Recommended Public Cash Offer by FedEx for all Issued and Outstanding Ordinary Shares of TNT Express
“This is an important transaction for FedEx, and the offer represents positive news for all stakeholders,” said David Binks, Regional President Europe, FedEx Express. “We believe the combination will provide significant value to both companies and both sets of shareholders. FedEx is delighted by the unanimous support from the Executive Board and the Supervisory Board.”
The Offeror is making the Offer on the terms and subject to the conditions and restrictions contained in the Offer Document dated 21 August 2015 (the Offer Document). Shareholders tendering their Ordinary Shares under the Offer will be paid in consideration for each Ordinary Share validly tendered (or defectively tendered provided that such defect has been waived by the Offeror) for acceptance pursuant to the Offer prior to or on the Acceptance Closing Date (each a Tendered Share) an amount in cash of € 8.00 (eight euro) (the Offer Price). Shareholders tendering their ADSs under the Offer will be paid in consideration for each ADS validly tendered (or defectively tendered provided that such defect has been waived by the Offeror) a cash amount equal to the U.S. dollar equivalent of the Offer Price, calculated by using the spot market exchange rate for the U.S. dollar against the euro published on Bloomberg at noon New York Time on the day immediately prior to the date on which funds are received by Citibank, N.A. (the ADS Tender Agent), in its capacity as ADS Tender Agent, to pay for the ADSs following the Unconditional Date upon the terms and subject to the conditions set out in the Offer Document.
The Offer Price includes any (interim) cash or share dividend or other distribution on the Shares that is or may be declared by TNT Express on or prior to the Settlement Date and the record date for such cash or share dividend or other distribution occurs on or prior to the Settlement Date. Consequently, if on or prior to the Settlement Date any cash or share dividend or other distribution is declared in respect of the Shares and the record date for such cash or share dividend or other distribution occurs on or prior to the Settlement Date, the Offer Price will be decreased by an amount per Share equal to any such cash or share dividend or other distribution per Share.
The Offer values 100% of the Shares at € 4.4 billion (USD 4.8 billion). FedEx has confirmed in a press release dated 13 May 2015 that it will be able to finance the aggregate consideration of the Offer.
Rationale for the Offer
By combining their businesses (the Combination), TNT Express and FedEx have the intention to create a leading global player in providing logistics, transportation, express delivery and related business services, drawing on the considerable strengths of both TNT Express and FedEx.
Key elements of the strategic rationale for, and the strength of, the Combination include:
- the Combination's customers would enjoy access to a considerably enhanced, integrated global network. This network would benefit from the combined strength of TNT Express' strong European road platform and Liege hub and FedEx’s strength in other regions globally, including North America and Asia;
- TNT Express' customers would benefit from the Combination’s comprehensive transportation solutions, such as express, global freight forwarding, contract logistics and surface transportation capabilities;
- FedEx would strengthen TNT Express with investment capacity, sector expertise and global scope;
- the strong balance sheet of the Combination is expected to support deploying additional capital to TNT Express' business and support the growth of (the business of) TNT Express;
- a strong cultural fit, as both FedEx and TNT Express focus on customer service, operational excellence and good corporate citizenship; and
- the Combination would offer exciting new prospects and career opportunities to FedEx and TNT Express employees as part of a global, growing and highly respected organisation.
Governance of TNT Express post completion
After successful completion of the Offer, the Supervisory Board will be composed of three new members selected by FedEx (being David Cunningham, Christine Richards and David Bronczek, who will act as chairman) and two persons qualifying as independent within the Dutch Corporate Governance Code (the Independent Members) (being Margot Scheltema and Shemaya Levy Chocron, both members of the current Supervisory Board). The Independent Members will continue to serve on the Supervisory Board for at least three years as of the commencement of the Offer. They will be charged particularly with monitoring the compliance with the non-financial covenants in relation to the Offer and will have certain veto rights with respect to the non-financial covenants and post-Offer restructuring that could lead to dilution or unequal treatment of minority shareholders.
