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Merger protocol

1. Pitmans 28 oktober 2012 12:38

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   Was benieuwd of UPS het bod eventueel kan verlagen of zonder gevolgen helemaal onder de deal uit kan als de EU helemaal of gedeeltewlijk dwars ligt. Daarom eerst maar een paar relevante passages uit het merger protocol in volgorde van lezen vwb de voorwaarden :
   
   15. TERMINATION
   
   15.1 Subject to clause 15.2, this Merger Protocol and the rights and obligations thereunder may be terminated:
   
   (a) if UPS and TNT so agree in writing;
   (b) by notice in writing given by either of the Parties (the Terminating Party) to the other Party if (i) any of the Commencement Conditions has not been satisfied or waived by the relevant Party in accordance with this Merger Protocol by the Ultimate Launch Date, and (ii) the non-satisfaction of the relevant Commencement Condition(s) is not due to a breach by the Terminating Party of any of its obligations under this Merger Protocol or any agreement resulting from it;
   
   (c) by notice in writing given by the Terminating Party to the other Party if (i) any of the Offer Conditions has not been satisfied or waived by the relevant Party in accordance with this Merger Protocol by the Long Stop Date, and (ii) the non-satisfaction of the relevant Offer Condition(s) is not due to a breach by the Terminating Party of any of its obligations under this Merger Protocol or any agreement resulting from it;
   
   (d) by notice in writing given by the Terminating Party to the other Party in case of the other Party having breached the terms of this Merger Protocol to the extent that any such breach:
   
   (i) has or could reasonably be expected to have material adverse consequences for TNT or the Offer; and
   
   (ii) is incapable of being remedied within ten (10) Business Days after receipt by the other Party of a written notice from the Terminating Party or has not been remedied by the other Party within ten (10) Business Days after receipt by the other Party of a written notice from the Terminating Party;
   
   (e) by notice in writing by TNT if (i) all Commencement Conditions have been satisfied or waived and UPS has failed to commence the Offer on the Commencement Date, or (ii) the Offer has been commenced and all Offer Conditions have been satisfied or waived and settlement has not taken place on the Settlement Date; or
   
   (f) by notice in writing by either TNT or UPS to the other Party pursuant and subject to the terms and conditions set forth in clause 14.
   
   15.2 Any termination in accordance with this Merger Protocol shall not take effect until the expiry of ten (10) Business Days following receipt of the written termination notice by the non-terminating Party. The Parties acknowledge that during the period referred to in the previous sentence, they shall be entitled to seek remedies in accordance with clause 27, including but not limited to seeking provisional measures in summary proceedings (kort geding) to prevent such termination from taking effect.
   
   15.3 If this Merger Protocol is terminated by TNT pursuant to clause 15.1(c) (but only if the Offer Condition under clause 4.3(b) (competition clearance) is not satisfied or waived in accordance with this Merger Protocol) or clause 15.1(d), UPS shall withdraw the Offer and shall not, directly or indirectly, either alone or together with another person, for a period of nine (9) months after termination of this Merger Protocol:
   
   (a) acquire or enter into an agreement or arrangement (whether legally binding or not) or do or omit to do any act as a result of which it may acquire any Shares; or
   
   (b) make or announce a public offer for any Shares.
   
   15.4 In the event that this Merger Protocol is terminated pursuant to this clause 15, none of the Parties shall have any claim hereunder of any nature whatsoever against the other Party, save (i) in respect of accrued rights and/or liabilities arising from the prior breach of this Merger Protocol and, where applicable (ii) for any claim pursuant to clause 16. Clauses 15 up to and including clause 26.3 shall survive termination of this Merger Protocol
2. Pitmans 28 oktober 2012 12:39

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   Offer Conditions
   
   4.3 The obligation of UPS to declare the Offer unconditional (het bod gestand doen) shall be subject to the satisfaction or waiver by UPS and/or TNT, as the case may be, in accordance with this Merger Protocol, of the conditions set forth in this clause 4.3 (the Offer Conditions):
   
