-6 and following of the French Civil Code and the provisions of this Agreement.
| (d) | Any change of Interim Security Agent appointed pursuant to this Clause 16.9 shall be made in accordance
with article 2488-11 of the French Civil Code (remplacement judiciaire). |
| (e) | With respect to any French Interim Security Document, any reference in this Agreement to the Interim Security
Agent acting as agent or trustee shall be deemed to include a reference to the Interim Security Agent acting as agent des sûretés
as referred to in this Clause 16.9. |
| 17.1 | Appointment of Agents |
| (a) | Each Interim Finance Party (other than the relevant Agent) irrevocably authorises and appoints each Agent: |
| (i) | to act as its agent under and in connection with the Interim Finance Documents (and in the case of the
Interim Security Agent to act as its trustee for the purposes of the Interim Security Documents) subject to 17.10 (Role of the Interim
Security Agent) with respect to the Interim Security Documents; |
| (ii) | to execute and deliver such of the Interim Finance Documents and any other document related to the Interim
Finance Documents as are expressed to be executed by such Agent; |
| (iii) | to execute for and on its behalf any and all Interim Security Documents and any other agreements related
to the Interim Security Documents, including the release of the Interim Security Documents; and |
| (iv) | to perform the duties and to exercise the rights, powers and discretions which are specifically delegated
to such Agent by the terms of the Interim Finance Documents, together with all other incidental rights, powers and discretions. |
| (b) | Each Interim Finance Party: |
| (i) | (other than the Interim Facility Agent, the Interim Security Agent and the Arrangers) irrevocably authorises
and appoints, severally, each of the Agents and the Arrangers to accept on its behalf the terms of any reliance, non-reliance, hold harmless
or engagement letter relating to any report, certificate or letter provided by accountants, auditors or other professional advisers in
connection with any of the Interim Finance Documents or any related transactions and to bind such Interim Finance Party in respect of
the addressing or reliance or limitation of liability of any person under any such report, certificate or letter; and |
| (ii) | accepts the terms and any limitation of liability or qualification in the reports or any reliance, non-reliance,
hold harmless or engagement letter entered into by any of the Agents and/or the Arrangers (whether before or after such Interim Finance
Party became a Party) in connection with the Interim Finance Documents. |
| (c) | The relationship between each Agent and the other Interim Finance Parties is that of principal and agent
only. Except as specifically provided in the Interim Finance Documents, no Agent shall: |
| (i) | have, or be deemed to have, any obligations to, or trust or fiduciary relationship with, any other Party
or other person, other than those for which specific provision is made by the Interim Finance Documents; or |
| (ii) | be bound to account to any other Interim Finance Party for any sum or the profit element of any sum received
by it for its own account. |
| (d) | Neither Agent is authorised to act on behalf of an Interim Finance Party in any legal or arbitration proceedings
relating to any Interim Finance Document without first obtaining that Interim Finance Party's consent except in any proceedings for the
protection, preservation or enforcement of any Interim Security Document otherwise permitted by this Agreement. |
| (a) | Each Agent will only have those duties which are expressly specified in the Interim Finance Documents.
The duties of the Agents are solely of a mechanical and administrative nature. |
| (b) | Each Agent shall promptly send to each other Interim Finance Party a copy of each notice or document delivered
to that Agent by an Obligor for that Interim Finance Party under any Interim Finance Document. |
| (c) | Each Agent shall, subject to any terms of this Agreement which require the consent of all the Interim
Lenders or of any particular Interim Finance Party: |
| (i) | act or refrain from acting in accordance with any instructions from the Majority Interim Lenders and any
such instructions shall be binding on all the Interim Finance Parties; and |
| (ii) | not be liable for any act (or omission) if it acts (or refrains from acting) in accordance with the instructions
of the Majority Interim Lenders. |
| (d) | In the absence of any such instructions from the Majority Interim Lenders (or if required all Interim
Lenders), each Agent may act or refrain from acting as it considers to be in the best interests of the Interim Lenders and any such action
(or omission) shall be binding on all Interim Finance Parties. |
Each Agent may:
| (a) | act under the Interim Finance Documents by or through its personnel, delegates or agents (and any indemnity
given to, or received by, an Agent under this Agreement extends also to its personnel, delegates or agents who may rely on this provision); |
| (b) | except as expressly provided to the contrary in any Interim Finance Document, refrain from exercising
any right, power or discretion vested in it under the Interim Finance Documents until it has received instructions from the Majority Interim
Lenders or, where relevant, all the Interim Lenders; |
| (c) | unless it has received notice to the contrary in accordance with this Agreement, treat the Interim Lender
which makes available any portion of an Interim Loan as the person entitled to repayment of that portion (and any interest, fees or other
amounts in relation thereto); |
| (d) | notwithstanding any other term of an Interim Finance Document, refrain from doing anything (including
disclosing any information to any Interim Finance Party or other person) which would or might in its opinion breach any law, regulation,
court judgment or order or any confidentiality obligation, or otherwise render it liable to any person, and it may do anything which is
in its opinion necessary to comply with any such law, regulation, judgment, order or obligation; |
| (e) | assume that no Major Event of Default has occurred, unless it has received notice from another Party stating
that a Major Event of Default has occurred and giving details of such Major Event of Default; |
| (f) | refrain from acting in accordance with the instructions of the Majority Interim Lenders or all the Interim
Lenders until it has been indemnified and/or secured to its satisfaction against all costs, losses or liabilities (including legal fees
and any associated VAT) which it may sustain or incur as a result of so acting; |
| (g) | rely on any notice or document believed by it to be genuine and correct and assume that (i) any notice
or document has been correctly and appropriately authorised and given and (ii) any notice or request made by the Obligors' Agent
is made on behalf of and with the consent and knowledge of all the Obligors; |
| (h) | rely on any statement made by any person regarding any matter which might reasonably be expected to be
within such person's knowledge or power to verify; |
| (i) | engage, obtain, rely on and pay for any legal, accounting or other expert advice or services which may
seem necessary to it (including, in the case of the Interim Facility Agent, in connection with determining any consent level required
to effect any amendment, waiver or consent in respect of an Interim Finance Document in accordance with Clause 28 (Amendments and Waivers)); |
| (j) | at any time, and it shall if instructed by the Majority Interim Lenders, convene a meeting of the Interim
Lenders; |
| (k) | accept without enquiry (and has no obligation to check) any title which any Obligor may have to any asset
intended to be the subject of any Security Interest to be created by the Interim Security Documents; and |
| (l) | deposit any title deeds, transfer documents, share certificates, Interim Security Documents or any
other documents in connection with any of the assets charged by the Interim Security Documents with any bank or financial institution
or any company whose business includes undertaking the safe custody of deeds or documents or with any lawyer or firm of lawyers or other
professional advisers (each, a custodian) and it shall not be responsible or liable for or be required to insure against
any loss incurred in connection with any such deposit or the misconduct or default of any such custodian and it may pay all amounts required
to be paid on account or in relation to any such deposit. |
| 17.4 | Exoneration of the Arrangers and the Agents |
Neither the Arrangers nor the Agents
are:
| (a) | responsible for, or responsible for checking, the adequacy, accuracy or completeness of: |
| (i) | any representation, warranty, statement or information (written or oral) made in or given in connection
with any report, any Interim Finance Document or any notice or document delivered in connection with any Interim Finance Document or the
transactions contemplated thereby; or |
| (ii) | any notice, accounts or other document delivered under any Interim Finance Document (irrespective of whether
the relevant Agent forwards that notice, those accounts or other documents to another Party); |
| (b) | responsible for the validity, legality, adequacy, accuracy, completeness, enforceability, admissibility
in evidence or performance of any Interim Finance Document or any agreement or document entered into or delivered in connection therewith; |
| (c) | under any obligation or duty either initially or on a continuing basis to provide any Interim Finance
Party with any credit, financial or other information relating to an Obligor or any other Group Company or any member of the Target Group
or any risks arising in connection with any Interim Finance Document, except as expressly specified in this Agreement; |
| (d) | obliged to monitor or enquire as to the occurrence or continuation of a Major Event of Default; |
| (e) | deemed to have knowledge of the occurrence of a Major Event of Default unless it has received notice from
another Party stating that a Major Event of Default has occurred and giving details of such Major Event of Default; |
| (f) | responsible for any failure of any Party duly and punctually to observe and perform their respective obligations
under any Interim Finance Document; |
| (g) | responsible for the consequences of relying on the advice of any professional advisers selected by it
in connection with any Interim Finance Document; |
| (h) | responsible for any shortfall which arises on the enforcement or realisation of the Interim Security; |
| (i) | liable for acting (or refraining from acting) in what it believes to be in the best interests of the Interim
Finance Parties in circumstances where it has not been given instructions by the Interim Lenders or the Majority Interim Lenders (as the
case may be); |
| (j) | liable to any Interim Finance Party for anything done or not done by it under or in connection with any
Interim Finance Document and any other agreement, arrangement or documents entered into, made or executed in anticipation of, under or
in connection with any Interim Finance Document, save to the extent directly caused by its own fraud, negligence or wilful misconduct;
or |
| (k) | under any obligation to enquire into or check the title of any Obligor to, or to insure, any assets or
property or any interest therein which is or is purported to be subject to any Security Interest constituted, created or evidenced by
any Interim Security Document. |
| 17.5 | The Arrangers and the Agents individually |
| (a) | If it is an Interim Lender, each of the Arrangers and Agents has the same rights and powers under the
Interim Finance Documents as any other Interim Lender and may exercise those rights and powers as if it were not also acting as an Arranger
or an Agent. |
| (b) | Each of the Agents and the Arrangers may: |
| (i) | retain for its own benefit and without liability to account to any other person any fee, profit or other
amount received by it for its own account under or in connection with the Interim Finance Documents or any of the activities referred
to in paragraph (ii) below; and |
| (ii) | accept deposits from, lend money to, provide any advisory, trust or other services to or engage in any
kind of banking or other business with the Obligors' Agent or any other Group Company (or Affiliate of the Obligors' Agent or any other
Group Company) or other Party (and, in each case, may do so without liability to account to any other person). |
| (c) | Except as otherwise expressly provided in this Agreement, no Arranger in its capacity as such has any
obligation or duty of any kind to any other Party under or in connection with any Interim Finance Document. |
| 17.6 | Communications and information |
| (a) | All communications to the Obligors' Agent (or any Affiliate of the Obligors' Agent) under or in connection
with the Interim Finance Documents are, unless otherwise specified in the relevant Interim Finance Document, to be made by or through
the Interim Facility Agent. Each Interim Finance Party will notify the Interim Facility Agent of, and provide the Interim Facility Agent
with a copy of, any communication between that Interim Finance Party and the Obligors' Agent (or Affiliate of the Obligors' Agent) on
any matter concerning the Interim Facility or the Interim Finance Documents. |
| (b) | No Agent will be obliged to transmit to or notify any other Interim Finance Party of any information relating
to any Party which that Agent has or may acquire otherwise than in connection with the Interim Facility or the Interim Finance Documents. |
| (c) | In acting as agent for the Interim Lenders, each Agent's agency division will be treated as a separate
entity from any of its other divisions or department (the Other Divisions). Any information relating to any Group Company
acquired by any of the Other Divisions of an Agent or which in the opinion of that Agent is acquired by it otherwise than in its capacity
as Agent under the Interim Finance Documents may be treated by it as confidential and will not be treated as information available to
the other Interim Finance Parties. |
| (a) | Each other Interim Finance Party confirms that it has made (and will continue to make) its own independent
investigation and appraisal of the assets, business, financial condition and creditworthiness of the Group and the Target Group and of
any risks arising under or in connection with any Interim Finance Document, and has not relied, and will not at any time rely, on any
Arranger or any Agent: |
| (i) | to assess the adequacy, accuracy or completeness of any information (whether oral or written) provided
by or on behalf of the Obligors' Agent or any Group Company or any member of the Target Group under or in connection with any Interim
Finance Document (whether or not that information has been or is at any time circulated to it by an Arranger or an Agent), or any document
delivered pursuant thereto, including any contained in the Tax Structure Memorandum or the transactions contemplated thereby; |
| (ii) | to assess whether that Interim Finance Party has recourse, and the nature and extent of that recourse,
against any Party or any of its respective assets under or in connection with any Interim Finance Document; |
| (iii) | to assess the assets, business, financial condition or creditworthiness of an Obligor, any Group Company,
the Target Group or any other person; or |
| (iv) | to assess the validity, legality, adequacy, accuracy, completeness, enforceability or admissibility in
evidence of any Transaction Document or any document delivered pursuant thereto. |
| (b) | This Clause 17.7 is without prejudice to the responsibility of each Obligor for the information supplied
by it or on its behalf under or in connection with the Interim Finance Documents and each Obligor remains responsible for all such information. |
| (c) | No Party (other than the relevant Agent) may take any proceedings against any officer, delegate, employee
or agent of an Agent in respect of any claim it may have against that Agent or in respect of any act or omission by that officer, delegate,
employee or agent in connection with any Interim Finance Document. Any officer, delegate, employee or agent of an Agent may rely on this
Clause 17.7 in accordance with the Contracts (Rights of Third Parties) Act 1999. |
| (d) | No Agent will be liable for any delay (or any related consequences) in crediting an account with an amount
required under the Interim Finance Documents to be paid by that Agent if that Agent has taken all necessary steps as soon as reasonably
practicable to comply with the regulations or operating procedures of any recognised clearing or settlement system used by that Agent
for that purpose. |
Nothing in this Agreement shall oblige
any Agent or any Arranger to carry out know your customer or other checks in relation to any person on behalf of any Interim Lender and
each Interim Lender confirms to the Agents and the Arrangers that it is solely responsible for any such checks it is required to carry
out and that it may not rely on any statement in relation to such checks made by the Agents or the Arrangers.
| (a) | Each Interim Lender shall on demand indemnify each Agent for its share of any cost, loss or liability
incurred by the relevant Agent in acting, or in connection with its role, as Agent under the Interim Finance Documents, except to the
extent that the cost, loss or liability is incurred as a result of the relevant Agent's fraud, negligence or wilful misconduct. |
| (b) | An Interim Lender's share of any such loss or liability shall be the proportion which: |
| (i) | that Interim Lender's participation in the outstanding Interim Loan bears to the outstanding Interim Loan
at the time of demand; or |
| (ii) | if there is no outstanding Interim Loan at that time, that Interim Lender's Interim Commitment bears to
the Total Interim Commitments at that time; or |
| (iii) | if the Total Interim Commitments have been cancelled, that Interim Lender's Interim Commitment bore to
the Total Interim Commitments immediately before being cancelled. |
| (c) | The provisions of this Clause 17.9 are without prejudice to any obligations of an Obligor to indemnify
the Agents under the Interim Finance Documents. |
| 17.10 | Role of the Interim Security Agent |
| (a) | The Interim Security Agent declares that it shall hold the Interim Security on trust, as joint and several
creditor or as beneficiary of Parallel Debt (as the case may be) for itself and the other Interim Finance Parties on the terms contained
in this Agreement and shall administer the Interim Security Documents for itself and the other Interim Finance Parties and will apply
all payments and other benefits received by it under the Interim Security Documents in accordance with the Interim Finance Documents. |
| (b) | Each of the Parties agrees that the Interim Security Agent shall have only those duties, obligations and
responsibilities expressly specified in this Agreement or in the Interim Security Documents to which the Interim Security Agent is expressed
to be a party (and no others shall be implied). |
| (c) | The Interim Security Agent shall not be liable for any failure, omission or defect in registering, protecting
or perfecting any Security Interest constituted, created or evidenced by any Interim Security Document. |
| (d) | The Interim Security Agent has no duty or obligation to require the deposit with it of, or to hold, any
title deeds, share certificates, transfer documents or other documents in connection with any asset charged or encumbered or purported
to be charged or encumbered under any Interim Security Document. |
| (e) | Each Interim Finance Party confirms its approval of each Interim Security Document and authorises and
directs the Interim Security Agent (by itself or by such person(s) as it may nominate) to execute and enforce the same as trustee
(or agent) or as otherwise provided. |
| (f) | It is agreed that, in relation to any jurisdiction the courts of which would not recognise or give effect
to the trust expressed to be created by this Agreement, the relationship of the Interim Finance Parties to the Interim Security Agent
shall be construed as one of principal and agent but, to the extent permissible under the laws of such jurisdiction, that all the other
provisions of this Agreement shall have full force and effect between the parties hereto. |
Subject to Clause 18.3 (Exceptions
to sharing), if any amount owing by any Obligor under any Interim Finance Document to an Interim Lender (the Recovering Interim
Lender) is discharged by payment, set-off or any other manner other than through the Interim Facility Agent in accordance with
Clause 12 (Payments) (the amount so discharged being a Recovery), then:
| (a) | within three (3) Business Days of receipt of the Recovery, the Recovering Interim Lender shall notify
details of such Recovery to the Interim Facility Agent; |
| (b) | the Interim Facility Agent shall determine whether the amount of the Recovery is in excess of the amount
which such Recovering Interim Lender should have received had such amount been paid to the Interim Facility Agent under Clause 12 (Payments)
without taking account of any Tax which would have been imposed on the Interim Facility Agent in relation to the Recovery (any such excess
amount being the Excess Recovery); |
| (c) | within three (3) Business Days of demand, the Recovering Interim Lender shall pay to the Interim
Facility Agent an amount equal to the Excess Recovery; |
| (d) | the Interim Facility Agent shall treat that payment as if it was a payment made by the relevant Obligor
to the Interim Lenders under Clause 12 (Payments) and distribute it to the Interim Lenders (other than the Recovering Interim Lender)
accordingly; and |
| (e) | on a distribution by the Interim Facility Agent under paragraph (d) above of any payment received
by a Recovering Interim Lender from an Obligor as between the relevant Obligor and the Recovering Interim Lender, the amount of the Excess
Recovery shall be treated as not having been paid and (without double counting) that Obligor will owe the Recovering Interim Lender a
debt (immediately due and payable) in an amount equal to the Excess Recovery. |
| 18.2 | Notification of Recovery |
If any Recovery has to be wholly or
partly refunded by the Recovering Interim Lender after it has paid any amount to the Interim Facility Agent under paragraph (c) of
Clause 18.1 (Recoveries), each Interim Lender to which any part of the Excess Recovery (or amount in respect of it) was distributed
will, on request from the Recovering Interim Lender, pay to the Recovering Interim Lender that Interim Lender's pro rata share of the
amount (including any related interest) which has to be refunded by the Recovering Interim Lender.
| 18.3 | Exceptions to sharing |
Notwithstanding Clause 18.1 (Recoveries),
no Recovering Interim Lender will be obliged to pay any amount to the Interim Facility Agent or any other Interim Lender in respect of
any Recovery:
| (a) | if it would not (after that payment) have a valid claim against an Obligor under paragraph (e) of
Clause 18.1 (Recoveries) in an amount equal to the Excess Recovery; or |
| (b) | which it receives as a result of legal proceedings taken by it to recover any amounts owing to it under
the Interim Finance Documents, which proceedings have been notified to the other Interim Finance Parties and where the Interim Lender
concerned had a right and opportunity to, but does not, either join in those proceedings or promptly after receiving notice commence and
diligently pursue separate proceedings to enforce its rights in the same or another court. |
The provisions of this Clause 18 shall
not constitute a charge by any Interim Lender over all or any part of any amount received or recovered by it under any of the circumstances
mentioned in this Clause 18.
If a Major Event of Default has occurred
and is continuing, an Interim Finance Party may set off any matured obligation (to the extent beneficially owned by the Interim Finance
Party) due and payable by an Obligor to it under an Interim Finance Document against any matured obligation due and payable by it to that
Obligor, regardless of currency, place of payment or booking branch of either obligation. The relevant Interim Finance Party may convert
either obligation at a market rate of exchange in its ordinary course of business in order to effect such set-off.
| (a) | Any notice, demand, consent or other communication (a Notice) made under or in connection
with any Interim Finance Document must be in writing and made by letter, email or any other electronic communication approved by the Interim
Facility Agent or otherwise permitted pursuant to the terms of this Agreement. |
| (b) | An electronic communication will be treated as being in writing for the purposes of this Agreement. |
| (c) | The address and email address of each Party (and person for whose attention the Notice is to be sent)
for the purposes of Notices given under or in connection with the Interim Finance Documents are: |
| (i) | in the case of any person which is a Party on the date of this Agreement, the address and email address
set out beneath its name in the signature pages to this Agreement; |
| (ii) | in the case of any other Interim Finance Party, the address and email address notified in writing by that
Interim Finance Party for this purpose to the Interim Facility Agent on or before the date it becomes a Party; or |
| (iii) | any other address and/or email address notified in writing by that Party for this purpose to the Interim
Facility Agent (or in the case of the Interim Facility Agent, notified by the Interim Facility Agent to the other Parties) by not less
than five (5) Business Days' notice. |
| (d) | Any Notice given to an Agent will be effective only: |
| (i) | if it is marked for the attention of the department or officer specified by that Agent for receipt of
Notices; and |
| (ii) | subject to paragraph (b) of Clause 20.2 (Deemed service) below, when actually received by
that Agent. |
| (a) | Subject to paragraph (b) below, a Notice will be deemed to be given as follows: |
| (i) | if by letter or delivered personally, when delivered; |
| (ii) | if by email or any other electronic communication, when received in legible form; and |
| (iii) | if by posting to an electronic website, at the time of notification to the relevant recipient of such
posting or (if later) the time when the recipient was given access to such website. |
| (b) | A Notice given in accordance with paragraph (a) above but received on a day that is not a Business
Day or after business hours in the place of receipt will only be deemed to be given on the next working day in that place. |
| 20.3 | Electronic communication |
| (a) | Any communication to be made between the Interim Facility Agent and an Interim Lender under or in connection
with the Interim Finance Documents may be made by unencrypted electronic mail or other electronic means, if the Interim Facility Agent
and the relevant Interim Lender: |
| (i) | agree that, unless and until notified to the contrary, this is to be an accepted form of communication; |
| (ii) | notify each other in writing of their electronic mail address and/or any other information required to
enable the sending and receipt of information by that means; and |
| (iii) | notify each other of any change to their address or any other such information supplied by them. |
| (b) | Any electronic communication made between the Interim Facility Agent and an Interim Lender will be effective
only when actually received in readable form and in the case of any electronic communication made by an Interim Lender to the Interim
Facility Agent only if it is addressed in such a manner as the Interim Facility Agent shall specify for this purpose. |
| (a) | Any Notice must be in English. |
| (b) | All other documents provided under or in connection with any Interim Finance Document must be: |
| (ii) | if not in English, accompanied by a certified English translation, in which case, the English translation
will prevail unless the document is a constitutional, statutory or other official document. |
No personal liability shall attach to
any director, manager, officer, employee or other individual signing a certificate or other document on behalf of a Group Company which
proves to be incorrect in any way, unless that individual acted fraudulently in giving that certificate or other document, in which case,
any liability will be determined in accordance with applicable law.
| (a) | Each Interim Finance Party will keep the Interim Finance Documents and any information supplied to it
by or on behalf of any Group Company under the Interim Finance Documents confidential, provided that it may disclose any such document
or information to any person: |
| (i) | to (or through) whom it assigns or transfers (or may potentially assign or transfer) all or any of its
rights and/or obligations under one or more Interim Finance Documents and to any of that person's Affiliates, Related Funds, representatives
and professional advisers on a confidential basis (provided that such person has first entered into a Confidentiality Undertaking
agreeing to keep such Interim Finance Document or other document or information confidential or are in any event subject to confidentiality
obligations as a matter of law or professional practice); |
| (ii) | with (or through) whom it enters into (or may potentially enter into), whether directly or indirectly,
any sub-participation in relation to, or any other transaction under which payments are to be made or may be made by reference to, one
or more Interim Finance Documents and/or one or more Obligors and to any of that person's Affiliates, Related Funds, representatives and
professional advisers on a confidential basis (provided that such person has first entered into a Confidentiality Undertaking agreeing
to keep such Interim Finance Document or other document or information confidential or are in any event subject to confidentiality obligations
as a matter of law or professional practice); |
| (iii) | which is publicly available (other than by virtue of a breach of this Clause 21); |
| (iv) | if and to the extent required by law or regulation or court of competent jurisdiction or at the request
of an administrative authority or if required by the rules of any relevant stock exchange (including Applicable Securities Laws,
Relevant Regulator or any other tax or bank supervisory authority); |
| (v) | to its directors, officers, employees, auditors and professional advisers on a confidential basis; |
| (vi) | to any direct or indirect Holding Company of any Obligor or Topco, any Party or any Group Company; |
| (vii) | to any rating agencies or reputable actual or potential providers of credit risk insurance in relation
to the Interim Facilities, who, in each case, have been made aware of, and agree to be bound by, the obligations under this Clause 21
or are in any event subject to confidentiality obligations as a matter of law or professional practice; |
| (viii) | to the extent reasonably necessary in connection with any legal or arbitration proceedings to which it
is a party; |
| (ix) | for the purpose of obtaining any consent, making any filing, registration or notarisation or paying any
stamp or registration tax or fee in connection with any of the Interim Finance Documents; |
| (x) | to any person to (or through) whom it transfers, or may transfer, any asset subject to security under
an Interim Security Document following an enforcement of the security expressed to be created by such Interim Security Document; |
| (xi) | with the agreement of the Obligors' Agent; and/or |
| (xii) | to any Affiliate (and any of its or their officers, directors, employees, professional advisers, auditors,
partners and representatives) in connection with the transactions contemplated hereby, on an as needed and confidential basis. |
| (b) | This Clause 21 replaces any previous confidentiality undertaking given by any Interim Finance Party in
connection with this Agreement prior to it becoming a Party. |
| (c) | For reasons of technical practicality, electronic communication may be sent in unencrypted form, even
if the content may be subject to confidentiality and banking secrecy. |
| 22. | Know Your Customer Requirements |
If:
| (a) | the introduction of or any change in (or in the interpretation, administration or application of) any
law or regulation made after the date of this Agreement; |
| (b) | any change in the status of the Obligors or the composition of the shareholders of the Obligors after
the date of this Agreement; or |
| (c) | a proposed assignment or transfer by an Interim Lender of any of its rights and/or obligations under this
Agreement to a party that is not an Interim Lender prior to such assignment or transfer, |
obliges the Interim Facility Agent or
any Interim Lender (or, in the case of paragraph (a)(i) of Clause 21 (Confidentiality) above, any prospective new Interim
Lender) to comply with "know your customer" or similar identification procedures in circumstances where the necessary information
is not already available to it, the Obligors must promptly on the request of any Interim Finance Party supply to that Interim Finance
Party any documentation or other evidence which is reasonably requested by that Interim Finance Party (whether for itself, on behalf of
any Interim Finance Party or any prospective new Interim Lender) to enable an Interim Finance Party or prospective new Interim Lender
to complete all applicable know your customer requirements.
| 23. | Representations, Undertakings and Events of Default |
| (a) | Each Obligor and Topco makes the representations and warranties stated in Part I (Major Representations)
of Schedule 5 (Major Representations, Undertakings and Events of Default) in respect of itself only to each Interim Finance Party
on the date of this Agreement, the date of each Drawdown Request and the first day of each Interest Period, in each case by reference
to the facts and circumstances existing at the relevant time. |
| (b) | Each Obligor and Topco acknowledges that each Interim Finance Party is relying on the representations
and warranties made by it. |
| (a) | Each Obligor agrees to be bound by the Major Undertakings relating to it set out in Part II (Major
Undertakings) of Schedule 5 (Major Representations, Undertakings and Events of Default) only. |
| (b) | Topco agrees to be bound by the Major Undertaking set out in paragraph 3 (Disposals) of Part II
(Major Undertakings) of Schedule 5 (Major Representations, Undertakings and Events of Default). |
| (c) | Each Obligor shall conduct its businesses in compliance with applicable Anti-Corruption Laws and applicable
Sanctions in all material respects. |
| (d) | Each Obligor will procure that, so far as it is able, any director, officer, agent, employee or person
acting on behalf of the foregoing, is not a Sanctioned Person and does not act on behalf of a Sanctioned Person, provided that,
for the purpose of this paragraph (d), a person shall not be deemed to be a Sanctioned Person if transactions or dealings with such person
are (i) not prohibited under applicable Sanctions or (ii) permitted under a licence, licence exemption or other authorisation
of a Sanctions Authority. |
| (i) | not knowingly use any revenue or benefit derived from any activity or dealing with a Sanctioned Person
or in a Sanctioned Country in discharging any obligation due or owing to the Interim Lenders; and |
| (ii) | to the extent permitted by law as soon as reasonably practicable after becoming aware of them supply to
the Interim Facility Agent reasonable details of any claim, action, suit or proceedings that is formally commenced against it with respect
to Sanctions by any Sanctions Authority. |
| (f) | Each Obligor shall not use or permit or authorise any other person to, directly or indirectly, to the
best of its knowledge, use or make payments from all or any part of the proceeds of the Interim Facilities for the purpose of funding
any trade, business or other activities: |
| (i) | involving or for the benefit of any Sanctioned Person or in any Sanctioned Country if such use or payment
would breach any applicable Sanctions; |
| (ii) | in any other manner that would breach any applicable Sanctions; or |
| (iii) | to any person in violation of any applicable Anti-Corruption Laws. |
| (g) | This Clause 23.2 shall not be interpreted or applied in relation to it, any Holding Company, any other
Obligor, any member of the Group or any Interim Finance Party to the extent that the obligations under this Clause would violate or expose
such entity or any director, officer or employee thereof to any liability under any anti-boycott or blocking law, regulation or statute
that is in force from time to time in the United Kingdom, the European Union and/or any Member State) that are applicable to such entity
(including EU Regulation (EC) 2271/96) (as amended from time to time and including, for the avoidance of doubt, its relevance under United
Kingdom domestic law by virtue of the UK European Union (Withdrawal) Act 2018) and the UK Protection of Trading Interests legislation). |
| (i) | provide the Agent with such information as the Agent may reasonably request and which is available to
the Company regarding the status and progress of the Acquisition (including, the current level of acceptances in respect of any Offer)
(in each case subject to any confidentiality, regulatory or other restrictions relating to the supply of such information); and |
| (ii) | promptly notify the Agent if the Offer lapses or is withdrawn. |
| (i) | The Company shall enter into each of the documents listed in Part III (Conditions Subsequent)
of Schedule 3 (Conditions Precedent and Subsequent) within such time periods as set out therein. |
| (j) | The Company shall procure to provide on the Interim Closing Date evidence (in form and substance satisfactory
to the Interim Facility Agent, acting reasonably) of prepayment and cancellation in full of the Margin Loan. |
| 24.1 | No transfers by the Obligors |
The Obligors may not assign, novate
or transfer all or any part of their rights and obligations under any Interim Finance Documents.
