REG - Permira Advisers LLP Ergomed plc - Statement re Publication of Finance Documentation

ErgomedAnnouncement

02/11/2023 15:30

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RNS Number : 2413S  Permira Advisers LLP  02 November 2023

NOT FOR RELEASE, PUBLICATION OR DISTRIBUTION, DIRECTLY OR INDIRECTLY, IN WHOLE
OR IN PART IN, INTO OR FROM ANY JURISDICTION WHERE TO DO SO WOULD CONSTITUTE A
VIOLATION OF THE RELEVANT LAWS OR REGULATIONS OF THAT JURISDICTION.

 

For immediate release

2 November 2023

 

Recommended cash acquisition

of

Ergomed plc

by

Eden AcquisitionCo Limited

(a newly incorporated company controlled and indirectly wholly owned by funds
advised by Permira Advisers LLP)

 

Publication of Finance Documentation

Disclosure under Rule 26

On 4 September 2023, the boards of directors of Eden AcquisitionCo Limited
("Bidco") and Ergomed plc ("Ergomed" or the "Company") announced that they had
reached an agreement on the terms of a recommended cash acquisition pursuant
to which Bidco, a newly incorporated company controlled and indirectly wholly
owned by the Permira funds advised by Permira Advisers LLP ("Permira") will
acquire the entire issued and to be issued ordinary share capital of Ergomed
(the "Acquisition"). The Acquisition is being implemented by means of a
Court-sanctioned scheme of arrangement under Part 26 of the Companies Act 2006
(the "Scheme").

Ergomed published a circular in relation to the Scheme dated 22 September 2023
(the "Scheme Document").  Defined terms used but not defined in this
announcement have the meanings set out in the Scheme Document.

In accordance with Bidco's intentions referred to in paragraph 4 of Part Two
and paragraph 11 of Part Seven of the Scheme Document, on 2 November 2023,
Bidco entered into:

1.   a senior facilities agreement (the "Senior Facilities Agreement") with,
among others, Bidco as original borrower and original guarantor, the Original
Lenders (as defined therein), Kroll Trustee Services Limited as security agent
(the "Security Agent") and Kroll Agency Services Limited as agent (the
"Agent"). The Senior Facilities Agreement provides for a term loan facility in
an aggregate principal amount of £200,000,000 ("Facility B"), and a delayed
draw term loan facility in an aggregate amount of up to £85,000,000, in each
case to be made available to Bidco;

2.   an intercreditor agreement with, amongst others, Bidco as the company,
the Security Agent as security agent and the Agent as senior agent (the
"Intercreditor Agreement");

3.   an agency fee letter with Bidco, the Agent and the Security Agent (the
"Agency Fee Letter"); and

4.   the conditions precedent status letter from the Agent to Bidco (the "CP
Status Letter").

The proceeds of any Facility B loans drawn under the Senior Facilities
Agreement are to be applied by Bidco in or towards, among other things
(including by way of on-lending to members of the Ergomed Group): (i) the
financing or refinancing of the consideration payable for the Acquisition;
(ii) the financing of any fees, costs and expenses relating to the
Acquisition; (iii) refinancing, discharging and/or acquiring existing
indebtedness of the Ergomed Group and to pay breakage costs, redemption premia
and any other costs related to such refinancing, discharge or acquisition; and
(iv) maintaining cash over-funding.

Copies of the Senior Facilities Agreement, the Intercreditor Agreement, the
Agency Fee Letter, the CP Status Letter and this announcement will be made
available, subject to certain restrictions relating to persons resident in
Restricted Jurisdictions, on Bidco's website at
Permira.com/news-and-insights/news/Permira-offer-for-ergomed.

 

 

Enquiries:

Rothschild & Co (financial adviser to Bidco and
Permira)
                         +44 (0) 20 7280 5000

Julian Hudson

Aashis Mehta

Andrew Davison

 

Headland Consultancy Limited (PR adviser to
Permira)
                              +44 (0) 20 3805
4822

Lucy Legh

Rob Walker

Charlie Twigg

 

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 Ergomed in any jurisdiction in contravention of applicable law.
The Acquisition will be made solely by means of the Scheme Document (or, if
the Acquisition is implemented by way of a Takeover Offer, any document by
which the Takeover Offer is made), which will contain the full terms and
conditions of the Acquisition including details of how to vote in respect of
the Acquisition. 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.

Please be aware that addresses, electronic addresses and certain other
information provided by Ergomed Shareholders, persons with information rights
and other relevant persons for the receipt of communications from Ergomed may
be provided to Bidco during the Offer Period as required under Section 4 of
Appendix 4 of the Code to comply with Rule 2.11(c).

N.M. Rothschild & Sons Limited ("Rothschild & Co"), which is
authorised and regulated by the Financial Conduct Authority in the United
Kingdom, is acting exclusively for Bidco and Permira and for no‑one else in
connection with the Acquisition and will not regard any other person as its
client in relation to the Acquisition and will not be responsible to anyone
other than Bidco and Permira for providing the protections afforded to clients
of Rothschild & Co, nor for providing advice in relation to any matter
referred to in this announcement.