As from the Settlement Date, David Binks, currently Regional President Europe, FedEx Express, will join the TNT Express Executive Board as Chief Executive Officer. Mark Allen, Senior Vice President - Legal International, FedEx Express, will then also join the Executive Board. Maarten de Vries will remain in office as Chief Financial Officer for a period of six months following the Settlement Date.
In good consultation, Tex Gunning, FedEx and the Supervisory Board of TNT Express, have mutually agreed that Mr. Gunning will resign as CEO and as member of the TNT Express Executive Board on the Settlement Date.
Both Mr. Gunning and Mr. De Vries will continue to serve on the integration committee for a period of six months following the Settlement Date.
In line with the remuneration policy of TNT Express as published in its Annual Report since 2003, both Mr. Gunning and Mr. De Vries will receive a change of control severance payment.
Mr. Gunning and Mr. De Vries will not receive a special bonus related to the Offer and/or the completion of it. The existing rights to performance shares of the members of the Executive Board, as published in TNT Express’ Annual Reports, are subject to a pro rata parte vesting and settlement with respect to rights granted in 2015. Rights granted in 2014 will vest and be settled in full. The statutory claw-back regulation will be applied. This will result in a deduction of the cash value of these performance shares. With regard to his transitional role as CFO and continued responsibility as Executive Board Member and member of the Integration Committee, Mr. De Vries will receive a one-time retention payment instead of his variable short- and long-term incentive for the six month period following Settlement Date. This one-time payment is subject to shareholder approval at the EGM.
The integration of the Combination will be the responsibility of FedEx and the Boards. In order to facilitate such integration, an integration committee will be established for a minimum period of two years as of the Settlement Date consisting of four members, two of which will be executives of TNT Express and two of which will be executives of FedEx. The chairman of the integration committee will be a FedEx representative and will have a casting vote. The integration committee will determine an integration plan and submit it to FedEx and the Boards, monitor its implementation and do all things necessary to assist and optimise the integration of the Combination.
The initial members of the integration committee will be Mr. Gunning, Mr. De Vries, Mr. Cunningham and Robert Henning. Mr. Gunning and Mr. De Vries have agreed to serve on the integration committee for a period of six months after the Settlement Date. When either Mr. Gunning or Mr. De Vries resigns from the integration committee, his seat will be taken up by another executive of TNT Express.
FedEx has provided certain non-financial covenants with regard to strategy, governance, employees and employee representation, organisation, the TNT Express brand, as well as other matters. The non-financial covenants are set out in detail in the Offer Document and will apply for three years following commencement of the Offer.
The Combination offers a unique opportunity to strengthen the resource base of both companies, thereby offering prospects for employees of the combined companies. FedEx has a long-standing history of developing leaders from within its organization, providing best-in-class training and development opportunities. FedEx will continue to respect existing work councils’, trade unions' and employee rights and benefits (including pension rights).
The combined companies will cooperate to avoid any significant redundancies in the global or Dutch work forces. The combined companies will foster a culture of excellence, where qualified employees will be offered attractive training and national and international career progression based on available opportunities.
Recognizing the significant value of TNT Express' operations, infrastructure, people and expertise in Europe, Amsterdam/Hoofddorp will become the European regional headquarters of the combined companies. Liege will be maintained as a significant operation for the group going forward. In addition, TNT Express’ operations as a European air carrier will be divested to address applicable airline ownership regulations. Where permitted by regulation, FedEx intends to transition TNT Express’ intercontinental air operations to FedEx.
FedEx will allow the combined companies to continue their leadership in sustainable development. The brand name of TNT Express will be maintained for an appropriate period. FedEx and TNT Express will ensure that the TNT Express group will remain prudently financed, including with respect to the level of debt, to safeguard business continuity and to support the success of the business.
Unanimous recommendation of the Executive Board and Supervisory Board of TNT Express
After having given due and careful consideration to the strategic rationale and the financial and social aspects and consequences of the proposed transactions, the Boards have reached the conclusion that the Offer, provides a fair price to its shareholders and the Offer, including the Asset Sale and Liquidation, is in the best interests of TNT Express and all its stakeholders. With reference to the Position Statement, the Boards fully support the Offer and the Asset Sale, unanimously recommend to the shareholders to accept the Offer and to tender their Shares pursuant to the Offer, and unanimously recommend voting in favour of all resolutions relating to the Offer and the Asset Sale and Liquidation that will be proposed at the EGM.