| 24.2 | Transfers by Interim Lenders |
| (a) | Subject to paragraphs (b) – (d) below, an Interim Lender (an Existing Interim Lender)
may assign any of its rights or benefits, or transfer by novation or sub-participate any of its rights or benefits and obligations under
or by reference to any Interim Finance Document to (x) an Affiliate and/or any Existing Interim Lender (a Permitted Interim
Lender Transferee) or (y) another bank or financial institution or to a trust, fund or other entity which is regularly engaged
in or established for the purpose of making, purchasing or investing in loans, securities or other financial assets (together with a Permitted
Interim Lender Transferee, a New Interim Lender). |
| (b) | Subject to paragraphs (c) and (d) below, any assignment, transfer, sub-participation or other
syndication of any rights, benefits and/or obligations under or by reference to the Interim Finance Documents by an Interim Lender shall
require the prior written consent of the Obligors' Agent (in its sole and absolute discretion) to a New Interim Lender that is not a Permitted
Interim Lender Transferee, provided that if such assignment, transfer, sub-participation or other syndication occurs on or prior
to the end of the Certain Funds Period (the Pre-Closing Transferred Commitments) the Existing Interim Lender shall: |
| (i) | fund the Pre-Closing Transferred Commitments in respect of any applicable Interim Loan by 9:30 a.m. on
the applicable Drawdown Date if that New Interim Lender has failed to so fund (or has confirmed that it will not be able to fund) on the
applicable Drawdown Date in respect of the relevant Interim Facility or Interim Facilities; and |
| (ii) | retain exclusive control over all rights and obligations with respect to the Pre-Closing Transferred Commitments,
including all rights with respect to waivers, consents, modifications, amendments and confirmations as to satisfaction of the requirement
to receive all of the documents and other evidence listed in Part II (Conditions Precedent to Interim Closing Date) Schedule
3 (Conditions Precedent) until after the expiry of the Certain Funds Period (for the avoidance of doubt, free of any agreement
or understanding pursuant to which it is required to or will consult with any other person in relation to the exercise of any such rights
and/or obligations). |
| (c) | An Interim Lender may only sub-participate or enter into other back-to-back arrangements with the prior
written consent of the Obligors' Agent (in its sole and absolute discretion) or if: |
| (i) | such sub-participation or other arrangement shall not reduce the Interim Commitments or other obligations
of any Interim Finance Party with respect to any of the Interim Facilities and each Interim Finance Party shall remain liable to fund
the full amount of its commitments under the Interim Facilities; and |
| (ii) | each Interim Finance Party retains exclusive control over all rights and obligations in relation to its
Interim Commitments and the Interim Facilities, including all rights in relation to waivers, consents, modifications, amendments and confirmations
as to satisfaction of the requirement to receive all of the documents and other evidence listed in Part II (Conditions Precedent
to Interim Closing Date) Schedule 3 (Conditions Precedent) until after the expiry of the Certain Funds Period (for the avoidance
of doubt, free of any agreement or understanding pursuant to which it is required to or will consult with any other person in relation
to the exercise of any such rights and/or obligations). |
| (d) | Following expiry of the Certain Funds Period, the Obligors' Agent's consent to any transfer, assignment
or sub-participation shall not be unreasonably withheld or delayed and shall be deemed to be given if the Obligors' Agent has not responded
to a consent request within ten (10) Business Days. |
| (e) | In respect of transfers which require the consent of the Obligor's Agent only, the Obligors' Agent may
require the Interim Finance Parties to provide information in reasonable detail regarding the identities and participations of each of
the Interim Lenders and any sub-participants as soon as reasonably practicable after receipt of such request, provided that an
Interim Lender shall not be required to disclose the identity of a sub-participant if that Interim Lender retains exclusive control over
all rights and obligations in relation to the commitments that are the subject of the relevant sub-participation, including all voting
rights (for the avoidance of doubt, free of any agreement or understanding pursuant to which it is required to or will consult with any
other person in relation to the exercise of any such rights and/or obligations). |
| (f) | Each New Interim Lender, by executing the relevant Transfer Certificate or Assignment Agreement, confirms,
for the avoidance of doubt, that the Interim Facility Agent has authority to execute on its behalf any consent, release, waiver or amendment
that has been approved by the applicable Existing Interim Lender in accordance with this Agreement on or prior to the date on which the
transfer or assignment becomes effective in accordance with this Agreement and that it is bound by that agreement or consent to the same
extent as the Existing Interim Lender would have been had it remained an Interim Lender. |
| (g) | Notwithstanding any other provision of this Agreement, no Obligor or other Group Company shall be liable
to any other Party (by way of reimbursement, indemnity or otherwise) for any stamp, transfer or registration taxes, notarial and security
registration or perfection fees, costs or other amounts payable by any Party in connection with any re-taking, re-notarisation, perfection,
presentation, novation, re-registration of any Interim Security or otherwise in connection with any assignment, transfer, sub-participation
or other back-to-back arrangement. |
| (h) | Notwithstanding any other provision in this Clause 24, if prior to the end of the Certain Funds Period,
an Existing Interim Lender transfers or assigns any of its rights and obligations under any Interim Finance Document in accordance with
this Clause 24, it shall remain on risk and liable to fund any amount which any New Interim Lender (or subsequent New Interim Lender),
following such transfer of rights and obligations in accordance with this Clause 24, is obliged to fund on the Interim Closing Date, but
has failed to fund on that date, as if such transfer never occurred. |
| (i) | Any reference in this Agreement to an Interim Lender includes a New Interim Lender but excludes an Interim
Lender if no amount is or may become owed to it under this Agreement. |
| (j) | Unless the Interim Facility Agent agrees otherwise and excluding an assignment or transfer: |
| (i) | to an Affiliate of an Interim Lender; or |
the New Interim Lender shall, on or before
the date upon which an assignment or transfer to it takes effect pursuant to this Clause 24, pay to the Interim Facility Agent (for its
own account) a fee of $4,000.
| 24.3 | Limitation of responsibility of Existing Interim Lenders |
| (a) | Unless expressly agreed to the contrary, an Existing Interim Lender makes no representation or warranty
and assumes no responsibility to a New Interim Lender for: |
| (i) | the legality, validity, effectiveness, adequacy or enforceability of the Transaction Documents, the Interim
Security or any other documents; |
| (ii) | the financial condition of any Obligor; |
| (iii) | the performance and observance by any Obligor or other Group Company of its obligations under the Transaction
Documents or any other documents; or |
| (iv) | the accuracy of any statements (whether written or oral) made in or in connection with any Transaction
Document or any other document, |
and any representations or warranties
implied by law are excluded.
| (b) | Each New Interim Lender confirms to the Existing Interim Lender and the other Interim Finance Parties
that it: |
| (i) | has made (and shall continue to make) its own independent investigation and assessment of the financial
condition and affairs of each Obligor and its Related Funds in connection with its participation in this Agreement and has not relied
exclusively on any information provided to it by the Existing Interim Lender or any other Interim Finance Party in connection with any
Transaction Document or the Interim Security; and |
| (ii) | will continue to make its own independent appraisal of the creditworthiness of each Obligor and its Related
Funds whilst any amount is or may be outstanding under the Interim Finance Documents or any Interim Commitment is in force. |
| (c) | Subject to paragraph (b) of Clause 24.2, nothing in any Interim Finance Document obliges an Existing
Interim Lender to: |
| (i) | accept a re-transfer or re-assignment from a New Interim Lender of any of the rights and obligations assigned
or transferred under this Clause 24; or |
| (ii) | support any losses directly or indirectly incurred by the New Interim Lender by reason of the non-performance
by any Obligor of its obligations under the Transaction Documents or otherwise. |
| 24.4 | Procedure for transfer |
| (a) | Subject to the conditions set out in paragraph (b) of Clause 24.2 (Transfers by Interim Lenders),
a transfer is effected in accordance with paragraph (c) below when the Interim Facility Agent executes an otherwise duly completed
Transfer Certificate delivered to it by the Existing Interim Lender and the New Interim Lender. The Interim Facility Agent shall, subject
to paragraph (b) below, as soon as reasonably practicable after receipt by it of a duly completed Transfer Certificate appearing
on its face to comply with the terms of this Agreement and delivered in accordance with the terms of this Agreement, execute that Transfer
Certificate. |
| (b) | The Interim Facility Agent shall only be obliged to execute a Transfer Certificate delivered to it by
the Existing Interim Lender and the New Interim Lender once it is satisfied it has complied with all necessary "know your customer"
or similar checks under all applicable laws and regulations in relation to the transfer to such New Interim Lender. |
| (i) | subject to paragraph (b) of Clause 24.2 to the extent that in the Transfer Certificate the Existing
Interim Lender seeks to transfer by novation its rights and obligations under the Interim Finance Documents and in respect of the Interim
Security each of the Obligors and the Existing Interim Lender shall be released from further obligations towards one another under the
Interim Finance Documents and in respect of the Interim Security and their respective rights against one another under the Interim Finance
Documents and in respect of the Interim Security shall be cancelled (being the Discharged Rights and Obligations); |
| (ii) | each of the Obligors and the New Interim Lender shall assume obligations towards one another and/or acquire
rights against one another which differ from the Discharged Rights and Obligations only insofar as that Obligor or other Group Company
and the New Interim Lender have assumed and/or acquired the same in place of that Obligor and the Existing Interim Lender; |
| (iii) | the Interim Facility Agent, the Arrangers, the Interim Security Agent, the New Interim Lender and the
other Interim Lenders shall acquire the same rights and assume the same obligations between themselves and in respect of the Interim Security
as they would have acquired and assumed had the New Interim Lender been an Original Interim Lender with the rights and/or obligations
acquired or assumed by it as a result of the transfer and to that extent the Interim Facility Agent, the Arrangers, the Interim Security
Agent, paragraph (b) of Clause 24.2, and the Existing Interim Lender shall each be released from further obligations to each other
under the Interim Finance Documents; and |
| (iv) | the New Interim Lender shall become a Party as an "Interim Lender". |
| (d) | If any assignment, transfer, sub-participation or other syndication of any rights, benefits and/or obligations
under or by reference to the Interim Finance Documents in accordance with Clause 24.2 (Transfers by Interim Lenders) is executed
in breach of the provisions contemplated in this Clause 24, such assignment, transfer or sub-participation, shall be void and deemed not
to have occurred. |
| 24.5 | Procedure for assignment |
| (a) | Subject to the condition set out in paragraph (b) of Clause 24.2 (Transfers by Interim Lenders),
an assignment may be effected in accordance with paragraph (c) below when the Interim Facility Agent executes an otherwise duly completed
Assignment Agreement delivered to it by the Existing Interim Lender and the New Interim Lender. The Interim Facility Agent shall, subject
to paragraph (b) below, as soon as reasonably practicable after receipt by it of a duly completed Assignment Agreement appearing
on its face to comply with the terms of this Agreement and delivered in accordance with the terms of this Agreement, execute that Assignment
Agreement. |
| (b) | The Interim Facility Agent shall only be obliged to execute an Assignment Agreement delivered to it by
the Existing Interim Lender and the New Interim Lender once it is satisfied it has complied with all necessary "know your customer"
or similar checks under all applicable laws and regulations in relation to the assignment to such New Interim Lender. |
| (i) | the Existing Interim Lender will assign absolutely to the New Interim Lender its rights under the Interim
Finance Documents and in respect of the Interim Security expressed to be the subject of the assignment in the Assignment Agreement; |
| (ii) | subject to paragraph (b) of Clause 24.2, the Existing Interim Lender will be released from the obligations
(the Relevant Obligations) expressed to be the subject of the release in the Assignment Agreement (and any corresponding
obligations by which it is bound in respect of the Interim Security); |
| (iii) | the New Interim Lender shall become a Party as an "Interim Lender" and will be bound by obligations
equivalent to the Relevant Obligations; and |
| (iv) | if the assignment relates only to part of the Existing Interim Lender's share in the outstanding Interim
Loans, the assigned part will be separated from the Existing Interim Lender's share in the outstanding Interim Loans, made an independent
debt and assigned to the New Interim Lender as a whole debt. |
| (a) | The Interim Facility Agent, acting for this purpose as the agent of the Obligors, shall maintain at its
address: |
| (i) | each Transfer Certificate referred to in Clause 24.4 (Procedure for transfer) and each Assignment
Agreement referred to in Clause 24.5 (Procedure for assignment) and each Increase Confirmation delivered to and accepted by it;
and |
| (ii) | with respect to each Interim Loan, a register for the recording of the names and addresses of the Interim
Lenders and the Interim Commitment of, and principal amount owing to, each Interim Lender from time to time (the Register)
under such Interim Loan, which may be kept in electronic form. |
| (b) | The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and
the Obligors, the Interim Facility Agent and the Interim Lenders shall treat each person whose name is recorded in the Register as an
Interim Lender hereunder for all purposes of this Agreement. The Interim Facility Agent shall provide each Obligor with a copy of the
Register within five (5) Business Days of request. |
| (c) | Each Party to this Agreement irrevocably authorises the Interim Facility Agent to make the relevant entry
in the Register (and which the Interim Facility Agent shall do promptly) on its behalf for the purposes of this Clause 24.6 without any
further consent of, or consultation with, such Party. |
| (d) | The Interim Facility Agent shall, upon request by an Existing Interim Lender (as defined in paragraph
(a) of Clause 24.2 (Transfers by Interim Lenders)) or a New Interim Lender, confirm to that Existing Interim Lender or New
Interim Lender whether a transfer or assignment from that Existing Interim Lender or (as the case may be) to that New Interim Lender has
been recorded on the Register (including details of the Interim Commitment of that Existing Interim Lender or New Interim Lender in each
such Interim Loan). |
| 24.7 | Copy of Transfer Certificate or Assignment Agreement to Obligors' Agent |
The Interim Facility Agent shall, as
soon as reasonably practicable after it has executed a Transfer Certificate or an Assignment Agreement, send a copy of that Transfer Certificate
or Assignment Agreement to the Obligors' Agent.
If:
| (a) | an Interim Lender assigns, transfers, sub-participates or otherwise disposes of any of its rights or obligations
under the Interim Finance Documents or changes its Facility Office or lending office or branch; and |
| (b) | as a result of circumstances existing at the date the assignment, transfer, sub-participation or other
change occurs, an Obligor would be obliged to make a payment or increased payment to the New Interim Lender or Interim Lender acting through
its new office, branch or Facility Office under Clauses 10.1 (Gross-up), 10.3 (Tax indemnity) or 11.1 (Increased Costs), |
then
the relevant Interim Lender, New Interim Lender or Interim Lender acting through its new office, branch or Facility Office is not entitled
to receive a payment under Clause 10.1 (Gross-up), 10.3 (Tax indemnity) or 11.1 (Increased Costs) to the extent
such payment would be greater than the payment that would have been made to the Existing Interim Lender or Interim Lender acting through
its previous office, branch or Facility Office had the assignment, transfer, sub-participation or other change not occurred.
Topco
expressly agrees and confirms that any Interim Security created under any French Interim Security Document and its obligations under this
Agreement shall be maintained and will continue in full force and effect in favour of any New Interim Lender and each other Interim Finance
Parties following any transfer or assignment under this Clause 24 (Changes to Parties).
| 26. | Impairment and Replacement of Interim Finance Parties |
The
provisions of Schedule 6 (Impairment and Replacement of Interim Finance Parties) are incorporated into this Clause 26 by
reference.
| 27. | Conduct of Business by the Interim Finance Parties |
No provision of this Agreement will:
| (a) | interfere with the right of any Interim Finance Party to arrange its affairs (tax or otherwise) in whatever
manner it thinks fit; |
| (b) | oblige any Interim Finance Party to investigate or claim any credit, relief, remission or repayment available
to it or to the extent, order and manner of any claim; or |
| (c) | oblige any Interim Finance Party to disclose any computations in respect of Tax or, except as contemplated
by Clause 10.8 (FATCA information) and Clause 10.9 (FATCA Deduction), oblige any Interim Finance Party to disclose any information
relating to its affairs (tax or otherwise). |
| 28. | Amendments and Waivers |
| (a) | Subject to Clause 28.2 (Exceptions), any term of the Interim Finance Documents may be amended or
waived only with the consent of the Majority Interim Lenders and the Obligors' Agent and any such amendment or waiver will be binding
on all Parties. |
| (b) | The Interim Facility Agent may effect, on behalf of any Interim Finance Party, any amendment or waiver
permitted by this Clause 27. |
| (a) | An amendment or waiver that has the effect of changing or which relates to: |
| (i) | the definition of Majority Interim Lenders; |
| (ii) | Clause 5 (Nature of an Interim Finance Party's Rights and Obligations), Clause 18 (Pro Rata
Payments) or Clause 24 (Changes to Parties); |
| (iii) | any change to the Obligors; |
| (iv) | the order of priority or subordination under Clause 15 (Subordination); |
| (v) | the nature or scope of: |
| (A) | the Interim Security; or |
| (B) | the manner in which the proceeds of enforcement of the Interim Security are distributed; |
| (vi) | the release of any guarantee and indemnity granted under any Interim Finance Document or the release of
any Interim Security, in each case unless permitted under this Agreement or any other Interim Finance Document; |
| (vii) | any provision which expressly requires the consent of all of the Interim Lenders; |
| (ix) | paragraph 8 (Change of control) of Part III (Major Events of Default) of Schedule 5
(Major Representations, Undertakings and Events of Default), |
shall not be made without the prior consent
of all the Interim Lenders.
| (b) | An amendment or waiver that has the effect of changing or relates to: |
| (i) | an extension to the availability periods referred to herein or the date of payment of any amount under
any Interim Finance Document; |
| (ii) | a reduction in the Margin or the amount of any payment to be made under any Interim Finance Document; |
| (iii) | an increase in or an extension of any Interim Commitment; or |
| (iv) | a change in currency of payment of any amount under the Interim Finance Documents, |
shall only require the consent of each
Interim Lender that is participating in that extension, reduction, increase or change.
| (c) | An amendment or waiver which relates to the rights or obligations of the Interim Facility Agent, the Arrangers
or the Interim Security Agent may not be effected without the consent of the Interim Facility Agent, the Arrangers or the Interim Security
Agent, as applicable. |
| (d) | Without prejudice to the Interim Facility Agent's right to seek instruction from the Interim Lenders from
time to time, this Agreement and any other Interim Finance Document may be amended solely with the consent of the Interim Facility Agent
and the Obligors' Agent without the need to obtain the consent of any other Interim Lender if such amendment is effected in order: |
| (i) | to correct or cure ambiguities, errors, omissions, defects; |
| (ii) | to effect administrative changes of a technical or immaterial nature; or |
| (iii) | to fix incorrect cross references or similar inaccuracies in this Agreement or the applicable Interim
Finance Document. |
If an Interim Lender does not either
accept or reject a request from a Group Company (or the Interim Facility Agent on behalf of that Group Company) for any consent or agreement
in relation to a release, waiver or amendment of any provisions of the Interim Finance Documents or other vote of Interim Lenders under
the terms of the Interim Finance Documents within ten (10) Business Days (or any other period of time specified by that Group Company
but, if shorter than ten (10) Business Days, as agreed by the Interim Facility Agent) of the date of such request being made, then
that Interim Lender shall be automatically excluded from participating in that vote and its participations, Interim Commitments and
vote (as the case may be) shall not be included (or, as applicable, required) with the Total Interim Commitments or otherwise when ascertaining
whether the approval of Majority Interim Lenders, all Interim Lenders, or any other class of Interim Lenders (as applicable) has been
obtained with respect to that request for a consent or agreement and its status as an Interim Lender shall be disregarded for the purpose
of ascertaining whether the agreement of any specified group of Interim Lenders has been obtained to approve the request.
| 28.4 | Disenfranchisement of Restricted Finance Parties |
Insofar as any amendment, waiver, determination,
declaration, decision (including a decision to accelerate) or direction (each a Relevant Measure) in respect of the Sanctions
Provisions concerns, is referred to or otherwise relates to any Sanctions, Sanctioned Country and/or Sanctioned Persons, a Restricted
Finance Party may in its absolute discretion (but shall be under no obligation to) notify in writing to the Interim Facility Agent that
it does have, in the given circumstances, the benefit of the provision in respect of which the Relevant Measure is sought. The Interim
Commitments of each Interim Lender that is a Restricted Finance Party that has not notified the Interim Facility Agent to that effect
under this paragraph and the vote of any other Restricted Finance Party which would be required to vote in accordance with the provisions
of this Agreement and that has not notified the Interim Facility Agent to that effect under this paragraph will be excluded for the purpose
of determining whether the consent of the requisite Interim Finance Parties to approve such Relevant Measure has been obtained or whether
the Relevant Measure by the requisite Interim Finance Parties has been made.
If any provision of the Interim Finance
Documents is or becomes illegal, invalid or unenforceable in any jurisdiction that shall not affect the legality, validity or enforceability
in that jurisdiction of any other term of the Interim Finance Documents or the legality, validity or enforceability in other jurisdictions
of that or any other term of the Interim Finance Documents.
This Agreement may be executed in any
number of counterparts and all of those counterparts taken together shall be deemed to constitute one and the same instrument. Delivery
of a signed counterpart of this Agreement by email attachment or telecopy shall be an effective mode of delivery.
No failure to exercise, nor any delay
in exercising, on the part of any Interim Finance Party, any right or remedy hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of any right or remedy prevent any further or other exercise thereof or the exercise of any other right or
remedy. The rights and remedies herein provided are cumulative and not exclusive of any rights or remedies provided by law.
The Interim Finance Documents contain
the complete agreement between the Parties on the matters to which they relate and may not be amended except in accordance with their
terms.
| 29.5 | No representations by Interim Finance Parties |
No
Interim Finance Party is liable to any Obligor for any representation or warranty that is not set out in the Interim Finance Documents,
except for one made fraudulently by such Interim Finance Party.
| (a) | Unless expressly provided to the contrary in an Interim Finance Document, a person who is not a party
to an Interim Finance Document may not rely on or enforce any of its terms under the Contracts (Rights of Third Parties) Act 1999. |
| (b) | Notwithstanding any term of any Interim Finance Document, the consent of any person who is not a Party
is not required to rescind or vary this Agreement at any time. |
This Agreement (and any non-contractual
obligations arising out of or in relation to this Agreement), and any dispute or proceeding (whether contractual or non-contractual) arising
out of or relating to this Agreement, shall be governed by English law.
| 31.1 | Submission to jurisdiction |
Each
of the Parties agrees that the courts of England have exclusive jurisdiction to hear, decide and settle any dispute or proceedings arising
out of or relating to this Agreement (including as to existence, validity or termination) (each a "Dispute") and
for the purpose of enforcement or any judgment against its assets, each Party irrevocably submits to the jurisdiction of the English courts.
Each
of the Parties:
| (a) | agrees that the courts of England are the most appropriate and convenient courts to settle any Dispute
and waive any objection to the courts of England on grounds of inconvenient forum or otherwise; and |
| (b) | agrees that a judgment or order of an English court in connection with a Dispute is conclusive and binding
on it and may be enforced against it in the courts of any other jurisdiction. |
Each Interim Finance Party acknowledges
and agrees that:
| (a) | each Obligor and Topco may be irreparably harmed by a breach of any term of the Interim Finance Documents
and damages may not be an adequate remedy; and |
| (b) | each Obligor and Topco may be granted an injunction or specific performance for any threatened or actual
breach of any term of the Interim Finance Documents. |
| (a) | Without prejudice to any other mode of service allowed under any relevant law, each Obligor (other than
an Obligor incorporated in England and Wales) and Topco: |
| (i) | irrevocably appoints Kirkland & Ellis International LLP of 30 St. Mary Axe, London EC3A 8AF,
United Kingdom (Attention: Cedric van den Borren / Evgeny Zborovsky / Antoine Lebienvenu / James Collins) as its agent for service of
process in relation to any proceedings before the English courts in connection with any Interim Finance Document; and |
| (ii) | agrees that failure by an agent for service of process to notify the relevant Obligor or Topco of the
process will not invalidate the proceedings concerned. |
| (b) | If any person appointed as agent for service of process is unable for any reason to act as agent for service
of process, the Obligors' Agent (on behalf of all the Obligors) or Topco (on its own behalf) must promptly (and in any event within ten
(10) Business Days of such event taking place) appoint another agent on terms acceptable to the Interim Facility Agent (acting reasonably
and in good faith). Failing this, the Interim Facility Agent may appoint another agent for this purpose. |
| (a) | Notwithstanding any other term of any Interim Finance Document or any other agreement, arrangement or
understanding between the Parties, each Party acknowledges and accepts that any liability of any Party to any other Party under or in
connection with the Interim Finance Documents may be subject to Bail-In Action by the relevant Resolution Authority and acknowledges and
accepts to be bound by the effect of: |
| (i) | any Bail-In Action in relation to any such liability, including: |
| (A) | a reduction, in full or in part, in the principal amount, or outstanding amount due (including any accrued
but unpaid interest) in respect of any such liability; |
| (B) | a conversion of all, or part of, any such liability into shares or other instruments of ownership that
may be issued to, or conferred on, it; and |
| (C) | a cancellation of any such liability; and |
| (ii) | a variation of any term of any Interim Finance Document to the extent necessary to give effect to any
Bail-In Action in relation to any such liability. |
| (b) | For the purposes of this Clause 31.5: |
Article 55
BRR means Article 55 of Directive 2014/59/EU establishing a framework for the recovery and resolution of credit institutions
and investment firms.
Bail-In
Action means the exercise of any Write-down and Conversion Powers.
Bail-In
Legislation means:
| (i) | in relation to an EEA Member Country which has implemented, or which at any time implements, Article 55
BRRD, the relevant implementing law or regulation as described in the EU Bail-In Legislation Schedule from time to time; |
| (ii) | in relation to any state other than such an EEA Member Country and the United Kingdom, any analogous law
or regulation from time to time which requires contractual recognition of any Write-down and Conversion Powers contained in that law or
regulation; and |
| (iii) | in relation to the United Kingdom, the UK Bail-in Legislation. |
EEA
Member Country means any Member State, Iceland, Liechtenstein and Norway.
EU
Bail-In Legislation Schedule means the document described as such and published by the Loan Market Association (or any
successor person) from time to time.
Resolution
Authority means any body which has authority to exercise any Write-down and Conversion Powers.
UK
Bail-In Legislation means Part I of the United Kingdom Banking Act 2009 and any other law or regulation applicable
in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their
affiliates (otherwise than through liquidation, administration or other insolvency proceedings).
Write-down
and Conversion Powers means:
| (i) | in relation to any Bail-In Legislation described in the EU Bail-In Legislation Schedule from time to time,
the powers described as such in relation to that Bail-In Legislation in the EU Bail-In Legislation Schedule; |
| (ii) | in relation to any other applicable Bail-In Legislation other than the UK Bail-In Legislation: |
| (A) | any powers under that Bail-In Legislation to cancel, transfer or dilute shares issued by a person that
is a bank or investment firm or other financial institution or affiliate of a bank, investment firm or other financial institution, to
cancel, reduce, modify or change the form of a liability of such a person or any contract or instrument under which that liability arises,
to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any
such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that
liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers; and |
| (B) | any similar or analogous powers under that Bail-In Legislation; and |
| (iii) | in relation to the UK Bail-In Legislation, any powers under that UK Bail-In Legislation to cancel, transfer
or dilute shares issued by a person that is a bank or investment firm or other financial institution or affiliate of a bank, investment
firm or other financial institution, to cancel, reduce, modify or change the form of a liability of such a person or any contract or instrument
under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any
other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend
any obligation in respect of that liability or any of the powers under that UK Bail-In Legislation that are related to or ancillary to
any of those powers. |
| 32. | Acknowledgment regarding any supported QFCs |
To the extent that the Interim Finance
Documents provide support, through a guarantee or otherwise, for hedging agreements or any other agreement or instrument that is a QFC
(such support, QFC Credit Support and, each such QFC, a Supported QFC), the parties acknowledge and agree
as follows with respect to the resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and
Title II of the Dodd–Frank Wall Street Reform and Consumer Protection Act (together and in each instance with the regulations promulgated
thereunder, the U.S. Special Resolution Regimes) in respect of such Supported QFC and QFC Credit Support (with the provisions
below applicable notwithstanding that the Interim Finance Documents and any Supported QFC may in fact be stated to be governed by the
laws of the State of New York and/or of the United States or any other state of the United States):
| (a) | in the event a Covered Entity that is party to a Supported QFC (each, a Covered Party) becomes
subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit
Support (and any interest and obligation in or under such Supported QFC and such QFC Credit Support, and any rights in property securing
such Supported QFC or such QFC Credit Support) from such Covered Party will be effective to the same extent as the transfer would be effective
under the U.S. Special Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest, obligation and rights
in property) were governed by the laws of the United States or a state of the United States. In the event a Covered Party or a BHC Act
Affiliate of a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Interim
Finance Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against such Covered
Party are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution
Regime if the Supported QFC and the Finance Documents were governed by the laws of the United States or state of the United States. Without
limitation of the foregoing, it is understood and agreed that rights and remedies of the parties with respect to a Defaulting Lender shall
in no event affect the rights of any Covered Party with respect to a Supported QFC or any QFC Credit Support; and |
| (b) | as used in this Clause 32, the following terms have the following meanings: |
BHC
Act Affiliate of a party means an "affiliate" (as such term is defined under, and interpreted in accordance
with, 12 U.S.C. 1841(k)) of such party.
Covered
Entity means any of the following:
| (i) | a covered entity as that term is defined in, and interpreted in accordance with, 12 C.F.R.
§ 252.82(b); |
| (ii) | a covered bank as that term is defined in, and interpreted in accordance with, 12 C.F.R.
§ 47.3(b); or |
| (iii) | a covered FSI as that term is defined in, and interpreted in accordance with, 12 C.F.R.
§ 382.2(b). |
| (iv) | Default Right has the meaning assigned to that term in, and shall be interpreted in accordance
with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable. |
| (v) | QFC has the meaning assigned to the term “qualified financial contract” in,
and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D). |
Each of the Original Interim Lenders
hereby notifies the Company that pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)) (the "PATRIOT Act"), such Original Interim Lender may be required to obtain, verify and record information that
identifies the Borrower, which information includes the name and address of such Borrower and other information that will allow such Original
Interim Lender to identify such Borrower in accordance with the PATRIOT Act.
This
Agreement has been entered into on the date stated at the beginning of this Agreement.
Schedule
1
Definitions and Interpretation
Part I
Definitions
Acceleration
Notice has the meaning given to that term in paragraph (a)(ii) of Clause 7.1 (Repayment).
Acquisition
means the direct or indirect acquisition by the Company of Target Shares, including:
| (a) | pursuant to the Offer and/or the Acquisition Documents; |
| (b) | which are contributed and/or transferred to the Company; |
| (c) | pursuant to or in connection with any Delisting and/or Squeeze-Out; and/or |
| (d) | over the stock exchange, in the open market or via any other trading platform. |
Acquisition
Documents means the Offer Announcement, the Offer Document, any document in connection with any Squeeze-Out, any additional
press release by the Company, any other document ancillary to or entered into in connection with any of the foregoing and any other document
or agreement designated in writing as an Acquisition Document by the Obligors’ Agent and the Interim Facility Agent.
Adjusted
Term SOFR means in relation to any Interim Loan in USD, Term SOFR and, if Term SOFR applicable to an Interim
Loan is below zero (0) at any time when Term SOFR is fixed, Adjusted Term SOFR for such Loan will be deemed to be zero (0).
Affiliate
means:
| (a) | in relation to any person other than an Interim Finance Party, a Subsidiary or a Holding Company of that
person or any other Subsidiary of that Holding Company; |
| (b) | in relation to any Interim Finance Party other than a fund, any other person directly or indirectly controlling,
controlled by, or under direct or indirect common control with, that Interim Finance Party; or |
| (c) | in relation to any Interim Finance Party which is a fund, any other fund which is advised or managed by
the same investment adviser or an Affiliate of that investment adviser. |
Agent
means the Interim Facility Agent or the Interim Security Agent, as the context requires and Agents means both of them taken together.
