TIDMINFI
RNS Number : 0666D
Terra Firma Investments (GP) 2 Ltd
22 October 2015
NOT FOR RELEASE, PUBLICATION OR DISTRIBUTION, IN WHOLE OR IN
PART, IN OR INTO ANY JURISDICTION WHERE TO DO SO WOULD CONSTITUTE A
VIOLATION OF THE RELEVANT LAWS OF SUCH JURISDICTION.
22 October 2015
For immediate release
Recommended Cash Acquisition
of
Infinis Energy plc ("Infinis")
by
Monterey Capital II S.à r.l. ("Monterey")
a Terra Firma group company
To be effected by means of a Scheme of Arrangement under Part 26
of the Companies Act 2006
Summary
-- The board of directors of Monterey and the Infinis
Independent Directors are pleased to announce that they have
reached agreement on the terms of a recommended cash acquisition by
which the entire issued and to be issued ordinary share capital of
Infinis that Monterey does not already own will be acquired by
Monterey.
-- Monterey currently owns 205,667,740 Infinis Ordinary Shares,
representing approximately 68.5 per cent. of the issued ordinary
share capital of Infinis.
-- Under the terms of the Acquisition, each Scheme Shareholder
will receive 185 pence in cash for each Infinis Ordinary Share,
which represents a premium of approximately:
40.4 per cent. to the closing price of 131.75 pence per Infinis
Ordinary Share on 21 October 2015 (being the last Business Day
before this Announcement); and
38.2 per cent. to the average closing price of 133.86 pence per
Infinis Ordinary Share for the one-month period ended 21 October
2015 (being the last Business Day before this Announcement).
-- The Acquisition values Infinis' entire issued and to be
issued ordinary share capital at approximately GBP555 million.
-- It is intended that the Acquisition will be implemented by
means of a Court-sanctioned scheme of arrangement under Part 26 of
the Companies Act.
-- The Infinis Independent Directors, who have been so advised
by Barclays Bank PLC, acting through its Investment Bank
("Barclays"), and RBC Capital Markets, as to the financial terms of
the Acquisition, consider the terms of the Acquisition to be fair
and reasonable. In providing their advice, Barclays and RBC Capital
Markets have taken into account the commercial assessments of the
Infinis Independent Directors. RBC Capital Markets is providing
independent financial advice to the Infinis Independent Directors
for the purposes of Rule 3 of the Code.
-- Accordingly, the Infinis Independent Directors have
unanimously approved the Acquisition and intend to recommend that
Infinis Shareholders vote in favour of the Scheme at the Court
Meeting and the resolutions to be proposed at the General Meeting
as they have irrevocably undertaken to do in respect of their own
beneficial holdings of, in aggregate, 1,002,826 Infinis Ordinary
Shares representing approximately 0.33 per cent. of the issued
ordinary share capital of Infinis on 21 October 2015 (being the
last Business Day prior to the date of this Announcement). Further
details of these irrevocable undertakings, including the
circumstances in which they cease to be binding, are set out in
Appendix 3 to the following Announcement.
-- It is expected that the Court Meeting and General Meeting
will be held by the end of November 2015. Subject, amongst other
things, to the satisfaction or waiver of the Conditions, it is
expected that the Scheme will become effective by the end of this
year.
-- Infinis is the leading independent renewable power generator
in the UK and operates 137 power plants with an installed capacity
of 585 MW generating renewable power from landfill gas and onshore
wind. It also has four onshore wind projects under construction
which are expected to deliver 135 MW of incremental onshore wind
capacity by 31 March 2017. The Infinis Group is the largest power
generator from landfill gas in the UK and one of the UK's leading
onshore wind power generators.
-- Paragraph 5 of the following Announcement provides further
information on the background to and reasons for the Independent
Directors' recommendation and paragraph 3 of the following
Announcement provides further information on the background to and
reasons for the Acquisition.
-- Commenting on today's Announcement, Guy Hands, Chairman and
Chief Investment Officer of Terra Firma, said:
"The transaction announced today is part of Terra Firma's
strategy of monetising its investment in Infinis, a business that
we have owned and invested in over more than a decade. We have
considered gradual sell-downs of our interest in the company since
its IPO in November 2013 and more recently we have also explored
other strategic options, but the change in the regulatory
environment for Infinis has prompted us to rethink our
strategy.
We believe that this transaction offers Infinis' shareholders an
attractive cash consideration for their shares in Infinis and
allows Terra Firma to pursue alternative options to monetise its
investment in Infinis once it is a private company. We are pleased
that the Infinis Independent Directors have unanimously recommended
the transaction and are grateful to the Infinis board and
management team for their support, in particular as we have jointly
completed the preparations for the offer announced today."
-- Commenting on today's Announcement, Ian Marchant, Chairman of Infinis said:
"Since the IPO of Infinis two years ago, our management and
employees have delivered what was promised in terms of both
operational performance and the development of the business, with
135 MW of new wind capacity in construction. However, the
challenging regulatory and political environment and the reduction
in power prices in the last two years have adversely affected both
the cash generation and the growth prospects of the business.
Accordingly, the Infinis Independent Directors have been actively
exploring ways to maximise value and have looked at offers for the
whole business as well as selling the assets separately. Following
this work, the Infinis Independent Directors firmly believe that
the offer from Monterey represents the best combination of risk and
return for shareholders."
-- The Scheme Document, containing further information about the
Acquisition and notices of the Court Meeting and General Meeting,
together with the Forms of Proxy, will be posted to Infinis
Shareholders and (for information only) to participants in the
Infinis Share Schemes as soon as practicable and, in any event,
within 28 days of the date of this Announcement (unless the Panel
agrees otherwise).
This summary should be read in conjunction with, and is subject
to, the full text of the following Announcement (including its
Appendices). The Acquisition will be subject to the Conditions and
certain further terms set out in Appendix 1 and to the full terms
and conditions to be set out in the Scheme Document. Appendix 2
contains the sources and bases of certain information contained in
this summary and the following Announcement. Appendix 3 contains
details of the irrevocable undertakings received by Monterey.
Appendix 4 contains the definitions of certain terms used in this
summary and the following Announcement.
Enquiries
Goldman Sachs International Tel: +44 (0) 20 7774 1000 Infinis Tel: +44 (0) 20 7404 5959
(Sole Financial Adviser to Ian Marchant
Terra Firma and Monterey) Eric Machiels
Alasdair Warren
Nimesh Khiroya
Alex Garner
Finsbury Tel: +44 (0) 20 7251 3801 Barclays Tel: +44 (0) 20 7623 2323
(PR Adviser to Terra Firma (Joint Financial Adviser and
and Monterey) Corporate Broker to Infinis)
Rollo Head Iain Smedley
Gordon Simpson Mark Todd
Nishant Amin
Neal West (Corporate Broking)
RBC Capital Markets Tel: +44 (0) 20 7653 4000
(Joint Financial Adviser and
Corporate Broker to Infinis)
Dai Clement
Lorna Shearin
Mark Rushton
Jonathan Hardy (Corporate
Broking)
Brunswick Tel: +44 (0) 20 7404 5959
(PR Adviser to Infinis)
David Litterick
Simon Maine
Further information
This Announcement is not intended to and does not constitute, or
form part of, an offer, invitation or the solicitation of an offer
to purchase, otherwise acquire, subscribe for, sell or otherwise
dispose of any securities, or the solicitation of any vote or
approval in any jurisdiction, pursuant to the Acquisition or
otherwise, nor shall there be any sale, issuance or transfer of
securities of Infinis in any jurisdiction in contravention of
applicable law. The Acquisition will be made solely by means of the
Scheme Document, which will contain the full terms and conditions
of the Acquisition including details of how to vote in respect of
the Scheme. Any vote in respect of the Scheme or other response in
relation to the Acquisition should be made only on the basis on the
information contained in the Scheme Document.
(MORE TO FOLLOW) Dow Jones Newswires
October 22, 2015 02:00 ET (06:00 GMT)
Goldman Sachs International, which is authorised by the PRA and
regulated by the FCA and the PRA, is acting exclusively for Terra
Firma and Monterey and no--one else in connection with the
Acquisition and will not be responsible to anyone other than Terra
Firma and Monterey for providing the protections afforded to
clients of Goldman Sachs International nor for providing advice in
relation to the Acquisition or any other matters referred to in
this Announcement.
Barclays, which is authorised by the PRA and regulated in the
United Kingdom by the FCA and the PRA, is acting exclusively for
Infinis and no one else in connection with the Acquisition and will
not be responsible to anyone other than Infinis for providing the
protections afforded to clients of Barclays nor for providing
advice in relation to the Acquisition or any other matter referred
to in this Announcement.
RBC Europe Limited (trading as RBC Capital Markets), which is
authorised by the PRA and regulated by the FCA and the PRA, is
acting exclusively for Infinis and no one else in connection with
the Acquisition and will not be responsible to anyone other than
Infinis for providing the protections afforded to clients of RBC
Europe Limited nor for providing advice in relation to the
Acquisition or any other matters referred to in this
Announcement.
Overseas jurisdictions
The availability of the Acquisition to Infinis Shareholders who
are not resident in and citizens of the UK may be affected by the
laws of the relevant jurisdictions in which they are located or of
which they are citizens. Persons who are not resident in the UK
should inform themselves of, and observe, any applicable legal or
regulatory requirements of their jurisdictions. Further details in
relation to overseas shareholders will be contained in the Scheme
Document.
The release, publication or distribution of this Announcement in
or into jurisdictions other than the UK may be restricted by law
and therefore any persons who are subject to the law of any
jurisdiction other than the UK should inform themselves about, and
observe, any applicable requirements. Any failure to comply with
the applicable restrictions may constitute a violation of the
securities laws of any such jurisdiction. To the fullest extent
permitted by applicable law, the companies and persons involved in
the Acquisition disclaim any responsibility or liability for the
violation of such restrictions by any person. This Announcement has
been prepared for the purposes of complying with English law, the
rules of the London Stock Exchange and the Code and the information
disclosed may not be the same as that which would have been
disclosed if this Announcement had been prepared in accordance with
the laws of jurisdictions outside of England.
Copies of this Announcement and formal documentation relating to
the Scheme and the Acquisition will not be and must not be, mailed
or otherwise forwarded, distributed or sent in, into or from any
jurisdiction where to do so would violate the laws of that
jurisdiction.