On 6 April 2015, Goldman Sachs International issued an opinion to the Boards and Lazard issued an opinion to the Supervisory Board, in each case as to the fairness, as of such date, and based upon and subject to the factors and assumptions set forth in each fairness opinion, that (i) the € 8.00 per Share in cash to be paid to the Shareholders pursuant to the Merger Protocol was fair from a financial point of view to the Shareholders, and (ii) the purchase price to be paid to TNT Express for the entire TNT Express business under the Asset Sale (as described below) was fair from a financial point of view to TNT Express. The full text of such fairness opinions, each of which sets forth the assumptions made, procedures followed, matters considered and limitations on the review undertaken in connection with each such opinion, are included in the Position Statement. The opinion of Goldman Sachs International and Lazard is not a recommendation as to whether or not any Shareholder should tender such Shares in connection with the Offer or any other matter.
Extraordinary general meeting of shareholders
TNT Express will hold an extraordinary general meeting of shareholders (the EGM) to discuss the Offer. The EGM will be held at the TNT Centre, Taurusavenue 111, 2132 LS Hoofddorp, the Netherlands at 9:00 hours, Amsterdam time, on 5 October 2015.
At the EGM, the Offer, among other matters, will be discussed in accordance with the Decree. In connection with the Offer, the shareholders are being asked to adopt resolutions to amend the articles of association of TNT Express and change the composition of the Executive Board and the Supervisory Board. At the EGM, the shareholders will also be asked to vote in favour of the Asset Sale and Liquidation Resolutions.
A position statement providing further information to the shareholders as required pursuant to Article 18, paragraph 2 of the Decree (the Position Statement), including the agenda for the EGM (and explanatory notes thereto), is made available by TNT Express as of today.
Central Works Council and European Works Council of TNT Express
The Central Works Council has given a positive advice and the European Works Council has given a positive opinion in respect of (i) the Offer and (ii) the Asset Sale and Liquidation, and Conversion (as defined in the Offer Document).
The secretariat of the Social Economic Council (Sociaal Economische Raad) and the relevant trade unions have also been notified of the Offer, in accordance with the Merger Code (SER Fusiegedragsregels 2000).
Competition clearances and indicative timetable
The Offer is conditional on obtaining competition approval from the relevant antitrust authorities in the EU, Brazil, China and, to the extent applicable, the United States of America.
FedEx and TNT Express are on track to obtain all necessary approvals and competition clearances. Based on the required steps and subject to the necessary approvals, FedEx and TNT Express anticipate that the Offer will close in the first half of calendar year 2016. The formal notification for EU competition clearance was filed on 26 June 2015. The European Commission has initiated a Phase II review in connection with the Offer and on 13 August 2015 announced on its website that it extended its deadline for the completion of its Phase II review by 20 working days to 13 January 2016. The Phase II review is the next step in the process where the European Commission conducts an in-depth analysis under the EU Merger Regulation before coming to a decision on whether to grant anti-trust approval. The transaction is also being reviewed by other antitrust agencies, including the Ministry of Commerce (MOFCOM) in China and Conselho Administrativo de Defesa Econ?mica (CADE) in Brazil. The Combination presents a highly pro-competitive proposition for the provision of small package delivery services within and outside Europe. The networks of TNT Express and FedEx are largely complementary, given that FedEx’s strength is providing US domestic and extra-EEA international services, while TNT Express' focus is on providing intra-European services. The Combination would allow the parties to sell a more competitive e-commerce offering in the market, which should benefit consumers and SMEs in Europe and beyond.
Irrevocable from PostNL N.V. and Mr. Vollebregt
PostNL, currently holding approximately 14.7% of the Shares, has irrevocably undertaken to tender all Shares currently held or to be acquired by it prior to the Acceptance Closing Date in the Offer under the same terms and conditions as stated in the Offer Document.