Anti-Corruption
Laws means all laws of any jurisdiction applicable to an Obligor from time to time concerning or relating to anti-bribery,
anti-money laundering or anti-corruption (including the Bribery Act 2010, the United States Foreign Corrupt Practices Act of 1977).
Applicable
Securities Laws means any applicable law, rules, regulations and/or requirements (including of any Relevant Regulator)
whether arising as a result of listing of any securities on any trading venue or otherwise, including the Exchange Act, the Securities
Act, the Swedish Offer Regulations and the Luxembourg Takeover Provisions.
Assignment
Agreement means an agreement substantially in the form set out in Schedule 8 (Form of Assignment Agreement)
or any other form agreed between the relevant assignor and assignee.
Available
Interim Revolving Facility Commitment means, in relation to an Interim Revolving Facility, an Interim Revolving Facility
Lender’s Interim Revolving Facility Commitment minus (subject to the provisions below):
| (a) | the Base Currency Amount of its participation in any outstanding Interim Utilisations under that Interim
Revolving Facility; and |
| (b) | in relation to any proposed Interim Utilisation under that Interim Revolving Facility, the Base Currency
Amount of its participation in any other Interim Utilisations that are due to be made under that Interim Revolving Facility on or before
the proposed Drawdown Date. |
For the purposes of calculating a Lender’s
Available Interim Revolving Facility Commitment in relation to any proposed Interim Utilisation under the Interim Revolving Facility only,
an Interim Revolving Facility Lender’s participation in any Interim Utilisations that are due to be repaid or prepaid on or before
the proposed Drawdown Date shall not be deducted from that Interim Revolving Facility Lender’s Interim Revolving Facility Commitment.
Bank
Guarantee means:
| (a) | a letter of credit, substantially in the form set out in Schedule 10 (Form of Bank Guarantee)
or in any other form requested by an Obligor and consented to by the Issuing Bank in respect of that Bank Guarantee (such consent not
to be unreasonably withheld or delayed); or |
| (b) | any other guarantee, bond, indemnity, letter of credit, documentary or like credit or any other instrument
of suretyship or payment, issued, undertaken or made by the relevant Issuing Bank in a form requested by an Obligor and consented to by
the Issuing Bank in respect of such Bank Guarantee (such consent not to be unreasonably withheld or delayed). |
Bank
Guarantee Request means a signed notice requesting a Bank Guarantee substantially in the form set out in Part II (Bank
Guarantee Request) of Schedule 2 (Form of Drawdown Request).
Bank
Levy means any amount payable by any Interim Lender or any of its Affiliates on the basis of or in relation to:
| (a) | its balance sheet or capital base or any part of it or its liabilities, minimum regulatory capital, interest
margin or any combination thereof, including the UK bank levy as set out in the Finance Act 2011 (as amended), the French taxe pour
le financement du fonds de soutien aux collectivités territoriales as set out by Article 235 ter ZE bis of the French
Code Général des impôts, the German bank levy as set out in the German Restructuring Fund Act 2010 (Restrukturierungsfondsgesetz)
(as amended), the Dutch bankenbelasting as set out in the bank levy act (Wet bankenbelasting), the Swedish bank levy as
set out in the Swedish Act on State Support to Credit Institutions (Sw. lag (2015:1017) (om förebyggande statligt stöd till
kreditinstitut och om stabilitetsfonden), the Spanish bank levy (Impuesto sobre los Depósitos en las Entidades de Crédito)
as set out in the Law 16/2012 of 27 December 2012 and/or any other levy or tax in any jurisdiction levied on a similar basis or for
a similar purpose; |
| (b) | any bank surcharge or banking corporation tax surcharge as set out in Finance (No.2) Act 2015 and any
other surcharge or tax of a similar nature implemented in any other jurisdiction; |
| (c) | any windfall tax imposed on or calculated by reference to the interest income, commissions or interest
margin of that person; or |
| (d) | any financial activities taxes (or other taxes) of a kind contemplated in the European Commission consultation
paper on financial sector taxation dated 22 February 2011 or the Single Resolution Mechanism established by EU Regulation 806/2014
of 15 July 2014. |
Base
Currency means US Dollars.
Base
Currency Amount means, in relation to any Interim Utilisation for any amount in the Base Currency, the amount specified
in the Drawdown Request or, as applicable, Bank Guarantee Request for that Interim Utilisation (or, if the amount requested is an Interim
Revolving Facility Utilisation that is not denominated in the Base Currency, that amount converted into the Base Currency at the Interim
Facility Agent’s Spot Rate of Exchange on the date which is three (3) Business Days before the Drawdown Date or, if later,
on the date the Interim Facility Agent receives the Drawdown Request or, as applicable, Bank Guarantee Request), as adjusted to reflect
any repayment or prepayment under this Agreement.
Business
Day means a day (other than a Saturday or Sunday) on which banks are open for general business in London, United Kingdom,
Luxembourg City, Grand Duchy of Luxembourg, New York, United States of America or Paris, France, provided that for the purposes
of any Interim Utilisation and the determination and/or calculation of any periods in connection with the Certain Funds Period and/or
any Interim Utilisation, including for determining and/or calculating the date of any Drawdown Request and any Drawdown Date for any Interim
Loan and/or any Interim Pre-Funding Loan, "Business Day" shall, at the Company’s option in relation to any determination
of Business Days, have the same meaning as in any Acquisition Document.
Capital
Stock of any person means any and all shares of, rights to purchase, warrants or options for, or other equivalents of or
partnership or other interests in (however designated), equity of such person, including any Preferred Stock, but excluding any debt securities
convertible into such equity.
Certain
Funds Period means the period from (and including) the date of this Agreement to (and including) 11:59 p.m. (in London)
on the earliest to occur of:
| (a) | the date falling fifteen (15) Business Days after (and excluding) the Countersignature Date if the Offer
Announcement has not been made on or prior to such date; |
| (b) | the Offer Termination Date; and |
| (c) | the date falling twelve (12) months after (and excluding) the date of the Offer Announcement (or, if such
date is not a Business Day, the next succeeding Business Day), |
or, in each case, such later
time and date as agreed by the Original Interim Lenders (acting reasonably and in good faith).
Change
of Control means the occurrence of any of the events or circumstances described in paragraph 8 (Change of control) of Part III
(Major Events of Default) of Schedule 5 (Major Representations, Undertakings and Events of Default).
Change
of Law means any change which occurs after the date of this Agreement or, if later, after the date on which the relevant
Interim Lender became an Interim Lender pursuant to this Agreement (as applicable) in any law, regulation or treaty (or in the published
interpretation, administration or application of any law, regulation or treaty) or any published practice or published concession of any
relevant tax authority other than:
| (a) | any change that occurs pursuant to, or in connection with the adoption, ratification, approval or acceptance
of, the MLI in or by any jurisdiction; or |
| (b) | any change arising in consequence of, or in connection with, the United Kingdom ceasing to be a member
state of the European Union. |
Charged
Property means all the assets of the Group which, from time to time, are expressed to be the subject of the Interim Security.
Commitment
Documents has the meaning given to it in the Commitment Letter.
Commitment
Letter means a letter dated [●] 2024 between, among others, the Arrangers and the Company setting out the terms and
conditions pursuant to which the Arrangers and the Underwriters agree to arrange and underwrite certain senior secured facilities in connection
with any Acquisition and the Refinancing and appending the schedules thereto.
Confidentiality
Undertaking means a confidentiality undertaking agreeing to keep the Interim Finance Documents or other documents or information
confidential, on which the Obligors’ Agent is able to rely and which is either (i) in the form most recently published by the
Loan Market Association or (ii) otherwise in form and substance satisfactory to the Obligors’ Agent.
Control
Date means the date on which the Target is a wholly-owned Subsidiary of the Company and none of the Target Shares are listed
or admitted to trading on any stock or investment exchanges or other exchange or market (and for the avoidance of doubt, there are no
pending or threatened proceedings involving any Minority Shareholders (or former Minority Shareholders).
Countersignature
Date has the meaning given to it in the Commitment Letter.
CSSF
means the Commission de Surveillance du Secteur Financier of Luxembourg.
Defaulting
Lender has the meaning given to that term in Part V (Definitions) of Schedule 6 (Impairment and Replacement
of Interim Finance Parties).
Delegate
means any delegate, agent, attorney or co-trustee appointed by the Interim Security Agent.
Delisting
means any delisting of the Target Shares from one or more stock or investment exchanges or other exchanges or markets.
Drawdown
Date means the date of an Interim Utilisation, being the date on which the relevant Interim Loan is to be made or the relevant
Bank Guarantee is to be issued.
Drawdown
Request means a signed notice requesting an Interim Utilisation in the form set out in Part I (Form of Drawdown
Request) of Schedule 2 (Form of Drawdown Request).
Equity
Contribution means:
| (a) | any investment in cash or in kind in the form of equity (including share capital) in, or other capital
contributions (including by way of premium and/or contribution to capital reserves) to, the Company (New Equity); and/or |
| (b) | any Subordinated Shareholder Liabilities. |
Exchange
Act means the Securities Exchange Act of 1934, as amended, and the rules and regulations of the US Securities and
Exchange Commission (or any successor thereto) promulgated thereunder.
Existing
Facilities means the Group Existing Facilities and/or the Target Existing Facilities.
Existing
Interim Lender has the meaning given to that term in paragraph (a) of Clause 24.2 (Transfers by Interim Lenders).
Expiry
Date means, for a Bank Guarantee, the last day of its Term.
Facility
Office means the office or offices through which an Interim Lender or the Issuing Bank will perform its obligations under
the Interim Facility as notified to the Interim Facility Agent in writing on or before the date it becomes an Interim Lender or the Issuing
Bank (or, following that date, by not less than five (5) Business Days’ notice).
FATCA
means:
| (a) | Sections 1471 through 1474 of the US Code or any associated regulations or other official guidance (or
any amended or successor version that is substantially comparable); |
| (b) | any treaty, law, regulation or other official guidance enacted in any other jurisdiction, or relating
to an intergovernmental agreement between the US and any other jurisdiction, which (in either case) facilitates the implementation of
anything mentioned in paragraph (a) above; or |
| (c) | any agreement pursuant to the implementation of anything mentioned in paragraphs (a) or (b) above
with the US Internal Revenue Service, the US government or any governmental or taxation authority in any other jurisdiction. |
FATCA
Application Date means:
| (a) | in relation to a ‘withholdable payment’ described in section 1473(1)(A)(i) of the US
Code (which relates to payments of interest and certain other payments from sources within the US), 1 July 2014; |
| (b) | in relation to a ‘withholdable payment’ described in section 1473(1)(A)(ii) of the US
Code (which relates to “gross proceeds” from the disposition of property of a type that can produce interest from sources
within the US), the first date from which such payment may become subject to a deduction or withholding required by FATCA; or |
| (c) | in relation to a ‘passthru payment’ described in section 1471(d)(7) of the US Code not
falling within paragraphs (a) or (b) above, the first date from which such payment may become subject to a deduction or withholding
required by FATCA. |
FATCA
Deduction means a deduction or withholding from a payment under an Interim Finance Document required by FATCA.
FATCA
Exempt Party means a Party that is entitled to receive payments free from any FATCA Deduction.
Fee
Letter has the meaning given to that term in the Commitment Letter.
Final
Repayment Date has the meaning given to that term in paragraph (a)(i) of Clause 7.1 (Repayment).
French
Civil Code means the French Code civil.
French
Commercial Code means the French Code de commerce.
French
Interim Security means any Interim Security created or expressed to be created under any French Interim Security Document.
French
Interim Security Document means any Interim Security Document governed by French law.
Funding
Cost means Term SOFR provided that:
| (i) | for the purposes of any Interim Facility B Loan, if Term SOFR is less than zero (0) per cent. per annum
at any time when Term SOFR is fixed, Adjusted Term SOFR shall be deemed to be zero (0) per cent. per annum; and |
| (ii) | for the purposes of any Interim Revolving Facility Utilisation, if Term SOFR is less than zero (0) per
cent. per annum at any time when Term SOFR is fixed, Adjusted Term SOFR shall be deemed to be zero (0) per cent. per annum. |
Funds
Flow Statement means any funds flow statement which is delivered pursuant to sub-paragraph (a) of paragraph 6 (Other)
of Schedule 3 (Conditions Precedent).
Group
means the Company and each of its Subsidiaries from time to time.
Group
Company means a member of the Group.
Group
Existing Facilities has the meaning given to that term in paragraph (a)(ii) of Clause 3.3 (Purpose).
Group
Refinancing has the meaning given to that term in paragraph (a)(ii) of Clause 3.3 (Purpose).
Holding
Company means in relation to any person, any other body corporate or other entity of which it is a Subsidiary.
Immediate
Family Members means, with respect to any individual, such individual’s child, stepchild, grandchild or more remote
descendant, parent, stepparent, grandparent, spouse, former spouse, qualified domestic partner, sibling, mother-in-law, father-in-law,
son-in-law and daughter-in-law (including adoptive relationships) and any trust, partnership or other bona fide estate-planning
vehicle the only beneficiaries of which are any of the foregoing individuals or any private foundation or fund that is controlled by any
of the foregoing individuals or any donor-advised fund of which any such individual is the donor.
Initial
Investor means Mr. Xavier NIEL, of French nationality, born on 25 August 1967, in Maisons-Alfort (France).
Interest
Period has the meaning given to that term in paragraph (a) of Clause 8.2 (Payment of interest).
Interim
Agency Fee Letter means the fee letter dated on or about the date of this Agreement between the Company, the Interim Facility
Agent and/or the Interim Security Agent.
Interim
Closing Date means the first date upon which Interim Facility B1, Interim Facility B2 and/or Interim Facility B3 is
drawn.
Interim
Commitment means an Interim Facility B Commitment and/or an Interim Revolving Facility Commitment.
Interim
Facility means Interim Facility B and/or the Interim Revolving Facility.
Interim
Facility B means Interim Facility B1, Interim Facility B2 and/or Interim Facility B3 (as the context requires).
Interim
Facility B1 has the meaning given to that term in paragraph (a) of Clause 2.1 (The Interim Facilities).
Interim
Facility B2 has the meaning given to that term in paragraph (b) of Clause 2.1 (The Interim Facilities).
Interim
Facility B3 has the meaning given to that term in paragraph (c) of Clause 2.1 (The Interim Facilities).
Interim
Facility Agent’s Spot Rate of Exchange means the Interim Facility Agent’s spot rate of exchange
for the purchase of the relevant currency with the Base Currency in the London foreign exchange market at or about 11.00 a.m. on
a particular day.
Interim
Facility B Commitment means an Interim Facility B1 Commitment, an Interim Facility B2 Commitment and/or Interim Facility
B3 Commitment (as the context requires).
Interim
Facility B1 Commitment means:
| (a) | in relation to each Original Interim Lender, the amount of Interim Facility B1 set opposite its name under
the heading “Interim Facility B1 Commitment” in Schedule 11 (The Original Interim Lenders) and the amount of
any other Interim Facility B1 Commitment transferred to it pursuant to Clause 24 (Changes to Parties) or assumed by it in accordance
with Clause 26 (Impairment and Replacement of Interim Finance Parties) and paragraph 2 (Increase) of Part III (Replacement
of an Interim Lender / Increase) of Schedule 6 (Impairment and Replacement of Interim Finance Parties); and |
| (b) | in respect of any other Interim Lender, the amount transferred to it in respect of Interim Facility B1
pursuant to Clause 24 (Changes to Parties) or assumed by it in accordance with Clause 26 (Impairment and Replacement of Interim
Finance Parties) and paragraph 2 (Increase) of Part III (Replacement of an Interim Lender / Increase) of Schedule
6 (Impairment and Replacement of Interim Finance Parties), |
to the extent not cancelled,
reduced or transferred by it under this Agreement.
Interim
Facility B2 Commitment means:
| (a) | in relation to each Original Interim Lender, the amount of Interim Facility B2 set opposite its name under
the heading “Interim Facility B2 Commitment” in Schedule 11 (The Original Interim Lenders) and the amount of
any other Interim Facility B2 Commitment transferred to it pursuant to Clause 24 (Changes to Parties) or assumed by it in accordance
with Clause 26 (Impairment and Replacement of Interim Finance Parties) and paragraph 2 (Increase) of Part III (Replacement
of an Interim Lender / Increase) of Schedule 6 (Impairment and Replacement of Interim Finance Parties); and |
| (b) | in respect of any other Interim Lender, the amount transferred to it in respect of Interim Facility B2
pursuant to Clause 24 (Changes to Parties) or assumed by it in accordance with Clause 26 (Impairment and Replacement of Interim
Finance Parties) and paragraph 2 (Increase) of Part III (Replacement of an Interim Lender / Increase) of Schedule
6 (to the extent not cancelled, reduced or transferred by it under this Agreement. |
Interim
Facility B3 Commitment means:
| (a) | in relation to each Original Interim Lender, the amount of Interim Facility B3 set opposite its name under
the heading “Interim Facility B3 Commitment” in Schedule 11 (The Original Interim Lenders) and the amount of
any other Interim Facility B3 Commitment transferred to it pursuant to Clause 24 (Changes to Parties) or assumed by it in accordance
with Clause 26 (Impairment and Replacement of Interim Finance Parties) and paragraph 2 (Increase) of Part III (Replacement
of an Interim Lender / Increase) of Schedule 6 (Impairment and Replacement of Interim Finance Parties); and |
| (b) | in respect of any other Interim Lender, the amount transferred to it in respect of Interim Facility B3
pursuant to Clause 24 (Changes to Parties) or assumed by it in accordance with Clause 26 (Impairment and Replacement of Interim
Finance Parties) and paragraph 2 (Increase) of Part III (Replacement of an Interim Lender / Increase) of Schedule
6 (Impairment and Replacement of Interim Finance Parties), |
to the extent not cancelled, reduced or transferred
by it under this Agreement.
Interim
Facility B Loan means an Interim Facility B1 Loan, an Interim Facility B2 Loan and/or an Interim Facility B3 Loan (as the
context requires).
Interim
Facility B1 Loan means the principal amount of the borrowing under Interim Facility B1 or the principal amount outstanding
of that borrowing at any time.
Interim
Facility B2 Loan means the principal amount of the borrowing under Interim Facility B2 or the principal amount outstanding
of that borrowing at any time.
Interim
Facility B3 Loan means the principal amount of the borrowing under Interim Facility B3 or the principal amount outstanding
of that borrowing at any time.
Interim
Finance Documents means each of this Agreement, the Interim Agency Fee Letters, the Fee Letter, the Interim Security Documents,
each Bank Guarantee, each Drawdown Request and any other document designated as such in writing by the Interim Facility Agent and the
Obligors’ Agent.
Interim
Finance Parties means the Interim Lenders, the Arrangers, any Issuing Bank, the Interim Facility Agent and the Interim
Security Agent.
Interim
Lender means:
| (a) | an Original Interim Lender; and |
| (b) | any other bank or financial institution, trust, fund or other entity which is regularly engaged in or
established for the purpose of making, purchasing or investing in loans, securities or other financial assets or other person which has
become a Party as an Interim Lender pursuant to Clause 24 (Changes to Parties) or paragraph 2 (Increase) of Part III
(Replacement of an Interim Lender / Increase) of Schedule 6 (Impairment and Replacement of Interim Finance Parties), |
which, in each case, has not
ceased to be an Interim Lender in accordance with the terms of this Agreement.
Interim
Liabilities means all liabilities owed by the Obligors to the Interim Finance Parties under the Interim Finance Documents.
Interim
Loan means an Interim Facility B Loan or an Interim Revolving Facility Loan.
Interim
Pre-Funding Loan means, without prejudice to Clause 3 (The Making of the Interim Utilisations), any Interim Loan
made or to be made under Interim Facility B, if the date of the utilisation of such Interim Facility B Loan is (or will be) a date prior
to the Settlement Date, or the principal amount outstanding for the time being of that Interim Facility B Loan.
Interim
Revolving Facility means Interim Revolving Facility 1 and/or Interim Revolving Facility 2 (as the context requires).
Interim
Revolving Facility Availability Period means the Interim Revolving Facility 1 Availability Period and/or the Interim Revolving
Facility 2 Availability Period (as the context requires).
Interim
Revolving Facility 1 has the meaning given to that term in paragraph (d) of Clause 2.1 (The Interim Facilities).
Interim
Revolving Facility 1 Availability Period means, in relation to Interim Revolving Facility 1, the period from and including
the Interim Closing Date to and including the date which is one week prior to the Final Repayment Date.
Interim
Revolving Facility 2 has the meaning given to that term in paragraph (e) of Clause 2.1 (The Interim Facilities).
Interim
Revolving Facility 2 Availability Period means, in relation to Interim Revolving Facility 2, the period from and including
the Settlement Date to and including the date which is one week prior to the Final Repayment Date.
Interim
Revolving Facility Commitment means an Interim Revolving Facility 1 Commitment and/or an Interim Revolving Facility 2 Commitment
(as the context requires).
Interim
Revolving Facility 1 Commitment means:
| (a) | in relation to each Original Interim Lender, the amount of the Interim Revolving Facility 1 set opposite
its name under the heading ''Interim Revolving Facility 1 Commitment'' in Schedule 11 (The Original Interim Lenders) and
the amount of any other Interim Revolving Facility 1 Commitment transferred to it pursuant to Clause 24 (Changes to Parties) or
assumed by it in accordance with Clause 26 (Impairment and Replacement of Interim Finance Parties) and paragraph 2 (Increase)
of Part III (Replacement of an Interim Lender / Increase) of Schedule 6 (Impairment and Replacement of Interim Finance
Parties); and |
| (b) | in respect of any other Interim Lender, the amount transferred to it in respect of the Interim Revolving
Facility 1 pursuant to Clause 24 (Changes to Parties) or assumed by it in accordance with Clause 26 (Impairment and Replacement
of Interim Finance Parties) and paragraph 2 (Increase) of Part III (Replacement of an Interim Lender / Increase)
of Schedule 6 (Impairment and Replacement of Interim Finance Parties), |
Interim
Revolving Facility 2 Commitment means:
| (a) | in relation to each Original Interim Lender, the amount of the Interim Revolving Facility set opposite
its name under the heading ''Interim Revolving Facility 2 Commitment' in Schedule 11 (The Original Interim Lenders) and
the amount of any other Interim Revolving Facility 2 Commitment transferred to it pursuant to Clause 24 (Changes to Parties) or
assumed by it in accordance with Clause 26 (Impairment and Replacement of Interim Finance Parties) and paragraph 2 (Increase)
of Part III (Replacement of an Interim Lender / Increase) of Schedule 6 (Impairment and Replacement of Interim Finance
Parties); and |
| (b) | in respect of any other Interim Lender, the amount transferred to it in respect of the Interim Revolving
Facility 2 pursuant to Clause 24 (Changes to Parties) or assumed by it in accordance with Clause 26 (Impairment and Replacement
of Interim Finance Parties) and paragraph 2 (Increase) of Part III (Replacement of an Interim Lender / Increase)
of Schedule 6 (Impairment and Replacement of Interim Finance Parties), |
to the extent not cancelled, reduced or transferred
by it under this Agreement.
Interim
Revolving Facility Lender means any Interim Lender who makes available an Interim Revolving Facility Commitment or an Interim
Revolving Facility Loan.
Interim
Revolving Facility Loan means an Interim Revolving Facility 1 Loan and/or an Interim Revolving Facility 2 Loan (as the
context requires).
Interim
Revolving Facility 1 Loan means the principal amount of each borrowing under the Interim Revolving Facility 1 or the principal
amount outstanding of that borrowing at any time.
Interim
Revolving Facility 2 Loan means the principal amount of each borrowing under the Interim Revolving Facility 2 or the principal
amount outstanding of that borrowing at any time.
Interim
Revolving Facility Utilisation means an Interim Revolving Facility Loan and/or a Bank Guarantee, in each case, as the context
requires.
Interim
Security means the Security Interests created or expressed to be created in favour of the Interim Security Agent pursuant
to the Interim Security Documents.
Interim
Security Document means any document required to be delivered to the Interim Facility Agent under sub-paragraph (b) of
paragraph 2 (Interim Finance Documents) of Part I (Conditions Precedent to Signing) of Schedule 3 (Conditions Precedent
and Subsequent) and paragraph 1 (Interim Finance Documents) of Part III (Conditions Subsequent) of Schedule 3 (Conditions
Precedent and Subsequent).
Interim
Utilisation means an Interim Loan and/or a Bank Guarantee, in each case, as the context requires.
Interim
Utilisation Date means the date on which an Interim Utilisation is made.
Interpolated
Term SOFR means, in relation to the applicable Term SOFR for any USD Term Rate Loan, the rate (rounded to the same number
of decimal places as Term SOFR) which results from interpolating on a linear basis between:
| (i) | the most recent applicable Term SOFR for the longest period (for which Term SOFR is available) which is
less than the Interest Period of that Interim Loan or overdue amount; or |
| (ii) | if no such Term SOFR is available for a period which is less than the Interest Period of that Interim
USD Term Rate Loan, SOFR for a day which is two US Government Securities Business Days before the quotation day; |
| (b) | the most recent applicable Interim Term SOFR for the shortest period (for which Term SOFR is available)
which exceeds the Interest Period of that Interim Loan, |
each
as of the Rate Fixing Day for the offering of deposits in the currency of that Interim Loan or an applicable amount.
Investors
means the Initial Investor and/or any other Permitted Holders.
Issuing
Bank means any person which agrees to act as an issuing bank in respect of the issue of a Bank Guarantee in accordance
with Schedule 9 (Bank Guarantees).
Loan
Amount means, at any date of determination the aggregate principal outstanding amount of Interim Facility B2 Loans as of
that date.
Long-term
Financing Agreements means, collectively, the facilities agreements, indentures, trust deeds or other agreements and/or
instruments to be entered into for the purpose of refinancing the Interim Facilities.
Luxembourg
Takeover Provisions means, collectively, the Law of 19 May 2006 transposing Directive 2004/25/EC of the European Parliament
and of the Council of 21 April 2004 on takeover bids, the Law of 21 July 2012 on mandatory squeeze-out and sell-out of securities
of companies currently admitted or previously admitted to trading on a regulated market or having been offered to the public, any other
applicable rules and regulations of Luxembourg pertaining to takeover of companies, including, without limitation, squeeze-out, sell-out
provisions and any other related applicable securities and corporate laws of Luxembourg, including circular, statements, rulings and administrative
practice of the CSSF regarding the interpretation and application of such rules and regulations.
LTV
Ratio means, at any date of determination, the ratio (expressed as a percentage) of (a) the Loan Amount as of that
date divided by (b) the Target Share Value as of that date.
Luxembourg
Reorganisation Proceedings means judicial reorganisation proceedings (réorganisation judiciaire) under the
Luxembourg law of 7 August 2023 on business preservation and modernisation of bankruptcy law.
Major
Event of Default means an event or circumstance set out in Part III (Major Events of Default) of Schedule 5
(Major Representations, Undertakings and Events of Default), in each case:
| (a) | with respect to Topco and the Company, as to itself only (and for the avoidance of doubt not with respect
to the Target Group or any other Group Company) and excluding any procurement obligation with respect to the Target Group or any other
Group Company; and |
| (b) | in so far as it relates to any Interim Finance Documents, such references to an Interim Finance Document
shall be deemed not to include a Bank Guarantee. |
Major
Representation means a representation set out in Part I (Major Representations) of Schedule 5 (Major Representations,
Undertakings and Events of Default), in each case:
| (a) | with respect to Topco and the Company as to itself only (and for the avoidance of doubt not with respect
to the Target Group or any other Group Company) and excluding any procurement obligation with respect to the Target Group or any other
Group Company; and |
| (b) | in so far as it relates to any Interim Finance Documents, such references to an Interim Finance Document
shall be deemed not to include a Bank Guarantee. |
Major
Undertaking means an undertaking set out in Part II (Major Undertakings) of Schedule 5 (Major Representations,
Undertakings and Events of Default), in each case:
| (a) | with respect to Topco and the Company as to itself only (and for the avoidance of doubt not with respect
to the Target Group or any other Group Company) and excluding any procurement obligation with respect to the Target Group or any other
Group Company; and |
| (b) | in so far as it relates to any Interim Finance Documents, such references to an Interim Finance Document
shall be deemed not to include a Bank Guarantee. |
Majority
Interim Lenders means, at any time, Interim Lenders:
| (a) | whose Interim Commitments then aggregate greater than 50 per cent. (or, for the purposes of paragraph
(b) of Clause 7.1 (Repayment), 662/3 per cent.) of the Total Interim Commitments; or |
| (b) | if the Total Interim Commitments have then been reduced to zero, whose Interim Commitments aggregated
greater than 50 per cent. (or, for the purposes of paragraph (b) of Clause 7.1 (Repayment), 662/3 per
cent.) of the Total Interim Commitments immediately before that reduction. |
Management
means any members of management and/or employees of any member of the Group (for this purpose including any person who
was a member of management or an employee when acquiring an interest) or any former member of management and/or any other person directly
or indirectly holding any interest pursuant to a management investment plan, management equity plan, incentive scheme or similar arrangement.
Management
Investors means the current, former or future officers, directors, employees and other members of the management of or
consultants to any Parent Entity, Holding Company, the Company or any of their respective Subsidiaries, or spouses, family members or
relatives thereof, or any trust, partnership or other entity for the benefit of or the beneficial owner of which (directly or indirectly)
is any of the foregoing, or any of their heirs, executors, successors and legal representatives, who at any date beneficially own or have
the right to acquire, directly or indirectly, Capital Stock of the Company, any Subsidiary, any Holding Company or any Parent Entity.
Margin
means:
| (a) | in relation to Interim Facility B1, 4.50 per cent. per annum; |
| (b) | in relation to Interim Facility B2, 4.50 per cent. per annum; |
| (c) | in relation to Interim Facility B3, 4.50 per cent. per annum; |
| (d) | in relation to Interim Revolving Facility 1, 4.50 per cent. per annum; and |
| (e) | in relation to Interim Revolving Facility 2, 4.50 per cent. per annum. |
Margin
Loan means the facility agreement dated 20 February 2023 (as amended and restated on 19 July 2023 and as amended
and/or amended and restated further from time to time) between, among others, Atlas Luxco S.à r.l. as Borrower, Atlas Investissement
as holdco and Société Générale as Facility Agent.
Material
Adverse Effect means any event or circumstance which (after taking account of all relevant mitigating factors or circumstances
(including, any warranty, indemnity, insurance or other resources available to the Group or right of recourse against any third party
with respect to the relevant event or circumstance and any anticipated additional investment in the Group)) has a material adverse effect
on the consolidated business, assets or financial condition of the Group (taken as a whole) such that the Group (taken as a whole) would
be reasonably likely to be unable to perform its payment obligations under the Interim Finance Documents in respect of principal amounts
due and payable thereunder and is not remedied within twenty (20) Business Days of the Company being given written notice of the issue
by the Interim Facility Agent.
Minority
Shareholder means any holder of Target Shares, other than the Company or any Affiliate of the Company.
Member
State means a member state of the European Union.
MLI
means the Multilateral Convention to Implement Tax Treaty Related Measures to Prevent Base Erosion and Profit Shifting of 24 November 2016.
New
Interim Lender has the meaning given to that term in paragraph (a) of Clause 24.2 (Transfers by Interim Lenders).
Obligors
means the Borrower and the Guarantor.
Obligors'
Agent means the Company or such other person appointed to act on behalf of each Obligor in relation to the Interim Finance
Documents pursuant to Clause 4 (Obligors' Agent).