US Holders should note that the Acquisition relates to the
securities of a UK company, is subject to UK disclosure
requirements (which are different from those of the US) and is
proposed to be implemented under a scheme of arrangement provided
for under English company law. A transaction effected by means of a
scheme of arrangement is not subject to the tender offer rules
under the US Exchange Act. Accordingly, the Scheme will be subject
to UK disclosure requirements and practices, which are different
from the disclosure requirements of the US tender offer rules. The
financial information included in this Announcement and the Scheme
documentation has been or will have been prepared in accordance
with generally accepted accounting principles of the UK and thus
may not be comparable to financial information of US companies or
companies whose financial statements are prepared in accordance
with generally accepted accounting principles in the US. If
Monterey exercises its right to implement the Acquisition by way of
a takeover offer, such offer will be made in compliance with
applicable US tender offer and securities laws and regulations.
The receipt of cash pursuant to the Acquisition by a US Holder
as consideration for the transfer of its Scheme Shares pursuant to
the Scheme may be a taxable transaction for US federal income tax
purposes and under applicable US state and local, as well as
foreign and other, tax laws. Each Infinis Shareholder is urged to
consult his independent professional adviser immediately regarding
the tax consequences of the Acquisition applicable to him.
It may be difficult for US Holders to enforce their rights and
claims arising out of the US federal securities laws, since
Monterey and Infinis are located in countries other than the US,
and some or all of their officers and directors may be residents of
countries other than the US. US Holders may not be able to sue a
non-US company or its officers or directors in a non-US court for
violations of US securities laws. Further, it may be difficult to
compel a non-US company and its affiliates to subject themselves to
a US court's judgement.
In accordance with normal UK practice and pursuant to Rule
14e-5(b) of the US Exchange Act, Monterey or its nominees, or its
brokers (acting as agents), may from time to time make certain
purchases of, or arrangements to purchase, Infinis Ordinary Shares
outside of the United States, other than pursuant to the
Acquisition, until the date on which the Acquisition and/or Scheme
becomes effective, lapses or is otherwise withdrawn. In addition,
in accordance with the Code, normal United Kingdom practice and
Rule 14e-5(b) of the US Exchange Act, Goldman Sachs International,
while serving as a Financial Adviser to Monterey, or its affiliates
and certain identifiable business units, and Barclays, while
serving as Joint Financial Adviser to Infinis, or its affiliates
and certain identifiable business units will continue to act as an
exempt principal trader in Infinis Ordinary Shares on the London
Stock Exchange. These purchases may occur either in the open market
at prevailing prices or in private transactions at negotiated
prices. Any information about such purchases will be disclosed as
required in the UK, will be reported to a Regulatory Information
Service of the London Stock Exchange and will be available on the
London Stock Exchange website, www.londonstockexchange.com.
Forward looking statements
This Announcement (including information incorporated by
reference in this Announcement), oral statements made regarding the
Acquisition, and other information published by Monterey and
Infinis contain statements which are, or may be deemed to be,
"forward-looking statements". Forward-looking statements are
prospective in nature and are not based on historical facts, but
rather on current expectations and projections of the management of
Monterey and Infinis about future events, and are therefore subject
to risks and uncertainties which could cause actual results to
differ materially from the future results expressed or implied by
the forward-looking statements. The forward-looking statements
contained in this Announcement include statements relating to the
expected effects of the Acquisition on Monterey and Infinis, the
expected timing and scope of the Acquisition and other statements
other than historical facts. Often, but not always, forward-looking
statements can be identified by the use of forward-looking words
such as "plans", "expects" or "does not expect", "is expected", "is
subject to", "budget", "scheduled", "estimates", "forecasts",
"intends", "anticipates" or "does not anticipate", or "believes",
or variations of such words and phrases or statements that certain
actions, events or results "may", "could", "should", "would",
"might" or "will" be taken, occur or be achieved. Although Monterey
and Infinis believe that the expectations reflected in such
forward-looking statements are reasonable, Monterey and Infinis can
give no assurance that such expectations will prove to be correct.
By their nature, forward-looking statements involve risk and
uncertainty because they relate to events and depend on
circumstances that will occur in the future. There are a number of
factors that could cause actual results and developments to differ
materially from those expressed or implied by such forward-looking
statements. These factors include, but are not limited to: the
ability to consummate the Acquisition; the ability to obtain
requisite shareholder approvals and the satisfaction of other
Conditions on the proposed terms and schedule; the ability of
Monterey and Infinis to successfully retain key employees; the
potential impact of the Announcement or consummation of the
Acquisition on relationships, including with employees, suppliers,
customers and competitors; changes in general economic, business
and political conditions, including changes in the financial
markets; significant competition that Infinis faces; compliance
with extensive government regulation. Other unknown or
unpredictable factors could cause actual results to differ
materially from those in the forward-looking statements. Such
forward-looking statements should therefore be construed in the
light of such factors. Neither Monterey nor Terra Firma nor
Infinis, nor any of their respective associates or directors,
officers or advisers, provides any representation, assurance or
guarantee that the occurrence of the events expressed or implied in
any forward-looking statements in this Announcement will actually
occur. You are cautioned not to place undue reliance on these
forward-looking statements. Other than in accordance with their
legal or regulatory obligations (including under the Disclosure and
Transparency Rules of the FCA, as applicable), neither Monterey nor
Infinis is under any obligation, and Monterey and Infinis expressly
disclaim any intention or obligation, to update or revise any
forward-looking statements, whether as a result of new information,
future events or otherwise.
Dealing disclosure requirements
(MORE TO FOLLOW) Dow Jones Newswires
October 22, 2015 02:00 ET (06:00 GMT)
Under Rule 8.3(a) of the Code, any person who is interested in 1
per cent. or more of any class of relevant securities of an offeree
company or of any securities exchange offeror (being any offeror
other than an offeror in respect of which it has been announced
that its offer is, or is likely to be, solely in cash) must make an
Opening Position Disclosure following the commencement of the offer
period and, if later, following the announcement in which any
securities exchange offeror is first identified.
An Opening Position Disclosure must contain details of the
person's interests and short positions in, and rights to subscribe
for, any relevant securities of each of (i) the offeree company and
(ii) any securities exchange offeror(s). An Opening Position
Disclosure by a person to whom Rule 8.3(a) applies must be made by
no later than 3.30 pm (London time) on the 10th business day
following the commencement of the offer period and, if appropriate,
by no later than 3.30 pm (London time) on the 10th business day
following the announcement in which any securities exchange offeror
is first identified. Relevant persons who deal in the relevant
securities of the offeree company or of a securities exchange
offeror prior to the deadline for making an Opening Position
Disclosure must instead make a Dealing Disclosure.
Under Rule 8.3(b) of the Code, any person who is, or becomes,
interested in 1 per cent. or more of any class of relevant
securities of the offeree company or of any securities exchange
offeror must make a Dealing Disclosure if the person deals in any
relevant securities of the offeree company or of any securities
exchange offeror. A Dealing Disclosure must contain details of the
dealing concerned and of the person's interests and short positions
in, and rights to subscribe for, any relevant securities of each of
(i) the offeree company and (ii) any securities exchange
offeror(s), save to the extent that these details have previously
been disclosed under Rule 8. A Dealing Disclosure by a person to
whom Rule 8.3(b) applies must be made by no later than 3.30 pm
(London time) on the business day following the date of the
relevant dealing.
If two or more persons act together pursuant to an agreement or
understanding, whether formal or informal, to acquire or control an
interest in relevant securities of an offeree company or a
securities exchange offeror, they will be deemed to be a single
person for the purpose of Rule 8.3.
Opening Position Disclosures must also be made by the offeree
company and by any offeror and Dealing Disclosures must also be
made by the offeree company, by any offeror and by any persons
acting in concert with any of them (see Rules 8.1, 8.2 and
8.4).
Details of the offeree and offeror companies in respect of whose
relevant securities Opening Position Disclosures and Dealing
Disclosures must be made can be found in the Disclosure Table on
the Takeover Panel's website at www.thetakeoverpanel.org.uk,
including details of the number of relevant securities in issue,
when the offer period commenced and when any offeror was first
identified. You should contact the Panel's Market Surveillance Unit
on +44 (0)20 7638 0129 if you are in any doubt as to whether you
are required to make an Opening Position Disclosure or a Dealing
Disclosure.
Publication on website
A copy of this Announcement will be made available, subject to
certain restrictions relating to persons resident in Restricted
Jurisdictions, on Terra Firma's website at www.terrafirma.com and
Infinis' website at www.infinis.com by no later than 12 noon
(London time) on the Business Day following this Announcement. For
the avoidance of doubt, the contents of these websites are not
incorporated by reference and do not form part of this
Announcement.
Requesting hard copy documents
You may request a hard copy of this Announcement by contacting
the Company Secretary of Infinis during business hours on +44(0)16
0466 2400 or by submitting a request in writing to Infinis at
Infinis Energy plc, First Floor, 500 Pavilion Drive, Northampton
Business Park, Northampton NN4 7YJ. For persons who receive a copy
of this Announcement in electronic form or via a website
notification, a hard copy of this Announcement in electronic form
will not be sent unless so requested. You may also request that all
future documents, announcements and information to be sent to you
in relation to the Acquisition should be in hard copy form.
Electronic Communications
Please be aware that addresses, electronic addresses and certain
other information provided by Infinis Shareholders, persons with
information rights and other relevant persons for the receipt of
communications from Infinis may be provided to Monterey during the
offer period as required under Section 4 of Appendix 4 of the Code
to comply with Rule 2.12(c).
Rounding
Certain figures included in this Announcement have been
subjected to rounding adjustments. Accordingly, figures shown for
the same category presented in different tables may vary slightly
and figures shown as totals in certain tables may not be an
arithmetic aggregation of figures that precede them.
NOT FOR RELEASE, PUBLICATION OR DISTRIBUTION, IN WHOLE OR IN
PART, IN OR INTO ANY JURISDICTION WHERE TO DO SO WOULD CONSTITUTE A
VIOLATION OF THE RELEVANT LAWS OF SUCH JURISDICTION.
22 October 2015
Recommended Cash Acquisition
of
Infinis Energy plc ("Infinis")
by
Monterey Capital II S.à r.l. ("Monterey")
a Terra Firma group company
To be effected by means of a Scheme of Arrangement under Part 26
of the Companies Act 2006
1 Introduction
The board of directors of Monterey and the Infinis Independent
Directors are pleased to announce that they have reached agreement
on the terms of a recommended cash acquisition by which the entire
issued and to be issued ordinary share capital of Infinis that
Monterey does not already own will be acquired by Monterey. It is
intended that the Acquisition will be implemented by way of a
Court-sanctioned scheme of arrangement under Part 26 of the
Companies Act.