Overseas jurisdictions

The release, publication or distribution of this announcement in or into
jurisdictions other than the UK or the United States may be restricted by law
and therefore any persons who are subject to the law of any jurisdiction other
than the UK or the United States should inform themselves about, and observe,
any applicable legal or regulatory 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 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
Acquisition will not be and must not be, mailed or otherwise forwarded,
distributed or sent in, into or from any Restricted Jurisdiction or any
jurisdiction where to do so would violate the laws of that jurisdiction and
persons receiving such documents (including custodians, nominees and trustees)
must not mail or otherwise forward, distribute or send them in or into or from
any Restricted Jurisdiction. Doing so may render invalid any related purported
vote in respect of the Acquisition. If the Acquisition is implemented by way
of Takeover Offer (unless otherwise permitted by applicable law or
regulation), the Takeover Offer may not be made, directly or indirectly, in or
into or by use of the mails or any other means or instrumentality (including,
without limitation, facsimile, email or other electronic transmission, telex
or telephone) of interstate or foreign commerce of, or any facility of a
national, state or other securities exchange of any Restricted Jurisdiction
and the Takeover Offer will not be capable of acceptance by any such use,
means, instrumentality or facilities or from within any Restricted
Jurisdiction.

Further details in relation to Overseas Shareholders are contained in the
Scheme Document.

Additional information for US investors

The Acquisition is being made to acquire the securities of an English company
by means of a scheme of arrangement provided for under English 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 disclosure requirements and practices applicable in the UK to
schemes of arrangement, 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 UK-adopted International Financial Reporting Standards 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 Bidco exercises its right to
implement the acquisition of the Ergomed Shares by way of a Takeover Offer,
such offer will be made in compliance with applicable US 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
will likely be a taxable transaction for United States federal income tax
purposes and under applicable United States state and local, as well as
foreign and other, tax laws. Each Ergomed Shareholder is urged to consult his
independent professional adviser immediately regarding the tax consequences of
the Acquisition applicable to them.

The Bidco loan notes and the Topco Units issued under the Partial Securities
Alternative will not be registered under the US Securities Act of 1933 (the
"Securities Act"). Bidco expects to issue the Bidco loan notes and Topco
expects to issue the Topco Units in reliance upon the exemption from the
registration requirements of the Securities Act provided by Section 3(a)(10)
thereof. ("Section 3(a)(10)"). Section 3(a)(10) exempts securities issued in
specified exchange transactions from the registration requirement under the
Securities Act where, among other things, the fairness of the terms and
conditions of the issuance and exchange of such securities have been approved
by a court or governmental authority expressly authorised by law to grant such
approval, after a hearing upon the fairness of the terms and conditions of the
exchange at which all persons to whom the Bidco loan notes or Topco Units are
proposed to be issued have the right to appear; and receive adequate and
timely notice thereof.

The Bidco loan notes and the Topco Units that may be issued pursuant to the
Acquisition have not been and will not be registered under the US Securities
Act or under the relevant securities laws of any state or territory or other
jurisdiction of the United States and will not be listed on any stock
exchange. Neither the US Securities and Exchange Commission nor any US state
securities commission has approved or disapproved of the Partial Securities
Alternative or determined if the Scheme Document is accurate or complete. Any
representation to the contrary is a criminal offence.

It may be difficult for US holders to enforce their rights and claims arising
out of the US federal securities laws, since Bidco and Ergomed 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, Bidco or its nominees, or its brokers (acting as agents), may
from time to time make certain purchases of, or arrangements to purchase,
Ergomed Shares outside the United States, other than pursuant to the Takeover
Offer (in the event that the Acquisition is implemented by way of a Takeover
Offer), before or during the period in which the Takeover Offer remains open
for acceptance. 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 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 Bidco 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 Bidco 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 Bidco, 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 Bidco believes that the expectations
reflected in such forward-looking statements are reasonable, Bidco 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 the satisfaction of the Conditions, as well as
additional factors, such as: the general economic climate; competition;
interest rate levels; loss of key personnel; the availability of financing on
acceptable terms; and changes in the legal or regulatory environment. 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
Bidco nor Permira, 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, Bidco is not under any
obligation, and Bidco expressly disclaims 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% 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%
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, (https://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 and hard copies

A copy of this announcement and the documents required to be published by Rule
26 of the Code will be made available, subject to certain restrictions
relating to persons resident in Restricted Jurisdictions, on Bidco's website
at permira.com/news-and-insights/news/permira-offer-for-ergomed. For the
avoidance of doubt, the contents of those websites are not incorporated into
and do not form part of this announcement.

Ergomed Shareholders may request a hard copy of this announcement by
contacting Share Registrars Limited during business hours on +44 (0) 1252
821390 or by submitting a request in writing to Share Registrars Limited at 3
The Millennium Centre, Crosby Way, Farnham, Surrey, GU9 7XX. If you have
received this announcement in electronic form, copies of this announcement and
any document or information incorporated by reference into this document will
not be provided unless such a request is made.

 

 

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