   (a) the number of Shares having been tendered for acceptance on the Closing Date, together with (i) any Shares directly or indirectly held by UPS or any of its Affiliates at the Closing Date; (ii) any Shares committed to UPS, or any of its Affiliates, in writing and (iii) any Shares to which UPS is entitled (gekocht maar nog niet geleverd), representing at least 80% of TNT’s aggregate issued and outstanding ordinary share capital (geplaatst en uitstaand kapitaal) (excluding any Shares held by TNT at the Closing Date) on a fully diluted basis as at the Closing Date;
   
   (b) EU Competition Clearance and the Other Key Competition Clearances having been obtained;
   
   (c) no Material Adverse Effect having occurred;
   
   (d) TNT not having breached the terms of this Merger Protocol to the extent that any such breach (i) has or could reasonably be expected to have material adverse consequences for TNT, UPS or the Offer; and (ii) is incapable of being remedied within ten (10) Business Days after receipt by TNT of a written notice from UPS or has not been remedied by TNT within ten (10) Business days after receipt by TNT of a written notice from UPS;
   
   (e) UPS not having breached the terms of this Merger Protocol to the extent that any such breach (i) has or could reasonably be expected to have material adverse consequences for TNT or the Offer; and (ii) is incapable of being remedied within ten (10) Business Days after receipt by UPS of a written notice from TNT or has not been remedied by UPS within ten (10) Business days after receipt by UPS of a written notice from TNT;
   
   (f) neither of the Boards having revoked or materially modified, amended or qualified its Recommendation;
   
   (g) the Foundation not having exercised, in whole or in part, its Call Option to have Protective Preference Shares issued to it and having agreed to terminate the Foundation Option Agreement, subject only to the Offer being declared unconditional (gestanddoening);
   
   (h) on or prior to the Unconditional Date, no notification having been received from the AFM stating that preparation of the Offer has been made in violation of chapter 5.5 of the Wft, and that, pursuant to Article 5:80 paragraph 2 of the Wft, investment firms (beleggingsondernemingen, as defined in the Wft) will not be allowed to cooperate with the settlement of the Offer; and
   
   (i) no order, stay, judgment or decree having been issued by any court, arbitral tribunal, government, governmental authority or other regulatory or administrative authority that remains in force and effect, and no statute, rule, regulation, governmental order or injunction having been enacted, which in any such case prohibits the making and/or consummation of the Offer in accordance with this Merger Protocol in any material respect.
3. Pitmans 28 oktober 2012 12:41

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   Waiver
   
   4.4 The Offer Conditions set out in clauses 4.3(a), 4.3(b), 4.3(c), 4.3(d), 4.3(f) and 4.3(g) are for the sole benefit of UPS and may be waived (either in whole or in part) by UPS at any time by written notice to TNT.
   
   The Offer Condition set out in clause 4.3(e) is for the sole benefit of TNT and may be waived (either in whole or in part) by TNT at any time by written notice to UPS.
   
   The Offer Conditions set forth in clauses 4.3(h) and 4.3(i) cannot be waived.
   
   Announcement of non/satisfaction or waiver
   
   4.5 In accordance with the Merger Rules, if it is ascertained by UPS that an Offer Condition is not, or is incapable of being, satisfied and the relevant Offer Condition is not waived, UPS shall publicly announce this.
   