Monterey currently owns 205,667,740 Infinis Ordinary Shares,
representing approximately 68.5 per cent. of the issued ordinary
share capital of Infinis.
2 The Acquisition
Under the terms of the Acquisition, which will be subject to the
Conditions and further terms set out in Appendix 1 to this
Announcement and to be set out in the Scheme Document, Scheme
Shareholders at the Scheme Record Time will be entitled to
receive:
for each Scheme Share 185 pence in cash
The price of 185 pence in cash for each Scheme Share represents
a premium of approximately:
-- 40.4 per cent. to the closing price of 131.75 pence per
Infinis Ordinary Share on 21 October 2015 (being the last Business
Day before this Announcement); and
-- 38.2 per cent. to the average closing price of 133.86 pence
per Infinis Ordinary Share for the one-month period ended 21
October 2015 (being the last Business Day before this
Announcement).
The Acquisition values Infinis' entire issued and to be issued
share capital at approximately GBP555 million.
Monterey reserves the right to reduce the price of the
Acquisition by the amount of any dividend which is declared, paid
or payable by Infinis after the date of this Announcement.
It is expected that the Court Meeting and General Meeting will
be held by the end of November 2015. Subject, amongst other things,
to the satisfaction or waiver of the Conditions, it is expected
that the Scheme will become effective by the end of this year.
3 Background to and reasons for the Acquisition
Since the original investment in Infinis' former parent company
in 2003, Terra Firma established and developed Infinis' business
through a combination of organic and acquisitive growth. In
November 2013, with Infinis well established as one of the UK's
leading renewable power generators, Terra Firma sold a circa 30 per
cent. stake in Infinis through an initial public offering on the
Main Market of the London Stock Exchange, with gradual sell-downs
of the remaining stake envisaged over time. Since the initial
public offering, Infinis has performed well at an operational
level, has delivered on its dividend commitments and is in the
process of constructing four onshore wind farms from its organic
pipeline of projects under development.
By December 2014, it had become clear to Terra Firma that a
managed sell-down of its investment in Infinis through secondary
offerings over time was unlikely to materialise at an acceptable
price. Terra Firma therefore announced on 15 December 2014 that it
was exploring options in relation to its remaining approximately
68.5 per cent. shareholding in Infinis. This process has
subsequently suffered from the political implications of the
General Election in the UK, most clearly manifested in the proposed
removal of the support for new onshore wind capacity and the
removal of the exemption from the Climate Change Levy for
electricity generated from renewable sources announced by the new
Government in July 2015, compounded by a challenging power price
environment. Following constructive discussions with the Infinis
Independent Directors and management, Terra Firma and Monterey have
decided that Monterey will make an offer for the Infinis shares
that Monterey does not own, with a view to taking Infinis private.
This would facilitate Terra Firma's pursuit of strategic
alternatives for Infinis that are consistent with its objective of
monetising its investment in Infinis. Terra Firma believes that it
will be easier for Infinis to implement these strategic
alternatives as a private company.
(MORE TO FOLLOW) Dow Jones Newswires
October 22, 2015 02:00 ET (06:00 GMT)
Through its review of strategic options in relation to its
investment in Infinis, Terra Firma has carefully considered a
number of options for crystallising value from this investment.
Having taken into consideration a number of factors, including the
changing political environment for renewable energy in the UK,
Terra Firma currently believes that separate sales of the onshore
wind portfolio (in whole or in part) and the landfill gas assets
are the optimal path for Terra Firma to achieve an exit from its
investment in Infinis. To this end, Terra Firma and Infinis intend
to work together to prepare for, and in due course take initial
steps in relation to, the sale of Infinis' onshore wind assets with
any such sales taking place following the implementation of the
Acquisition. A review of options around monetisation of the
landfill gas portfolio is also expected to follow.
4 Recommendation
The Infinis Independent Directors, who have been so advised by
Barclays and RBC Capital Markets as to the financial terms of the
Acquisition, consider the Acquisition to be fair and reasonable. In
providing their advice, Barclays and RBC Capital Markets have taken
into account the commercial assessments of the Infinis Independent
Directors.
RBC Capital Markets is providing independent financial advice to
the Infinis Independent Directors for the purposes of Rule 3 of the
Code.
Accordingly, the Infinis Independent Directors have unanimously
approved the Acquisition and intend to recommend that Infinis
Shareholders vote in favour of the Scheme at the Court Meeting and
the resolutions to be proposed at the General Meeting as they have
irrevocably undertaken to do in respect of their own beneficial
holdings of, in aggregate, 1,002,826 Infinis Ordinary Shares
representing approximately 0.33 per cent. of the issued ordinary
share capital of Infinis on 21 October 2015 (being the last
Business Day prior to the date of this Announcement).
Mike Kinski, who is both a non-executive director of Infinis and
a representative of Terra Firma, has played no part in the
consideration of the Acquisition or the recommendation of it by the
Infinis Independent Directors.
5 Background to and reasons for the recommendation
The Infinis Independent Directors have worked constructively
with Terra Firma since its announcement on 15 December 2014 stating
that Terra Firma was exploring options to crystallise the value of
its 68.5 per cent. shareholding in Infinis, including a potential
sale of the stake, to ensure that the interests of all shareholders
have been properly considered.
Infinis' management team has remained focussed on operational
delivery throughout this period of uncertainty regarding the
ultimate ownership of Infinis and in the face of significant
political, regulatory and fiscal challenges in the renewable energy
sector in the UK. Infinis has continued to deliver reliable power
from its existing landfill gas and wind portfolio, and has made
significant progress in the development of 135 MW of wind capacity
including bringing North Steads and Sisters to financial close.
However, the changes in the UK renewable energy regulatory
framework and the prevailing power price environment have impacted
Infinis' near term cash generation and the organic and inorganic
growth prospects of Infinis. Infinis has announced that the removal
of the exemption from the CCL previously enjoyed by renewable
energy generation would result in an anticipated reduction of
Infinis' EBITDA of approximately GBP7 million in the year ending 31
March 2016 and approximately GBP10-11 million in the year ending 31
March 2017. Consequently, and as indicated at the Q1 trading
statement on 13 August 2015, Infinis would need to review its
dividend policy in the absence of the Acquisition.
In reaching their conclusion, the Infinis Independent Directors
considered the Acquisition in the context of the value, prospects
and cash generation profile of the underlying business segments of
Infinis, against other proposals received and against the value to
all shareholders were the Board to pursue alternative strategies
including a break-up of Infinis as a publicly listed company
through a sale of its wind business. The Infinis Independent
Directors have taken into account the significant execution risk,
uncertainty surrounding the landfill gas business as a standalone
investment proposition and the uncertain timescale for delivery of
such a break-up strategy. In addition, since 2014, Infinis has
received other proposals but none that have been as attractive to
independent shareholders as the Acquisition.
Accordingly, the Infinis Independent Directors believe the
Acquisition offers the independent shareholders, in the
circumstances, an acceptable value, an exit from Infinis at an
uncertain time for Infinis and the renewable sector more generally
and an opportunity to crystallise a premium to the current market
price in cash. The Infinis Independent Directors have unanimously
decided to recommend that Infinis independent shareholders vote in
favour of the Acquisition.
The Infinis Independent Directors recognise that there will be a
period of transition for Infinis and the Infinis employees but
believe that, in the circumstances, the Acquisition is in the best
interests of Infinis in the medium term.
6 Irrevocable Undertakings
All of the Infinis Independent Directors who hold Infinis
Ordinary Shares have irrevocably undertaken to vote in favour of
the Scheme at the Court Meeting and the resolutions to be proposed
at the General Meeting in respect of, in aggregate, 1,002,826
Infinis Ordinary Shares representing approximately 0.33 per cent.
of the issued ordinary share capital of Infinis on 21 October 2015
(being the last Business Day prior to the date of this
Announcement).
The obligations of the Infinis Independent Directors under the
above undertakings are conditional upon the Scheme Document being
despatched to the Infinis Shareholders within 28 days after the
date of this Announcement (save that if Monterey subsequently
elects to proceed by way of an Offer under the Code then such date
shall be extended to the date which is 28 days after the date of
any announcement announcing the change in the structure of the
Acquisition).
The undertakings from the Infinis Independent Directors will
cease to be binding only if the Scheme lapses or is withdrawn and
no new, revised or replacement Scheme or Offer is announced, in
accordance with Rule 2.7 of the Code, in its place or is announced,
in accordance with Rule 2.7 of the Code, at the same time.
Further details of these irrevocable undertakings are set out in
Appendix 3 to this Announcement. If the Acquisition is subsequently
structured as a takeover offer, all the above undertakings will
take effect as irrevocable undertakings to accept such offer.
7 Information relating to Terra Firma and Monterey
Terra Firma Investments (GP) 2 Limited is the general partner of
the six limited partnerships constituting the Terra Firma Capital
Partners II Fund and a number of limited partnership co-investment
funds, two of which are invested in Infinis, and makes equity
investments on their behalf. The Terra Firma Capital Partners II
Fund had its final close in February 2004, raising a total of
EUR1.9 billion in commitments.
TFCP is an adviser to members of the Terra Firma group,
including Terra Firma Investments (GP) 2 Limited. TFCP is an
independent private equity advisory firm set up in March 2002 by
Guy Hands and other former employees of the Principal Finance Group
of Nomura International plc through the spin-out of that division.
TFCP is authorised and regulated by the FCA in the United Kingdom,
and Terra Firma is regulated by the Guernsey Financial Services
Commission.
Monterey is a company originally formed for the purpose of
owning the Terra Firma Capital Partners II Fund's investment in
Waste Recycling Group ("WRG") and, since Infinis' demerger from
WRG, in Infinis. Monterey is owned, in aggregate, by eight limited
partnerships, each of which has a common general partner, Terra
Firma Investments (GP) 2 Limited. Monterey currently owns
205,667,740 Infinis Ordinary Shares, representing approximately
68.5 per cent. of the issued ordinary share capital of Infinis.
Further details in relation to Monterey will be set out in the
Scheme Document.
8 Information relating to Infinis
Infinis is the leading independent renewable power generator in
the UK and operates 137 power plants with an installed capacity of
585 MW generating renewable power from landfill gas and onshore
wind. It also has four onshore wind projects under construction
which are expected to deliver 135 MW of incremental onshore wind
capacity by 31 March 2017. The Infinis Group is the largest power
generator from landfill gas in the UK and one of the UK's leading
onshore wind power generators. Infinis sells its power output
through offtake agreements and does not supply electricity directly
to retail customers.