OFAC
means the Office of Foreign Assets Control of the United States Department of the Treasury (or any successor thereto).
Offers
means the separate but concurrent voluntary tender offers in Sweden and the US by the Company for the Target Shares pursuant to and in
accordance with Applicable Securities Laws, the Offer Document and the Offer Announcement.
Offer
Announcement means the public announcement by way of a press release being the formal offer for the acquisition of all
Target Shares pursuant to the Swedish Offer Regulations as amended and/or supplemented.
Offer
Document means the Schedule TO and Schedule 13E-3, which include the offer to purchase, to be filed with the US Securities
and Exchange Commission, and the offer to purchase to be published as approved by the Swedish Financial Supervisory Authority and in each
case to be made available to all holders of Target Shares and containing details of the Offer, as amended and/or supplemented.
Offer
Termination Date means the date on which the Offers have been irrevocably withdrawn, lapsed or have been otherwise terminated
pursuant to the terms of the Offer Document for thirty (30) consecutive Business Days and have not been reissued (and no alternative offer
has been made) within such thirty (30) Business Day period.
Parent
Entity means any direct or indirect parent of the Company.
Participating
Member State means any member state of the European Union that has the euro as its lawful currency in accordance with legislation
of the European Union relating to Economic and Monetary Union.
Party
means a party to this Agreement.
Perfection
Requirements means the making or the procuring of any appropriate registration, filing, recordings, enrolments, registrations,
notations in stock registries, notarisations, notifications, endorsements and/or stampings of the Interim Security Documents and/or the
Security Interests created thereunder.
Permitted
Holders has the meaning given to that term in paragraph 8 (Change of control) of Part III (Major Events
of Default) of Schedule 5 (Major Representations, Undertakings and Events of Default).
Permitted
Payment means any payment:
| (a) | to enable a Holding Company of an Obligor to: |
| (i) | pay Taxes, duties or similar amounts for which it is liable; |
| (ii) | pay fees, expenses and other costs incurred in acting as, or maintaining its existence as, a holding company
or arising by operation of law or in the ordinary course of administration of its business; and |
| (iii) | meet substance requirements for Tax purposes; |
| (b) | as provided in the Funds Flow Statement or the Tax Structure Memorandum; |
| (c) | constituting the repayment or prepayment of liabilities under the Interim Finance Documents; |
| (d) | to refinance directly or indirectly from the proceeds of an Interim Utilisation any amounts paid from
the proceeds of any Equity Contribution in connection with any Acquisition; |
| (e) | any payments that are contemplated to be made under or pursuant to or in connection with any Delisting
or Squeeze-Out, in each cases including any payments to the Minority Shareholders |
| (f) | for the purpose of funding transaction costs incurred in connection with the Acquisition, the Refinancing,
the Interim Facilities and/or the Long-term Financing Agreements (including any such costs incurred by the Investors or a Holding Company
and recharged to a Group Company); and/or |
| (g) | set out in or contemplated by a Permitted Transaction. |
Permitted
Tax Distribution means, if and for so long as the Company is a member of a fiscal unity (whether resulting from a domination
and profit or loss pooling agreement or otherwise) with any Holding Company, any dividends, intercompany loans, other intercompany balances
or other distributions to fund any income Taxes for which such Holding Company is liable up to an amount not to exceed with respect to
such Taxes the amount of any such Taxes that the Company and its Subsidiaries would have been required to pay on a separate company basis
or on a consolidated basis calculated as if the Company and its Subsidiaries had paid Tax on a consolidated, combined, group, affiliated
or unitary basis on behalf of an affiliated group consisting only of the Company and its Subsidiaries.
Permitted
Transaction means:
| (a) | any steps, circumstances, actions, merger, payments, transactions or events contemplated by or relating
to the Transaction Documents, the Funds Flow Statement, the Tax Structure Memorandum (other than any exit steps described therein) or
the Long-term Financing Agreements (or other refinancing of the Interim Facilities) (and related documentation); |
| (b) | any step, circumstance or transaction which is mandatorily required by law (including arising under an
order of attachment or injunction or similar legal process); |
| (c) | any step, circumstance or transaction permitted or contemplated by any Major Representation or any Major
Undertaking (which, for the avoidance of doubt, in each case will thereby be a Permitted Transaction for all Major Representations and
all Major Undertakings). |
| (d) | any transfer of the shares in, or issue of shares by, any Obligor or any step, action or transaction including
share issue or acquisition or consumption of debt, for the purpose of creating the group structure for the Acquisition or effecting the
Refinancing as set out in the Tax Structure Memorandum (other than any exit steps described therein), including inserting another legal
entity directly above or below any Obligor, and including in connection therewith, provided that, after completion of such steps,
no Change of Control shall have occurred; |
| (e) | any Permitted Tax Distribution; |
| (f) | any action to be taken by a member of the Group required as a condition to any step or action in respect
of the Acquisition by any Relevant Regulator or to comply with any Applicable Securities Laws; |
| (g) | any steps, circumstances, actions, payments, transactions or events arising under or in connection with
or related to any regulatory, anti-trust or competition approval, licence, consent or authorisation necessary or desirable to be obtained
in connection with the Transaction (including any local and/or operational carve-out structures) and/or any steps, circumstances, actions,
payments, transactions or events arising under or in connection with or related to any request or other action or step by any regulatory,
anti-trust or competition authority, the US Securities and Exchange Commission, the Swedish Financial Supervisory Authority or any other
Relevant Regulator (or any similar or equivalent person to any of the foregoing in any jurisdiction) (or, in each case, the actions or
intermediate steps necessary to implement any of those steps, circumstances, actions, payments, transactions or events); |
| (h) | any steps, circumstances, actions, payments, transactions or events arising under, contemplated by or
relating to any Delisting and/or Squeeze-Out (or, in each case, any intermediate steps or actions necessary to implement such steps, circumstances,
actions, payments, transactions or events; |
| (i) | any steps, circumstances, actions, payments, transactions or events not prohibited by or permitted under
the Existing Facilities; |
| (j) | any transaction to which the Interim Facility Agent (acting on the instructions of the Majority Interim
Lenders) shall have given prior written consent; and/or |
| (k) | any action to be taken by a member of the Group that, in the reasonable opinion of the Obligors' Agent,
is necessary to implement or complete any Acquisition or has arisen as part of the negotiations with any shareholders of the Target Group,
senior management of the Target Group, any Relevant Regulator or any anti-trust authority, regulatory authority, pensions trustee, pensions
insurer, works council or trade union (or any similar or equivalent person to any of the foregoing in any jurisdiction). |
Preferred
Stock as applied to the Capital Stock of any Person, means Capital Stock of any class or classes (however designated) which
is preferred as to the payment of dividends or as to the distribution of assets upon any voluntary or involuntary liquidation or dissolution
of such Person, over shares of Capital Stock of any other class of such Person.
Pre-Funding
Date means the date on which an Interim Pre-Funding Loan is made or to be made.
Pre-Funding
Repayment Amount means, at the relevant time, the aggregate outstanding principal amount of any Interim Pre-Funding Loans.
Pre-Funding
Repayment Date means the date falling two (2) Business Days following (and excluding) the Proposed Settlement Date
(or such other date as may be agreed between the Company and the Interim Facility Agent (acting on the instructions of the Majority Interim
Lenders (acting reasonably))).
Proposed
Settlement Date means the expected day for the Settlement Date specified by the Company falling not more than eight (8) Business
Days after the Pre-Funding Date (or such other date as may be agreed between the Company and the Interim Facility Agent (acting on the
instructions of the Majority Interim Lenders (acting reasonably))).
Qualifying
Interim Lender means, for the purposes of an Interim Loan, an Interim Lender which is beneficially entitled (in the case
of a Treaty Interim Lender, within the meaning of the relevant Treaty) to interest payable by the relevant Obligor to that Interim Lender
and is:
| (a) | an Interim Lender which is able under domestic Luxembourgish law to receive such interest payments in
respect of the Interim Facility from the relevant Obligor without a Tax Deduction imposed by Luxembourg (other than pursuant to a Treaty);
or |
| (b) | a Treaty Interim Lender. |
Rate
Fixing Day means, in relation to any period for which an interest rate is to be determined two (2) US Government Securities
Business Days before the first day of that period, unless market practice differs in the relevant interbank market, in which case, the
Rate Fixing Day will be determined by the Interim Facility Agent in accordance with market practice in that interbank market (and, if
quotations would normally be given by leading banks in that interbank market on more than one day, the Rate Fixing Day will be the last
of those days).
Receiver
means a receiver, receiver and manager or administrative receiver of the whole or any part of the Charged Property.
Reference
Banks means, in relation to the Funding Cost, the principal London offices of such banks or financial institutions as may
be appointed by the Interim Facility Agent after consultation with the Obligors' Agent and which consents to its appointment.
Refinancing
means the Target Refinancing and/or the Group Refinancing.
Related
Fund in relation to a fund (the first fund), means a fund which is managed or advised by the same investment
manager or investment adviser as the first fund or, if it is managed by a different investment manager or investment adviser, a fund whose
investment manager or investment adviser is an Affiliate of the investment manager or investment adviser of the first fund.
Relevant
Regulator means the Swedish Financial Supervisory Authority, the Swedish Securities Council, the US Securities and Exchange
Commission, the CSSF, any securities exchange, or any other entity, agency, body, governmental authority or person that has regulatory
or supervisory authority or other similar power in connection with any Acquisitions.
Reservations
means the principle that equitable remedies may be granted or refused at the discretion of the court, the limitation on
enforcement by laws relating to bankruptcy, insolvency, liquidation, reorganisation, court schemes, moratoria, administration and other
laws generally affecting the rights of creditors and secured creditors, the time barring of claims under any applicable limitation statutes,
the possibility that a court may strike out a provision of a contract for recession or oppression, undue influence or similar reason,
the possibility that an undertaking to assume liability for or to indemnify a person against non-payment of stamp duty may be void, defences
of acquiescence, set-off or counterclaim and similar principles, the principles that in certain circumstances a Security Interest granted
by way of fixed charge may be recharacterised as a floating charge or that a Security Interest purported to be constituted as an assignment
may be recharacterised as a charge, the principle that additional or default interest imposed pursuant to any relevant agreement may be
held to be unenforceable on the grounds that it is a penalty and thus void, the principle that a court may not give effect to an indemnity
for legal costs incurred by an unsuccessful litigant, the principle that the creation or purported creation of a Security Interest over
any asset not beneficially owned by the relevant charging company at the date of the relevant security document or over any contract or
agreement which is subject to a prohibition on transfer, assignment or charging may be void, ineffective or invalid and may give rise
to a breach of the contract or agreement over which a Security Interest has purportedly been created, the principle that a court may not
give effect to any parallel debt provisions, covenant to pay the Interim Security Agent or other similar provisions, similar principles,
rights and defences under the laws of any jurisdiction in which the relevant obligation may have to be performed and any other matters
which are set out in the reservations or qualifications (however described) as to matters of law which are referred to in any legal opinion
referred to in paragraph 3 (Legal Opinions) of Part I (Conditions Precedent to Signing) of Schedule 3 (Conditions
Precedent) or under any other provision of or otherwise in connection with any Interim Finance Document.
Restricted
Finance Party means an Interim Finance Party that notifies the Interim Facility Agent that a Sanctions Provision would
result in a violation of, a conflict with or liability under:
| (a) | EU Regulation (EC) 2271/96 (as amended from time to time and including, for the avoidance of doubt, its
relevance under United Kingdom domestic law by virtue of the UK European Union (Withdrawal) Act 2018); |
| (b) | the UK Protection of Trading Interests legislation; or |
| (c) | any similar applicable anti-boycott statute. |
Restricted
Member of the Group means a member of the Group in respect of which the Obligors' Agent notifies the Interim Facility Agent
that a Sanctions Provision would result in a violation of, a conflict with or liability under:
| (a) | EU Regulation (EC) 2271/96 (as amended from time to time and including, for the avoidance of doubt, its
relevance under United Kingdom domestic law by virtue of the UK European Union (Withdrawal) Act 2018); |
| (b) | the UK Protection of Trading Interests legislation; or |
| (c) | any similar applicable anti-boycott statute. |
Sanctioned
Country means, at any time, a country or territory which is the target of comprehensive Sanctions, which includes, as at
the date of this Agreement, Cuba, Iran, North Korea, Syria and the Crimea, so-called People's Republic of Donetsk and so-called People's
Republic of Luhansk regions of Ukraine).
Sanctioned
Person means any person that is (or persons that are):
| (a) | listed on, or, to the extent such ownership or control makes the person subject to the Sanctions restrictions
imposed on the listed person, owned or controlled (as such terms are defined and interpreted by the relevant Sanctions) by a person listed
on any Sanctions List; or |
| (b) | resident in, or incorporated under the laws of any Sanctioned Country, or to the best of the Company's
knowledge otherwise a target of Sanctions, |
provided
that, in the case of paragraphs (a) or (b) above, a person shall not be deemed to be a Sanctioned Person if transactions
or dealings with such person are not prohibited under applicable Sanctions or under a licence, licence exemption or other authorisation
of a Sanctions Authority.
Sanctions
means any economic, trade or financial sanctions laws, regulations, embargoes or restrictive measures imposed, enacted,
administered or enforced from time to time by any Sanctions Authority.
Sanctions
Authority means (a) the United States, (b) the United Nations Security Council, (c) the European Union and
any Member State, (d) the United Kingdom and (e) the respective governmental institutions of any of the foregoing which administer
Sanctions, including OFAC, the US State Department, the US Department of Commerce and the US Department of the Treasury.
Sanctions
List means the ''Specially Designated Nationals and Blocked Persons'' list issued by OFAC, the Consolidated List
of Financial Sanctions Targets issued by HM Treasury, or any similar list issued or maintained and made public by any of the Sanctions
Authorities as amended, supplemented or substituted from time to time.
Sanctions
Provision means paragraphs (c) to (f) of Clause 23.2 (Undertakings).
Securities
Act means the Securities Act of 1933, as amended, and the rules and regulations of the US Securities and Exchange
Commission (or any successor thereto) promulgated thereunder.
Security
Interest means any mortgage, charge (fixed or floating), pledge, lien, hypothecation, right of set-off, security trust,
assignment, reservation of title or other security interest and any other agreement (including a sale and repurchase arrangement) having
the commercial effect of conferring security.
Settlement
Date means the first settlement date of the Offer in accordance with the Offer Document.
SOFR
means the secured overnight financing rate administered by the Federal Reserve Bank of New York (or any other person which takes over
the administration of that rate) published by the Federal Reserve Bank of New York (or any other person which takes over the publication
of that rate).
Squeeze-Out
means the squeeze-out procedure to acquire the Target Shares held by the Minority Shareholders of the Target under the applicable laws
including any procedure for exercise of sell-out rights of the Minority Shareholders arising with respect to the Target Shares under the
applicable laws.
Subordinated
Shareholder Document means any document creating Subordinated Shareholder Liabilities.
Subordinated
Shareholder Liabilities means any loan or other indebtedness owed by an Obligor to Topco or any other (direct or indirect)
shareholder of an Obligor, provided that such loan or indebtedness is subordinated pursuant to the provisions of paragraph (a) of
Clause 15 (Subordination) or on substantially the same terms as the provisions of paragraph (a) of Clause 15 (Subordination)
or otherwise on terms satisfactory to the Interim Facility Agent (acting on the instructions of the Majority Interim Lenders (acting reasonably)).
Subsidiary
means, in relation to any person:
| (a) | an entity (including a partnership) of which that person has direct or indirect control; and |
| (b) | an entity of which a person has direct or indirect control or owns directly or indirectly more than 50
per cent. of the voting capital or similar right of ownership, |
and, for this purpose, control means
the direct or indirect ownership of a majority of the voting share capital or similar ownership rights of that entity, or the right or
ability to determine the composition of a majority of the board of directors (or equivalent body) of such entity or otherwise to direct
the management of such entity whether by virtue of ownership of share capital, contract or otherwise.
Sweden
means the Kingdom of Sweden.
Swedish
Financial Supervisory Authority means the Financial Supervisory Authority of the Kingdom of Sweden (Sw. Finansinspektionen)
or any successor thereto.
Swedish
Offer Regulations means the Takeover Rules for Nasdaq Stockholm and Nordic Growth Market NGM issued
on 1 January 2024.
Swedish
Takeover Rules means the Swedish Offer Regulations, the Swedish Securities Council’s (Sw. Aktiemarknadsnämnden)
statements and rulings regarding the interpretation and application of the Swedish Offer Regulations, the Swedish Takeovers Act (Sw. lag
(2006:451) om offentliga uppköpserbjudanden på aktiemarknaden) and the Swedish Financial Instruments Trading Act (Sw. lag
(1991:980) om handel med finansiella instrument).
Target
means Millicom International Cellular S.A.
Target
Common Shares means the outstanding common shares, nominal value $1.50 per share of the Target.
Target
Existing Facilities has the meaning given to that term in paragraph (b)(i) of Clause 3.3 (Purpose).
Target
Group means the Target and its Subsidiaries.
Target
Refinancing has the meaning given to that term in paragraph (b)(i) of Clause 3.3 (Purpose).
Target
SDRs means the Swedish Depositary Receipts representing Target Common Shares (each Swedish Depositary Receipt represents
one such Target Common Shares).
Target
Share Post-Settlement Open Market Acquisition Reference Price means, in relation to any Target Share Post-Settlement Open
Market Acquisition Utilisation, the higher of:
| (a) | the volume-weighted average price expressed in USD per one Target Share for the most recent day for which
such information is available prior to the date of the Utilisation Request for that Target Share Post-Settlement Open Market Acquisition
Utilisation; and |
| (b) | the weighted average purchase price expressed in USD per one Target Share offered by the Company for the
Target Share Post-Settlement Open Market Acquisitions to be financed by that Target Share Post-Settlement Open Market Acquisition Utilisation,
in each case, as determined by the Company (acting in good faith) and specified in the Utilisation Request for that Target Share Post-Settlement
Open Market Acquisition Utilisation. |
For purposes of clause (a),
the Company may use any price information available for the Target Common Shares in regular trading on the Nasdaq Stock Market in the
US and/or Target SDRs in regular trading on the Nasdaq Stockholm in Sweden and any exchange rates in each as determined by the Company
(acting in good faith) including any such price information and/or exchange rates published on Bloomberg.
Target
Share Post-Settlement Open Market Acquisition means an open market purchase by the Company of Target Shares after the Settlement
Date.
Target
Share Post-Settlement Open Market Acquisition Utilisation means any Utilisation of Interim Facility B2 after the Settlement
Date for financing a Target Share Post-Settlement Open Market Acquisition.
Target
Share Reference Price means (a) in relation to any Utilisation of Interim Facility B2 other than a Target Share Post-Settlement
Open Market Acquisition Utilisation, $24 per one Target Share and (b) in relation to any Target Share Post-Settlement Open Market
Acquisition Utilisation, the Target Share Post-Settlement Open Market Acquisition Reference Price.
Target
Shares means the Target Common Shares and the Target SDRs.
Target
Share Value means, at any date of determination, an amount in Dollars equal to (a) the number of Target Shares beneficially
owned (as defined in Rules 13d-3 and 13d-5 of the Exchange Act) by the Company (pro forma for the completion of all Acquisitions
in connection with which the Target Share Value is calculated) multiplied by (b) the Target Share Reference Price.
Tax
means any present or future tax, levy, assessment, impost, deduction, duty or withholding or any charge of a similar nature (including
any related interest, penalty or fine) imposed or levied by any government or other taxing authority, and Taxes and Taxation
shall be construed accordingly.
Tax
Credit means a credit against or a relief or remission for, or refund, rebate or repayment of, any Tax.
Tax
Deduction means a deduction or withholding for or on account of Tax from any payment under an Interim Finance Document,
other than a FATCA Deduction.
Tax
Structure Memorandum means the tax structure memorandum provided to the Interim Facility Agent under sub-paragraph 5 (Tax
Structure Memorandum) of Part I (Conditions Precedent to Signing) of Schedule 3 (Conditions Precedent).
Term
SOFR means in relation to any Interim Loan in USD:
| (a) | the term SOFR reference rate administered by CME Group Benchmark Administration Limited (or any other
person which takes over the administration of that rate) for the relevant period published (before any correction, recalculation or republication
by the administrator) by CME Group Benchmark Administration Limited (or any other person which takes over the publication of that rate)
and if such page or service is replaced or ceases to be available, the Interim Facility Agent may specify another page or service
displaying the relevant rate in accordance with Clause 8.5 (Replacement of Screen Rate). |
| (b) | (if the term SOFR reference rate is not available for the Interest Period of that Interim Loan) Interpolated
Term SOFR (rounded to the same number of decimal places as Term SOFR) for that Interim Loan; or |
| (i) | no term SOFR reference rate is available for the Interest Period of that Interim Loan; and |
| (ii) | it is not possible to calculate Interpolated Term SOFR for that Interim Loan, |
the USD Central Bank Rate (or if the
USD Central Bank Rate is not available on the Rate Fixing Day, most recent USD Central Bank Rate for a day which is no more than five
US Government Securities Business Days before the relevant Rate Fixing Day),
as of, in the case of paragraphs (a) and
(c) above the Rate Fixing Day for USD and for a period equal in length to the Interest Period of that Interim Loan.
Total
Interim Commitments means at any time the aggregate of the Total Interim Facility B Commitments and the Total Interim Revolving
Facility Commitments.
Total
Interim Facility B Commitments means the Total Interim Facility B1 Commitments and/or the Total Interim Facility B2 Commitments
(as the context requires).
Total
Interim Facility B1 Commitments means at any time the aggregate of the Interim Facility B1 Commitments, being an amount
not exceeding $2,600,000,000.00.
Total
Interim Facility B2 Commitments means at any time the aggregate of the Interim Facility B2 Commitments, being an amount
not exceeding $900,000,000.00.
Total
Interim Facility B3 Commitments means at any time the aggregate of the Interim Facility B3 Commitments, being an amount
not exceeding $3,800,000,000.00.
Total
Interim Revolving Facility Commitments means the Total Interim Revolving Facility 1 Commitments and/or the Total Interim
Revolving Facility 2 Commitments (as the context requires).
Total
Interim Revolving Facility 1 Commitments means at any time the aggregate of the Interim Revolving Facility 1 Commitments,
being an amount not exceeding $100,000,000.00.
Total
Interim Revolving Facility 2 Commitments means at any time the aggregate of the Interim Revolving Facility 2 Commitments,
being an amount not exceeding $600,000,000.00.
Transaction
has the meaning given to that term in the Commitment Letter.
Transaction
Documents means the Interim Finance Documents, the Acquisition Documents and (in each case) all documents and agreements
relating to them.
Transfer
Certificate means a certificate substantially in the form set out in Schedule 7 (Form of Transfer Certificate)
or in any other form agreed between the Interim Facility Agent and the Obligors' Agent.
Transfer
Date means, in relation to an assignment or a transfer, the later of:
| (a) | the proposed Transfer Date specified in the relevant Assignment Agreement or Transfer Certificate; and |
| (b) | the date on which the Interim Facility Agent executes the relevant Assignment Agreement or Transfer Certificate. |
Treaty
Interim Lender means, for the purposes of an Interim Loan, an Interim Lender which is beneficially entitled to interest
payable by the relevant Obligor to that Interim Lender and which:
| (a) | is treated as a resident of a Treaty State for the purposes of the relevant Treaty and is entitled to
the benefit of the relevant Treaty; |
| (b) | does not carry on a business in Luxembourg through a permanent establishment (as such term is defined
for the purposes of the relevant Treaty) with which that Interim Lender's participation in the Interim Loan is effectively connected;
and |
| (c) | fulfils all other conditions which must be fulfilled under the relevant Treaty and Luxembourgish law in
order to obtain full exemption from Tax imposed by Luxembourg on the relevant payment, including the completion of any necessary procedural
formalities. |
Treaty
State means a jurisdiction having a double taxation agreement (a Treaty) in force with Luxembourg which makes
provision for full exemption from Tax imposed by Luxembourg on interest.
Underwriters
means the Affiliates of the Arrangers described as the Underwriters in the Commitment Letter.
US
means the United States of America.
US
Code means the US Internal Revenue Code of 1986 (and any successor legislation thereto), as amended from time to time.
US
Securities and Exchange Commission means the Securities and Exchange Commission of the US or any successor thereto.
USD
Central Bank Rate means the percentage rate per annum which is the aggregate of:
| (a) | the short-term interest rate target set by the US Federal Open Market Committee as published by the Federal
Reserve Bank of New York from time to time or, if that target is not a single figure, the arithmetic mean of (i) the upper bound
of the short-term interest rate target range set by the US Federal Open Market Committee and published by the Federal Reserve Bank of
New York, and (ii) the lower bound of that target range; and |
| (b) | the applicable USD Central Bank Rate Adjustment. |
USD
Central Bank Rate Adjustment means, in relation to the USD Central Bank Rate prevailing at close of business on any US
Government Securities Business Day, the 20% trimmed arithmetic mean (calculated by the Agent) of the USD Central Bank Rate Spreads for
the five most immediately preceding US Government Securities Business days for which Term SOFR is available.
USD
Central Bank Rate Spread means, in relation to any US Government Securities Business Day, the difference (expressed as
a percentage rate per annum) calculated by the Agent of (i) Term SOFR for that Business Day; and (ii) the USD Central Bank Rate
prevailing at close of business on that US Government Securities Business Day.
USD
Term Rate Loan means an Interim Loan which is denominated in US Dollars.
US
Government Securities Business Day means any day other than:
| (a) | a Saturday or a Sunday; and |
| (b) | a day on which the Securities Industry and Financial Markets Association (or any successor organization)
recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in US Government securities. |
VAT
means:
| (a) | any tax imposed in compliance with the Council Directive of 28 November 2006 on the common system
of value added tax (EC Directive 2006/112) (as amended) and any national legislation implementing that Directive or any predecessor to
it or supplemental to that Directive; and |
| (b) | any other tax of a similar nature, whether imposed in a member state of the European Union in substitution
for, or levied in addition to, such tax referred to in paragraph (a) above, or imposed elsewhere. |
Part II
Other References
| 1. | In this Agreement, unless a contrary intention appears, a reference to: |
| (a) | an agreement includes any legally binding arrangement, contract, deed or instrument (in
each case, whether oral or written); |
| (b) | an amendment includes any amendment, supplement, variation, novation, modification, replacement
or restatement (however fundamental), and amend and amended shall be construed accordingly; |
| (c) | assets includes properties, assets, businesses, undertakings, revenues and rights of every
kind (including uncalled share capital), present or future, actual or contingent, and any interest in any of the above; |
| (d) | a consent includes an authorisation, permit, approval, consent, exemption, licence, order,
filing, registration, recording, notarisation, permission or waiver; |
| (e) | a disposal includes any sale, transfer, grant, lease, licence or other disposal, whether
voluntary or involuntary, and dispose will be construed accordingly; |
| (f) | financial indebtedness means any indebtedness for or in respect of: |
| (i) | moneys borrowed and debit balances at banks or other financial institutions; |
| (ii) | any acceptance under any acceptance credit or bill discounting facility (or dematerialised equivalent); |
| (iii) | any note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument
other than performance bonds or documentary letters of credit issued in respect of obligations of the Group arising under the ordinary
course of trading; |
| (iv) | the amount of any liability in respect of finance leases; |
| (v) | receivables sold or discounted; |
| (vi) | any derivative transaction entered into in connection with protection against or benefit from fluctuation
in any rate or price (and, when calculating the value of such transaction, only the marked to market value (or, if any actual amount is
due as a result of the termination or close-out of such transaction, that amount) shall be taken into account); |
| (vii) | any counter-indemnity obligation in respect of a guarantee, bond, standby or documentary letter of credit
or any other instrument issued by a bank or financial institution in respect of payment obligations; |
| (viii) | any amount raised by the issue of redeemable shares which are redeemable (other than at the option of
the issuer) before the date falling three (3) years after the date of this Agreement; |
| (ix) | any amount of any liability under an advance or deferred purchase agreement if the primary reason behind
entering into the agreement is to raise finance; |
| (x) | any amount raised under any other transaction (including any forward sale or purchase, sale and sale back
or sale and leaseback agreement) having the commercial effect of a borrowing and classified as borrowings under IFRS; and |
| (xi) | the amount of any liability in respect of any guarantee for any of the items referred to in (i) to
(x) above; |
| (g) | a guarantee includes (other than in Schedule 4 (Guarantee and Indemnity)): |
| (i) | an indemnity, counter-indemnity, guarantee or similar assurance against loss in respect of any indebtedness
of any other person; and |
| (ii) | any other obligation of any other person, whether actual or contingent, to pay, purchase, provide funds
(whether by the advance of money to, the purchase of or subscription for shares or other investments in, any other person, the purchase
of assets or services, the making of payments under an agreement or otherwise) for the payment of, to indemnify against the consequences
of default in the payment of, or otherwise be responsible for, any indebtedness of any other person; |
and guaranteed and guarantor
shall be construed accordingly;
| (h) | including means including without limitation, and includes and included
shall be construed accordingly; |
| (i) | indebtedness includes any obligation (whether incurred as principal, guarantor or surety
and whether present or future, actual or contingent) for the payment or repayment of money; |
| (j) | losses includes losses, actions, damages, claims, proceedings, costs, demands, expenses
(including legal and other fees) and liabilities of any kind, and loss shall be construed accordingly; |
| (k) | a month means a period starting on one day in a calendar month and ending on the numerically
corresponding day in the next calendar month, except that: |
| (i) | (subject to paragraph (iii) below) if any such period would otherwise end on a day which is not a
Business Day, it shall end on the next Business Day in the same calendar month or, if there is none, on the preceding Business Day; |
| (ii) | if there is no numerically corresponding day in the month in which that period is to end, that period
shall end on the last Business Day in that later month; and |
| (iii) | if an Interest Period begins on the last Business Day of a calendar month, that Interest Period shall
end on the last Business Day in the calendar month in which that Interest Period is to end, |
and references to months
shall be construed accordingly;
| (l) | a Major Event of Default being outstanding or continuing means that such Major
Event of Default has occurred or arisen and has not been remedied or waived; |
| (m) | an Acceleration Notice being outstanding means that such Acceleration Notice provided by
the Interim Facility Agent under paragraph (a)(ii) of Clause 7.1 (Repayment) has not been revoked, withdrawn or cancelled
by the Interim Facility Agent or otherwise ceases to have effect; |
| (n) | a person includes any individual, trust, firm, fund, company, corporation, partnership,
joint venture, government, state or agency of a state or any undertaking or other association (whether or not having separate legal personality); |
| (o) | a regulation includes any regulation, rule, official directive, request or guideline (whether
or not having the force of law but if not having the force of law compliance with which is customary) of any governmental or supranational
body, agency, department or regulatory, self-regulatory or other authority or organisation; |
| (p) | a sub-participation means any sub-participation or sub-contract (whether written or oral)
or any other agreement or arrangement having an economically substantially similar effect, including any credit default or total return
swap or derivative (whether disclosed, undisclosed, risk or funded) by an Interim Lender of or in relation to any of its rights or obligations
under, or its legal, beneficial or economic interest in relation to, the Interim Facilities and/or Interim Finance Documents to a counterparty
and sub-participate shall be construed accordingly; and |
| (q) | € and euro denotes the single currency unit of the Participating Member
States. |
| (r) | $, USD and US Dollars denote the lawful currency of the US. |
| 2. | In this Agreement, unless a contrary intention appears: |
| (a) | a reference to a Party includes a reference to that Party's successors and permitted assignees or permitted
transferees but does not include that Party if it has ceased to be a Party under this Agreement; |
| (b) | references to paragraphs, Clauses, Schedules and Parts are references to, respectively, paragraphs, clauses
of, schedules to and parts of schedules to this Agreement and references to this Agreement include its schedules; |
| (c) | a reference to (or to any specified provision of) any agreement (including any of the Interim Finance
Documents) is to that agreement (or that provision) as amended or novated (however fundamentally) and includes any increase in, extension
of or change to any facility made available under any such agreement (unless such amendment or novation is contrary to the terms of any
Interim Finance Document); |
| (d) | a reference to a statute, statutory instrument or provision of law is to that statute, statutory instrument
or provision of law, as it may be applied, amended or re-enacted from time to time; |
| (e) | a reference to a time of day is, unless otherwise specified, to London time; and |
| (f) | the index to and the headings in this Agreement are for convenience only and are to be ignored in construing
this Agreement. |
| 3. | In this Agreement, where it relates to a company incorporated or having its centre of main interests in
Luxembourg, a reference to: |
| (a) | a winding-up, administration, liquidation or dissolution
includes, without limitation, any procedure or proceeding in relation to an entity becoming bankrupt (faillite), insolvency, voluntary
or judicial liquidation (liquidation volontaire ou judiciaire), administrative dissolution without liquidation (dissolution
administrative sans liquidation), moratorium or reprieve from payment (sursis de paiement), judicial reorganization (réorganisation
judiciaire), general settlement with creditors, reorganisation or any other similar proceedings affecting the rights of creditors
generally under Luxembourg law; |
| (b) | a reorganisation includes judicial reorganisation (réorganisation judiciaire); |
| (c) | an agent includes without limitation, a "mandataire"; |
| (d) | a liquidator, receiver, administrative receiver, administrator
or the like includes: |
| (i) | insolvency receiver (curateur) or juge-commissaire appointed under the Luxembourg Commercial
Code; |
| (ii) | liquidateur appointed under Articles 1100-1 to 1100-15 (inclusive) of the Luxembourg law of 10
August 1915 on commercial companies, as amended from time to time (the Luxembourg Companies Act 1915); |
| (iii) | liquidateur or juge-commissaire appointed under Article 1200-1 of the Luxembourg Companies
Act 1915; and |
| (iv) | administrateur provisoire appointed under the Luxembourg law of 7 August 2023 on business
continuity and the modernisation of bankruptcy (the Luxembourg Business Continuity Act); |
| (e) | Security or a security interest includes, without limitation, any hypothèque,
nantissement, gage, privilège, accord de transfert de propriété à titre de garantie, gage
sur fonds de commerce, droit de rétention or sûreté réelle whatsoever whether granted or
arising by operation of law; |
| (f) | a person being unable to pay its debts includes that person being in a state of suspension
or cessation of payments (cessation de paiements) and having lost or meeting the criteria to lose its commercial creditworthiness
(ébranlement de crédit); and |
| (g) | a set-off includes, for purposes of Luxembourg law, legal set-off. |
| 4. | A Bank Guarantee is repaid or prepaid (or any derivative form thereof) to the extent that: |
| (a) | an Obligor provides cash cover for that Bank Guarantee or complies with its obligations under paragraph
1 (Immediately payable) and/or paragraph (b) of paragraph 6 (Claims under a Bank Guarantee) of Schedule 9 (Bank
Guarantees); |
| (b) | the maximum amount payable under the Bank Guarantee is reduced or cancelled in accordance with its terms
or otherwise reduced or cancelled in a manner satisfactory to the Issuing Bank in respect of such Bank Guarantee (acting reasonably); |
| (c) | the Bank Guarantee is returned by the beneficiary with its written confirmation that it is released and
cancelled; |
| (d) | a bank or financial institution with a long-term corporate credit rating from Moody's Investor Services
Limited, Standard & Poor's Rating Services or Fitch Ratings Ltd at least equal to A-/A3 has issued a guarantee, indemnity, counter-indemnity
or similar assurance against financial loss in respect of amounts due under that Bank Guarantee; or |
| (e) | the Issuing Bank in respect of such Bank Guarantee (acting reasonably) has confirmed to the Interim Facility
Agent that it has no further liability under or in respect of that Bank Guarantee, |
and the amount by which a Bank Guarantee
is repaid or prepaid under paragraphs (a) to (d) above is the amount of the relevant cash cover, payment, release, cancellation,
guarantee, indemnity, counter-indemnity, assurance or reduction.