   Competition Clearance
   
   4.6 UPS shall have the primary responsibility, and take all steps required in consultation with TNT and with the assistance of its advisors, to make all necessary filings to obtain the EU Competition Clearance and the Other Key Competition Clearances as soon as permitted and practicably feasible under the relevant competition laws and shall use its best efforts to obtain the approvals of the relevant competition authorities as soon as practicable. In particular and without prejudice to the generality of the foregoing, UPS shall:
   
   (a) submit a briefing paper to the European Commission setting out the main arguments in a form reasonably acceptable to TNT as soon as practicable after signing of the Merger Protocol and in any event within thirty (30) Business Days after signing of the Merger Protocol or such longer period agreed upon by TNT;
   
   (b) procure the filing with the European Commission of the Form CO as set out in Annex I to the Commission Regulation (EC) No 802/2004 in a form reasonably acceptable to TNT as soon as practicable after signing of the Merger Protocol and in any event within sixty (60) Business Days after signing of the Merger Protocol or such longer period which is reasonably acceptable to, and approved by, TNT; and
   
   (c) not enter into (and will procure that none of its Affiliates enters into) any other agreement or arrangement where the effect of any such agreement or arrangement is likely to affect, delay, impede or in any respect prejudice the obtaining of EU Competition Clearance or the Other Key Competition Clearances.
   
   If a competition approval or statement of no objection of a Regulatory Authority in respect of the Offer is given subject to conditions or obligations (Commitments), then those Commitments being reasonably satisfactory to UPS, acting reasonably, shall be accepted.
   
   This clause 4.6 shall apply equally to the provision of Commitments to the competent authorities of a Member State if the European Commission makes a referral in whole or in part under Article 9 of the EC Merger Regulation to a competent authority of one or more Member States whose laws prohibit the parties from completing the consummation of the Offer before clearance is obtained under such national merger control.
   
   UPS shall:
   
   (a) promptly notify TNT of any communication (whether written or oral) from the European Commission or any national competition authority in a country where according to local laws a notification is required (each a Regulatory Authority);
   
   (b) give TNT reasonable notice of all meetings and telephone calls with any Regulatory Authority and give TNT reasonable opportunity to participate in such meetings and telephone calls (save to the extent that a Regulatory Authority expressly requests TNT not be present at such meeting or any part thereof); and
   
   (c) provide TNT with drafts of all written communications intended to be sent to any Regulatory Authority, give TNT a reasonable opportunity to comment thereon, and provide TNT with final copies of all such communications (save that in relation to all disclosure under this sub-clause, business secrets and other confidential material may be redacted so long as TNT acts reasonably in identifying such material for redaction).
4. Pitmans 28 oktober 2012 12:43

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   Doe ik het eigenlijk nog fout, want voor artikel 4 zou eigenlijk nog artikel 14 moeten staan, maar dat is alleen van toepassing in geval van een competing offer en daar is op het moment (helaas nog) geen sprake van.
5. Pitmans 28 oktober 2012 12:48

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   16. TERMINATION FEE
   
   16.1 To induce UPS to enter into this Merger Protocol and to compensate UPS for loss of management time and other costs and expenses it has already incurred and will continue to incur in connection with the (preparation of the) Offer, TNT shall pay to UPS an amount of EUR 50 million in cash, immediately upon first written request thereto from UPS, if this Merger Protocol is terminated:
   
   (a) by UPS pursuant to clause 15.1(d); or
   
   (b) pursuant to clause 15.1(f).
   
   16.2 To induce TNT to enter into this Merger Protocol and to compensate TNT for loss of management time and other costs and expenses it has already incurred and will continue to incur in connection with the (preparation of the) Offer, the loss of franchise, (in)direct loss and damages to TNT’s business due to the announcement of the (potential) Offer and its effects on, among other things, employees, customers and suppliers, UPS shall pay to TNT an amount of EUR 200 million in cash, immediately upon first written request thereto from TNT, if this Merger Protocol is terminated by TNT pursuant to:
   
   (a) clause 15.1(c) on the basis of EU Competition Clearance or one or more of the Other Key Competition Clearances not having been obtained;
   
   (b) clause 15.1(d); or
   
   (c) clause 15.1(e).
   