The Infinis Group's corporate structure is divided into three
distinct divisions, comprising the Landfill Gas Business, the
Onshore Wind Business and the Wind Development Pipeline
Business.
Infinis is a public limited company registered in England and
Wales and its shares have been listed on the Main Market of the
London Stock Exchange since November 2013, when Monterey completed
an initial public offering of Infinis by selling a circa 30 per
cent. stake in Infinis to institutional and retail investors.
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For the financial year ended 31 March 2015, Infinis reported
audited underlying group revenue of GBP236.0 million and audited
EBITDA before operating exceptional items of GBP142.8 million.
Infinis reported a strong first quarter in the current financial
year to 31 March 2016 with total power generation of 586 GWh, up 14
GWh on the previous year. Infinis has also announced that the
removal, with effect from 1 August 2015, of the exemption from the
CCL previously enjoyed by renewable power generation would result
in an anticipated reduction of its EBITDA of approximately GBP7
million in the current financial year and by GBP10-11 million in
the financial year to 31 March 2017. Infinis and another power
generator have initiated proceedings for a judicial review of the
decision by HM Treasury to remove the exemption from the CCL for
electricity generated from renewable sources. The basis for this
review is that the exemption was removed without appropriate notice
period, consultation or proportionate justification.
9 Financing
The cash consideration payable by Monterey under the terms of
the Acquisition will be funded from a debt financing facility to be
provided under a new term loan facility agreement entered into
between, amongst others, Monterey as borrower and Goldman Sachs
International Bank as original lender (the "Facility Agreement").
The facility will be used to finance the Acquisition, to pay the
fees and transaction expenses in connection with the Acquisition
and the facility, to refinance certain existing indebtedness of
Infinis Capital Limited and for general corporate purposes.
Under the terms of the Facility Agreement, Monterey has agreed
that save with the consent of the Agent (as defined in the Facility
Agreement), it will not declare, accept or treat as satisfied any
condition of the Offer, where it is not actually satisfied or has
not been complied with unless required to do so by the Panel, save
as required to do so by a court of competent jurisdiction, the
London Stock Exchange plc or any other applicable law or regulation
or regulatory body.
Goldman Sachs International is satisfied that sufficient
resources are available to Monterey to satisfy in full the cash
consideration payable under the terms of the Acquisition.
10 Management, employees and locations
The Board of Directors of Monterey and the Infinis Independent
Directors recognise that an operational and administrative
restructuring of Infinis will be required following the completion
of the Acquisition in order to achieve the expected benefits of the
Acquisition. However, at this stage, no decision has been made as
to the restructuring of Infinis (including because the path for
Terra Firma to achieve an exit from its investment in Infinis has
not yet been determined) and, as such, there can be no certainty as
to the level of employee transfer and/or reduction that may result.
Finalisation of the restructuring plan will be subject to
engagement with the relevant stakeholders as appropriate. Monterey
confirms that the existing employment rights of Infinis' employees
(including pension rights) will be fully safeguarded.
In connection with the Scheme and its implementation, the
Infinis Remuneration Committee has resolved not to waive any of the
performance conditions attaching to awards or options under its
Infinis Share Schemes. It is proposed that the existing awards,
over approximately 1,287,059 Infinis Shares, granted under the
Infinis Energy Long Term Incentive Plan are cancelled and that no
further awards are made in respect of 2015. In consideration of
this cancellation, the Infinis Remuneration Committee has agreed
that the financial targets applicable to the 2015/16 annual cash
bonus scheme for the affected individuals will be treated as
satisfied, provided those individuals remain employed by Infinis
until payment of that bonus in June 2016.
There have been preliminary discussions between Terra Firma and
Infinis regarding arrangements to retain employees of Infinis after
the Effective Date. However, currently no agreements have been
concluded on such matters.
It is expected that each of the Infinis Non-Executive Directors
that are independent of Terra Firma will cease to be directors on
the Effective Date.
Save as stated in this announcement and subject to finalisation
of its strategic alternatives for Infinis, Monterey confirms that
it has no plans currently to redeploy any of Infinis' fixed
assets.
11 Infinis Share Schemes
Participants in the Infinis Share Schemes will be contacted
regarding the effect of the Acquisition on their rights and
appropriate proposals will be made to such participants in due
course. Details of these proposals will be set out in the Scheme
Document and in separate letters to be sent to participants in the
Infinis Share Schemes.
12 Disclosure of interests in Infinis relevant securities
Monterey and its concert parties are interested in 205,667,740
Infinis Ordinary Shares representing approximately 68.5 per cent.
of the issued share capital of Infinis.
Save for that interest, neither Monterey, its concert parties
nor, so far as Monterey or its directors are aware, any other
person acting in concert with Monterey, has any interest in or
right to subscribe for Infinis relevant securities.
13 Structure of the Acquisition
It is intended that the Acquisition will be implemented by way
of a Court-sanctioned scheme of arrangement between Infinis and the
Scheme Shareholders, under Part 26 of the Companies Act. The
procedure involves, among other things, an application by Infinis
to the Court to sanction the Scheme, in consideration for which the
Scheme Shareholders will receive cash on the basis described in
paragraph 2 above. The purpose of the Scheme is to provide for
Monterey to become the owner of the entire issued and to be issued
share capital of Infinis.
The Scheme is subject to the Conditions and certain further
terms referred to in Appendix 1 to this Announcement and to be set
out in the Scheme Document, and will only become effective if,
among other things, the following events occur on or before 31
January 2016 or such later date as Monterey and Infinis, with the
consent of the Panel, agree:
-- the Scheme is approved by a majority in number representing
not less than 75 per cent. in value of the Scheme Shareholders
present and voting either in person or by proxy at the Court
Meeting and at any separate class meeting which may be required by
the Court or at any adjournment of any such meetings;
-- the resolutions necessary to implement the Scheme are passed
by the requisite majority of Infinis Shareholders at the General
Meeting;
-- the Scheme is sanctioned (without modification or with
modification on terms acceptable to Monterey and Infinis); and
-- an office copy of the Scheme Court Order is delivered to the Registrar of Companies.
Upon the Scheme becoming effective: (i) it will be binding on
all Scheme Shareholders, irrespective of whether or not they
attended or voted at the Court Meeting or the General Meeting (and
if they attended and voted, whether or not they voted in favour);
and (ii) share certificates in respect of Scheme Shares will cease
to be valid and entitlements to Scheme Shares held within the CREST
system will be cancelled.
If the Scheme does not become effective on or before 31 January
2016 (or such later date as Monterey and Infinis may, with the
consent of the Panel, agree), it will lapse and the Acquisition
will not proceed (unless the Panel otherwise consents).
The Scheme Document will include full details of the Scheme,
together with notices of the Court Meeting and the General Meeting.
The Scheme Document will also contain the expected timetable for
the Acquisition, and will specify the necessary actions to be taken
by Infinis Shareholders. The Scheme Document will be posted to
Infinis Shareholders and (for information only) to participants in
the Infinis Share Schemes, as soon as practicable and, in any
event, within 28 days of the date of this Announcement (unless the
Panel agrees otherwise).
14 Delisting and re-registration
It is intended that dealings in Infinis Ordinary Shares will be
suspended at 5.00 p.m. London time on the Business Day prior to the
Scheme Court Hearing. It is further intended that an application
will be made to the London Stock Exchange for the cancellation of
trading of the Infinis Ordinary Shares on the London Stock
Exchange, with effect as of or shortly following the Effective
Date.
It is also intended that, following the Scheme becoming
effective, Infinis will be re-registered as a private company under
the relevant provisions of the Companies Act.
15 Disclosure of interests in Infinis relevant securities
Monterey made an Opening Position Disclosure, setting out the
details to be disclosed by it under Rule 8 of the Code, on 19
December 2014.
16 Overseas shareholders
The availability of the Acquisition or the distribution of this
Announcement to Infinis Shareholders who are not resident in the
United Kingdom may be affected by the laws of their relevant
jurisdiction. Such persons should inform themselves of, and
observe, any applicable legal or regulatory requirements of their
jurisdiction. Infinis Shareholders who are in any doubt regarding
such matters should consult an appropriate independent professional
adviser in the relevant jurisdiction without delay.
This Announcement does not constitute an offer for sale for any
securities or an offer or an invitation to purchase any securities.
Infinis Shareholders are advised to read carefully the Scheme
Document and related Forms of Proxy once these have been
dispatched.
17 Documents published on a website
Copies of the following documents will, by no later than 12 noon
(London time) on 23 October 2015, be published on Infinis' website
at www.infinis.com and Terra Firma's website at www.terrafirma.com
until the end of the Acquisition:
-- the irrevocable undertakings referred to in paragraph 6;
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-- Monterey's financing documents in connection with the Offer
as referred to in paragraph 9 above; and
-- the Non-Disclosure Agreement referred to in paragraph 18.
18 General
Infinis and Monterey have entered into a non-disclosure
agreement dated 6 October 2015 ("Non-Disclosure Agreement")
pursuant to which Monterey has undertaken to keep confidential
information relating to the Infinis Group and not to disclose it to
third parties (other than those to which disclosure is permitted in
terms of the Non-Disclosure Agreement) unless required by law or
regulation. These non-disclosure obligations will remain in force
for three years.
The Acquisition will be subject to the Conditions and certain
further terms set out in Appendix 1 and the further terms and
conditions set out in the Scheme Document when issued.
The Scheme will be governed by English law and will be subject
to the jurisdiction of the courts of England and Wales. The Scheme
will be subject to the applicable requirements of the Code, the
Panel, the London Stock Exchange and the FCA.
The bases and sources of certain financial information contained
in this Announcement are set out in Appendix 2. Certain terms used
in this Announcement are defined in Appendix 4.