| 5. | The outstanding amount of a Bank Guarantee at any time is the maximum amount that is or may be payable
by the relevant Issuing Bank in respect of that Bank Guarantee at that time less any amount of cash cover provided in respect of that
Bank Guarantee or otherwise repaid or prepaid. |
| 6. | An Obligor provides cash cover for a Bank Guarantee if it pays an amount in the currency of the
Bank Guarantee to an interest-bearing account with the relevant Issuing Bank in the name of the Obligor on the basis that the only withdrawals
which may be made from such account (other than in respect of accrued interest) are withdrawals to pay the Issuing Bank amounts due and
payable to it under this Agreement following any payment made by it under such Bank Guarantee (unless the relevant Bank Guarantee is repaid
or prepaid as contemplated by Schedule 9 (Bank Guarantees) or any such withdrawal is made by the Issuing Bank at the direction,
and on behalf of, the Obligor for the purpose of satisfying any and all of the liabilities which are the subject of such Bank Guarantees)
and, for the purposes of this Agreement, a Bank Guarantee shall be deemed to be cash covered to the extent of any such provision of cash
cover. If required by the relevant Issuing Bank, the relevant Obligor shall (subject to any applicable legal or regulatory restrictions)
execute and deliver an additional Interim Security Document creating first ranking security over any such account held with it. |
| 7. | Notwithstanding any other term of the Interim Finance Documents, in this Agreement: |
| (a) | a reference to the assets of an Obligor shall exclude the assets of any member of the Target Group and
other Group Company; and |
| (b) | no matter or circumstance in respect of, or breach by, any member of the Target Group or any member of
the Group which is not an Obligor shall relate to an Obligor or otherwise be deemed to constitute, or result in, a breach of any representation,
warranty, undertaking or other term in the Interim Finance Documents, to have a Material Adverse Effect or to have a Major Event of Default. |
| 8. | Sanctions and Restricted Finance Parties |
| (a) | A Sanctions Provision shall only: |
| (i) | be given by a Restricted Member of the Group; or |
| (ii) | apply for the benefit of a Restricted Finance Party, |
to the extent that that Sanctions Provision
would not result in any violation by or expose of such entity or any directors, officer or employee thereof to any liability under any
anti-boycott or blocking law, regulation or statute that is in force from time to time in the United Kingdom, the European Union and/or
any Member State) that are applicable to such entity, including (x) EU Regulation (EC) 2271/96 (as amended from time to time and
including, for the avoidance of doubt, its relevance under United Kingdom domestic law by virtue of the UK European Union (Withdrawal)
Act 2018); and (y) the UK Protection of Trading Interests legislation.
| (b) | In connection with any amendment, waiver, determination or direction relating to any part of a Sanctions
Provision in relation to which: |
| (i) | an Interim Finance Party is a Restricted Finance Party; and |
| (ii) | in accordance with paragraph (a) above, that Restricted Finance Party does not have the benefit of
it: |
| (A) | the Interim Commitments of an Interim Lender that is a Restricted Finance Party; and |
| (B) | the vote of any other Restricted Finance Party which would be required to vote in accordance with the
provisions of this Agreement, |
shall be excluded for the purpose of calculating
the Total Interim Commitments under the Interim Facility when ascertaining whether any relevant percentage of Total Interim Commitments
has been obtained to approve such amendment, waiver, determination or direction request and its status as an Interim Finance Party shall
be disregarded for the purpose of ascertaining whether the agreement of any specified group of Interim Finance Parties has been obtained
to approve such amendment, waiver, determination or direction.
In this Agreement, where it relates
to any French entity and unless the contrary intention appears, a reference to:
| (a) | an administration, winding-up or dissolution includes a redressement
judiciaire, cession totale de l'entreprise, a liquidation judiciaire, a sauvegarde (including a sauvegarde
accélérée) under articles L. 620-1 to L. 670-8 of the French Commercial Code; |
| (b) | a composition, compromise, assignment or arrangement with
any creditor includes a conciliation or a mandat ad hoc under articles L. 611-3 to L. 611-16 of the French Commercial
Code (other than in respect of Part III (Major Events of Default) of Schedule 5 (Major Representations, Undertakings and
Events of Default); |
| (c) | a compulsory manager, liquidator, receiver, administrative
receiver, administrator, trustee or other similar officer includes an administrateur
judiciaire, mandataire ad hoc, conciliateur, mandataire liquidateur or any other person appointed as a result of any
proceedings described in paragraphs (b) and (c) above and (l) below; |
| (d) | a moratoire includes a moratorium under a conciliation procedure in accordance with articles
L. 611-4 to L. 611-15 of the French Commercial Code (other than in respect of Part III (Major Events of Default) of Schedule
5 (Major Representations, Undertakings and Events of Default); and |
| (e) | a person being unable to pay its debts includes that person being in a state of cessation
des paiements as defined in article L. 631-1 of the French Commercial Code. |
Schedule
2
Requests
Part I
Form of Drawdown Request
| To: | [●] as Interim Facility
Agent |
Project Meria – Interim Facilities Agreement
dated [●] (as amended from time to time) (the Interim Facilities Agreement)
| 1. | We refer to the Interim Facilities Agreement. This is a Drawdown Request. Terms defined in the Interim
Facilities Agreement shall have the same meanings when used in this Drawdown Request. |
| 2. | We wish to borrow an Interim Loan on the following terms: |
Interim Facility: [●]
Drawdown Date: [●]
Amount: [●]
Currency: [●]
Interest Period: [●]
| 3. | Our [payment/delivery] instructions are: [●]. |
| 4. | We confirm that each condition specified in paragraphs (b)(i) to (b)(iii) of Clause 3.1 (Conditions
Precedent) is satisfied at the date of this Drawdown Request or will be satisfied on or before the proposed Drawdown Date. |
| 5. | The proceeds of this Interim Loan should be credited to [●]. |
| 6. | This Drawdown Request is irrevocable. |
| |
|
| For and on behalf of |
|
| [●] |
|
| (as Borrower) / (as Obligors' Agent) |
|
Part II
Bank Guarantee Request
| To: | [●] as Interim Facility
Agent |
[Company] SE – Interim Facilities
Agreement dated [●] (as amended from time to time) (the Interim Facilities Agreement)
| 1. | We refer to the Interim Facilities Agreement. This is a Bank Guarantee Request. Terms defined in the Interim
Facilities Agreement shall have the same meanings when used in this Bank Guarantee Request. |
| 2. | We wish to borrow a Bank Guarantee on the following terms: |
Interim Facility: Interim Revolving
Facility
Drawdown Date: [●]
Amount: [●]
Currency: [●]
Expiry Date: [●]
| 3. | Our instructions are: [●]. |
| 4. | A copy of the Bank Guarantee is attached. |
| 5. | We confirm that each condition specified in paragraphs (b)(i) to (b)(iii) of Clause 3.1 (Conditions
Precedent) is satisfied at the date of this Bank Guarantee Request or will be satisfied on or before the proposed Drawdown Date. |
| 6. | This Bank Guarantee Request is irrevocable. |
| |
|
| For and on behalf of |
|
| [●] |
|
| (as Borrower) |
|
Schedule
3
Conditions Precedent and Subsequent
Part I
Conditions Precedent to Signing
| (a) | Constitutional documents: a copy of the constitutional documents of each Obligor and Topco, being,
in respect of Topco, a certified copy of the by-laws (statuts) and an original copy of (i) a company search (extrait K-Bis)
and (ii) a non-bankruptcy certificate (certificat de non-faillite), each dated not earlier than 20 Business Days prior to
the date of this Agreement. |
| (b) | An excerpt from the RCS dated no earlier than one Business Day prior to the date of this Agreement of
the Company. |
| (c) | An electronic certificate as to the non-inscription of a court decision (certificat de non-inscription
d’une décision judiciaire) of the Company issued by the insolvency register (Registre de l’insolvabilité)
(Reginsol) held and maintained by the RCS dated no earlier than one Business Day prior to the date of this Agreement certifying that no
Luxembourg court decision as to inter alia bankruptcy (faillite), suspension of payments (sursis de paiement), judicial
reorganisation (reorganisation judiciaire), liquidation (liquidation judiciaire) or foreign court decision as to bankruptcy
(faillite), administrative dissolution without liquidation (dissolution administrative sans liquidation) or other analogous
procedures which have to be filed with the RCS in accordance with the law of 19 December 2002 relating to the register of commerce
and companies as well as the accounting and the annual accounts of companies, as amended, have been filed. |
| (d) | Board approvals: with respect to each Obligor and Topco, to the extent legally required or if required
by its constitutional documents or customary in the relevant jurisdiction, a copy of a resolution of the board of directors or managers
or equivalent body of each Obligor and Topco: |
| (i) | approving the terms of, and the transactions contemplated by, the Interim Finance Documents to which it
is a party and resolving that it execute the Interim Finance Documents to which it is a party; |
| (ii) | authorising a specified person or persons to execute the Interim Finance Documents to which it is a party
on its behalf; and |
| (iii) | authorising a specified person or persons, on its behalf, to sign and/or dispatch all documents and notices. |
| (e) | Specimen signatures: specimen signatures for the person(s) authorised in the resolutions referred
to above (to the extent such person will execute an Interim Finance Document). |
| (f) | Manager's certificates: A certificate from each Obligor and Topco (signed by an authorised signatory): |
| (i) | certifying that each copy document relating to it specified in paragraphs (a) to (e) above is
correct, complete and (to the extent executed) in full force and effect and has not been amended or superseded prior to the date of this
Agreement; and |
| (ii) | confirming that, subject to the guarantee limitations set out in this Agreement, borrowing, guaranteeing
or securing (as relevant) the Total Interim Commitments would not cause any borrowing, guarantee or security limit binding on it (as relevant)
to be exceeded. |
| 2. | Interim Finance Documents |
A copy of the counterparts of each of
the following documents duly executed by each Obligor and Topco (in each case to the extent they are a party to such document):
| (b) | the Interim Security Documents listed in the table below: |
| Name of Grantor |
Interim Security Document |
Governing law of
Security
Document |
| |
|
|
| Investors |
Limited
recourse security agreement granting third party security in respect of at least 25% of the total issued ordinary shares in Iliad
Holding (it being specified that such security may be granted over the full ownership of such shares or granted separately over the bare ownership
and the usufruct of such shares). |
France |
The following legal opinions:
| (i) | a legal opinion from Arendt as Luxembourg law counsel to the Obligors in respect of the Company's capacity
to enter into the Interim Finance Documents; and |
| (ii) | as to capacity a legal opinion from Kirkland & Ellis International LLP as French law counsel
to the Obligors in respect of Topco's capacity to enter into the Interim Finance Documents to which it is a party; and |
| (i) | a legal opinion from Latham & Watkins LLP as English law counsel to the Original Interim Lenders
in respect of the enforceability of this Agreement; and |
| (ii) | a legal opinion from Latham & Watkins A.A.R.P.I. as French law counsel to the Original Interim
Lenders in respect of the enforceability of the Interim Finance Documents governed by French law. |
A copy of the Offer Announcement, provided
that this condition precedent will be satisfactory to the Interim Facility Agent if the Offer Announcement is provided in the form received
by the Arrangers on or prior to the date of the Commitment Letter, save for any amendments or waivers:
| (a) | which are not materially adverse to the interests of the Original Interim Lenders (taken as a whole) under
the Interim Finance Documents; and/or |
| (b) | permitted under or not restricted by the terms of this Agreement. |
| 5. | Tax Structure Memorandum |
The tax structure report prepared by
Bredin Prat SAS entitled "Project Meria – Tax Structure Memorandum" (the Tax Structure Memorandum),
provided
that:
| (a) | no reliance will be given on the Tax Structure Memorandum as a condition precedent to funding; and |
| (b) | to the extent the Company (in its sole and absolute discretion) elects to deliver an updated Tax Structure
Memorandum to the Arrangers, Original Interim Lenders and Interim Facility Agent after the date of this Agreement, such updated Tax Structure
Memorandum shall be deemed to be in form and substance satisfactory to the Arrangers, Interim Lenders and Interim Facility Agent
if the final Tax Structure Memorandum is, in form and substance, substantially the same as the final versions or drafts (as applicable)
received by the Arrangers prior to the date of the Commitment Letter or, if later, this Agreement, save for any changes which are not
materially adverse to the interests of the Original Interim Lenders (taken as a whole) under the Interim Finance Documents or any other
changes approved by the Interim Facility Agent (acting reasonably on the instructions of the Majority Interim Lenders (each acting reasonably)
with such approval not to be unreasonably withheld, made subject to any condition or delayed). For the avoidance of doubt, the Company
and/or Topco may update the Tax Structure Memorandum from time to time and there shall be no requirement for any such updates to be provided
to any Interim Finance Party (and failure to provide such updates shall not affect the satisfaction of this condition). |
| (a) | Process Agent: evidence that the process agent appointed in respect of an Interim Finance Document
for each Obligor and Topco has accepted its appointment as agent for service of process. |
| (b) | KYC: completion of the Arrangers' reasonable "know your customer" checks on Topco
and the Company which are required and which (in each case) have been notified to the Obligors' Agent not later than ten (10) Business
Days prior to the date of this Agreement or if later, the date falling five (5) Business Days after the Arrangers receive notification
of the incorporation of each such company. |
Part II
Conditions Precedent to Interim Closing Date
| (a) | Offer Document: a copy of the Offer Document, provided that this condition precedent will
be satisfactory to the Interim Facility Agent if the Offer Document is provided in the form filed with the US Securities and Exchange
Commission and published as approved by the Swedish Financial Supervisory Authority and made available to all holders of Target Shares. |
| (b) | Closing Certificate: a certificate from an authorised signatory of the Company confirming that
on or prior to the Interim Closing Date the Offer has become unconditional. |
| (a) | Funds Flow Statement: (only if a statement of sources and uses is not included in the Tax Structure
Memorandum) a funds flow statement setting out the sources and uses for each Acquisition to be made on the Settlement Date, provided
that such funds flow statement shall not be required to be in a form and substance satisfactory to the Interim Facility Agent. |
| (b) | Fees: reasonable evidence that all fees then due and payable to the Interim Finance Parties for
their own account under the Fee Letter and each Interim Agency Fee Letter on the Interim Closing Date in connection with the Interim Facilities
will be paid concurrently with, or out of, the first advances under the Interim Facilities (or as otherwise agreed between the Obligors'
Agent and the Interim Facility Agent), provided that a reference to payment of such fees in a Drawdown Request, the Funds Flow
Statement or the Tax Structure Memorandum shall be deemed to be reasonable evidence such that this condition precedent is satisfactory
to the Interim Facility Agent. |
Part III
Conditions Subsequent
| 1. | Interim Finance Documents |
A copy of the counterparts of each of
the following Interim Security Documents executed by Topco and the Company (in each case to the extent they are a party to such document):
| Name of Grantor |
Interim Security Document |
Governing law of
Security
Document |
Timing |
| |
|
|
|
| Topco |
Limited recourse security agreement granting third party security in respect of Topco's shares in the capital of the Company. |
Luxembourg |
On the Interim Closing Date |
|
Topco |
Limited recourse receivables pledge agreement in respect of the receivables owed to Topco (as lender) by the Company (as borrower). |
Luxembourg |
On the Interim Closing Date |
| Company |
Account pledge agreement in respect of Target Shares and Cash (as defined therein). |
Luxembourg |
Within five (5) Business Days of the Interim Closing Date |
On or prior to the later of the Interim Closing Date and
the Settlement Date, the following legal opinions:
| (i) | a legal opinion from Arendt as Luxembourg law counsel to the Obligors in respect of the Company's capacity
to enter into the relevant Interim Finance Documents; and |
| (ii) | a legal opinion from Kirkland & Ellis International LLP as French law counsel to the Obligors
in respect of Topco's capacity to enter into the relevant Interim Finance Documents to which it is a party; and |
| (b) | as to enforceability, a legal opinion from Elvinger, Hoss Prussen, société anonyme
as Luxembourg law counsel to the Original Interim Lenders in respect of the enforceability of the relevant Interim Finance Documents governed
by Luxembourg law. |
Schedule
4
Guarantee and Indemnity
| 1. | Guarantee and indemnity |
Subject
to the limitations set out in paragraph 11 (Guarantee Limitation) below, the Guarantor irrevocably and unconditionally,
jointly and severally:
| (a) | guarantees to each Interim Finance Party punctual performance by each other Obligor of all its obligations
under the Interim Finance Documents; |
| (b) | undertakes with each Interim Finance Party that whenever an Obligor does not pay any amount when due (allowing
for any applicable grace period) under or in connection with any Interim Finance Document, that Guarantor shall immediately on demand
pay that amount as if it was the principal obligor; and |
| (c) | agrees with each Interim Finance Party that if any obligation guaranteed by it is or becomes unenforceable,
invalid or illegal, it will, as an independent and primary obligation, indemnify that Interim Finance Party immediately on demand against
any cost, loss or liability it incurs as a result of an Obligor not paying any amount which would, but for such unenforceability, invalidity
or illegality, have been payable by it under any Interim Finance Document on the date when it would have been due. The amount payable
by a Guarantor under this indemnity will not exceed the amount it would have had to pay under this paragraph 1 if the amount claimed had
been recoverable on the basis of a guarantee, |
(the Guarantee).
This guarantee is a continuing guarantee
and will extend to the ultimate balance of sums payable by an Obligor under the Interim Finance Documents, regardless of any intermediate
payment or discharge in whole or in part.
If any discharge, release or arrangement
(whether in respect of the obligations of any Obligor or any security for those obligations or otherwise) is made by an Interim Finance
Party in whole or in part on the basis of any payment, security or other disposition which is avoided or must be restored in insolvency,
liquidation, administration or otherwise, without limitation, then the liability of each Guarantor under this Schedule 4 will continue
or be reinstated as if the discharge, release or arrangement had not occurred.
The obligations of each Guarantor under
this Schedule 4 will not be affected by an act, omission, matter or thing which, but for this Schedule 4, would reduce, release or prejudice
any of its obligations under this Schedule 4 (whether or not known to it or any Interim Finance Party) including:
| (a) | any time, waiver or consent granted to, or composition with, any Obligor or other person; |
| (b) | the release of any Obligor or any other person under the terms of any composition or arrangement with
any creditor of any Group Company; |
| (c) | the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect,
take up or enforce, any rights against, or security over assets of, any Obligor or other person or any non-presentation or non-observance
of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security; |
| (d) | any incapacity or lack of power, authority or legal personality of or dissolution or change in the members
or status of an Obligor or any other person; |
| (e) | any amendment, novation, supplement, extension restatement (however fundamental and whether or not more
onerous) or replacement of an Interim Finance Document or any other document or security including any change in the purpose of, any extension
of or increase in any facility or the addition of any new facility under any Interim Finance Document or other document or security; |
| (f) | any unenforceability, illegality or invalidity of any obligation of any person under any Interim Finance
Document or any other document or security; or |
| (g) | any insolvency or similar proceedings. |
Without
prejudice to the generality of paragraph 4 (Waiver of defences) above and paragraph 11 (Guarantee Limitation) below,
each Guarantor expressly confirms that it intends that this guarantee shall extend from time to time to any (however fundamental and of
whatsoever nature and whether or not more onerous) variation, increase, extension or addition of or to any of the Interim Finance Documents
and/or any facility or amount made available under any of the Interim Finance Documents for the purposes of or in connection with any
of the following: business acquisitions of any nature; increasing working capital; enabling investor distributions to be made; carrying
out restructurings; refinancing existing facilities; refinancing any other indebtedness; making facilities available to new borrowers;
any other variation or extension of the purposes for which any such facility or amount might be made available from time to time; and
any fees, costs and/or expenses associated with any of the foregoing.
| (a) | Each Guarantor waives any right it may have of first requiring any Interim Finance Party (or any trustee
or agent on its behalf) to proceed against or enforce any other rights or security or claim payment from any person before claiming from
that Guarantor under this Schedule 4. |
| (b) | This waiver applies irrespective of any law or any provision of an Interim Finance Document to the contrary. |
Until all amounts which may be or become
payable by the Obligors under or in connection with the Interim Finance Documents have been irrevocably paid in full, each Interim Finance
Party (or any trustee or agent on its behalf) may:
| (a) | refrain from applying or enforcing any other moneys, security or rights held or received by that Interim
Finance Party (or any trustee or agent on its behalf) in respect of those amounts, or apply and enforce the same in such manner and order
as it sees fit (whether against those amounts or otherwise) and no Guarantor shall be entitled to the benefit of the same; and |
| (b) | in respect of any amounts received or recovered by any Interim Finance Party after a claim pursuant to
this guarantee in respect of any sum due and payable by any Obligor under this Agreement place such amounts in a suspense account (bearing
interest at a market rate usual for accounts of that type) unless and until such moneys are sufficient in aggregate to discharge in full
all amounts then due and payable under the Interim Finance Documents. |
| 8. | Deferral of Guarantors' rights |
Until all amounts which may be or become
payable by the Obligors under or in connection with the Interim Finance Documents have been irrevocably paid in full and unless the Interim
Facility Agent otherwise directs, no Guarantor will exercise any rights which it may have by reason of performance by it of its obligations
under the Interim Finance Documents:
| (a) | to be indemnified by an Obligor; |
| (b) | to claim any contribution from any other guarantor of any Obligor's obligations under the Interim Finance
Documents; |
| (c) | to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights
of the Interim Finance Parties under the Interim Finance Documents or of any other guarantee or security taken pursuant to, or in connection
with, the Interim Finance Documents by any Interim Finance Party; |
| (d) | to bring legal or other proceedings for an order requiring any Obligor to make any payment, or perform
any obligation, in respect of which any Guarantor has given a guarantee, undertaking or indemnity under paragraph 1 (Guarantee and
indemnity) above; |
| (e) | to exercise any right of set-off against any Obligor; and/or |
| (f) | to claim or prove as a creditor of any Obligor in competition with any Interim Finance Party. |
| 9. | Release of Guarantors' right of contribution |
If any Guarantor (a Retiring Guarantor)
ceases to be a Guarantor in accordance with the terms of the Interim Finance Documents for the purpose of any sale or other disposal of
that Retiring Guarantor then on the date such Retiring Guarantor ceases to be a Guarantor:
| (a) | that Retiring Guarantor is released by each other Guarantor from any liability (whether past, present
or future and whether actual or contingent) to make a contribution to any other Guarantor arising by reason of the performance by any
other Guarantor of its obligations under the Interim Finance Documents; and |
| (b) | each other Guarantor waives any rights it may have by reason of the performance of its obligations under
the Interim Finance Documents to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of
the Interim Finance Parties under any Interim Finance Document or of any other security taken pursuant to, or in connection with, any
Interim Finance Document where such rights or security are granted by or in relation to the assets of the Retiring Guarantor. |
This guarantee is in addition to and
is not in any way prejudiced by any other guarantee or security now or subsequently held by any Interim Finance Party.
| (a) | No Guarantor's obligations and liabilities under this Schedule 4 and under any other guarantee or indemnity
provision in any Interim Finance Document (the Guarantee Obligations) will extend to include any obligation or liability
and no Interim Security granted by a Guarantor will secure any Guarantee Obligation, if to the extent doing so would be unlawful financial
assistance (notwithstanding any applicable exemptions and/or undertaking of any applicable prescribed whitewash or similar financial assistance
procedures) in respect of the acquisition of shares in itself or its Holding Company or a member of the Group under the laws of its jurisdiction
of incorporation. |
| (b) | Notwithstanding anything to the contrary in this Agreement, the maximum liability and exposure of any
Obligor incorporated under the law of Luxembourg (a Luxembourg Guarantor) for the obligations of any other Obligor and Topco,
which is not a direct or indirect subsidiary of the Luxembourg Guarantor, shall be limited at any time to an aggregate amount not exceeding
ninety-five per cent. (95%) of: |
| (i) | the B Luxembourg Guarantor 's own funds (capitaux propres) (as referred to in annex I to the grand-ducal
regulation dated 18 December 2015 defining the form and content of the presentation of balance sheet and profit and loss account
(the Grand Ducal Regulation), and implementing the Luxembourg law of 19 December 2002 on the register of commerce and
companies, accounting and companies annual accounts, as amended and as determined on the basis of the then latest available annual accounts
of such Luxembourg Guarantor duly established in accordance with applicable accounting rules, as at the date the guarantee is called;
and |
| (ii) | all debt (dettes) (recorded in any of the categories of the debt section (dettes) of Annex
I to the Grand Ducal Regulation) owed by the Luxembourg Guarantor to any of member of its group and that have not been financed (directly
or indirectly) by a borrowing under the Interim Finance Documents and as determined on the basis of the then latest available annual accounts
of such Luxembourg Guarantor duly established in accordance with applicable accounting rules, as at the date the guarantee is called. |
The above limitation shall not apply
to:
| (A) | any amounts borrowed under any Interim Finance Document and in each case made available, in any form whatsoever,
to such Luxembourg Guarantor or any entity in which it has a direct or indirect equity interest; and |
| (B) | for the avoidance of doubt, any Interim Security granted by such Luxembourg Guarantor. |
Schedule
5
Major Representations, Undertakings and Events of Default
Part I
Major Representations
It is a limited liability company or
a corporate partnership limited by shares duly incorporated and validly existing under the laws of its place of incorporation.
| (a) | Subject to the Reservations, it has (or will have on the relevant date(s)) the power to enter into and
deliver, and to exercise its rights and perform its obligations under, each Interim Finance Document to which it is or will be a party. |
| (b) | It has (or, by the time of entry into each Interim Finance Document to which it will be a party, will
have) taken all necessary corporate action to authorise the entry into and delivery of and the performance by it of its obligations under
each Interim Finance Document to which it is or will be party. |
| (c) | It has the power to own its assets and carry on its business as it is being conducted, save to the extent
that failure to do so could not reasonably be expected to have a Material Adverse Effect. |
The entry into and delivery of, and
the exercise of its rights and the performance of its obligations under, each Interim Finance Document to which it is a party does not
and will not, subject to the Reservations:
| (a) | contravene any law, regulation or order to which it is subject in a manner which would have or be reasonably
likely to have a Material Adverse Effect; or |
| (b) | conflict with its constitutional documents in any material respect; or |
| (c) | breach any agreement or document binding upon it or any of its assets, or result in a default or right
of any person to terminate any such agreement or document, or require it to make any payment to a third party, in each case, in a manner
which would have or be reasonably likely to have a Material Adverse Effect. |
Subject to the Reservations and the
Perfection Requirements, the obligations expressed to be assumed by it under each Interim Finance Document to which it is a party constitute
its legal, valid, binding and enforceable obligations.