   16.3 Parties acknowledge and agree that the obligations set forth in clauses 16.1 and 16.2 shall constitute a “boetebeding” as referred to in article 6:91 DCC. Parties furthermore agree that any forfeiture by TNT or UPS, as the case may be, of the UPS or TNT compensation payment set out in clauses 16.1 and 16.2, respectively, pursuant to article 6:95 DCC et seq., be deemed to be in lieu of, and not in addition to, any liability (schadevergoedingsplicht) of TNT towards UPS or vice versa related to the events set forth in clauses 16.1 and 16.2 so that the provisions of this clause 16.3 shall be deemed to be a “schadevergoedingsbeding” and not a “strafbeding”. The provisions of article 6:92, paragraphs 1 and 3 DCC shall, to the maximum extent possible, not apply. Each Party hereby waives any (potential) right it might have to request mitigation of such liability in any manner (in legal proceedings or otherwise).
6. Pitmans 28 oktober 2012 13:04

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   Verder is dit nog van belang :
   
   ----------------
   Long Stop Date means 28 February 2013.
   ---
   Closing Date means the last day of the Offer Period.
   ---
   Offer Period means the acceptance period (aanmeldingstermijn) of the Offer.
   ----------------
   Offer Period
   
   2.8 UPS may, in its sole discretion, determine the duration of the acceptance period (aanmeldingstermijn) of the Offer (the Offer Period), provided that the initial Offer Period shall be no less than eight (8) weeks and no longer than ten (10) weeks (the last day of the Offer Period, the Closing Date).
   
   2.9 Immediately prior to the expiration of the Offer Period, TNT shall provide a written confirmation to UPS that, to the best knowledge of the members of the Executive Board, after having made reasonable enquiries, the Offer Conditions set forth in clause 4.3(d) (no breach by TNT) and clause 4.3(h) (no breach of public offer regulations) have been satisfied (or not, in which case reasonable details as to the non-satisfaction shall be included in the written confirmation) as of that time. Immediately prior to the expiration of the Offer Period, UPS shall provide a written confirmation to TNT that, to the best knowledge of the members of its executive board, after having made reasonable enquiries, the Offer Conditions set forth in clause 4.3(e) (no breach by UPS) and clause 4.3(h) (no breach of public offer regulations) have been satisfied (or not, in which case reasonable details as to the non-satisfaction shall be included in the written confirmation) as of that time.
   
   2.10 If any Offer Condition is not satisfied or waived on the initial Closing Date, UPS may, at its sole discretion, extend the initial Offer Period once, provided that:
   
   (a) such extension of the initial Offer Period shall be no less than two (2) weeks and no more than ten (10) weeks after the initial Closing Date; and
   
   (b) if the Offer Condition relating to competition clearance set out in clause 4.3(b) is not satisfied or waived on the initial Closing Date, UPS must extend the initial Offer Period for one or more periods of time (subject to, in respect of an extension by more than one period, receipt of an exemption granted by the AFM, to be requested by UPS) until such time as the Parties reasonably believe is necessary to cause such Offer Condition to be satisfied.
   
   Any request to the AFM for an exemption to extend the Offer Period more than once, other than pursuant to clause 2.10(b), shall require the prior written consent of TNT, which shall not be unreasonably withheld or delayed.
   
   If, at any point in time prior to the Long Stop Date (i) the AFM does not grant an exemption to extend the Offer Period as a consequence of which the Offer Period has lapsed without the Offer having been declared unconditional (gestand gedaan) and (ii) the Offer Condition relating to competition clearance set out in clause 4.3(b) is not yet satisfied or waived, but no decision has yet been made or deemed to have been made by the European Commission in respect of Phase II Competition Clearance, UPS shall promptly launch a new public offer on the same terms and conditions as the Offer (and such new offer will then be deemed to be the “Offer” for purposes of this Agreement).
   
   In case of one or more extensions of the Offer Period, all references to the Closing Date shall, unless the context requires otherwise, be deemed to refer to the latest date and time to which the Offer Period has been so extended.
   --------------
   
   En mogelijk dit :
   
   During the Interim Period, without the prior written consent of UPS,(...)
   