Enquiries
Goldman Sachs International Tel: +44 (0) 20 7774 1000 Infinis Tel: +44 (0) 20 7404 5959
(Sole Financial Adviser to Ian Marchant
Terra Firma and Monterey) Eric Machiels
Alasdair Warren
Nimesh Khiroya
Alex Garner
Finsbury Tel: +44 (0) 20 7251 3801 Barclays Tel: +44 (0) 20 7623 2323
(PR Adviser to Terra Firma (Joint Financial Adviser and
and Monterey) Corporate Broker to Infinis)
Rollo Head Iain Smedley
Gordon Simpson Mark Todd
Nishant Amin
Neal West (Corporate Broking)
RBC Capital Markets Tel: +44 (0) 20 7653 4000
(Joint Financial Adviser and
Corporate Broker to Infinis)
Dai Clement
Lorna Shearin
Mark Rushton
Jonathan Hardy (Corporate
Broking)
Brunswick Tel: +44 (0) 20 7404 5959
(PR Adviser to Infinis)
David Litterick
Simon Maine
Further information
This Announcement is not intended to and does not constitute, or
form part of, an offer, invitation or the solicitation of an offer
to purchase, otherwise acquire, subscribe for, sell or otherwise
dispose of any securities, or the solicitation of any vote or
approval in any jurisdiction, pursuant to the Acquisition or
otherwise, nor shall there be any sale, issuance or transfer of
securities of Infinis in any jurisdiction in contravention of
applicable law. The Acquisition will be made solely by means of the
Scheme Document, which will contain the full terms and conditions
of the Acquisition including details of how to vote in respect of
the Scheme. Any vote in respect of the Scheme or other response in
relation to the Acquisition should be made only on the basis on the
information contained in the Scheme Document.
Goldman Sachs International, which is authorised by the PRA and
regulated by the FCA and the PRA, is acting exclusively for Terra
Firma and Monterey and no--one else in connection with the
Acquisition and will not be responsible to anyone other than Terra
Firma and Monterey for providing the protections afforded to
clients of Goldman Sachs International nor for providing advice in
relation to the Acquisition or any other matters referred to in
this Announcement.
Barclays, which is authorised by the PRA and regulated in the
United Kingdom by the FCA and the PRA, is acting exclusively for
Infinis and no one else in connection with the Acquisition and will
not be responsible to anyone other than Infinis for providing the
protections afforded to clients of Barclays nor for providing
advice in relation to the Acquisition or any other matter referred
to in this Announcement.
RBC Europe Limited (trading as RBC Capital Markets), which is
authorised by the PRA and regulated by the FCA and the PRA, is
acting exclusively for Infinis and no one else in connection with
the Acquisition and will not be responsible to anyone other than
Infinis for providing the protections afforded to clients of RBC
Europe Limited nor for providing advice in relation to the
Acquisition or any other matters referred to in this
Announcement.
Overseas jurisdictions
The availability of the Acquisition to Infinis Shareholders who
are not resident in and citizens of the UK may be affected by the
laws of the relevant jurisdictions in which they are located or of
which they are citizens. Persons who are not resident in the UK
should inform themselves of, and observe, any applicable legal or
regulatory requirements of their jurisdictions. Further details in
relation to overseas shareholders will be contained in the Scheme
Document.
The release, publication or distribution of this Announcement in
or into jurisdictions other than the UK may be restricted by law
and therefore any persons who are subject to the law of any
jurisdiction other than the UK should inform themselves about, and
observe, any applicable requirements. Any failure to comply with
the applicable restrictions may constitute a violation of the
securities laws of any such jurisdiction. To the fullest extent
permitted by applicable law, the companies and persons involved in
the Acquisition disclaim any responsibility or liability for the
violation of such restrictions by any person. This Announcement has
been prepared for the purposes of complying with English law, the
rules of the London Stock Exchange and the Code and the information
disclosed may not be the same as that which would have been
disclosed if this Announcement had been prepared in accordance with
the laws of jurisdictions outside of England.
Copies of this Announcement and formal documentation relating to
the Scheme and the Acquisition will not be and must not be, mailed
or otherwise forwarded, distributed or sent in, into or from any
jurisdiction where to do so would violate the laws of that
jurisdiction.
US Holders should note that the Acquisition relates to the
securities of a UK company, is subject to UK disclosure
requirements (which are different from those of the US) and is
proposed to be implemented under a scheme of arrangement provided
for under English company law. A transaction effected by means of a
scheme of arrangement is not subject to the tender offer rules
under the US Exchange Act. Accordingly, the Scheme will be subject
to UK disclosure requirements and practices, which are different
from the disclosure requirements of the US tender offer rules. The
financial information included in this Announcement and the Scheme
documentation has been or will have been prepared in accordance
with generally accepted accounting principles of the UK and thus
may not be comparable to financial information of US companies or
companies whose financial statements are prepared in accordance
with generally accepted accounting principles in the US. If
Monterey exercises its right to implement the Acquisition by way of
a takeover offer, such offer will be made in compliance with
applicable US tender offer and securities laws and regulations.
The receipt of cash pursuant to the Acquisition by a US Holder
as consideration for the transfer of its Scheme Shares pursuant to
the Scheme may be a taxable transaction for US federal income tax
purposes and under applicable US state and local, as well as
foreign and other, tax laws. Each Infinis Shareholder is urged to
consult his independent professional adviser immediately regarding
the tax consequences of the Acquisition applicable to him.
It may be difficult for US Holders to enforce their rights and
claims arising out of the US federal securities laws, since
Monterey and Infinis are located in countries other than the US,
and some or all of their officers and directors may be residents of
countries other than the US. US Holders may not be able to sue a
non-US company or its officers or directors in a non-US court for
violations of US securities laws. Further, it may be difficult to
compel a non-US company and its affiliates to subject themselves to
a US court's judgement.
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In accordance with normal UK practice and pursuant to Rule
14e-5(b) of the US Exchange Act, Monterey or its nominees, or its
brokers (acting as agents), may from time to time make certain
purchases of, or arrangements to purchase, Infinis Ordinary Shares
outside of the United States, other than pursuant to the
Acquisition, until the date on which the Acquisition and/or Scheme
becomes effective, lapses or is otherwise withdrawn. In addition,
in accordance with Rule 14e-5(b) of the US Exchange Act, Goldman
Sachs International, while serving as a Financial Adviser to
Monterey, or its affiliates and certain identifiable business
units, will continue to act as an exempt principal trader in
Infinis Ordinary Shares on the London Stock Exchange. These
purchases may occur either in the open market at prevailing prices
or in private transactions at negotiated prices. Any information
about such purchases will be disclosed as required in the UK, will
be reported to a Regulatory Information Service of the London Stock
Exchange and will be available on the London Stock Exchange
website, www.londonstockexchange.com.
Forward looking statements
This Announcement (including information incorporated by
reference in this Announcement), oral statements made regarding the
Acquisition, and other information published by Monterey and
Infinis contain statements which are, or may be deemed to be,
"forward-looking statements". Forward-looking statements are
prospective in nature and are not based on historical facts, but
rather on current expectations and projections of the management of
Monterey and Infinis about future events, and are therefore subject
to risks and uncertainties which could cause actual results to
differ materially from the future results expressed or implied by
the forward-looking statements. The forward-looking statements
contained in this Announcement include statements relating to the
expected effects of the Acquisition on Monterey and Infinis, the
expected timing and scope of the Acquisition and other statements
other than historical facts. Often, but not always, forward-looking
statements can be identified by the use of forward-looking words
such as "plans", "expects" or "does not expect", "is expected", "is
subject to", "budget", "scheduled", "estimates", "forecasts",
"intends", "anticipates" or "does not anticipate", or "believes",
or variations of such words and phrases or statements that certain
actions, events or results "may", "could", "should", "would",
"might" or "will" be taken, occur or be achieved. Although Monterey
and Infinis believe that the expectations reflected in such
forward-looking statements are reasonable, Monterey and Infinis can
give no assurance that such expectations will prove to be correct.
By their nature, forward-looking statements involve risk and
uncertainty because they relate to events and depend on
circumstances that will occur in the future. There are a number of
factors that could cause actual results and developments to differ
materially from those expressed or implied by such forward-looking
statements. These factors include, but are not limited to: the
ability to consummate the Acquisition; the ability to obtain
requisite shareholder approvals and the satisfaction of other
Conditions on the proposed terms and schedule; the ability of
Monterey and Infinis to successfully retain key employees; the
potential impact of the Announcement or consummation of the
Acquisition on relationships, including with employees, suppliers,
customers and competitors; changes in general economic, business
and political conditions, including changes in the financial
markets; significant competition that Infinis faces; compliance
with extensive government regulation. Other unknown or
unpredictable factors could cause actual results to differ
materially from those in the forward-looking statements. Such
forward-looking statements should therefore be construed in the
light of such factors. Neither Monterey nor Terra Firma nor
Infinis, nor any of their respective associates or directors,
officers or advisers, provides any representation, assurance or
guarantee that the occurrence of the events expressed or implied in
any forward-looking statements in this Announcement will actually
occur. You are cautioned not to place undue reliance on these
forward-looking statements. Other than in accordance with their
legal or regulatory obligations (including under the Disclosure and
Transparency Rules of the FCA, as applicable), neither Monterey nor
Infinis is under any obligation, and Monterey and Infinis expressly
disclaim any intention or obligation, to update or revise any
forward-looking statements, whether as a result of new information,
future events or otherwise.
Dealing disclosure requirements
Under Rule 8.3(a) of the Code, any person who is interested in 1
per cent. or more of any class of relevant securities of an offeree
company or of any securities exchange offeror (being any offeror
other than an offeror in respect of which it has been announced
that its offer is, or is likely to be, solely in cash) must make an
Opening Position Disclosure following the commencement of the offer
period and, if later, following the Announcement in which any
securities exchange offeror is first identified.
An Opening Position Disclosure must contain details of the
person's interests and short positions in, and rights to subscribe
for, any relevant securities of each of (i) the offeree company and
(ii) any securities exchange offeror(s). An Opening Position
Disclosure by a person to whom Rule 8.3(a) applies must be made by
no later than 3.30 pm (London time) on the 10th Business Day
following the commencement of the offer period and, if appropriate,
by no later than 3.30 pm (London time) on the 10th Business Day
following the Announcement in which any securities exchange offeror
is first identified. Relevant persons who deal in the relevant
securities of the offeree company or of a securities exchange
offeror prior to the deadline for making an Opening Position
Disclosure must instead make a Dealing Disclosure.
Under Rule 8.3(b) of the Code, any person who is, or becomes,
interested in 1 per cent. or more of any class of relevant
securities of the offeree company or of any securities exchange
offeror must make a Dealing Disclosure if the person deals in any
relevant securities of the offeree company or of any securities
exchange offeror. A Dealing Disclosure must contain details of the
dealing concerned and of the person's interests and short positions
in, and rights to subscribe for, any relevant securities of each of
(i) the offeree company and (ii) any securities exchange
offeror(s), save to the extent that these details have previously
been disclosed under Rule 8. A Dealing Disclosure by a person to
whom Rule 8.3(b) applies must be made by no later than 3.30 pm
(London time) on the Business Day following the date of the
relevant dealing.