Part II
Major Undertakings
It will not create or permit to subsist
any Security Interest over any of its assets, other than:
| (a) | any Security Interest created or evidenced by the Interim Security Documents or the Transaction Documents; |
| (b) | any netting, balance transfer or set-off arrangement entered into in the ordinary course of its banking
arrangements (including any hedging) for the purpose of netting debit and credit balances; |
| (c) | security arising under the general business conditions in the ordinary course of day-to-day business,
including with any bank with whom Topco or any Group Company maintains a banking relationship, including security under the general terms
and conditions of those banks; |
| (d) | security interests over credit balances created or subsisting pursuant to or in connection with cash pooling
arrangements; |
| (e) | security required to be provided pursuant to any Applicable Securities Law in connection with the Acquisitions; |
| (f) | any lien arising by operation of law or in the ordinary course of day-to-day business and not as a result
of a default by a Group Company; |
| (g) | any Security Interest arising under any Permitted Transaction; and |
| (h) | any Security Interest arising under or in connection with the Existing Facilities or the Long-term Financing
Agreements. |
It will not incur or allow to remain
outstanding any financial indebtedness, other than:
| (a) | financial indebtedness incurred under or in connection with (i) the Transaction Documents (including
Bank Guarantees) or (ii) the Existing Facilities; |
| (b) | any financial indebtedness in relation to a Permitted Transaction or to facilitate a Permitted Payment; |
| (c) | to the extent drawn down to refinance amounts outstanding under the Interim Finance Documents in full,
financial indebtedness under the Long-term Financing Agreements; |
| (d) | any Subordinated Shareholder Liabilities; |
| (e) | loans made in the ordinary course of intra-Group cash pooling arrangements; |
| (f) | any financial indebtedness arising under any non-speculative hedging transaction; and |
| (g) | intra-Group financial indebtedness. |
Other
than pursuant to (i) any Security Interest not prohibited pursuant to paragraph 1 (Negative pledge) above or (ii) any
Permitted Transaction:
| (a) | Topco will not dispose of any of its shares in the capital of the Company; and |
| (b) | following the completion of an Acquisition, the Company will not dispose of the relevant Target Shares
so acquired. |
Save for any Permitted Transaction,
it shall not incur or allow to remain outstanding any guarantee in respect of financial indebtedness other than as may arise under or
in connection with any financial indebtedness permitted under paragraph 2 (Indebtedness) above.
Save for any Permitted Transaction,
it shall not be a creditor in respect of financial indebtedness other than as may arise under the Interim Finance Documents or the Subordinated
Shareholder Documents and loans made to another Group Company, any credit balance held with any bank or financial institution, or any
loan made for the purpose of, or to facilitate the making of, a Permitted Payment.
The Company shall:
| (a) | comply in all material respects with applicable laws and regulations in relation to the Offer, save where
non-compliance would not be materially prejudicial to the interests of the Lenders (taken as a whole) under the Finance Documents; and |
| (b) | not amend or waive any material term or condition of the Offer or Offer Announcement in a way which would
reasonably be expected to be materially adverse to the interests of the Lenders (taken as a whole), other than: |
| (i) | with the consent of the Majority Lenders; |
| (ii) | as necessary or desirable to comply with any Applicable Securities Law in respect of the Offer (including
at the request of a Relevant Regulator); |
| (iii) | involving an increase to the cash consideration payable in respect of the Target Shares pursuant to an
Offer; |
| (iv) | the waiver, amendment or reduction of any minimum acceptance condition or any other condition of the Offer
or Offer Announcement; and/or |
| (v) | the extension of any acceptance period in respect of the Offer. |
Part III
Major Events of Default
Following the Interim Closing Date,
the Obligors do not pay on the due date any amount payable by them under the Interim Finance Documents in the manner required under the
Interim Finance Documents unless, in the case of principal, payment is made with three (3) Business Days of the due date and, in
the case of any amount not constituting principal, payment is made within thirty (30) days of the due date.
| 2. | Breach of other obligations |
The
Obligors do not comply with any Major Undertaking (other than those referred to in paragraph 1 (Payment default) above) or Topco
does not comply with the Major Undertaking at sub-paragraph (a) of paragraph 3 (Disposals) of Part II (Major
Undertakings) of Schedule 5 (Major Representations, Undertakings and Events of Default) in any material respect and the same
is not remedied within twenty-one (21) Business Days of the Obligors' Agent receiving written notice from the Interim Facility Agent notifying
it of non-compliance.
A Major Representation is incorrect
or misleading in any material respect when made and the same is not remedied within twenty-one (21) Business Days of the Obligors' Agent
receiving written notice from the Interim Facility Agent notifying it of that misrepresentation.
Any of the following occurs:
| (a) | subject to the Reservations and the Perfection Requirements, any material obligation of the Obligors or
Topco under any Interim Finance Document is or becomes invalid or unenforceable, in each case, in a manner which is materially adverse
to the interests of the Interim Lenders (taken as a whole) under the Interim Finance Documents; |
| (b) | subject to the Reservations and the Perfection Requirements, it is or becomes unlawful in any applicable
jurisdiction for the Obligors or Topco to perform any of their material obligations under any Interim Finance Document, in each case,
in a manner which is materially adverse to the interests of the Interim Lenders (taken as a whole) under the Interim Finance Documents;
or |
| (c) | any of the Obligors or Topco repudiates or rescinds an Interim Finance Document and such repudiation or
rescission is materially adverse to the interests of the Interim Lenders (taken as a whole) under the Interim Finance Documents, |
and, in each case, the circumstances
are not remedied within twenty-one (21) Business Days of the Obligors' Agent receiving written notice from the Interim Facility Agent
notifying it of that such circumstances.
The Company or Topco:
| (a) | is unable to pay its debts as they fall due (other than solely as a result of liabilities exceeding assets); |
| (b) | suspends making payments on all or a material part of its debts or publicly announces in writing an intention
to do so; or |
| (c) | by reason of actual or anticipated financial difficulties commences negotiations with its financial creditors
generally (excluding the Interim Finance Parties) with a view to rescheduling of its indebtedness generally. |
| (a) | Any of the following occurs in respect of any of the Company or Topco: |
| (i) | any liquidator, trustee in bankruptcy, judicial custodian, compulsory manager, examiner, receiver, administrative
receiver, administrator or similar officer is appointed in respect of it or any of its material assets; or |
| (ii) | an application for the judicial winding-up or its liquidation, |
or any analogous proceedings in any jurisdiction.
| (b) | Paragraph (a) above shall not apply to: |
| (i) | any proceedings or actions which are contested in good faith and discharged, stayed or dismissed within
twenty-eight (28) days of commencement; |
| (ii) | any petition or similar presented by a creditor which is: |
| (A) | being contested in good faith and the relevant entity has demonstrated to the Interim Facility Agent (acting
reasonably and in good faith) that it has sufficient financial means to meet the amount of the claim requested by the creditor; |
| (B) | in the opinion of the Obligors' Agent (acting reasonably and in good faith), frivolous and vexatious;
or |
| (C) | discharged, stayed or dismissed within twenty-one (21) Business Days of commencement, or |
| (iii) | any step or other matter set out in or contemplated by the Tax Structure Memorandum (other than any exit
steps described therein). |
| 7. | Similar events elsewhere |
There occurs in relation to the Company
or Topco or any of its assets in any country or territory in which it is incorporated or carries on business or to the jurisdiction of
whose courts it or any of its assets are subject, any event or circumstance which corresponds to any of those mentioned in paragraphs
5 (Insolvency) or 6 (Insolvency proceedings) above.
| (a) | The Initial Investor and its Immediate Family Members together cease to beneficially own (directly or
indirectly) equity share capital having the right to cast more than fifty per cent. (50%) of the votes capable of being cast in general
meetings of the Company. |
| (b) | Topco ceasing to hold directly at least ninety per cent. (90%) of the issued equity share capital of the
Company. |
| (c) | The Company becomes aware of (by way of a report or any other filing pursuant to Section 13(d) of
the Exchange Act, proxy, vote, written notice or otherwise) any "person" or "group" of related persons (as such terms
are used in Sections 13(d) and 14(d) of the Exchange Act as in effect on the date of this Agreement), other than one or more
Permitted Holders, being or becoming the "beneficial owner" (as defined in Rule 13d-3 of the Exchange Act as in effect
on the date of this Agreement) of more than fifty per cent. (50%) of the total voting power of the Voting Stock of the Company other than
in connection with any transaction or series of transactions in which the Company shall become the wholly owned Subsidiary of a Holding
Company so long as no person or group, as noted above, other than a Permitted Holder, holds more than fifty per cent. (50%) of the total
voting power of the share capital having the right to cast votes in general meetings of such Holding Company. |
| (d) | Any sale, lease, transfer, conveyance or other disposition (other than by way of merger, amalgamation,
consolidation or other business transaction) in one or a series of related transactions of all or substantially all the assets of the
Group (taken as a whole) to persons who are not Group Companies or Permitted Holders. |
Notwithstanding the foregoing, (a) a
transaction will not be deemed to involve a Change of Control solely as a result of the Company becoming a direct or indirect wholly owned
Subsidiary of a Holding Company if (A) the direct or indirect holders of the share capital having the right to cast votes in general
meetings of such Holding Company immediately following that transaction are substantially the same as those holders in respect of the
Company immediately prior to that transaction or (B) immediately following that transaction no person (other than a holding company
satisfying the requirements of this sentence) is the beneficial owner, directly or indirectly, of more than fifty per cent. (50%) of the
share capital having the right to cast votes in general meetings of such holding company and (b) the right to acquire share capital
having the right to cast votes in general meetings (so long as such person does not have the right to direct the voting of the share capital
having the right to cast votes in general meetings subject to such right) or any veto power in connection with the acquisition or disposition
of share capital having the right to cast votes in general meetings will not cause a party to be a beneficial owner.
| (e) | For the purpose of this Agreement: |
Permitted
Holders means:
| (i) | the Initial Investor and its Immediate Family Members; |
| (iii) | Management Investors; |
| (iv) | any Related Person of any of the persons referred to in sub-paragraphs (i) to (iii) (inclusive)
above; and |
| (v) | any group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange
Act or any successor provision) of which any of the foregoing are members; provided that, in the case of such group and without giving
effect to the existence of such group or any other group, no person or other “group” (other than persons referred to in sub-paragraphs
(i) to (iv) (inclusive) above collectively), has beneficial ownership of more than fifty per cent. (50%) of the votes capable
of being cast in general meetings of the Company. |
Related
Person, with respect to any Permitted Holder or person, means:
| (i) | any controlling equity holder or Subsidiary of such person; |
| (ii) | in the case of an individual, any spouse, family member or relative of such individual, any trust or partnership
for the benefit of one or more of such individual and any such spouse, family member or relative, or the estate, executor, administrator,
committee or beneficiaries of any thereof; |
| (iii) | any trust, corporation, partnership or other person for which one or more of the Permitted Holders and
other Related Persons of any thereof constitute the beneficiary, stockholders, partners or owners thereof, or persons beneficially holding
in the aggregate a majority (or more) controlling interest therein; and |
| (iv) | any investment fund or vehicle managed, sponsored or advised by such person or any successor thereto,
or by any Affiliate of such person or any such successor. |
| (f) | For the purpose of this paragraph 8: |
| (i) | any step, matter or transaction entered into in order to effect a Permitted Transaction shall not constitute
a Major Event of Default; and |
| (ii) | any issue of shares by the Company to Management or Management Investors for the purposes of facilitating
any rollover investment in the Group shall not constitute a Major Event of Default provided that such roll over is completed within ten
(10) Business Days. |
Schedule
6
Impairment and Replacement of Interim Finance Parties
Part I
Impaired Agent
| (a) | If, at any time, an Agent becomes an Impaired Agent, the Obligors' Agent, an Obligor or an Interim Lender
which is required to make a payment under the Interim Finance Documents to the Agent in accordance with Clause 12 (Payments) or
otherwise under an Interim Finance Document may instead either pay that amount direct to the required recipient or pay that amount to
an interest bearing account held with an Acceptable Bank in relation to which no Insolvency Event has occurred and is continuing, in the
name of the Obligors' Agent or the Obligor or the Interim Lender making the payment and designated as a trust account for the benefit
of the Party or Parties beneficially entitled to that payment under the Interim Finance Documents. In each case such payments must be
made on the due date for payment under the Interim Finance Documents. |
| (b) | All interest accrued on the amount standing to the credit of the trust account shall be for the benefit
of the beneficiaries of that trust account pro rata to their respective entitlements. |
| (c) | A Party which has made a payment in accordance with this paragraph 1 shall be discharged of the relevant
payment obligation under the Interim Finance Documents and shall not take any credit risk with respect to the amounts standing to the
credit of the trust account. |
| (d) | Promptly upon the appointment of a successor Agent in accordance with paragraph 3 (Replacement of an
Interim Facility Agent) below, each Party which has made a payment to a trust account in accordance with this paragraph 1 shall give
all requisite instructions to the bank with whom the trust account is held to transfer the amount (together with any accrued interest)
to the successor Agent for distribution in accordance with Clause 18.1 (Recoveries). |
| (e) | A Party which has made a payment in accordance with paragraph 1 shall, promptly upon request by a recipient
and to the extent: |
| (i) | that it has not given an instruction pursuant to paragraph (d) above; and |
| (ii) | that it has been provided with the necessary information by that recipient, |
give all requisite instructions to the
bank with whom the trust account is held to transfer the relevant amount (together with any accrued interest) to that recipient.
| 2. | Communication when Interim Facility Agent is Impaired Interim Facility Agent |
If an Agent is an Impaired Agent, the
Parties may, instead of communicating with each other through the Agent, communicate with each other directly and (while the Interim Facility
Agent is an Impaired Agent) all the provisions of the Interim Finance Documents which require communications to be made or notices to
be given to or by the Agent shall be varied so that communications may be made and notices given to or by the relevant Parties directly.
This provision shall not operate after a replacement Agent has been appointed.
| 3. | Replacement of an Interim Facility Agent |
| (a) | The Majority Interim Lenders or the Obligors' Agent may by giving ten (10) days' notice to an Agent
which is an Impaired Agent replace that Agent by appointing a successor Agent (which shall be acting through an office in the United Kingdom). |
| (b) | The retiring Agent shall (at its own cost, and otherwise at the expense of the Interim Lenders): |
| (i) | make available to the successor Agent such documents and records and provide such assistance as the successor
Agent may reasonably request for the purposes of performing its functions as Agent under the Interim Finance Documents; and |
| (ii) | enter into and deliver to the successor Agent those documents and effect any registrations and notifications
as may be required for the transfer or assignment of all its rights and benefits under the Interim Finance Documents to the successor
Agent. |
| (c) | An Obligor must take any action and enter into and deliver any document which is necessary to ensure that
any Interim Security Document provides for effective and perfected Interim Security in favour of any successor Agent. |
| (d) | The appointment of the successor Agent shall take effect on the date specified in the notice from the
Majority Interim Lenders or the Obligors' Agent to the retiring Agent. As from this date, the retiring Agent shall be discharged from
any further obligation in respect of the Interim Finance Documents (and any agency fees for the account of the retiring Agent shall cease
to accrue from (and shall be payable on) that date). |
| (e) | Any successor Agent and each of the other Parties shall have the same rights and obligations amongst themselves
as they would have had if such successor had been an original Party. |
| (f) | The Interim Facility Agent shall resign and the Majority Interim Lenders shall replace the Interim Facility
Agent in accordance with paragraph (a) above if on or after the date which is three months before the earliest FATCA Application
Date relating to any payment to the Interim Facility Agent under the Interim Finance Documents, either: |
| (i) | the Interim Facility Agent fails to respond to a request under Clause 10.8 (FATCA information)
and the Obligors' Agent or an Interim Lender reasonably believes that the Interim Facility Agent will not be (or will have ceased to be)
a FATCA Exempt Party on or after that FATCA Application Date; |
| (ii) | the information supplied by the Interim Facility Agent pursuant to Clause 10.8 (FATCA information)
indicates that the Interim Facility Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application
Date; or |
| (iii) | the Interim Facility Agent notifies the Obligors' Agent and the Interim Lenders that the Interim Facility
Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date; |
and
(in each case) the Obligors' Agent or an Interim Lender reasonably believes that a Party will be required to make a FATCA Deduction that
would not be required if the Interim Facility Agent were a FATCA Exempt Party, and the Obligors' Agent or that Interim Lender,
by notice to the Interim Facility Agent, requires it to resign.
Part II
Defaulting Lender
| 1. | For so long as a Defaulting Lender has any undrawn Interim Commitment, in ascertaining (i) the Majority
Interim Lenders; or (ii) whether any given percentage (including, for the avoidance of doubt, unanimity) of the Total Interim Commitments
under the relevant Interim Facility/ies or the agreement of any specified group of Interim Lenders has been obtained to approve any request
for a consent, waiver, amendment or other vote of Interim Lenders under the Interim Finance Documents, that Defaulting Lender's Interim
Commitments under the relevant Interim Facility/ies will be reduced by the amount of its undrawn Interim Commitments under the relevant
Interim Facility/ies and, to the extent that that reduction results in that Defaulting Lender's Total Interim Commitments being zero,
that Defaulting Lender shall be deemed not to be an Interim Lender for the purposes of (i) and (ii) above. |
| 2. | For the purposes of paragraph 1 above, the Interim Facility Agent may assume that the following Interim
Lenders are Defaulting Lenders: |
| (a) | any Interim Lender which has notified the Interim Facility Agent that it has become a Defaulting Lender; |
| (b) | any Interim Lender in relation to which it is aware that any of the events or circumstances referred to
in paragraphs (a), (b) or (c) of the definition of Defaulting Lender has occurred, |
unless it has received notice to the
contrary from the Interim Lender concerned (together with any supporting evidence reasonably requested by the Interim Facility Agent)
or the Interim Facility Agent is otherwise aware that the Interim Lender has ceased to be a Defaulting Lender.
| 3. | Without prejudice to any other provision of this Agreement, the Agents may disclose and, on the written
request of the Obligors' Agent or the Majority Interim Lenders, shall, as soon as reasonably practicable, disclose the identity of a Defaulting
Lender to the Obligors' Agent and to the other Interim Finance Parties. |
| 4. | If any Interim Lender becomes a Defaulting Lender, the Obligors' Agent may, at any time whilst the Interim
Lender continues to be Defaulting Lender, give the Interim Facility Agent three (3) Business Days' notice of cancellation of all
or any part of each undrawn Interim Commitment of that Interim Lender. |
Part III
Replacement of an Interim Lender / Increase
| 1. | Replacement of an Interim Lender |
| (i) | any Interim Finance Party becomes or is a Non-Consenting Lender (as defined in paragraph (d) below);
or |
| (ii) | an Obligor becomes obliged to repay any amount in accordance with Clause 11.3 (Illegality) or to
pay additional amounts pursuant to Clause 10.1 (Gross-up), Clause 10.3 (Tax indemnity) or Clause 11.1 (Increased Costs)
to any Interim Finance Party; or |
| (iii) | any Interim Finance Party invokes the benefit of Clause 9 (Market Disruption); or |
| (iv) | any Interim Finance Party becomes or is a Defaulting Lender, |
then
the Obligors' Agent may, on no less than five (5) Business Days' prior written notice (a Replacement Notice)
to the Interim Facility Agent and such Interim Finance Party (a Replaced Lender):
| (A) | replace a participation of such Replaced Lender by requiring such Replaced Lender to (and such Replaced
Lender shall) transfer pursuant to Clause 24 (Changes to Parties) on such dates as specified in the Replacement Notice all or part
of its rights and obligations under this Agreement to an Interim Lender constituting a New Interim Lender under Clause 24.2 (Transfers
by Interim Lenders) (a Replacement Lender) selected by the Obligors' Agent, which confirms its (or their) willingness
to assume and does assume all or part of the obligations of the Replaced Lender (including the assumption of the Replaced Lender's participations
or unfunded or undrawn participations (as the case may be) on the same basis as the Replaced Lender) for a purchase price in cash payable
at the time of transfer in an amount equal to the applicable outstanding principal amount of such Replaced Lender's participation in the
outstanding Interim Utilisations and all related accrued interest and other amounts payable in relation thereto under the Interim Finance
Documents in respect of such transferred participation; and/or |
| (B) | prepay on such dates as specified in the Replacement Notice all or any part of such Interim Lender's participation
in the outstanding Interim Utilisations and all related accrued interest and other amounts payable in relation thereto under the Interim
Finance Documents in respect of such participation; and/or |
| (C) | cancel all or part of the undrawn Interim Commitments of that Replaced Lender on such dates as specified
in the Replacement Notice. |
| (b) | Any notice delivered under paragraph (a) above (or any subsequent notice for this purpose, as applicable)
may be accompanied by a Transfer Certificate complying with Clause 24.4 (Procedure for transfer) and/or an Assignment Agreement
complying with Clause 24.5 (Procedure for assignment) and any other related documentation to effect the transfer or assignment,
which Transfer Certificate, Assignment Agreement and any other related documentation to effect the transfer or assignment (if attached)
shall be promptly (and by no later than three (3) Business Days from receiving such Transfer Certificate, Assignment Agreement and
any other related documentation) executed by the relevant Replaced Lender and returned to the Obligors' Agent. |
| (c) | Notwithstanding the requirements of Clause 24 (Changes to Parties) or any other provisions of the
Interim Finance Documents, if a Replaced Lender does not execute and/or return a Transfer Certificate, an Assignment Agreement and any
other related documentation to effect the transfer or assignment as required by paragraph (b) above within three (3) Business
Days of delivery by the Obligors' Agent, the relevant transfer or transfers or assignment and assignments shall automatically and immediately
be effected for all purposes under the Interim Finance Documents on payment of the replacement amount to the Interim Facility Agent (for
the account of the relevant Replaced Lender), and the Interim Facility Agent may (and is authorised by each Interim Finance Party to)
execute, without requiring any further consent or action from any other party, a Transfer Certificate, Assignment Agreement and any other
related documentation to effect the transfer or assignment on behalf of the relevant Replaced Lender which is required to transfer its
rights and obligations or assign its rights under this Agreement pursuant to paragraph (a) above which shall be effective for the
purposes of Clause 24.4 (Procedure for transfer) and Clause 24.5 (Procedure for assignment). The Interim Facility Agent
shall not be liable in any way for any action taken by it pursuant to this paragraph 1 and, for the avoidance of doubt, the provisions
of Clause 17.4 (Exoneration of the Arrangers and the Agents) shall apply in relation thereto. |
| (d) | If the Obligors' Agent or the Interim Facility Agent (at the request of the Obligors' Agent) has requested
the Interim Lenders to give a consent in relation to, or to agree to a release, waiver or amendment of, any provisions of the Interim
Finance Documents or other vote of the Interim Lenders under the terms of this Agreement, where the requested consent, release, waiver
or amendment is one which requires greater than Majority Interim Lender consent pursuant to this Agreement and has been agreed to by the
Majority Interim Lenders, then any Interim Lender who has not consented or agreed (or fails to reject) to such request by the end of the
period of ten (10) Business Days (or any other period of time notified by the Obligors' Agent, with the prior agreement of the Interim
Facility Agent if the period for this provision to operate is less than ten (10) Business Days) of a request being made such Interim
Lender shall be deemed a Non-Consenting Lender. |
| (e) | If any Non-Consenting Lender fails to assist with any step required to implement the Obligors' Agent's
right to prepay that Non-Consenting Lender or to replace that Non-Consenting Lender pursuant to this paragraph 1 within three (3) Business
Days of a request to do so by the Obligors' Agent, then that Non-Consenting Lender shall be automatically excluded from participating
in that vote, and its participations, Interim Commitments and vote (as the case may be) shall not be included (or, as applicable,
required) with the Total Interim Commitments or otherwise when ascertaining whether the approval of Majority Interim Lenders, all Interim
Lenders, or any other class of Interim Lenders (as applicable) has been obtained with respect to that request for a consent or agreement;
and its status as an Interim Lender shall be disregarded for the purpose of ascertaining whether the agreement or any specified group
of Interim Lenders has been obtained to approve the request. |
| (a) | The Obligors' Agent may by giving prior notice to the Interim Facility Agent after the effective date
of a cancellation of: |
| (i) | the undrawn Interim Commitments of a Defaulting Lender in accordance with paragraph 3 of Part II
(Defaulting Lender) of this Schedule 6; or |
| (ii) | the Interim Commitments of an Interim Lender in accordance with Clause 11.3 (Illegality) or paragraph
1 (Replacement of an Interim Lender) above, |
request that the Interim Commitments relating
to any Interim Facility be increased (and the Interim Commitments relating to that Interim Facility shall be so increased) up to the amount
of the undrawn Interim Commitments or Interim Commitments relating to that Interim Facility so cancelled as described in the following
paragraphs.
| (b) | Following a request as described in paragraph (a) above: |
| (i) | the increased Interim Commitments will be assumed by one or more Interim Lenders or other banks, financial
institutions, trusts, funds or other entities (each an Increase Lender) selected by the Obligors' Agent and each of which
confirms in writing (whether in the relevant Increase Confirmation or otherwise) its willingness to assume and does assume all the obligations
of an Interim Lender corresponding to that part of the increased Interim Commitments which it is to assume, as if it had been an Original
Interim Lender; |
| (ii) | each of the Obligors and any Increase Lender shall assume obligations towards one another and/or acquire
rights against one another as the Obligors and the Increase Lender would have assumed and/or acquired had the Increase Lender been an
Original Interim Lender; |
| (iii) | each Increase Lender shall become a Party as an Interim Lender and any Increase Lender and each of the
other Interim Finance Parties shall assume obligations towards one another and acquire rights against one another as that Increase Lender
and those Interim Finance Parties would have assumed and/or acquired had the Increase Lender been an Original Interim Lender; |
| (iv) | the Interim Commitments of the other Interim Lenders shall continue in full force and effect; and |
| (v) | any increase in the Interim Commitments relating to an Interim Facility shall take effect on the date
specified by the Obligors' Agent in the notice referred to above or any later date on which the conditions set out in paragraph (c) below
are satisfied. |
| (c) | An increase in the Interim Commitments relating to an Interim Facility will only be effective on: |
| (i) | the execution by the Interim Facility Agent of an Increase Confirmation from the relevant Increase Lender; |
| (ii) | in relation to an Increase Lender which is not an Interim Lender immediately prior to the relevant increase
the Interim Facility Agent being satisfied that it has complied with all necessary "know your customer" or other similar checks
under all applicable laws and regulations in relation to the assumption of the increased Interim Commitments by that Increase Lender.
The Interim Facility Agent shall promptly notify the Obligors' Agent and the Increase Lender upon being so satisfied. |
| (d) | Each Increase Lender, by executing the Increase Confirmation, confirms that the Interim Facility Agent
has authority to execute on its behalf any amendment or waiver that has been approved by or on behalf of the requisite Interim Lender
or Interim Lenders in accordance with this Agreement on or prior to the date on which the increase becomes effective. |
| (e) | The Interim Facility Agent shall, as soon as reasonably practicable after it has executed an Increase
Confirmation, send to the Obligors' Agent a copy of that Increase Confirmation. |
| (f) | Clause 24.3 (Limitation of responsibility of Existing Interim Lenders) shall apply mutatis mutandis
in this paragraph 2 in relation to an Increase Lender as if references in that Clause to: |
| (i) | an Existing Interim Lender were references to all the Interim Lenders immediately prior
to the relevant increase; |
| (ii) | the New Interim Lender were references to that Increase Lender; and |
| (iii) | a re-transfer and re-assignment were references to respectively a transfer
and assignment. |
Part IV
Form of Increase Confirmation
| To: | [●] as Interim Facility
Agent, [●] as Interim Security Agent and [●] as Borrower |
| From: | [●] (the Increase
Lender) |
Project Meria – Interim Facilities Agreement
dated [●] (as amended from time to time) (the Interim Facilities Agreement)
| 1. | We refer to the Interim Facilities Agreement. This agreement (the Agreement) shall take effect
as an Increase Confirmation for the purpose of the Interim Facilities Agreement. Terms defined in the Interim Facilities Agreement have
the same meaning in this Agreement unless given a different meaning in this Agreement. |
| 2. | We refer to paragraph 2 (Increase) of Part III (Replacement of an Interim Lender / Increase)
of Schedule 6 (Impaired Agent, Replacement of an Interim Facility Agent, Defaulting Lender, Replacement of an Interim Lender / Increase)
of the Interim Facilities Agreement. |
| 3. | The Increase Lender agrees to assume and will assume all of the obligations corresponding to the Interim
Commitment specified in the Schedule (the Relevant Commitment) as if it was an Original Interim Lender under the Interim
Facilities Agreement. |
| 4. | The proposed date on which the increase in relation to the Increase Lender and the Relevant Commitment
is to take effect (the Increase Date) is [●]. |
| 5. | On the Increase Date, the Increase Lender becomes party to the relevant Interim Finance Documents as an
Interim Lender. |
| 6. | The Facility Office, address, email address and attention details for notices to the Increase Lender for
the purposes of Clause 20.1 (Mode of service) of the Interim Facilities Agreement are set out in the Schedule. |
| 7. | The Increase Lender expressly acknowledges the limitations on the Interim Lenders' obligations referred
to in paragraph (f) of paragraph 2 (Increase) of Part III (Replacement of an Interim Lender / Increase) of Schedule
6 (Impairment and Replacement of Interim Finance Parties) of the Interim Facilities Agreement. |
| 8. | The Increase Lender confirms that it is: |
| (a) | [not a Qualifying Interim Lender;] |
| (b) | [a Qualifying Interim Lender (other than by virtue of being a Treaty Interim Lender); or] |
| (c) | [a Qualifying Interim Lender by virtue of being a Treaty Interim Lender (on the assumption that all procedural
formalities have been completed.] |
| 9. | This Agreement may be executed in any number of counterparts and this has the same effect as if the signatures
on the counterparts were on a single copy of this Agreement. |
| 10. | This Agreement and any non-contractual obligations arising out of or in connection with it are governed
by English law. |
| 11. | This Agreement has been entered into on the date stated at the beginning of this Agreement. |
| Note: | The execution of this Increase Confirmation may not be sufficient for the Increase Lender to obtain
the benefit of the Interim Security in all jurisdictions. It is the responsibility of the Increase Lender to ascertain whether any other
documents or other formalities are required to obtain the benefit of the Interim Security in any jurisdiction and, if so, to arrange for
execution of those documents and completion of those formalities. |
The Schedule to the Increase Confirmation
Relevant Commitment/rights and obligations to
be assumed by the Increase Lender
[INSERT RELEVANT DETAILS]
[Facility office address, email address and
attention details for notices and account details for payments]
This Agreement is accepted as an Increase Confirmation
for the purposes of the Interim Facilities Agreement by the Interim Facility Agent.
| |
|
| [Interim Facility Agent] |
|
| |
|
| By: |
|
Part V
Definitions
Capitalised terms in this Schedule 6 shall have
the meanings ascribed to such terms in Schedule 1 (Definitions and Interpretation) and this Part V, as applicable.
Acceptable
Bank means a bank or financial institution which has a long term credit rating of at least BBB by Standard & Poor's
Rating Services or Fitch Ratings Ltd or at least Baa3 by Moody's Investor Services Limited or a comparable rating from an internationally
recognised credit rating agency; or any Interim Finance Party or any Affiliate of an Interim Finance Party.