   (g) make or enter into any capital or investment commitments or operating leases that individually exceed EUR 7 million other than disclosed in the Due Diligence Information, or make any acquisitions or divestments involving amounts in excess of EUR 7 million;
   (n) sell or dispose of, or create, extend, grant, issue, encumber, or agree to sell or dispose of, or create, extend, grant, issue, encumber or allow any third party rights over any of the TNT Group’s material assets except in the ordinary course of business;
7. Pitmans 28 oktober 2012 13:50

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   Wat ik hier uit begrijp (correct me if I'm wrong please):
   
   - Als de EC de fusie geheel afkeurt om concurrentie-overweging, dan heeft TNT recht op een vergoeding van $200mio en gaat de deal niet door.
   - Als de EC voorwaarden stelt om concurrentie-overweging (bijv. afstoten van activa) dan zal daaraan voldaan moeten worden, omdat anders de deal niet door kan gaan.
   - Als het langer duurt dan de biedingstermijn om de deal rond te krijgen, heeft UPS het recht om deze termijn te verlengen (dat is als ik het goed heb al 2 keer gebeurd)
   - Als het langer duurt dan 28 februari 2013 om een positieve uitspraak van de EC te krijgen, dan moet UPS een nieuw, maar identiek bod uitbrengen, maar dan met andere uiterlijke data.
   - Als er inderdaad activa verkocht moeten worden, dan mag TNT dat alleen doen na goedkeuring van UPS, maw TNT is niet vrij om te verkopen aan elke partij
   - Als beide partijen onder de deal uit willen, dan hoeven ze beide geen schadevergoeding te betalen.
   ----------------------
   
   Grappig overigens om te zien dat UPS nu beweert dat ze vooraf geen enkel probleem met goedkeuring door de EC verwachtten, maar dit merger protocol wel vol staat met voorbehouden rond de goedkeuring.
8. [verwijderd] 28 oktober 2012 19:39

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   Home > Transportation > UPS' $6.8 billion deal to buy TNT Express could become an unwanted package
   TRANSPORTATION October 22, 2012
   UPS' $6.8 billion deal to buy TNT Express could become an unwanted package
   
   UPS postpones closing date again as European regulators press firms over competitive issues.
   
   By Mark B. Solomon
   
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   UPS Inc.'s proposed $6.8 billion buy-out of Dutch express delivery firm TNT Express may be experiencing more than just a passing squall.
   
   On Friday, Atlanta-based UPS said it received a "statement of objections" from the European Commission (EC), the executive body of the European Union, to the proposed purchase of TNT Express, based in Hoofddorf.
   
   In a statement released Friday, UPS said the document—the contents of which have been kept confidential—"addresses the competitive effects of the intended merger on Europe's international express market."
   
   UPS called the document a routine part of the 27-member EC's regulatory review process and said that both companies are expected to respond to regulators' concerns within the next couple of weeks.
   
   Peggy Gardner, a UPS spokeswoman, said the EC statement "helps to further focus the areas of discussion moving forward" and that it doesn't "prejudge the outcome."
   
   Still the statement of objections has forced UPS to extend the deadline to complete the transaction for the second time since both companies formally agreed to the deal on March 19. The initial deadline was Aug. 31, which was then pushed back to Nov. 9 due to competitive concerns raised in Europe. On Friday, UPS said the deadline has now been extended to early 2013. Initially, UPS had not anticipated any regulatory static over the deal.
   
   UPS said it remains committed to the acquisition. The issue is likely to be raised tomorrow during UPS' scheduled analyst call to discuss its third-quarter results. Given the hush-hush climate surrounding the deal, however, it is likely executives will provide no new information.
   
   The main sticking point could be a disagreement over the size of the European parcel market. That wouldn't be surprising, since analysts have proffered conflicting market share estimates since the transaction was announced in February. One estimate that appears to stick was made by New York-based investment firm Wolfe Trahan & Co., which pegged TNT Express as the market leader with 18 percent, followed by DHL Express with 16 percent, UPS with 14 percent, and FedEx Corp. with 4 percent.
   