If two or more persons act together pursuant to an agreement or
understanding, whether formal or informal, to acquire or control an
interest in relevant securities of an offeree company or a
securities exchange offeror, they will be deemed to be a single
person for the purpose of Rule 8.3.
Opening Position Disclosures must also be made by the offeree
company and by any offeror and Dealing Disclosures must also be
made by the offeree company, by any offeror and by any persons
acting in concert with any of them (see Rules 8.1, 8.2 and
8.4).
Details of the offeree and offeror companies in respect of whose
relevant securities Opening Position Disclosures and Dealing
Disclosures must be made can be found in the Disclosure Table on
the Takeover Panel's website at www.thetakeoverpanel.org.uk,
including details of the number of relevant securities in issue,
when the offer period commenced and when any offeror was first
identified. You should contact the Panel's Market Surveillance Unit
on +44 (0)20 7638 0129 if you are in any doubt as to whether you
are required to make an Opening Position Disclosure or a Dealing
Disclosure.
Publication on website
A copy of this Announcement will be made available, subject to
certain restrictions relating to persons resident in Restricted
Jurisdictions, on Terra Firma's website at www.terrafirma.com and
Infinis' website at www.infinis.com by no later than 12 noon
(London time) on the Business Day following this Announcement. For
the avoidance of doubt, the contents of these websites are not
incorporated by reference and do not form part of this
Announcement.
Requesting hard copy documents
You may request a hard copy of this Announcement by contacting
the Company Secretary of Infinis during business hours on +44(0)16
0466 2400 or by submitting a request in writing to Infinis at
Infinis Energy plc, First Floor, 500 Pavilion Drive, Northampton
Business Part, Northampton NN4 7YJ. For persons who receive a copy
of this Announcement in electronic form or via a website
notification, a hard copy of this Announcement in electronic form
will not be sent unless so requested. You may also request that all
future documents, announcements and information to be sent to you
in relation to the Acquisition should be in hard copy form.
Electronic Communications
Please be aware that addresses, electronic addresses and certain
other information provided by Infinis Shareholders, persons with
information rights and other relevant persons for the receipt of
communications from Infinis may be provided to Monterey during the
offer period as required under Section 4 of Appendix 4 of the Code
to comply with Rule 2.12(c).
Rounding
Certain figures included in this Announcement have been
subjected to rounding adjustments. Accordingly, figures shown for
the same category presented in different tables may vary slightly
and figures shown as totals in certain tables may not be an
arithmetic aggregation of figures that precede them.
Appendix 1
Conditions and Certain Further Terms of the Scheme and the
Acquisition
A. Conditions to the Scheme and Acquisition
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1 The Acquisition will be conditional upon the Scheme becoming
unconditional and becoming effective, subject to the provisions of
the Code, by no later than 31 January 2016 or such later date (if
any) as Monterey and Infinis may, with the consent of the Panel,
agree and (if required) the Court may approve.
2 The Scheme will be conditional upon:
(a) approval of the Scheme by a majority in number representing
not less than 75 per cent. in value of the Scheme Shareholders (or
the relevant class or classes thereof, if applicable) present and
voting either in person or by proxy at the Court Meeting and at any
separate class meeting which may be required by the Court or at any
adjournment of any such meetings (provided that the Court Meeting
may not be adjourned beyond the 22nd day after the expected date of
the Court Meeting to be set out in the Scheme Document in due
course or such later date (if any) as Monterey and Infinis may
agree);
(b) all resolutions in connection with or required to approve
and implement the Scheme as set out in the notice of the General
Meeting (including, without limitation, the Resolution) being duly
passed by the requisite majority at the General Meeting (or at any
adjournment thereof, provided that the General Meeting may not be
adjourned beyond the 22nd day after the expected date of the
General Meeting to be set out in the Scheme Document in due course
or such later date (if any) as Monterey and Infinis may agree);
and
(c) the sanction of the Scheme without modification or with
modification on terms acceptable to Monterey and Infinis, provided
that the Scheme Court Hearing may not be adjourned beyond the 22nd
day after the expected date of the Scheme Court Hearing to be set
out in the Scheme Document in due course or such later date (if
any) as Monterey and Infinis may agree, and the delivery of an
office copy of the Scheme Court Order to the Registrar of
Companies.
3 In addition, Monterey and Infinis have agreed that, subject as
stated in Part B below, the Acquisition will be conditional upon
the following matters and, accordingly, the necessary actions to
make the Scheme effective will not be taken unless such conditions
(as amended, if appropriate) have been satisfied or, where
relevant, waived:
(a) no Third Party having intervened (as defined below) and
there not continuing to be outstanding any statute, regulation or
order of any Third Party, in each case which would or might
reasonably be expected to:
(i) make the Scheme or the Acquisition or, in each case, its
implementation or the acquisition or proposed acquisition by
Monterey or any member of the Wider Monterey Group of any shares or
other securities in, or control or management of, Infinis or any
member of the Wider Infinis Group void, illegal or unenforceable in
any jurisdiction, or otherwise directly or indirectly materially
restrain, prevent, prohibit, restrict or materially delay the same
or impose additional conditions or obligations with respect to the
Scheme or the Acquisition or such acquisition, or otherwise
materially impede, challenge or interfere with the Scheme or
Acquisition or such acquisition, or require amendment to the terms
of the Scheme or Acquisition or the acquisition or proposed
acquisition of any Infinis Ordinary Shares or the acquisition of
control or management of Infinis or the Wider Infinis Group by
Monterey or any member of the Wider Monterey Group;
(ii) limit or delay, or impose any material limitations on, the
ability of any member of the Wider Monterey Group or any member of
the Wider Infinis Group to acquire or to hold or to exercise
effectively, directly or indirectly, all or any rights of ownership
in respect of shares or other securities in, or to exercise voting
or management control over, any member of the Wider Infinis Group
or any member of the Wider Monterey Group;
(iii) require, prevent or materially delay the divestiture or
materially alter the terms envisaged for any proposed divestiture
by any member of the Wider Monterey Group of any shares or other
securities in Infinis or of all or any portion of their respective
businesses, assets or properties or materially limit the ability of
any of them to conduct any of their respective businesses or to own
or control any of their respective assets or properties or any part
thereof;
(iv) except pursuant to sections 974 to 991 of the Companies
Act, require any member of the Wider Monterey Group or of the Wider
Infinis Group to acquire, or to offer to acquire, any shares or
other securities (or the equivalent) in any member of either group
owned by any third party;
(v) materially limit the ability of any member of the Wider
Monterey Group or of the Wider Infinis Group to conduct or
integrate or co--ordinate its business, or any part of it, with the
businesses or any part of the businesses of any other member of the
Wider Monterey Group or of the Wider Infinis Group;
(vi) result in any member of the Wider Infinis Group ceasing to
be able to carry on business under any name under which it
presently does so; or
(vii) otherwise adversely affect any or all of the business,
assets, profits, financial or trading position of any member of the
Wider Infinis Group or of the Wider Monterey Group,
and all applicable waiting and other time periods during which
any Third Party could intervene under the laws of any relevant
jurisdiction having expired, lapsed or been terminated;
(b) all Authorisations which are necessary or are reasonably
considered necessary by Monterey in any relevant jurisdiction for
or in respect of the Scheme or Acquisition or the acquisition or
proposed acquisition of any shares or other securities in, or
control or management of, Infinis or any other member of the Wider
Infinis Group by any member of the Wider Monterey Group or the
carrying on by any member of the Wider Infinis Group of its
business having been obtained, in terms and in a form reasonably
satisfactory to Monterey, from all appropriate Third Parties or
from any persons or bodies with whom any member of the Wider
Infinis Group has entered into contractual arrangements, in each
case where the absence of such Authorisation would or might
reasonably be expected to have a material adverse effect on the
Infinis Group taken as a whole and all such Authorisations
remaining in full force and effect and there being no notice or
intimation of any intention to revoke, suspend, restrict, modify or
not to renew any of the same;
(c) since 31 March 2015 and except as disclosed in Infinis'
annual report and accounts for the year then ended or as publicly
announced by Infinis prior to 22 October 2015 (by the delivery of
an announcement to a Regulatory Information Service), there being
no provision of any arrangement, agreement, licence, permit,
franchise or other instrument to which any member of the Wider
Infinis Group is a party, or by or to which any such member or any
of its assets is or are or may be bound, entitled or subject or any
circumstance, which, in each case as a consequence of the Scheme or
Acquisition or the acquisition or proposed acquisition of any
shares or other securities in, or control of, Infinis or any other
member of the Wider Infinis Group by any member of the Wider
Monterey Group or otherwise, would be expected to result in (in any
case to an extent which would reasonably be expected to be material
in the context of the Infinis Group taken as a whole):
(i) any monies borrowed by or any other indebtedness or
liabilities (actual or contingent) of, or any grant available to,
any member of the Wider Infinis Group being or becoming repayable
or capable of being declared repayable immediately or prior to its
stated maturity date or repayment date or the ability of any member
of the Wider Infinis Group to borrow monies or incur any
indebtedness being withdrawn or inhibited or becoming capable of
being withdrawn or inhibited;
(ii) the creation or enforcement of any mortgage, charge or
other security interest over the whole or any part of the business,
property, assets or interests of any member of the Wider Infinis
Group or any such mortgage, charge or other security interest
(wherever created, arising or having arisen) becoming
enforceable;
(iii) any such arrangement, agreement, licence, permit,
franchise or instrument, or the rights, liabilities, obligations or
interests of any member of the Wider Infinis Group thereunder,
being, or becoming capable of being, terminated or adversely
modified or affected or any adverse action being taken or any
obligation or liability arising thereunder;
(iv) any liability of any member of the Wider Infinis Group to
make any severance, termination, bonus or other payment to any
employee or key producer of the Wider Infinis Group;
(v) any asset or interest of any member of the Wider Infinis
Group being or falling to be disposed of or charged or ceasing to
be available to any member of the Wider Infinis Group or any right
arising under which any such asset or interest could be required to
be disposed of or could cease to be available to any member of the
Wider Infinis Group otherwise than in the ordinary course of
business;
(vi) any member of the Wider Infinis Group ceasing to be able to
carry on business under any name under which it presently does
so;
(vii) the creation of any liabilities (actual or contingent) by
any member of the Wider Infinis Group other than in the ordinary
course of business;
(viii) the rights, liabilities, obligations or interests of any
member of the Wider Infinis Group under any such arrangement,
agreement, licence, permit, franchise or other instrument or the
interests or business of any such member in or with any other
person, firm, company or body (or any arrangement or arrangements
relating to any such interests or business) being terminated or
adversely modified or affected; or
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(ix) the financial or trading position or the value of any
member of the Wider Infinis Group being prejudiced or adversely
affected,
and no event having occurred which, under any provision of any
such arrangement, agreement, licence, permit or other instrument,
would or would reasonably be expected to result in any of the
events or circumstances which are referred to in paragraphs (i) to