Defaulting
Lender means any Interim Lender:
| (a) | which has failed to make its participation in an Interim Loan available (or has notified the Interim Facility
Agent or the Obligors' Agent (which has notified the Interim Facility Agent) that it will not make its participation in an Interim Loan
available) by the Drawdown Date of that Interim Loan in accordance with Clause 6.3 (Advance of Interim Loans); |
| (b) | which has otherwise rescinded or repudiated an Interim Finance Document; or |
| (c) | with respect to which an Insolvency Event has occurred and is continuing. |
Disruption
Event means either or both of:
| (a) | a material disruption to those payment or communications systems or to those financial markets which are,
in each case, required to operate in order for payments to be made in connection with the Interim Facilities (or otherwise in order for
the transactions contemplated by the Interim Finance Documents to be carried out) which disruption is not caused by, and is beyond the
control of, any of the Parties; or |
| (b) | the occurrence of any other event which results in a disruption (of a technical or systems related nature)
to the treasury or payments operations of a Party preventing that, or any other Party: |
| (i) | from performing its payment obligations under the Interim Finance Documents; or |
| (ii) | from communicating with other Parties in accordance with the terms of the Interim Finance Documents, |
and which (in either such case) is not
caused by, and is beyond the control of, the Party whose operations are disrupted.
Impaired
Agent means an Agent at any time when:
| (a) | it has failed to make (or has notified a Party that it will not make) a payment required to be made by
it under the Interim Finance Documents by the due date for payment; |
| (b) | the Agent otherwise rescinds or repudiates an Interim Finance Document; |
| (c) | (if the Agent is also an Interim Lender) it is a Defaulting Lender under paragraphs (a) or (b) of
the definition of Defaulting Lender; or |
| (d) | an Insolvency Event has occurred and is continuing with respect to the Agent, |
unless, in the case of paragraph (a) above:
| (i) | its failure to pay is caused by administrative or technical error or a Disruption Event and payment is
made within three (3) Business Days of its due date; or |
| (ii) | the Agent is disputing in good faith whether it is contractually obliged to make the payment in question. |
Increase
Confirmation means a confirmation substantially in the form set out in Part IV (Form of Increase Confirmation)
of this Schedule 6.
Insolvency
Event in relation to an entity means that the entity:
| (a) | is dissolved (other than pursuant to a consolidation, amalgamation or merger); |
| (b) | becomes insolvent or is unable to pay its debts or fails or admits in writing its inability generally
to pay its debts as they become due; |
| (c) | makes a general assignment, arrangement or composition with or for the benefit of its creditors; |
| (d) | institutes or has instituted against it, by a regulator, supervisor or any similar official with primary
insolvency, rehabilitative or regulatory jurisdiction over it in the jurisdiction of its incorporation or organisation or the jurisdiction
of its head or home office, a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency
law or other similar law affecting creditors' rights, or a petition is presented for its winding-up or liquidation by it or such regulator,
supervisor or similar official; |
| (e) | has instituted against it a proceeding seeking a judgment of insolvency or bankruptcy or any other relief
under any bankruptcy or insolvency law or other similar law affecting creditors' rights, or a petition is presented for its winding-up
or liquidation, and, in the case of any such proceeding or petition instituted or presented against it, such proceeding or petition is
instituted or presented by a person or entity not described in paragraph (d) above and: |
| (i) | results in a judgment of insolvency or bankruptcy or the entry of an order for relief or the making of
an order for its winding-up or liquidation; or |
| (ii) | is not dismissed, discharged, stayed or restrained in each case within thirty (30) days of the institution
or presentation thereof; |
| (f) | has exercised in respect of it one or more of the stabilisation powers pursuant to Part 1 of the
Banking Act 2009 and/or has instituted against it a bank insolvency proceeding pursuant to Part 2 of the Banking Act 2009 or a bank
administration proceeding pursuant to Part 3 of the Banking Act 2009; |
| (g) | has a resolution passed for its winding-up, official management or liquidation (other than pursuant to
a consolidation, amalgamation or merger); |
| (h) | seeks or becomes subject to the appointment of an administrator, provisional liquidator, conservator,
receiver, trustee, custodian or other similar official for it or for all or substantially all its assets; |
| (i) | has a secured party take possession of all or substantially all its assets or has a distress, execution,
attachment, sequestration or other legal process levied, enforced or sued on or against all or substantially all its assets and such secured
party maintains possession, or any such process is not dismissed, discharged, stayed or restrained, in each case within thirty (30) days
thereafter; |
| (j) | causes or is subject to any event with respect to it which, under the applicable laws of any jurisdiction,
has an analogous effect to any of the events specified in paragraphs (a) to (i) above; or |
| (k) | takes any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any
of the foregoing acts. |
Non-Consenting
Lender has the meaning given to that term in paragraph (d) of paragraph 1 (Replacement of an Interim Lender)
of Part III (Replacement of an Interim Lender / Increase) of this Schedule 6.
Schedule
7
Form of Transfer Certificate
| To: | [●]
as Interim Facility Agent |
| From: | [●]
(the Existing Interim Lender) and [●] (the New Interim Lender) |
Project Meria – Interim Facilities Agreement
dated [●] (as amended from time to time) (the Interim Facilities Agreement)
| 1. | We refer to the Interim Facilities Agreement. This is a Transfer Certificate. Terms defined in the Interim
Facilities Agreement have the same meaning in this Transfer Certificate unless given a different meaning in this Transfer Certificate. |
| 2. | We refer to Clause 24.4 (Procedure for transfer) of the Interim Facilities Agreement: |
| (a) | subject to paragraph (b) of Clause 24.2, the Existing Interim Lender and the New Interim Lender agree
to the Existing Interim Lender transferring to the New Interim Lender by novation all or part of the Existing Interim Lender's Interim
Commitments, rights and obligations referred to in the Schedule in accordance with Clause 24.4 (Procedure for transfer) of the
Interim Facilities Agreement. |
| (b) | the proposed Transfer Date is [●]. |
| (c) | the Facility Office and address, email address and attention details for notices of the New Interim Lender
for the purposes of Clause 20.1 (Mode of service) of the Interim Facilities Agreement are set out in the Schedule. |
| 3. | The New Interim Lender expressly acknowledges the limitations on the Existing Interim Lender's obligations
set out in paragraph (c) of Clause 24.3 (Limitation of responsibility of Existing Interim Lenders) of the Interim Facilities
Agreement. |
| 4. | The New Interim Lender confirms that it is: |
| (a) | [not a Qualifying Interim Lender;] |
| (b) | [a Qualifying Interim Lender (other than by virtue of being a Treaty Interim Lender); or] |
| (c) | [a Qualifying Interim Lender by virtue of being a Treaty Interim Lender (on the assumption that all procedural
formalities have been completed.] |
| 5. | The New Interim Lender confirms that it has received a copy of each Interim Security Document which constitute
pledges or any other accessory security right (akzessorische Sicherheit) and is governed by [●] law, is aware of their
contents and hereby expressly consents to and ratifies the declarations of the Interim Security Agent made on behalf of it as future pledgee
in such Interim Security Document. |
| 6. | The New Interim Lender hereby expressly confirms that it [can/cannot] exempt the Interim Facility Agent
and the Interim Security Agent from the restrictions on self-dealing (Insichgeschäfte) and multi-representation (Mehrfachvertretung)
pursuant the [●] and similar restrictions (if any) pursuant to any other applicable law. |
| 7. | This Transfer Certificate may be executed in any number of counterparts and this has the same effect as
if the signatures on the counterparts were on a single copy of this Transfer Certificate. |
| 8. | This Transfer Certificate and any non-contractual obligations arising out of or in connection with it
are governed by English law. |
| 9. | This Transfer Certificate has been entered into on the date stated at the beginning of this Transfer Certificate. |
| Note: | The execution of this Transfer Certificate may not transfer a proportionate share of the Existing Interim
Lender's interest in the Interim Security in all jurisdictions. It is the responsibility of the New Interim Lender to ascertain whether
any other documents or other formalities are required to perfect a transfer of such a share in the Existing Interim Lender's Interim Security
in any jurisdiction and, if so, to arrange for execution of those documents and completion of those formalities. |
The Schedule to the Transfer Certificate
Commitment/rights and obligations to be transferred
[INSERT RELEVANT DETAILS]
[Facility office address, email address and
attention details for notices and account details for payments]
| |
|
| [Existing Interim Lender] |
|
| |
|
| By: |
|
| |
|
| |
|
| [New Interim Lender] |
|
| |
|
| By: |
|
This Transfer Certificate is accepted by the Interim
Facility Agent and the Transfer Date is confirmed as [●].
| |
|
| [Interim Facility Agent] |
|
| |
|
| By: |
|
Schedule
8
Form of Assignment Agreement
| To: | [●] as Interim Facility
Agent |
| From: | [●] (the Existing
Interim Lender) and [●] (the New Interim Lender) |
Project Meria – Interim Facilities Agreement
dated [●] (as amended from time to time) (the Interim Facilities Agreement)
| 1. | We refer to the Interim Facilities Agreement. This is an Assignment Agreement. Terms defined in the Interim
Facilities Agreement have the same meaning in this Assignment Agreement unless given a different meaning in this Assignment Agreement. |
| 2. | We refer to Clause 24.5 (Procedure for assignment) of the Interim Facilities Agreement. |
| 3. | subject to paragraph (b) of Clause 24.2, the Existing Interim Lender assigns absolutely to the New
Interim Lender all the rights of the Existing Interim Lender under the Interim Facilities Agreement, the other Interim Finance Documents
and in respect of the Interim Security which correspond to that portion of the Existing Interim Lender's Interim Commitments and participations
in Interim Utilisations under the Interim Facilities Agreement as specified in the Schedule; |
| 4. | subject to paragraph (b) of Clause 24.2, the Existing Interim Lender is released from all the obligations
of the Existing Interim Lender which correspond to that portion of the Existing Interim Lender's Interim Commitments and participations
in Interim Utilisations under the Interim Facilities Agreement specified in the Schedule. |
| 5. | The New Interim Lender becomes a Party as an Interim Lender and is bound by obligations equivalent to
those from which the Existing Interim Lender is released under paragraph 4 above. |
| 6. | The proposed Transfer Date is [●]. |
| 7. | On the Transfer Date the New Interim Lender becomes Party to the Interim Finance Documents as an Interim
Lender. |
| 8. | The New Interim Lender expressly acknowledges the limitations on the Existing Interim Lender's obligations
set out in paragraph (c) of Clause 24.3 (Limitation of responsibility of Existing Interim Lenders) of the Interim Facilities
Agreement. |
| 9. | This Assignment Agreement acts as notice to the Interim Facility Agent (on behalf of each Interim Finance
Party) and, upon delivery in accordance with Clause 24.7 (Copy of Transfer Certificate or Assignment Agreement to Obligors' Agent)
of the Interim Facilities Agreement, to the Obligors' Agent (on behalf of each Obligor) of the assignment referred to in this Assignment
Agreement. |
| 10. | The New Interim Lender confirms that it is: |
| (a) | [not a Qualifying Interim Lender;] |
| (b) | [a Qualifying Interim Lender (other than by virtue of being a Treaty Interim Lender); or] |
| (c) | [a Qualifying Interim Lender by virtue of being a Treaty Interim Lender (on the assumption that all procedural
formalities have been completed).] |
| 11. | The Facility Office and address, email address and attention details for notices of the New Interim Lender
for the purposes of Clause 20.1 (Mode of service) of the Interim Facilities Agreement are set out in the Schedule. |
| 12. | This Assignment Agreement may be executed in any number of counterparts and this has the same effect as
if the signatures on the counterparts were on a single copy of this Assignment Agreement. |
| 13. | This Assignment Agreement and any non-contractual obligations arising out of or in connection with it
are governed by English law. |
| 14. | This Assignment Agreement has been entered into on the date stated at the beginning of this Assignment
Agreement. |
| Note: | The execution of this Assignment Agreement may not transfer a proportionate share of the Existing Interim
Lender's interest in the Interim Security in all jurisdictions. It is the responsibility of the New Interim Lender to ascertain whether
any other documents or other formalities are required to perfect a transfer of such a share in the Existing Interim Lender's Interim Security
in any jurisdiction and, if so, to arrange for execution of those documents and completion of those formalities. |
The Schedule to the Assignment Agreement
Commitment/rights and obligations to be transferred
by assignment, release and accession
[INSERT RELEVANT DETAILS]
[Facility office address, email address and
attention details for notices and account details for payments]
| |
|
| [Existing Interim Lender] |
|
| |
|
| By: |
|
| |
|
| |
|
| [New Interim Lender] |
|
| |
|
| By: |
|
This Assignment Agreement is accepted by the Interim
Facility Agent and the Transfer Date is confirmed as [●].
[Signature of this Assignment Agreement by the
Interim Facility Agent constitutes confirmation by the Interim Facility Agent of receipt of notice of the assignment referred to herein,
which notice the Interim Facility Agent receives on behalf of each Interim Finance Party.]
| |
|
| [Interim Facility Agent] |
|
| |
|
| By: |
|
Schedule
9
Bank Guarantees
Part I
Utilisation
The
Interim Revolving Facility shall be available for utilisation by way of Bank Guarantees for the purposes referred to in paragraphs (b) of
Clause 3.3 (Purpose) of this Agreement.
| 2. | Delivery of a Bank Guarantee Request |
| (a) | The Borrower may request a Bank Guarantee by delivery to the Interim Facility Agent of a duly completed
Bank Guarantee Request. |
| (b) | Each Bank Guarantee Request is, once given, irrevocable. |
| (c) | Unless otherwise agreed by the Interim Facility Agent, the latest time for receipt by the Interim Facility
Agent of a duly completed Bank Guarantee Request is 11.00 a.m. one (1) Business Day before the proposed Drawdown Date. |
| 3. | Completion of a Bank Guarantee Request |
A Bank Guarantee Request will not be
regarded as having been duly completed unless:
| (a) | it specifies the identity of the Issuing Bank; |
| (b) | the proposed Drawdown Date is a Business Day within the Interim Revolving Facility Availability Period; |
| (c) | the currency of the Bank Guarantee requested is US Dollars or any other currency agreed between the Obligors'
Agent and the applicable Issuing Bank; |
| (d) | the form of Bank Guarantee is attached; |
| (e) | the delivery instructions for the Bank Guarantee are specified; |
| (f) | the Base Currency Amount of the Bank Guarantee requested, when aggregated with the Base Currency Amount
of each other Interim Revolving Facility Utilisation made or due to be made on or before the proposed Drawdown Date (but excluding any
part of any Interim Revolving Facility Utilisation prepaid or due to be prepaid on or before the proposed Drawdown Date), does not exceed
the Total Interim Revolving Facility Commitments; and |
| (g) | the Issuing Bank is not precluded from issuing a Bank Guarantee by law or regulation or its internal policies
to the beneficiary of the Bank Guarantee. |
| 4. | Issue of Bank Guarantees |
| (a) | The Interim Facility Agent must promptly notify the relevant Issuing Bank of the details of a requested
Bank Guarantee. |
| (b) | If the conditions set out in this Agreement have been met, the relevant Issuing Bank shall issue the Bank
Guarantee on the Drawdown Date. |
| (c) | Each Interim Revolving Facility Lender will participate in each Bank Guarantee in the proportion which
its Interim Revolving Facility Commitment bears to the Total Interim Revolving Facility Commitments immediately before the issue of that
Bank Guarantee. |
| (d) | The obligation of any Issuing Bank to issue a Bank Guarantee is subject to the condition that on the Drawdown
Date the conditions precedent referred to in Clause 3.1 (Conditions Precedent) have been satisfied or, as the case may be, waived.
The provisions of Clause 3.1 (Conditions Precedent) shall apply to each Issuing Bank in respect of any Bank Guarantee issued or
to be issued by that Issuing Bank. |
Part II
Bank Guarantees
If a Bank Guarantee or any amount outstanding
under a Bank Guarantee is expressed to be immediately payable, the Borrower shall repay or prepay that amount within two (2) Business
Days of demand or, if payment is being funded by an Interim Revolving Facility Loan, within four (4) Business Days of demand.
Each Issuing Bank shall forthwith notify
the Interim Facility Agent of any demand received by it under and in accordance with any Bank Guarantee (including details of the Bank
Guarantee under which such demand has been received and the amount demanded (if applicable, minus the amount of any cash cover provided
in respect of that Bank Guarantee) (the Demand Amount)) and the Interim Facility Agent on receipt of any such notice shall
forthwith notify the Borrower and each of the Interim Revolving Facility Lenders.
| (a) | The Borrower shall immediately on receipt of any notice from the Interim Facility Agent under paragraph
2 (Demands) above (unless the Borrower notifies the Interim Facility Agent otherwise) be deemed to have delivered to the Interim
Facility Agent a duly completed Drawdown Request requesting an Interim Revolving Facility Loan in an amount equal to the Demand Amount
which shall be drawn three (3) Business Days following receipt by the Interim Facility Agent of the demand and applied in discharge
of the Demand Amount. |
| (b) | If the Borrower notifies the Interim Facility Agent pursuant to paragraph (a) above that an Interim
Loan is not to be drawn in accordance with the provisions of such paragraph, then the Borrower shall within two (2) Business Days
after receipt of any notice from the Interim Facility Agent under paragraph 2 (Demands) above pay to the Interim Facility Agent
for the account of the relevant Issuing Bank the amount demanded from that Issuing Bank as notified to the Interim Facility Agent in accordance
with paragraph 2 (Demands) above less any amount of cash cover provided in respect of the Bank Guarantee under which the relevant
Issuing Bank has received demand. |
| (c) | The Interim Facility Agent shall pay to the relevant Issuing Bank any amount received by it from the Borrower
under paragraph (b) above. |
Each Issuing Bank is hereby irrevocably
authorised by the Borrower following a demand under and in accordance with any Bank Guarantee issued by that Issuing Bank to apply all
amounts of cash cover provided in respect of that Bank Guarantee in satisfaction of that Borrower's obligations in respect of that Bank
Guarantee.
| 5. | Fees payable in respect of Bank Guarantees |
| (a) | The Borrower shall pay to the Interim Facility Agent for the account of each Interim Revolving Facility
Lender in respect of a Bank Guarantee issued pursuant to the Interim Revolving Facility, a Bank Guarantee fee in euro computed at the
rate equal to one (1) per cent. below the Margin applicable to an Interim Revolving Facility Loan, on the outstanding amount of each
Bank Guarantee issued on its behalf (less any amount which has been repaid or prepaid) for the period from the issue of that Bank Guarantee
until its Expiry Date (or, if earlier, the date of its repayment or cancellation). This fee shall be distributed according to each Interim
Lender's pro rata share of that Bank Guarantee. Any accrued Bank Guarantee fee on a Bank Guarantee shall be payable on the Final Repayment
Date. |
| (b) | The Borrower shall pay to the Issuing Bank which issues a Bank Guarantee a fee equal to 0.125 per cent.
per annum (or such other amount as may be agreed between the Borrower and the relevant Issuing Bank from time to time) on the face amount
of that Bank Guarantee (excluding the amount of the share of that Issuing Bank in the Bank Guarantee if that Issuing Bank (or an Affiliate
of it) is also an Interim Lender), less any amount which has been repaid or prepaid. That fee shall be payable on the Final Repayment
Date. |
| 6. | Claims under a Bank Guarantee |
| (a) | The Borrower irrevocably and unconditionally authorises each Issuing Bank to pay any claim made or purported
to be made under a Bank Guarantee issued by such Issuing Bank and requested by it and which appears on its face to be in order (a claim). |
| (b) | The Borrower shall, within two (2) Business Days after receipt of demand or, if such payment is being
funded by an Interim Revolving Facility Loan, shall within four (4) Business Days of demand, pay to the Interim Facility Agent for
the relevant Issuing Bank an amount equal to the amount of any claim (less any cash cover provided in respect of that Bank Guarantee). |
| (c) | The Borrower acknowledges that the relevant Issuing Bank: |
| (i) | is not obliged to carry out any investigation or seek any confirmation from any other person before paying
a claim; |
| (ii) | deals in documents only and will not be concerned with the legality of a claim or any underlying transaction
or any available set-off, counterclaim or other defence of any person; and |
| (iii) | if the relevant Issuing Bank, acting reasonably, informs the Borrower not less than two (2) Business
Days prior to the issue of a Bank Guarantee that the issue by it of a Bank Guarantee would breach any law, regulation or directive applicable
to it, then such Issuing Bank will not be obliged to issue that Bank Guarantee. For the avoidance of doubt, such Issuing Bank will remain
Issuing Bank for all other purposes under this Agreement and the Borrower will be free to request any other Interim Lender to become the
Issuing Bank in respect of that Bank Guarantee. |
| (d) | The obligations of the Borrower under this paragraph 6 will not be affected by: |
| (i) | the sufficiency, accuracy or genuineness of any claim or any other document; or |
| (ii) | any incapacity of, or limitation on the powers of, any person signing a claim or other document. |
| (a) | The Borrower shall immediately (save as referred to in paragraph 1 (Immediately payable) above
and paragraph (b) of paragraph 10 (Claims under a Bank Guarantee) above) on demand indemnify an Issuing Bank against any cost,
loss or liability incurred by that Issuing Bank (otherwise than by reason of the Issuing Bank's fraud, negligence, wilful misconduct or
breach of the terms of this Agreement) in acting as the Issuing Bank under any Bank Guarantee requested by (or on behalf of) the Borrower. |
| (b) | Each Interim Revolving Facility Lender shall immediately on demand indemnify the relevant Issuing Bank
against such Interim Revolving Facility Lender's pro rata proportion of any cost, loss or liability incurred by such Issuing Bank (otherwise
than by reason of the Issuing Bank's fraud, negligence, wilful misconduct or breach of the terms of this Agreement) in acting as the Issuing
Bank under any Bank Guarantee (unless the relevant Issuing Bank has been reimbursed by an Obligor). |
| (c) | The Borrower shall immediately on demand reimburse any Interim Revolving Facility Lender for any payment
it makes to the Issuing Bank under this paragraph 7 in respect of that Bank Guarantee (otherwise than by reason of such Interim Revolving
Facility Lender's fraud, negligence, wilful misconduct or breach of the terms of this Agreement). |
| (d) | The obligations of each Interim Revolving Facility Lender under this paragraph 7 are continuing obligations
and will extend to the ultimate balance of sums payable by that Interim Lender in respect of any Bank Guarantee, regardless of any intermediate
payment or discharge in whole or in part. |
| (e) | The obligations of any Interim Revolving Facility Lender or the Borrower under this paragraph 7 will not
be affected by any act, omission, matter or thing which, but for this paragraph 7, would reduce, release or prejudice any of its obligations
under this paragraph 7 (whether or not known to it or any other person) including: |
| (i) | any time, waiver or consent granted to, or composition with, any Obligor, any beneficiary under a Bank
Guarantee or other person; |
| (ii) | the release of any other Obligor or any other person under the terms of any composition or arrangement
with any creditor or any Group Company; |
| (iii) | the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect,
take up or enforce any rights against, or security over assets of, any Obligor, any beneficiary under a Bank Guarantee or other person
or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise
the full value of any security; |
| (iv) | any incapacity or lack of power, authority or legal personality of or dissolution or change in the members
or status of an Obligor, any beneficiary under a Bank Guarantee or any other person; |
| (v) | any amendment (however fundamental) or replacement of an Interim Finance Document, any Bank Guarantee
or any other document or security unless in the case of amendments to the Bank Guarantee, the Borrower had not provided its consent to
such amendment(s); |
| (vi) | any unenforceability, illegality or invalidity of any obligation of any person under any Interim Finance
Document, any Bank Guarantee (unless such obligation arose by reason of the relevant Issuing Bank's negligence or wilful misconduct) or
any other security provided by an Obligor; or |
| (vii) | any insolvency or similar proceedings. |
| (a) | Subject to paragraph (b) below, if not previously repaid, the Borrower shall repay each Bank Guarantee
issued on its behalf in full on the Final Repayment Date. |
| (b) | Notwithstanding paragraph (a) above and Clause 7 (Repayment and Prepayment) of this Agreement,
the relevant Issuing Bank and the Borrower may agree to a Bank Guarantee not being repaid in full on the Final Repayment Date, provided
that any such Bank Guarantee shall remain outstanding on a bilateral basis between such parties and not under (or subject to the terms
of) the Interim Finance Documents. |
| 9. | Interim Lender as Issuing Bank |
An Interim Lender which is also an Issuing
Bank shall be treated as a separate entity in those capacities and capable, as an Interim Lender, of contracting with itself as an Issuing
Bank.
| 10. | Rights of contribution |
No Obligor will be entitled to any right
of contribution or indemnity from any Interim Finance Party for so long as any sum remains payable or capable of becoming payable under
the Interim Finance Documents or in respect of any payment it may make under this paragraph 10.
| 11. | Settlement conditional |
Any settlement or discharge between
an Interim Lender and an Issuing Bank shall be conditional upon no security or payment to the Issuing Bank by an Interim Lender or any
other person on behalf of an Interim Lender being avoided or reduced by virtue of any laws relating to bankruptcy, insolvency, liquidation
or similar laws of general application and, if any such security or payment is so avoided or reduced, the Issuing Bank shall be entitled
to recover the value or amount of such security or payment from such Interim Lender subsequently as if such settlement or discharge had
not occurred.
No Issuing Bank shall be obliged before
exercising any of the rights, powers or remedies conferred upon it in respect of any Interim Lender by this Agreement or by law:
| (a) | to take any action or obtain judgment in any court against any Obligor; |
| (b) | to make or file any claim or proof in a winding-up or dissolution of any Obligor; or |
| (c) | to enforce or seek to enforce any other security taken in respect of any of the obligations of any Obligor
under this Agreement. |
| 13. | Role of the Issuing Bank |
| (a) | Nothing in this Agreement constitutes the Issuing Bank as a trustee or fiduciary of any other person. |
| (b) | The Issuing Bank shall not be bound to account to any Interim Lender for any sum or the profit element
of any sum received by it for its own account. |
| (c) | The Issuing Bank may accept deposits from, lend money to and generally engage in any kind of banking or
other business with any Group Company. |
| (d) | The Issuing Bank may rely on: |
| (i) | any representation, notice or document believed by it to be genuine, correct and appropriately authorised;
and |
| (ii) | any statement made by a director, authorised signatory or employee of any person regarding any matters
which may reasonably be assumed to be within his knowledge or within his power to verify. |
| (e) | The Issuing Bank may engage, pay for and rely on the advice or services of any lawyers, accountants, surveyors
or other experts. |
| (f) | The Issuing Bank may act in relation to the Interim Finance Documents through its personnel and agents. |
| (g) | Except where an Interim Finance Document specifically provides otherwise, the Issuing Bank is not responsible
for: |
| (i) | the adequacy, accuracy and/or completeness of any information (whether oral or written) provided under
or in connection with any Interim Finance Document or any notice or document delivered in connection with any Interim Finance Document;
or |
| (ii) | the legality, validity, effectiveness, adequacy, completeness or enforceability of any Interim Finance
Document or any other agreement or document entered into in connection with any Interim Finance Document. |
| 14. | Exclusion of liability |
| (a) | Without limiting paragraph (b) below, the Issuing Bank will not be liable for any action taken by
it under or in connection with any Interim Finance Document, unless caused by its fraud, negligence, wilful misconduct or breach of the
terms of this Agreement. |
| (b) | No Party (other than the Issuing Bank) may take any proceedings against any officer, employee or agent
of the Issuing Bank in respect of any claim it might have against the Issuing Bank or in respect of any act or omission of any kind by
that officer, employee or agent in relation to any Interim Finance Document. Any officer, employee or agent of the Issuing Bank may rely
on this paragraph 14 in accordance with the Contracts (Rights of Third Parties) Act 1999. |
| 15. | Appointment of additional Issuing Banks |
Any Interim Lender which has agreed
to the Obligors' Agent's request to be an Issuing Bank pursuant to the terms of this Agreement shall become an Issuing Bank for the purposes
of this Agreement upon notifying the Interim Facility Agent and the Obligors' Agent that it has so agreed to be an Issuing Bank and acceding
to this Agreement as an Issuing Bank and on making that notification that Interim Lender shall become bound by the terms of this Agreement
as an Issuing Bank.
Schedule
10
Form of Bank Guarantee
Irrevocable Standby Letter of Credit no. [●]
At the request of [●], [Issuing Bank]
(the Issuing Bank) issues this irrevocable standby Letter of Credit (Letter of Credit) in your favour on the
following terms and conditions:
In this Letter of Credit:
Business
Day means a day (other than a Saturday or a Sunday) on which banks are open for general business in [London, and [●]].
Demand
means a demand for a payment under this Letter of Credit in the form of the schedule to this Letter of Credit.
Expiry
Date means [●].
Total
Letter of Credit Amount means [●].
| 2. | Issuing Bank's agreement |
| (a) | The Beneficiary may request a drawing or drawings under this Letter of Credit by giving to the Issuing
Bank a duly completed Demand. A Demand must be received by the Issuing Bank by 11.00 a.m. on the Expiry Date. |
| (b) | Subject to the terms of this Letter of Credit, the Issuing Bank unconditionally and irrevocably undertakes
to the Beneficiary that, within [ten (10)] Business Days of receipt by it of a Demand, it must pay to the Beneficiary the amount demanded
in that Demand. |
| (c) | The Issuing Bank will not be obliged to make a payment under this Letter of Credit if as a result the
aggregate of all payments made by it under this Letter of Credit would exceed the Total Letter of Credit Amount. |
| (a) | The Issuing Bank will be released from its obligations under this Letter of Credit on the date (if any)
notified by the Beneficiary to the Issuing Bank as the date upon which the obligations of the Issuing Bank under this Letter of Credit
are released. |
| (b) | Unless previously released under paragraph (a) above, on 5.00 p.m.([London] time) on the Expiry Date,
the obligations of the Issuing Bank under this Letter of Credit will cease with no further liability on the part of the Issuing Bank except
for any Demand validly presented under the Letter of Credit that remains unpaid. |
| (c) | When the Issuing Bank is no longer under any further obligations under this Letter of Credit, the Beneficiary
must return the original of this Letter of Credit to the Issuing Bank. |
All payments under this Letter of Credit
shall be made in [US dollar] and for value on the due date to the account of the Beneficiary specified in the Demand.
Each Demand shall be in writing, and,
unless otherwise stated, may be made by letter, fax or telex and must be received in legible form by the Issuing Bank at its address and
by the particular department or office (if any) as follows:
[●]
The Beneficiary's rights under this
Letter of Credit may not be assigned or transferred.
Except to the extent it is inconsistent
with the express terms of this Letter of Credit, this Letter of Credit is subject to the International Standby Practices (ISP 98), International
Chamber of Commerce Publication No. 590.
This Letter of Credit is governed by
English law.