The irrevocable undertaking contains customary terms and conditions, including that the irrevocable undertaking shall terminate (as a consequence of which PostNL will not be obliged to tender its Shares and/or shall be entitled to withdraw its acceptance of the Offer) in the event inter alia a Superior Offer (as defined in the Offer Document) is made and FedEx has not made a Matched Offer (as defined in the Offer Document) and, as a consequence, the Boards have withdrawn or modified their recommendation. Mr. Vollebregt, currently holding 10,052 Shares, has irrevocably undertaken to tender all his Shares under the Offer, under the same terms and conditions as the other shareholders, subject to the condition that the Offer is made and the condition that the Boards continue to support and recommend the Offer.
Neither PostNL nor Mr. Vollebregt have received any information relevant for a shareholder in connection with the Offer that is not included in the Offer Document and will tender their Shares under the Offer, under the same terms and conditions as the other shareholders.
The Acceptance Period will commence at 9:00 hours, Amsterdam time (3:00 hours, New York time), on 24 August 2015 and will expire at 17:40 hours, Amsterdam time (11:40 hours, New York time) on 30 October 2015 (the Acceptance Closing Date), unless the Acceptance Period is extended, in which case the Acceptance Closing Date shall be the date on which the extended Acceptance Period expires. The Offeror has agreed that it will accept valid book entry tenders of ADSs up until 17:00 hours, New York time, on the Acceptance Closing Date.
Shares tendered on or prior to the Acceptance Closing Date may not be withdrawn, subject to the right of withdrawal of any tender of Shares during the Acceptance Period in accordance with the provisions of Article 5b, paragraph 5, Article 15, paragraphs 3 and 8 and Article 15a paragraph 3 of the Decree. In case of extension of the Acceptance Period, any Shares previously tendered and not withdrawn will remain subject to the Offer.
Acceptance by shareholders
Shareholders who hold their Ordinary Shares through an institution admitted to Euronext Amsterdam (an Admitted Institution) are requested to make their acceptance known through their custodian, bank or stockbroker no later than 17:40 hours CET, on 30 October 2015, unless the Acceptance Period is extended. The custodian, bank or stockbroker may set an earlier deadline for communication by shareholders in order to permit the custodian, bank or stockbroker to communicate acceptances to ING Bank N.V. (the Settlement Agent) in a timely manner.
Admitted Institutions may tender Ordinary Shares for acceptance only to the Settlement Agent and only in writing. In submitting the acceptance, the Admitted Institutions are required to declare that (i) they have the Tendered Shares in their administration, (ii) each shareholder who accepts the Offer irrevocably represents and warrants that the Tendered Shares are being tendered in compliance with the restrictions set out in Section 2 (Restrictions) and Section 3 (Important Information) of the Offer Document and the securities and other applicable laws and/or regulations of the jurisdiction(s) to which such shareholder is subject, and no registration, approval or filing with any regulatory authority of such jurisdiction is required in connection with the Tendered Shares, and (iii) they undertake to transfer (leveren) these Tendered Shares to the Offeror prior to or on the Settlement Date, provided the Offeror declares the Offer unconditional (gestand wordt gedaan).
Acceptance by holders of ADSs
Holders of ADSs in registered form, either in American depositary receipt (ADR) form or in uncertificated form through the Direct Registration System (a system administered by the DTC pursuant to which Citibank, N.A., the depositary for the ADSs (the U.S. Depositary), may register the ownership of uncertificated ADSs in its books), may accept the Offer and tender ADSs to the ADS Tender Agent by delivering to the ADS Tender Agent a properly completed and duly executed ADS Letter of Transmittal, with any applicable signature guarantees from an Eligible Institution, together with the ADRs representing the ADSs specified on the face of the ADS Letter of Transmittal, if applicable, prior to the Acceptance Closing Time.
Holders of ADSs in book-entry form, all of which are held through the facilities of the Depository Trust Company (DTC), must instruct the financial intermediary through which such shareholders own their ADSs to arrange for a DTC participant holding the ADSs in its DTC account to tender such ADSs to the DTC account of the ADS Tender Agent through the book-entry transfer facilities of DTC, together with an Agent’s Message, no later than 11:40 hours, New York time, on the Acceptance Closing Date. DTC has informed the Offeror that it can only cut off book-entry tenders at the end of a business day, New York time, and the Offeror has agreed that it will accept valid book-entry tenders of ADSs up until 17:00 hours, New York time, on the Acceptance Closing Date.