(ix) of this Condition (c) in any case to an extent which would or
might reasonably be expected to be material in the context of the
Infinis Group taken as a whole;
(d) since 31 March 2015 and except as disclosed in Infinis'
annual report and accounts for the year then ended or as otherwise
publicly announced by Infinis prior to 22 October 2015 (by the
delivery of an announcement to a Regulatory Information Service) no
member of the Wider Infinis Group having:
(i) entered into, terminated or varied the terms of or made any
offer (which remains open for acceptance) to enter into or vary the
terms of, any contract, agreement, commitment, transaction or
arrangement with any person employed by any member of the Wider
Infinis Group, including entering into any such arrangement which
would result in any liability of any member of the Wider Infinis
Group to make any severance, termination, bonus or other payments
to any of its directors or other officers, which would or might
reasonably be expected to be material in the context of the
Acquisition or which would or might reasonably be expected to have
a material adverse effect on the financial position of the Infinis
Group taken as a whole;
(ii) proposed, agreed to provide or modified the terms of any
share option scheme, incentive scheme or other benefit relating to
the employment or termination of employment of any person employed
by the Wider Infinis Group;
(iii) (except in relation to changes made or agreed as a result
of, or arising from, legislation or changes to legislation) made or
agreed or consented to:
(A) any material change:
(I) to the terms of the trust deeds constituting the pension
scheme(s) established for its directors, employees or their
dependants; or
(II) the contributions payable to any such scheme(s) or to the
benefits which accrue or to the pensions which are payable
thereunder; or
(III) the basis on which qualification for, or accrual or
entitlement to such benefits or pensions are calculated or
determined; or
(IV) the basis upon which the liabilities (including pensions)
or such pension schemes are funded, valued or made
in each case, which would or might reasonably be expected to
have a material effect in the context of the Infinis Group taken as
a whole,
(B) any change to the trustees including the appointment of a trust corporation;
(iv) issued or agreed to issue, or authorised the issue of,
additional shares of any class, or securities convertible into or
exercisable or exchangeable for, or rights, warrants or options to
subscribe for or acquire, any such shares or convertible securities
or transferred or sold any shares out of treasury, other than as
between Infinis and wholly--owned subsidiaries of Infinis or any
shares issued or shares transferred from treasury upon the exercise
of any options granted under any of the Infinis Share Schemes;
(v) purchased or redeemed or repaid any of its own shares or
other securities or reduced or made any other change to any part of
its share capital to an extent which (other than in the case of
Infinis) would or might reasonably be expected to be material in
the context of the Infinis Group taken as a whole;
(vi) recommended, declared, paid or made any dividend or other
distribution whether payable in cash or otherwise or made any bonus
issue (other than to Infinis or a wholly--owned subsidiary of
Infinis);
(vii) made or authorised any change in its loan capital;
(viii) entered into, implemented or authorised the entry into,
any joint venture, asset or profit sharing arrangement, partnership
or merged with, demerged or acquired any body corporate,
partnership or business or acquired or disposed of or transferred,
mortgaged, charged or created any security interest over any assets
or any right, title or interest in any assets (including shares in
any undertaking and trade investments) or authorised the same (in
each case to an extent which would or might reasonably be expected
to be material in the context of the Infinis Group taken as a
whole);
(ix) issued or authorised the issue of, or made any change in or
to, any debentures or (except in the ordinary course of business or
except as between Infinis and its wholly-owned subsidiaries or
between such wholly-owned subsidiaries) incurred or increased any
indebtedness or liability (actual or contingent) which in any case
would or might reasonably be expected to be material in the context
of the Infinis Group taken as a whole;
(x) entered into, varied, or authorised any material agreement,
transaction, arrangement or commitment (whether in respect of
capital expenditure or otherwise) which:
(A) is of a long term, onerous or unusual nature or magnitude or
which is reasonably likely to involve an obligation of such nature
or magnitude; or
(B) is likely to restrict the business of any member of the Wider Infinis Group; or
(C) is other than in the ordinary course of business,
and which would or might reasonably be expected to be material
in the context of the Infinis Group taken as a whole;
(xi) entered into, implemented, effected or authorised any
merger, demerger, reconstruction, amalgamation, scheme, commitment
or other transaction or arrangement in respect of itself or another
member of the Wider Infinis Group;
(xii) taken any corporate action or had any legal proceedings
instituted or threatened against it or petition presented or order
made for its winding--up (voluntarily or otherwise), dissolution or
reorganisation or for the appointment of a receiver, administrator,
administrative receiver, trustee or similar officer of all or any
material part of its assets and revenues or any analogous
proceedings in any jurisdiction or appointed any analogous person
in any jurisdiction which in any case would or might reasonably be
expected to be material in the context of the Infinis Group taken
as a whole;
(xiii) been unable, or admitted in writing that it is unable, to
pay its debts or having stopped or suspended (or threatened to stop
or suspend) payment of its debts generally or ceased or threatened
to cease carrying on all or a substantial part of its business;
(xiv) waived or compromised any claim otherwise than in the
ordinary course of business which would or might reasonably be
expected to be material in the context of the Infinis Group taken
as a whole;
(xv) made any alteration to its memorandum or articles of association; or
(xvi) entered into any agreement, commitment or arrangement or
passed any resolution or made any offer (which remains open for
acceptance) or proposed or announced any intention with respect to
any of the transactions, matters or events referred to in this
Condition (e);
(e) since 31 March 2015 and except as disclosed in Infinis'
annual report and accounts for the year then ended or as otherwise
publicly announced by Infinis prior to 22 October 2015 (by the
delivery of an announcement to a Regulatory Information
Service):
(i) there having been no adverse change or deterioration in the
business, assets, financial or trading positions or profit of any
member of the Wider Infinis Group which in any case would be
material in the context of the Infinis Group taken as a whole;
(ii) no contingent or other liability of any member of the Wider
Infinis Group having arisen or become apparent or increased which
in any case would or might reasonably be expected to be material in
the context of the Infinis Group taken as a whole;
(iii) no litigation, arbitration proceedings, prosecution or
other legal proceedings to which any member of the Wider Infinis
Group is or may become a party (whether as plaintiff, defendant or
otherwise) having been threatened, announced, implemented or
instituted by or against or remaining outstanding against or in
respect of any member of the Wider Infinis Group which is material
in the context of the Infinis Group taken as a whole;
(iv) (other than as a result of the Acquisition) no enquiry or
investigation by, or complaint or reference to, any Third Party
having been threatened, announced, implemented, instituted by or
against or remaining outstanding against or in respect of any
member of the Wider Infinis Group which in any case would or might
reasonably be expected to be material in the context of the Infinis
Group taken as a whole;
(v) other than with the consent of Monterey, no action having
been taken or proposed by any member of the Wider Infinis Group, or
having been approved by Infinis Shareholders or consented to by the
Panel, which falls or would fall within or under Rule 21.1 of the
Code or which otherwise is or would be materially inconsistent with
the implementation by Monterey of the Acquisition on the basis
contemplated as at the date of this Announcement; and
(vi) no member of the Wider Infinis Group having conducted its
business in breach of any applicable laws and regulations which in
any case would or might reasonably be expected to be material in
the context of the Infinis Group taken as a whole;
(f) Monterey not having discovered:
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(i) that any financial or business or other information
concerning the Wider Infinis Group disclosed at any time by or on
behalf of any member of the Wider Infinis Group, whether publicly,
to any member of the Wider Monterey Group or to any of their
advisers or otherwise, is misleading or contains any
misrepresentation of fact or omits to state a fact necessary to
make any information contained therein not misleading and which was
not subsequently corrected before 22 October 2015 by disclosure
either publicly or otherwise to Monterey to an extent which might
reasonably be expected to be material in the context of the Infinis
Group taken as a whole;
(ii) that any member of the Wider Infinis Group is subject to
any liability (actual or contingent) which is not disclosed in
Infinis' annual report and accounts for the financial year ended 31
March 2015 or in Infinis' interim results for the six months ended
31 September 2015 and which in any case would or might reasonably
be expected to be material in the context of the Infinis Group
taken as a whole;
(iii) any past or present member of the Wider Infinis Group has
not complied in all material respects with all applicable
legislation, regulations or other requirements of any jurisdiction
or any Authorisations relating to the use, treatment, storage,
carriage, disposal, discharge, spillage, release, leak or emission
of any waste or hazardous substance or any substance likely to
impair the environment (including property) or harm human health or
otherwise relating to environmental matters or the health and
safety of humans, which non-compliance would be likely to give rise
to any material liability including any penalty for non-compliance
(whether actual or contingent) on the part of any member of the
Wider Infinis Group;
(iv) there is any liability (actual or contingent) of any past
or present member of the Wider Infinis Group under any
environmental legislation, regulation, notice, circular or order of
any government, governmental, quasi-governmental, state or local
government, supranational, statutory or other regulatory body,
agency, court, association or any other person or body in any
jurisdiction and which is material in the context of the Wider
Infinis Group taken as a whole;
(v) circumstances exist which would be reasonably likely to lead
to any Third Party instituting, or whereby any member of the Wider
Monterey Group or any present or past member of the Wider Infinis
Group would be likely to be required to institute, an environmental
audit or take any other steps which would in any such case be
reasonably likely to result in any liability (whether actual or
contingent) to improve, modify existing or install new plant,
machinery or equipment or carry out changes in the processes
currently carried out or make good, remediate, repair, re-instate
or clean up any land or other asset currently or previously owned,
occupied or made use of by any past or present member of the Wider
Infinis Group; or
(vi) any information which affects the import of any information
disclosed at any time by or on behalf of any member of the Wider
Infinis Group to an extent which would or might reasonably be
expected to be material in the context of the Infinis Group taken
as a whole;
For the purpose of these Conditions:
(a) Third Party means any central bank, government, government department or governmental, quasi--governmental, supranational, statutory, regulatory, environmental or investigative body, authority (including any national or supranational anti--trust or merger control authority), court, trade agency, association, institution or professional or environmental body or any other person or body whatsoever in any relevant jurisdiction, including, for the avoidance of doubt, the Panel;
(b) a Third Party shall be regarded as having "intervened" if it
has given notice to take, institute, implement or threaten any
action, proceeding, suit, investigation, enquiry or reference or
made, proposed or enacted any statute, regulation, decision or
order or taken any measures or other steps or required any action
to be taken or information to be provided or otherwise having done
anything and "intervene" shall be construed accordingly; and
(c) Authorisations means authorisations, orders, grants,
recognitions, determinations, certificates, confirmations,
consents, licences, clearances, provisions and approvals.