The courts of England have exclusive
jurisdiction to settle any dispute arising out of or in connection with this Letter of Credit.
| Yours faithfully |
|
| |
|
| |
|
| [Issuing Bank] |
|
| By: |
|
Schedule to the Bank Guarantee
Form of Demand
To whom it may concern
Standby Letter of Credit no. [●] issued
in favour of [Beneficiary] (the Letter of Credit)
| 1. | We refer to the Letter of Credit. Terms defined in the Letter of Credit have the same meaning when used
in this Demand. |
| 2. | We certify that the sum of [●] is due [and has remained unpaid for at least [ ] Business Days] [under
[set out underlying contract or agreement]]. We therefore demand payment of the sum of [●]. |
| 3. | Payment should be made to the following account: |
| 4. | The date of this Demand is not later than the Expiry Date. |
| Yours faithfully |
|
| |
|
| |
|
| For and on behalf of |
|
| [●] |
|
| Authorised Signatory for [Beneficiary] |
|
Schedule
11
The Original Interim Lenders
Name of Original Interim
Lender | |
Interim Facility B1
Commitment
($) | | |
Interim Facility B2
Commitment
($) | | |
Interim Facility B3
Commitment
($) | | |
Interim Revolving
Facility 1 Commitment
($) | | |
Interim Revolving
Facility 2 Commitment
($) | |
| BNP Paribas | |
| 650,000,000 | | |
| 225,000,000 | | |
| 950,000,000 | | |
| 25,000,000 | | |
| 150,000,000 | |
| Crédit Agricole Corporate and Investment Bank | |
| 650,000,000 | | |
| 225,000,000 | | |
| 950,000,000 | | |
| 25,000,000 | | |
| 150,000,000 | |
| JPMorgan Chase Bank, N.A., London Branch | |
| 390,000,000 | | |
| 135,000,000 | | |
| 570,000,000 | | |
| 15,000,000 | | |
| 90,000,000 | |
| Natixis | |
| 260,000,000 | | |
| 90,000,000 | | |
| 380,000,000 | | |
| 10,000,000 | | |
| 60,000,000 | |
| Société Générale | |
| 650,000,000 | | |
| 225,000,000 | | |
| 950,000,000 | | |
| 25,000,000 | | |
| 150,000,000 | |
| Total | |
| 2,600,000,000 | | |
| 900,000,000 | | |
| 3,800,000,000 | | |
| 100,000,000 | | |
| 600,000,000 | |
Schedule
1
SIGNATURE PAGES TO INTERIM FACILITIES AGREEMENT
TOPCO
| |
|
| for and on behalf of |
|
| Atlas Investissement |
|
| as Topco |
|
| |
|
| Name: |
|
|
| |
|
|
| Title: |
|
|
Notice Details
Copy to (which shall not constitute notice)
| Address: | Kirkland & Ellis International LLP, 30 St Mary Axe, London, EC3A 8AF, United Kingdom |
| Email: | cedric.vandenborren@kirkland.com / evgeny.zborovsky@kirkland.com / antoine.lebienvenu@kirkland.com / james.collins@kirkland.com |
| Attention: | Cedric van den Borren / Evgeny Zborovsky / Antoine Lebienvenu / James Collins |
THE COMPANY
| |
|
| for and on behalf of |
|
| Atlas Luxco S.à r.l. |
|
| as the Company, the Borrower and a Guarantor |
|
| |
|
| Name: |
|
|
| |
|
|
| Title: |
|
|
Notice Details
Copy to (which shall not constitute notice)
| Address: | Kirkland & Ellis International LLP, 30 St Mary Axe, London, EC3A 8AF, United Kingdom |
| Email: | cedric.vandenborren@kirkland.com / evgeny.zborovsky@kirkland.com / antoine.lebienvenu@kirkland.com / james.collins@kirkland.com |
| Attention: | Cedric van den Borren / Evgeny Zborovsky / Antoine Lebienvenu / James Collins |
THE ARRANGERS
| |
|
[ |
| for and on behalf of |
|
for and on behalf of |
| [●] |
|
[●] |
| as Arranger |
|
as Arranger |
| |
|
|
| Name: |
|
|
Name: |
|
| |
|
|
| Title: |
|
|
Title: |
] |
Notice Details
THE ORIGINAL INTERIM LENDERS
| |
|
| for and on behalf of |
|
| [●] |
|
| as Original Interim Lender |
|
| |
|
| Name: |
|
|
| |
|
|
| Title: |
|
|
Notice Details
THE INTERIM FACILITY AGENT
| |
|
| for and on behalf of |
|
| [●] |
|
| as Interim Facility Agent |
|
| |
|
| Name: |
|
|
| |
|
|
| Title: |
|
|
Notice Details
THE INTERIM SECURITY AGENT
| |
|
| for and on behalf of |
|
| [●] |
|
| as Interim Security Agent |
|
| |
|
| Name: |
|
|
| |
|
|
| Title: |
|
|
Notice Details
Exhibit (c)(1)
| Project Meria
29th June 2024 |
| 2
Implied share price ($) Comments
Spot on 22/05/2024
52-week High/Low
12M, 6M, 3M, 1M
VWAP
Discounted broker
target prices
Atlas' consensus-based projections
xEBITDAaL 2023A
xEBITDAaL 2024E
xEBITDAaL 2025E TraTra ding multipl esing multipl es
xEBITDAaL LTM
Share price ($) 15.0 16.0 17.0 18.0 19.0 20.0 21.0 22.0 23.0 24.0 25.0 26.0 27.0
Implied premium to 22/05/2024 (36.2%) (31.9%) (27.7%) (23.4%) (19.2%) (14.9%) (10.7%) (6.4%) (2.2%) 2.1% 6.4% 10.6% 14.9%
Implied premium to 1-month VWAP (33.1%) (28.6%) (24.2%) (19.7%) (15.3%) (10.8%) (6.3%) (1.9%) 2.6% 7.0% 11.5% 15.9% 20.4%
Implied premium to 3-month VWAP (25.7%) (20.8%) (15.8%) (10.9%) (5.9%) (1.0%) 4.0% 8.9% 13.9% 18.8% 23.8% 28.7% 33.7%
Adj. EV ($bn) 9.0 9.2 9.3 9.5 9.7 9.9 10.0 10.2 10.4 10.6 10.8 10.9 11.1
Net debt & other adj. ($bn) (6.3) (6.3) (6.3) (6.3) (6.3) (6.3) (6.3) (6.3) (6.3) (6.3) (6.3) (6.3) (6.3)
EqV ($bn) 2.6 2.8 3.0 3.2 3.3 3.5 3.7 3.9 4.1 4.2 4.4 4.6 4.8
xEBITDAaL 23a ($1,811m) 5.0x 5.1x 5.2x 5.3x 5.4x 5.5x 5.5x 5.6x 5.7x 5.8x 5.9x 6.0x 6.1x
xEBITDAaL 24e ($2,227m) 4.0x 4.1x 4.2x 4.3x 4.4x 4.4x 4.5x 4.6x 4.7x 4.7x 4.8x 4.9x 5.0x
xEBITDAaL 25e ($2,317m) 3.9x 4.0x 4.0x 4.1x 4.2x 4.3x 4.3x 4.4x 4.5x 4.6x 4.6x 4.7x 4.8x
Methodology TraTrading multiplesing multiples
14.7
16.0
20.1
16.3
13.9
21.0
24.0
26.5
24.0
13.7
22.6
20.5
26.5
23.5
22.4
23.5
22.0
11.1
19.4
17.2
23.7
17.4 18.9 20.2
Market
references
DCF
Trading
multiples
Transaction
multiples
8.5
Valuation summary
29th June 2024 I Project Meria
Source(s): Factset and Bloomberg as of 28/06/2024, Company information, Brokers | Note(s): (1) Includes both US and Swedish markets data; (2) Press release from Atlas on 23/05/2024 announcing that it was exploring a potential offer
for Millicom; (3) Target prices discounted back to 30/06/2024 at a 15.1% CoE based on respective target price horizons; (4) Valuation as of 30/06/2024; Financial forecasts for Millicom for fiscal years ending December 31, 2024 through
December 31, 2030 are based on cash flow projections in brokers’ consensus for fiscal years ending December 31, 2024 through December 31, 2026 (published after the release of Millicom’s Q1 2024 results on May 8, 2024), and
extrapolated for fiscal years ending December 31, 2027 through December 31, 2030, and normative terminal year data, in each case, provided by, and approved for use by, Atlas Investissement’s management; (5) Peers selected include
LILAC, TIM Brazil, America Movil, Telefonica Brazil, and Entel; (6) Adjustments include: c. $5,980m of Net debt, c. $888m of non-controlling interests (related to activities in Colombia and calculated assuming 5.0x EBITDAaL 24E of c.
$492m), c. $675m of investments in JV (for Honduras, assuming 5.0x EBITDAaL 24E of c. $260m) and c. $0.05m of Associates, c. $155m of Provisions (legal, retirement - tax deductible); (7) LTM EBITDAaL as of Q1 24, of c. $1,926m
(2)
Reference price: $24.0
Share price references:
6M VWAP: $18.9
12M VWAP: $17.4
3M VWAP: $20.2
1M VWAP: $22.4
Other references:
Average
(4)
Precedent transactions not considered as comparable
(3)
(7)
Market data(1) pre-Atlas
Investissement’s press release from
23/05/2024(2)
Based on 11 brokers post Q1 2024
and pre-Atlas Investissement’s press
release (Min/Average/Max)
PGR range: 2.4%-2.6%
WACC range: 10.6%-11.0%
Methodology based on spot share
price of peers on 28/06/2024(5)
Average of 4.6x EBITDAaL 23A, 4.4x
EBITDAaL 24E and 4.0x
EV/EBITDAaL 25E (+/- 0.25x range)
Average of 5.5x (+/- 0.25x range)
Confidential
(6) |
| 3
10.0
12.0
14.0
16.0
18.0
20.0
22.0
24.0
26.0
Nov-22 Feb-23 May-23 Aug-23 Nov-23 Feb-24 May-24
Share price performance
$11.4
$23.5
In $
“The chance of a bid for a majority or all shares
has increased, in our view”
13 OCTOBER 2023
“If Mr. Niel reaches a 30% stake, Millicom's
bylaws require a mandatory tender offer for the
entire company.”
31 AUGUST 2023
“We would not rule out the possibility that Atlas
Investissement could try to take Millicom private
by extending a bid for all outstanding shares of
Millicom, at a significant premium. Looking at
recent events, this is what Niel did with Iliad in
2021.”
29 JUNE 2023
“With Atlas holding 22% of the shares, we
consider an eventual buyout offer likely.”
28 APRIL 2023
“We see an eventual bid from Atlas as likely”
19 APRIL 2023
Millicom’s share price has been affected by takeover speculation since Atlas Investissement entered the stock (04/11/2022)
Source(s): Brokers, Factset as of 22/05/2024
Note(s): Includes both US and Swedish markets data
29th June 2024 I Project Meria Confidential |
| 4
Broker Rating Date Target Price
TIGO-US ($)
Target Price
TIGO-SE
(SEK)
Target price
($)
Upside/
(discount)(1)
Target Price
horizon
Disc. Target
Price ($)(2, 3)
Upside/
(discount)(1)
Pareto Securities Buy 21/05/2024 -- 304.0 28.4 20.9% 12 months 25.1 6.7%
New Street Research Buy 13/05/2024 30.0 -- 30.0 27.6% n.a. 26.5 12.9%
ABG Sundal Collier Buy 10/05/2024 -- 300.0 27.6 17.5% 6 months 26.3 11.7%
Carnegie Group Buy 10/05/2024 -- 300.0 27.6 17.5% 6-12 months 25.4 7.9%
DNB Markets Buy 10/05/2024 -- 310.0 28.6 21.5% 12 months 25.3 7.6%
Kepler Cheuvreux Buy 09/05/2024 -- 300.0 27.6 17.5% 12 months 24.5 4.2%
Barclays Hold 09/05/2024 -- 275.0 25.3 7.7% 12 months 22.4 (4.5%)
Scotiabank Buy 08/05/2024 26.1 -- 26.1 11.0% 12 months 23.1 (1.6%)
Morgan Stanley Buy 08/05/2024 -- 260.0 23.9 1.5% 12-18 months 20.4 (13.1%)
HSBC Buy 08/05/2024 26.0 285.0 26.0 10.6% 6-12 months 23.9 1.6%
UBS Hold 08/05/2024 18.0 -- 18.0 (23.4%) 12 months 16.0 (32.1%)
Average 25.0 291.8 26.3 11.8% 23.5 0.1%
Median 26.1 300.0 27.6 17.5% 24.5 4.2%
Min 18.0 260.0 18.0 (23.4%) 16.0 (32.1%)
Max 30.0 310.0 30.0 27.6% 26.5 12.9%
Excluded
Morningstar Buy 09/05/2024 34.0 370.0 34.0 Target price horizon is 3 years vs. 6-18 months for the others
Svenska Hand. Buy 09/05/2024 -- -- -- Target price not available
Analysts targets and ratings
Source(s): Broker reports; Bloomberg as of 22/05/2024
Note(s): Target prices of brokers covering SDRs presented based on USD/SEK exchange rate as of the report date; (1) Upside/(discount) calculated over average of Millicom’s US and Sweden current share prices at $23.5 as of 22nd
May 2024; (2) Based on cost of Equity of 15.1%, mid-point of target price horizon and valuation date as of 30/06/2024; (3) Assumes 12 months target price horizon for New Street Research; (4) Based on USD/SEK spot rate of 10.7 as
of 22nd May 2024; (5) Press release from Atlas on 23/05/2024 announcing that it was exploring a potential offer for Millicom
$28.0(4)
$27.2(4)
$24.2(4)
$28.9(4)
Target price releases (i) post Q1 24 results (8th of May) and (ii) pre-Atlas Investissement’s public announcement and press release (23rd of May)(5)
29th June 2024 I Project Meria Confidential |
| 5
Valuation date as of 31-M ar-24 Actual Atlas’ consensus-based projections Norm.
FYE as of 31-Dec, in USDm except otherwise stated 2022A 2023A 2024E 2025E 2026E 2027E 2028E 2029E 2030E year
Revenues 5,624 5,661 5,951 6,074 6,226 6,382 6,541 6,705 6,873 7,044
Revenue growth (%) 32.0% 0.7% 5.1% 2.1% 2.5% 2.5% 2.5% 2.5% 2.5% 2.5%
Opex (3,396) (3,550) (3,409) (3,435) (3,510) (3,598) (3,688) (3,780) (3,875) (3,972)
Leases (292) (300) (315) (322) (330) (338) (347) (355) (364) (373)
EBITDAaL 1,936 1,811 2,227 2,317 2,386 2,446 2,507 2,569 2,634 2,700
EBITDAaL margin (%) 34.4% 32.0% 37.4% 38.1% 38.3% 38.3% 38.3% 38.3% 38.3% 38.3%
D&A (1,175) (1,154) (1,150) (1,149) (1,121) (1,128) (1,134) (1,140) (1,146) (1,151)
EBIT 761 657 1,078 1,168 1,265 1,318 1,372 1,429 1,488 1,548
EBIT margin (%) 13.5% 11.6% 18.1% 19.2% 20.3% 20.6% 21.0% 21.3% 21.6% 22.0%
Taxes (542) (523) (518) (520) (521) (521) (521) (519)
Other non-operating (expenses) income, net 22 11 9 9 9 9 9 10
Effective tax rate (% of EBITDAaL - D&A + others) 49.3% 44.4% 40.7% 39.2% 37.7% 36.3% 34.8% 33.3%
NOPAT 536 645 746 797 851 908 967 1,030
D&A 1,175 1,154 1,150 1,149 1,121 1,128 1,134 1,140 1,146 1,151
Capex excl. Spectrum (973) (809) (777) (833) (877) (893) (909) (926) (942) (959)
as a % of Revenues (17.3%) (14.3%) (13.1%) (13.7%) (14.1%) (14.0%) (13.9%) (13.8%) (13.7%) (13.6%)
Spectrum paid (93) (236) (166) (154) (177) (174) (178) (183) (187) (192)
as a % of Revenues (1.7%) (4.2%) (2.8%) (2.5%) (2.8%) (2.7%) (2.7%) (2.7%) (2.7%) (2.7%)
Change in Working Capital (151) (123) (80) (54) (47) (48) (49) (50) (52) (53)
as a % of Revenues - (2.2%) (1.3%) (0.9%) (0.7%) (0.7%) (0.7%) (0.7%) (0.7%) (0.7%)
Free Cash Flow 663 753 766 810 849 889 932 977
Growth (%) n.a. 14% 2% 6% 5% 5% 5% n.a.
Discount period (years) 0.38 1.25 2.25 3.25 4.25 5.25 6.25
Discount factor 0.96 0.88 0.79 0.72 0.65 0.58 0.53
% CF taken into account 0.75 1.00 1.00 1.00 1.00 1.00 1.00
Discounted FCF 478 662 608 581 549 519 491
(%) USDm Terminal Value 11,769
NPV of TV (2.5% PGR) 61% 6,200 EBITDAaL multiple 4.4x
NPV of Disc. FCF (at 10.8% WACC) 39% 3,889
Firm Value 10,088
Implied 2023A EBITDAaL multiple 5.6x
Implied 2024E EBITDAaL multiple 4.5x
EV-equity bridge excl. lease liabilities (6,348)
Implied equity value 3,741
Number of diluted shares outstanding (m) 176.2
Implied share price as of 31-Mar-24 21.2
Cost of equity 15.1%
Compound period (Mar-24 to Jun-24) 0.25
Implied share price as of 30-Jun-24 22.0
DCF Valuation
29th June 2024 I Project Meria
Source(s): Company Information, Financial forecasts for Millicom for fiscal years ending December 31, 2024 through December 31, 2030 based on projections in brokers’ consensus for fiscal years ending December 31, 2024 through
December 31, 2026 published after the release of Millicom’s Q1 2024 results on May 8, 2024, as extrapolated for fiscal years ending December 31, 2027 through December 31, 2030 and for the normative year, in each case, provided
by, and approved for use by, Atlas Investissement’s management
Note(s): (1) Only shown for tax computation purposes as the effective tax rate is based on the % of (EBITDAaL – D&A + others); (2) Based on bottom-up WACC analysis; (3) Implied share price as of 31-Mar-24 compounded at CoE of
15.1% to obtain an implied share price as of 30-Jun-24
(1)
(3)
(2)
Sensitivity of implied share price as of 30-Jun-24 to WACC and PGR (USD)
Implied share price
10.6% 10.7% 10.8% 10.9% 11.0%
2.4% 22.9 22.1 21.4 20.8 20.1
2.5% 23.4 22.7 22.0 21.3 20.6
2.6% 24.0 23.3 22.6 21.8 21.2
WACC
PGR
Confidential |
| 6
4.5x
4.9x 4.9x
3.1x
3.7x 3.7x
LILAC AMX ENTEL TEF-BRL TIM-BRL
Average: 4.0x
4.7x
5.7x
5.2x
3.3x
3.9x 3.9x
LILAC AMX ENTEL TEF-BRL TIM-BRL
Average: 4.4x
5.8x 5.8x
5.4x
3.4x
4.2x 4.2x
LILAC AMX ENTEL TEF-BRL TIM-BRL
Average: 4.6x
Average Median
EBITDAaL ($m) 2,317 2,317
EV / EBITDAaL multiple 4.0x 3.7x
EV ($m) 9,379 8,541
EV-Eq. Adjustments ($m) 6,348 6,348
Implied Equity Value ($m) 3,031 2,193
Fully diluted NOSH (m)(1) 176.2 176.2
Implied share price ($/s.) 17.2 12.5
Average Median
EBITDAaL ($m) 2,227 2,227
EV / EBITDAaL multiple 4.4x 3.9x
EV ($m) 9,771 8,753
EV-Eq. Adjustments ($m) 6,348 6,348
Implied Equity Value ($m) 3,423 2,404
Fully diluted NOSH (m)(1) 176.2 176.2
Implied share price ($/s.) 19.4 13.6
Average Median
EBITDAaL ($m) 1,811 1,811
EV / EBITDAaL multiple 4.6x 4.2x
EV ($m) 8,305 7,592
EV-Eq. Adjustments ($m) 6,348 6,348
Implied Equity Value ($m) 1,957 1,244
Fully diluted NOSH (m)(1) 176.2 176.2
Implied share price ($/s.) 11.1 7.1
LILAC AMX ENTEL TEF-BRL TIM-BRL
Selected trading peers
2024E EV / EBITDAaL Multiples
Source(s): FactSet as of 28/06/2024
Note(s): Market capitalisation based on spot share prices except for Millicom; Multiples calculated based on the average brokers consensus, in USD for Millicom and LILAC and in local currency for America Movil, Entel, Telefonica
Brazil, TIM Brazil. Analysis does not take into account potential impacts from currency fluctuations and expected evolution of exchange rates; (1) Adjusted for dilutive instruments (4.9m) and treasury shares of (0.8m)
o Peers: Spot share price (28/06/2024)
o Millicom: $23.5 share price (pre-Atlas Investissement’s press release)
2023A EV / EBITDAaL Multiples 2025E EV / EBITDAaL Multiples
29th June 2024 I Project Meria Confidential |
| Appendix |
| 8
6.3x 6.0x
4.1x
6.4x
5.2x
4.8x
Average 5.5x
Median 5.6x
Precedent LatAm transactions since 2014 – EV / EBITDAaL
Source(s): Companies
Note(s): (1) Multiple based on full year 2021 targets, IFRS 16 impacts based on 2020 level; (2) Multiple based on adjusted 2019 OIBDA; including synergies; (3) Multiple on 2018 adjusted EBITDA including synergies based on 5.8x
combined multiple including opex and capex synergies, with synergies allocated based on % of revenues; (4) Acquiring ~24% of the total A and AA shares and less than 1% of the L shares
EV/
EBITDAaL
Target
country
Ann. Date
Target
Acquirer
%
Acquired
EV @100%
($USm)
Financials
$5,309 $500 $435 $657 $16,665 $94,837
2021E 2019PF 2018A 2018A LTM Q2 2015 LTM Q1 2014
Nov-2021 Jul-2020 Feb-2019 Feb-2019 Jul-2015 Jun-2014
45% 100% 100% 100% 4% 8%
BRAZIL
(4) (1) (3)
GUATEMALA NICARAGUA
(2)
COSTA RICA PANAMA
(3)
Transactions without synergies
Post synergies multiples
For reference purposes only, precedent
transactions not considered as comparable
29th June 2024 I Project Meria Confidential |
| 9
Disclaimer
This document has been jointly prepared by (i) BNP Paribas (acting by its M&A EMEA department), (ii) Credit Agricole Corporate and Investment Bank, (iii) J.P. Morgan Securities LLC, (iv) J.P. Morgan Securities plc, (v) Lazard Frères SAS and (vi) Société Générale
(collectively, the “Financial Advisors”) for information purposes only at the request of their joint client, Atlas Investissement (the “Client”), and for the exclusive use of the Client in order to assist the Client, in connection with the contemplated transaction (the “Transaction”),
within the framework of the engagement of the Financial Advisors by the Client as its financial advisors for this project pursuant to the terms of the applicable engagement letters (collectively, the “Mandate”). Nothing in this document represents an offer or commitment,
express or implied, on the part of the Financial Advisors to offer or provide any products or services or to enter into any arrangements or transactions in connection with the matters described in this document.
This document has been prepared on the basis of information (i) either provided, directly or indirectly, orally or in writing, by or on behalf of the Client, and/or (ii) obtained from publicly available sources (together the “Information”). With respect specifically to the financial
forecasts and projections made available by or through the Client, and/or its advisors and used by the Financial Advisors for the present document, the Financial Advisors have assumed that they have been reasonably prepared in good faith on a basis reflecting the best
currently available estimates and judgments of the managements who prepared them and were based upon assumptions which, in light of the circumstances under which they were made, were reasonable according to the management of the Client. Because all of these
elements are inherently subject to uncertainty, being based upon numerous factors or events beyond the control of the Financial Advisors and on which the Financial Advisors do not have any certainty, the Financial Advisors express no opinion on the validity of such
projections and forecasts and assume no responsibility if future results or values are different from the forecasts or assumptions used and retained in this document.
No representation or warranty, expressed or implied, is made and no responsibility is or will be accepted by the Financial Advisors as to or in relation to the accuracy, reliability or completeness of any Information (or for any omission, or any misleading elements of such
Information or any derivative information) and any liability for the Financial Advisors or any of their directors or employees to third parties (including in respect of direct, indirect or consequential loss or damages) is expressly disclaimed. The Financial Advisors (i) assumed
that the Information (in particular the information which was provided by the Client) is true, complete, accurate and not misleading and (ii) did not conduct any specific due diligence or submit such documents and, more generally, the Information, to an independent
appraisal or expert, as such tasks were not included in its assignment under the Mandate. It is therefore advisable for the Client to make its own judgment and assessment of the Information.
The Financial Advisors are not accounting, environmental, legal, regulatory or tax experts and have not conducted any independent accounting, environmental, legal, regulatory or tax analysis of the Transaction and are not providing any advice on such matters; if
appropriate, the Financial Advisors have relied on the assessments made by other advisors of the Client with respect to such issues. The Financial Advisors do not assume any responsibility for any such assessment and/or for the Information. The Client should conduct its
own independent analysis of the Information referred to herein.
The analyses expressed herein reflect the judgment of the Financial Advisors as at, and are based upon economic, monetary, market and other conditions as in effect on, and the Information made available to the Financial Advisors as of, the date hereof, all of which are
accordingly subject to change. The Financial Advisors expressly disclaim any undertaking or obligation to revise, modify or reaffirm the contents of this document or to advise any person of any change in any fact or matter affecting this document of which they become
aware after any such date.
This document does not constitute an opinion as to the fairness of any consideration to be paid in the Transaction or as to valuation or otherwise and does not constitute any recommendation of any specific consideration to be paid in the Transaction or
valuation, or as to whether to consummate the Transaction, to the Client or its directors, shareholders, creditors or other relevant parties. This document should not be relied on as the basis for any investment decision. In addition, the analyses contained
in this document are not and do not purport to be appraisals of the assets, stock or business of the Client or any other entity.
The Information and analyses contained in this document are not intended to be the sole basis upon which the assessment of the merits of the Transaction can be made, and a position vis à vis the Transaction decided and/or implemented. The Client should therefore
make its own judgment and assessment of the Information and analyses contained in this document and the Transaction. In any event, the decision to proceed or not with the Transaction belongs to the Client, taking into account all the elements and risks and factors
regarding the Transaction.
This document is strictly confidential and may not be reproduced (in whole or in part) nor summarized or distributed or publicized nor disclosed, in whole or in part, to any third party without the prior written consent of the Financial Advisors. The Client shall keep this report
and its content strictly confidential and not disclose its content to any person other than those of its employees and selected executive officers and directors who strictly need access to it for the sole purpose of assessing the merits of the Transaction.
This document is not intended to be directed at (or used by) retail clients. The distribution of this document in certain jurisdictions may be restricted by law or regulation, and in receiving this document all persons into whose possession it comes shall ensure that they are
aware of, and are able to receive this document without contravening, any such restrictions in the jurisdictions in which they are incorporated or carry on business. The Financial Advisors shall have no responsibility or liability to the Client for failing to comply with the
relevant laws and regulations of any territory.
BNP Paribas:
BNP Paribas is a société anonyme, with its registered office at 16 boulevard des Italiens, 75009 Paris, France, registered at the Paris Trade register under number 662 042 449. BNP Paribas is a credit institution and an investment services provider authorised and lead-supervised by the European Central Bank (Sonnemannstrasse 20, 60314 Frankfurt-am-Main, Germany) and the Autorité de Contrôle Prudentiel et de Résolution (Banque de France – 4, place de Budapest - 75009 Paris Cedex 9).
J.P. Morgan:
J.P. Morgan is a party to the SEC Research Settlement and as such, is generally not permitted to utilize the firm's research cap abilities in pitching for investment banking business. All views contained in this presentation are the views of J.P. Morgan’s Investment Bank, not
the Research Department. J.P. Morgan’s policies prohibit employees from offering, directly or indirectly, a favorable research rating or specific price target, or offering to change a rating or price target, to a subject company as consideration or inducement for the receipt of
business or for compensation. J.P. Morgan also prohibits its research analysts from being compensated for involvement in investment banking transactions except to the extent that such participation is intended to benefit investors.
J.P. Morgan is a marketing name for investment businesses of JPMorgan Chase & Co. and its subsidiaries and affiliates worldwide. Securities, syndicated loan arranging, financial advisory, lending, derivatives and other investment banking and commercial banking
activities are performed by a combination of J.P. Morgan Securities LLC, J.P. Morgan Securities plc, J.P. Morgan SE, JPMorgan Chase Bank, N.A. and the appropriately licensed subsidiaries and affiliates of JPMorgan Chase & Co. worldwide. J.P. Morgan deal team
members may be employees of any of the foregoing entities. J.P. Morgan Securities plc is authorized by the Prudential Regulation Authority and regulated by the Financial Conduct Authority and the Prudential Regulation Authority. J.P. Morgan SE is authorised as a credit
institution by the German Federal Financial Supervisory Authority (Bundesanstalt für Finanzdienstleistungsaufsicht, BaFin) and jointly supervised by the BaFin, the German Central Bank (Deutsche Bundesbank) and the European Central Bank (ECB).
J.P. Morgan Securities LLC intermediates securities transactions effected by its non-U.S. affiliates for or with its U.S. clients when appropriate and in accordance with Rule 15a-6 under the Securities Exchange Act of 1934. Please consult: www.jpmorgan.com/securities-transactions.
Société Générale:
Société Générale is a société anonyme, with its registered office at 29 boulevard Haussmann, 75009 Paris, France and with a share capital of EUR 1,003,724,927.50, registered at the Paris Trade register under number 552 120 222. Société Générale is a French credit
institution (bank) authorised and supervised by the European Central Bank (ECB) and the Autorité de Contrôle Prudentiel et de Résolution (the French Prudential Control and Resolution Authority) (ACPR) and regulated by the Autorité des Marchés Financiers (the French
financial markets regulator) (AMF).
To the extent that Société Générale, London Branch provides, or assists in providing, any products, services, arrangements or transactions that may be referenced in this document, it will be acting exclusively for and under the supervision of Société Générale in relation to
those matters. Société Générale, London Branch is authorised by the Prudential Regulation Authority and is subject to regulation by the Financial Conduct Authority and limited regulation by the Prudential Regulation Authority.
29th June 2024 I Project Meria Confidential |
Exhibit 107
CALCULATION OF FILING FEE TABLES
Schedule
TO
(Form Type)
Millicom
International Cellular S.A.
(Name of Subject Company (Issuer))
Atlas
Luxco S.à r.l.
(Offeror)
a wholly owned subsidiary of
Atlas Investissement S.A.S.
(Affiliate of Offeror)
a majority-owned subsidiary of
NJJ Holding
(Affiliate of Offeror)
wholly-owned by
Xavier Niel
(Affiliate of Offeror)
Maxime
Lombardini
(Affiliate of Offeror)
(Name of Filing Persons (identifying status as
offeror, issuer or other person))
Table 1 - Transaction Valuation
| |
Transaction Valuation* |
Fee Rate |
Amount of Filing Fee** |
| Fees to be Paid |
$2,910,934,320.00 |
0.0001476 |
$429,653.91 |
| Fees Previously Paid |
$0 |
|
$0 |
| Total Transaction Valuation |
$2,910,934,320.00 |
|
|
| Total Fees Due for Filing |
|
|
$429,653.91 |
| Total Fees Previously Paid |
|
|
$0 |
| Total Fee Offsets |
|
|
$0 |
| Net Fee Due |
|
|
$429,653.91 |
| |
* |
Estimated for purposes of calculating the filing fee only. The transaction valuation was calculated by multiplying the product of (i) USD $24.00, which is the cash offer price for the common shares of Millicom International Cellular S.A., nominal value $1.50 per share (the “Common Shares”) and Swedish Depositary Receipts representing Common Shares, each Swedish Depositary Receipt representing one Common Share, (each, an “SDR,” and collectively, the “SDRs,” and together with the Common Shares, the “Shares”) by (ii) 121,288,930 Shares issued and outstanding as of July 1, 2024, which is the difference between (a) 172,096,305 Shares issued as of July 1, 2024 minus (b) 840,641 Shares held in treasury and (c) 49,966,734 Shares held by the Purchaser Group. |
| |
** |
The amount of the filing fee, calculated in accordance with Rule 0-11 of the Exchange Act, was calculated by multiplying $2,910,934,320.00 by 0.0001476. |
Millcom Swed Dep Rec (PK) (USOTC:MICCF)
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