If the procedure for registered or book-entry tender cannot be completed on a timely basis, holders of ADSs may follow the guaranteed delivery procedures described in the Offer Document.
Declaring the Offer unconditional
The Offer is subject to the satisfaction of the offer conditions set out in Section 6.6 (Offer Conditions, waiver and satisfaction of the Offer) of the Offer Document (the Offer Conditions). The Offer Conditions may be waived, to the extent permitted by law or by agreement, as set out in Section 6.6 (Offer Conditions, waiver and satisfaction of the Offer) of the Offer Document. Extension of the Acceptance Period may in any event occur one time (extension for more than one period is subject to clearance of the Dutch Authority for the Financial Markets (the AFM), which will only be given in exceptional circumstances).
One of the Offer Conditions is a minimum acceptance level of 95% of Shares. This level is lowered to 80% if the shareholders, at the EGM, vote in favour of the Asset Sale and Liquidation, and Conversion.
No later than on the third Business Day following the Acceptance Closing Date, such date being the Unconditional Date, the Offeror will determine whether the Offer Conditions have been satisfied or are to be waived and announce whether (i) the Offer is declared unconditional, (ii) the Offer will be extended in accordance with Article 15 of the Decree, or (iii) the Offer is terminated, as a result of the Offer Conditions not having been satisfied or waived, all in accordance with Section 6.6.2 (Waiver) and Section 6.6.3 (Satisfaction) of the Offer Document.
If one or more of the Offer Conditions is not satisfied or waived in accordance with Section 6.6.2 (Waiver) of the Offer Document before the end of the initial Acceptance Period, the Offeror shall extend the initial Acceptance Period once for a minimum period of two weeks and a maximum period of 10 weeks so that the Offer Conditions may be satisfied or, to the extent legally permitted, waived in accordance with Section 6.6.2 (Waiver) of the Offer Document.
In addition, the Acceptance Period may be further extended if the events referred to in article 15 paragraph 5 of the Decree occur. Further extensions are subject to clearance of the AFM. If the Offer Condition with respect to Competition Clearances is not satisfied or, to the extent legally permitted, waived in accordance with Section 6.6.2 (Waiver) of the Offer Document before the end of the (extended) Acceptance Period, the Offeror shall (subject to receipt of an exemption granted by the AFM) extend the Acceptance Period until such time as the Offeror and TNT Express reasonably believe is necessary to cause such Offer Condition to be satisfied.
In view of the extended deadline of the European Commission for the completion of its Phase II review to 13 January 2016, it seems likely that the Offeror will need to extend the Acceptance Period beyond an initial extension.
If the Offeror extends the Offer past the initial Acceptance Closing Time, all references in the Offer Document to the "Acceptance Closing Time", "Acceptance Closing Date" or "17:40 hours CET, on 30 October 2015" or “11:40 hours New York Time, on 30 October 2015” shall, unless the context requires otherwise, be changed, as applicable, to the latest time and date to which the Offer has been so extended.
If the Acceptance Period is extended, so that the obligation pursuant to Article 16 of the Decree to announce whether the Offer is declared unconditional (gestand wordt gedaan) is postponed, a public announcement to that effect will be made ultimately on the third Business Day following the Acceptance Closing Date in accordance with the provisions of Article 15, paragraph 1 and paragraph 2 of the Decree. If the Offeror extends the Acceptance Period, the Offer will expire on the latest time and date to which the Offeror extends the Acceptance Period.
During an extension of the Acceptance Period, any Shares previously tendered and not withdrawn will remain subject to the Offer, subject to the right of each shareholder to withdraw the Shares he or she has already tendered in accordance with Article 15, paragraph 3 of the Decree and subject to any withdrawal rights available pursuant to Article 5b, paragraph 5, Article 15, paragraph 8 and Article 15a, paragraph 3 of the Decree.