B. Certain further terms of the Scheme and the Acquisition
1 Conditions 3(a) to 3(f) (inclusive) must be fulfilled, be
determined by Monterey to be or remain satisfied or (if capable of
waiver) be waived by 11.59 p.m. on the date immediately preceding
the date of the Scheme Court Hearing, failing which the Scheme will
lapse.
2 Notwithstanding the paragraph above and subject to the
requirements of the Panel, Monterey reserves the right in its sole
discretion to waive all or any of Conditions 3(a) to 3(f)
inclusive, in whole or in part and to proceed with the Scheme Court
Hearing prior to the fulfilment, satisfaction or waiver of any of
the Conditions 3(a) to 3(f) inclusive.
3 Monterey shall be under no obligation to waive (if capable of
waiver), to determine to be or remain satisfied or to treat as
fulfilled any of Conditions 3(a) to 3(f) (inclusive) by a date
earlier than the latest date specified above for the fulfilment of
that condition, notwithstanding that the other Conditions may at
such earlier date have been waived or fulfilled and that there are,
at such earlier date, no circumstances indicating that any
Condition may not be capable of fulfilment.
4 Monterey reserves the right to elect to implement the
Acquisition by way of a takeover offer (as defined in Part 28 of
the Companies Act), subject to the Panel's consent. In such event,
such Offer will be implemented on the same terms and conditions
(subject to appropriate amendments, including (without limitation)
an acceptance condition set at 75 per cent. (or such other
percentage (being more than 50 per cent.) as Monterey may decide
(subject to the Panel's consent) of the shares to which such Offer
relates) so far as applicable, as those which would apply to the
Scheme.
5 The Acquisition will be subject, inter alia, to the Conditions
and certain further terms which are set out in this Appendix 1 and
those terms which will be set out in the Scheme Document and such
further terms as may be required to comply with the provisions of
the Listing Rules of the UK Listing Authority and the provisions of
the Code.
6 The Acquisition will lapse if there is a Phase 2 CMA reference
(as defined in the Code and pursuant to Rule 12.1(a)(ii) of the
Code) before the General Meeting.
7 Infinis Ordinary Shares will be acquired by Monterey fully
paid and free from all liens, equitable interests, charges,
encumbrances and other third party rights of any nature whatsoever
and together with all rights attaching to them, including the right
to receive and retain all dividends and distributions (if any)
declared, made or payable after the date of this Announcement.
8 This Announcement and any rights or liabilities arising
hereunder, the Acquisition, the Scheme, and any proxies will be
governed by English law and be subject to the jurisdiction of the
courts of England and Wales. The Scheme will be subject to the
applicable requirements of the Code, the Listing Rules, the Panel
and the London Stock Exchange.
9 Any persons who are subject to the laws of any jurisdiction
other than the United Kingdom should inform themselves about and
observe any applicable requirements. Further information in
relation to overseas shareholders will be contained in the Scheme
Document.
10 Each of the Conditions shall be regarded as a separate
Condition and shall not be limited by reference to any other
Condition.
Appendix 2
Bases and Sources
1 The value attributed to the issued and to be issued ordinary
share capital of Infinis is based upon the 300,070,658 Infinis
Ordinary Shares in issue on 21 October 2015 (being the last
Business Day before the date of this Announcement). The
International Share Identification Number for Infinis Shares is
GB00BFG1QM56.
2 Unless otherwise stated, the financial information of Infinis
is extracted (without material adjustment) from Infinis' Annual
Report and Accounts for the year ended 31 March 2015, Infinis' Q1
trading statement for the period 1 April 2015 to 13 August 2015 and
from Infinis' other announcements to a Regulatory Information
Service.
3 The market prices of the Infinis Ordinary Shares are the
closing middle market quotations as derived from Bloomberg.
Appendix 3
Details of Irrevocable Undertakings
The following holders of Infinis Ordinary Shares have given
irrevocable undertakings to vote in favour of the Scheme at the
Court Meeting and the resolutions to be proposed at the General
Meeting in relation to the following Infinis Ordinary Shares,
respectively:
Name Number of Infinis Ordinary Shares Approximate percentage of issued ordinary share capital
of Infinis (%)
----------------------- ---------------------------------- ---------------------------------------------------------
Ian Marchant 140,384 0.047
----------------------- ---------------------------------- ---------------------------------------------------------
Eric Machiels 396,414 0.132
----------------------- ---------------------------------- ---------------------------------------------------------
Gordon Boyd 396,414 0.132
----------------------- ---------------------------------- ---------------------------------------------------------
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Chris Cole 30,769 0.010
----------------------- ---------------------------------- ---------------------------------------------------------
Ray King 19,230 0.006
----------------------- ---------------------------------- ---------------------------------------------------------
Alan Bryce 19,615 0.007
----------------------- ---------------------------------- ---------------------------------------------------------
Baroness Sally Morgan 0 0
----------------------- ---------------------------------- ---------------------------------------------------------
The obligations of the Infinis Independent Directors under the
above undertakings are conditional upon the Scheme Circular being
despatched to the Infinis Shareholders within 28 days after the
date of this Announcement (save that if Monterey subsequently
elects to proceed by way of an Offer under the Code then such date
shall be extended to the date which is 28 days after the date of
any announcement announcing the change in the structure of the
Acquisition).
The undertakings from the Infinis Independent Directors will
cease to be binding only if the Scheme lapses or is withdrawn and
no new, revised or replacement Scheme or Offer is announced in
accordance with Rule 2.7 of the Code in its place or is announced,
in accordance with Rule 2.7 of the Code, at the same time.
If the Acquisition is subsequently structured as a takeover
offer, all the above undertakings will take effect as irrevocable
undertakings to accept such offer.
Appendix 4
Definitions
The following definitions apply throughout this Announcement
unless the context requires otherwise.
GBP, Sterling, pence the lawful currency of the UK
or p
Announcement this announcement made pursuant to Rule
2.7 of the Code
Acquisition the direct or indirect acquisition of
the entire issued and to be issued share
capital of Infinis by Monterey (other
than Infinis Ordinary Shares already
held by Monterey) to be implemented by
way of the Scheme or (should Monterey
so elect, subject to the consent of the
Panel) by way of the Offer
Authorisations authorisations, orders, grants, recognitions,
determinations, certificates, confirmation,
consents, licences, clearances, provisions
and approvals
Business Day a day (other than a Saturday, Sunday,
public or bank holiday) on which banks
are generally open for business in London
CCL Climate Change Levy
Code the City Code on Takeovers and Mergers
Companies Act the Companies Act 2006, as amended from
time to time
Conditions the conditions to the implementation
of the Acquisition (including the Scheme)
as set out in Appendix 1 to this Announcement
and to be set out in the Scheme Document
Court the High Court of Justice of England
and Wales
Court Meeting the meeting of the Scheme Shareholders
to be convened by order of the Court
pursuant to section 896 of the Companies
Act, notice of which will be set out
in the Scheme Document, for the purpose
of approving the Scheme, including any
adjournment thereof
CREST the relevant system (as defined in the
Uncertificated Securities Regulations
2001 (SI 2001/3755)) in respect of which
Euroclear UK & Ireland Limited is the
Operator (as defined in such Regulations)
in accordance with which securities may
be held and transferred in uncertificated
form
Daily Official List the daily official list of the London
Stock Exchange
Dealing Disclosure an announcement pursuant to Rule 8 of
the Code containing details of dealings
in interests in relevant securities of
a party to an offer
EBITDA earnings before interest, tax, depreciation
and amortisation
Effective Date the date upon which the Scheme becomes
effective in accordance with its terms
Excluded Shares any Infinis Ordinary Shares beneficially
owned by Monterey or any other member
of the Monterey Group
FCA the Financial Conduct Authority
Finsbury Finsbury LLP
Forms of Proxy the forms of proxy in connection with
each of the Court Meeting and the General
Meeting, which shall accompany the Scheme
Document
General Meeting the general meeting of Infinis to be
convened in connection with the Scheme,
notice of which will be set out in the
Scheme Document, including any adjournment
thereof
Infinis Infinis Energy plc, incorporated in England
and Wales with registered number 8714174
Infinis Independent the directors of Infinis that are independent
Directors of Terra Firma and Monterey, being all
such directors other than Mike Kinski
Infinis Group Infinis and its subsidiary undertakings
Infinis Ordinary Shares ordinary shares of 1 pence each in the
capital of Infinis
Infinis Share Schemes the Infinis Energy Long-Term Incentive
Plan, the Infinis Energy Share Incentive
Plan and the Replacement Long-Term Incentive
Plan
Infinis Shareholders the registered holders of Infinis Ordinary
Shares
London Stock Exchange London Stock Exchange plc
Monterey Monterey Capital II S.à r.l. incorporated
in Luxembourg with registered number
B 90247
Offer if (subject to the consent of the Panel)
Monterey elects to effect the Acquisition
by way of a takeover offer, the offer
to be made by or on behalf of Monterey
to acquire the issued and to be issued
ordinary share capital of Infinis (other
than those shares already held by Monterey)
on the terms and subject to the conditions
to be set out in the related offer document
Panel the Panel on Takeovers and Mergers
PRA the Prudential Regulation Authority
RBC Capital Markets RBC Europe Limited (trading as RBC Capital
Markets)
Registrar of Companies the Registrar of Companies in England
and Wales
Regulatory Information any information service authorised from
Service time to time by the FCA for the purpose
of disseminating regulatory announcements
Resolution the resolutions to be proposed by Infinis
at the General Meeting in connection
with, among other things, the approval
of the Scheme and the alteration of Infinis'
articles of association and such other
matters as may be necessary to implement
the Scheme and the delisting of the Infinis
Ordinary Shares
Restricted Jurisdiction any jurisdiction where the extension
or availability of the Scheme or Offer
would constitute a violation of the relevant
laws of such jurisdiction
Scheme the scheme of arrangement proposed to
be made under Part 26 of the Companies
Act between Infinis and the Scheme Shareholders,
with or subject to any modification,
addition or condition approved or imposed
by the Court and agreed to by Infinis
and Monterey
Scheme Court Hearing the hearing of the Court to sanction
the Scheme
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