   The EC's review process comes as the Euro-zone grapples with a major financial crisis mostly afflicting its southern region. Given the current turbulence, David G. Ross, transport analyst at Stifel, Nicolaus & Co., surmised that the EC might be loath to approve any transaction that eliminates a competitor from the market. Ross added, however, that the body rarely vetoes deals like this one.
   
   He did speculate that as a condition of approving the deal, the EC might require a divestiture of assets in countries where the two firms have significant market concentration. He would not comment on which countries would be ripe for divestiture.
   
   UPS said in its statement that parcel competition in Europe is already brisk because it involves "multiple players who offer similar services." UPS said the combined entity would actually enhance the continent's competitive landscape by creating a "more efficient logistics market."
   
   TNT Express' strength is its intra-European business, though it also serves the intra-China, Southeast Asian, and Brazilian markets. Its U.S. operations are confined to connecting the country to international markets. And even there, the company's footprint is almost nonexistent.
   
   Ross, for one, is not keen on the deal, saying that beyond the cost of the purchase, the subsequent integration would be expensive and more difficult to execute than UPS assumes. UPS already has a significant and profitable presence in Europe, and the company would be better off growing its Asian and Brazilian operations in-house instead of buying TNT Express' "second-rate operations" in those markets, he said.
   
   Keep away from FedEx?
   Many of those following the deal have speculated that UPS' move on TNT Express was partly motivated by a desire to keep it out of FedEx's hands and block its rival from establishing a major foothold in Europe via a major acquisition.
   
   FedEx, for its part, has expressed no interest in a counter-offer, saying it could grow nicely in Europe through organic expansion and smaller, more targeted acquisitions known in the trade as "tuck-ins."
   
   The other major player in the market, DHL, has been silent on its intentions so far. Experts say it is doubtful DHL will make a bid for TNT Express for fear of raising the ire of European antitrust regulators. However, DHL and its owner, German postal and logistics giant Deutsche Post, wield significant influence in Brussels. Both could use their combined heft to either get the deal blocked or force conditions on UPS that could dilute the impact of controlling more than 30 percent of the intra-European parcel market.
   
   DHL could have other, more personal motivations to block a UPS-TNT Express deal. In 2003, UPS opposed DHL's proposed acquisition of Airborne Express, then the third-largest U.S. parcel carrier. The transaction was eventually approved. According to those close to the transaction, UPS' opposition still rankles, even though in retrospect DHL would have been better off walking away as the acquisition set the stage for six years of multi-billion dollar losses that eventually led DHL to abandon the domestic U.S. market.
   
   If the current deal is blocked, it would be hard to fathom TNT Express' staying independent for long as its competitiveness has faltered in recent years. When the company was split off from the Dutch postal system in May 2011, rumors swirled that it was put on a standalone basis to prep it for sale. By mid-2011, TNT Express' stock had plunged to multi-year lows as it sustained large losses due to the contraction in Europe and operating costs that spiraled out of control.
   
   In addition, Marie-Christine Lombard, who was CEO at the time the deal was announced, suddenly resigned at the end of September to pursue interests outside the industry. The timing of her decision was not warmly received by the company's supervisory board. "It is regrettable that Marie-Christine has decided to leave TNT Express now," said Antony Burgmans, its chairman, at the time her resignation was announced.
   
   These events seem to have affected the company's internal culture as well. A parcel industry executive who spoke on condition of anonymity said inertia has set in as TNT Express waits to be sold. In the meantime, the company risks becoming—if it already hasn't--the fourth player in a three-chair European parcel game.
   
   "I think TNT had been on cruise control for a long time just waiting to be sold to somebody, and therefore has lost vision and mission and internal leadership," the executive said. "The senior guys just want their [compensation] packages so they can get on with life."