Nestlé S.A.
Hsu Fu Chi International Limited
(Incorporated in Switzerland)
(RNS Number: 2136S)
(Incorporated in the Cayman Islands)
(Registration Number: CT-175834)
JOINT ANNOUNCEMENT
PROPOSED JOINT VENTURE TO BE IMPLEMENTED
BY WAY OF A SCHEME OF ARRANGEMENT
1.
INTRODUCTION
1.1
The respective Boards of Directors of Nestlé S.A. (“Nestlé”) and Hsu Fu Chi
International Limited (the “Company”) are pleased to announce the proposed
establishment of a joint venture between Nestlé and the current majority shareholders
of the Company, Mr. Hsu Chen, Mr. Hsu Keng, Mr. Hsu Hang and Mr. Hsu Pu (the
“Individual Shareholders”).
1.2
Nestlé is proposing to acquire an aggregate interest of 60% in the Company by
purchasing (i) a 43.52% interest by way of a scheme of arrangement (the “Scheme”)
under Section 86 of the Cayman Companies Law (2010 Revision) (the “Cayman
Companies Law”) and in accordance with The Singapore Code on Take-overs and
Mergers (the “Code”) and (ii) a 16.48% interest from the Individual Shareholders. As
a result of the transactions contemplated above (the “Proposed Transaction”), Nestlé
will own 60% of the issued shares of the Company with the remaining 40% owned
indirectly by the Individual Shareholders.
1.3
In order to implement the Proposed Transaction:
1.3.1
the Company and Nestlé (each a “Party” and collectively, “Parties”) have
today entered into an implementation agreement (the “Implementation
Agreement”) to acquire a 43.52% interest in the Company from the
shareholders of the Company other than the Individual Shareholders, their
related corporations and their respective nominees (the “Scheme
Shareholders”) by way of the Scheme; and
1.3.2
subject to the Scheme becoming effective, Nestlé will acquire an additional
16.48% interest in the Company from the Individual Shareholders (the
“Share Acquisition”).
1.4
The details of the Individual Shareholders who, at the date of this joint announcement
(the “Announcement”), own together a controlling interest in the Company, are set
out below:
1.4.1
Mr. Hsu Chen is the chairman and a director of the Company and is the
owner of 16.86% of the issued share capital of the Company;
1.4.2
Mr. Hsu Hang is a director of the Company and holds a deemed interest of
13.48% of the issued share capital of the Company held by Ophira Finance
Ltd.;
1.4.3
Mr. Hsu Keng holds a deemed interest of 15.17% of the issued share capital
of the Company held by Suncove Investments Ltd.; and
1.4.4
Mr. Hsu Pu is a director of the Company and is the owner of 10.97% of the
issued share capital of the Company.
1.5
On or prior to the Scheme becoming effective, the Individual Shareholders intend to
restructure their interest into a holding company (the “Holdco”).
2.
THE SCHEME
2.1
The Scheme will be proposed in accordance with Section 86 of the Cayman
Companies Law and the Code, and pursuant to the terms and conditions of the
Implementation Agreement.
2.2
The Scheme is proposed to all Scheme Shareholders and will involve a transfer of all
the issued shares in the Company held by the Scheme Shareholders (the “Scheme
Shares”) to Nestlé and/or its nominees for a cash consideration of S$4.35 per Scheme
Share (the “Scheme Consideration”).
2.3
The Scheme Consideration is on the basis that the Company will not make or agree to
make any distribution or other payments of any kind to any person in his capacity as a
shareholder of the Company on or prior to the Effective Date (as defined below). To
the extent the Company declares or makes any distribution or other payment of any
kind to the Scheme Shareholders on or prior to the Effective Date, the Scheme
Consideration will be reduced on a per Scheme Share basis by any such amount
which is due and payable (whether paid or unpaid as at the Effective Date) to the
Scheme Shareholders.
2.4
Pursuant to the Scheme, the Scheme Shares will be transferred to Nestlé and/or its
nominees fully paid, free from all liens, charges, encumbrances, rights of pre-emption
and any other third party right or interest of any nature whatsoever and together with
all rights, benefits and entitlements attached thereto as at the Effective Date (as
defined below) and thereafter attaching thereto, including the right to receive and
retain all dividends, rights and other distributions (if any) declared, paid or made by
the Company after the Effective Date (as defined below).
2.5
The Scheme will be effective on the business day falling five (5) business days after
the satisfaction or waiver of the Scheme Conditions set out in paragraphs 1 to 5 and
paragraphs 9 and 10 of Appendix 1 of this Announcement provided that the other
Scheme Conditions are satisfied or waived at such date (the “Effective Date”).
2
2.6
Upon the Proposed Transaction becoming effective, all of the issued shares of the
Company will be held among Nestlé and the Individual Shareholders and subject to
the approval of the Singapore Exchange Securities Trading Limited (“SGX-ST”), the
Company will be delisted from the Official List of the SGX-ST.
3.
SCHEME CONDITIONS
3.1
The Scheme is conditional upon the satisfaction of the conditions precedent (the
“Scheme Conditions”) set out in Appendix 1 (Scheme Conditions) to this
Announcement.
3.2
Under the Implementation Agreement:
3.2.1
the Scheme Conditions set out in paragraphs 1 to 5 of Appendix 1 of this
Announcement are not capable of being waived by either Party or both
Parties;
3.2.2
with respect to the Scheme Conditions set out in paragraphs 6(b), 7 (in
respect of the warranties by the Company and the Company’s compliance
with the Implementation Agreement only, including but not limited to the
Material Covenants set out in Appendix 2 of this Announcement) and 8 to 10
of Appendix 1 of this Announcement, any breach or non-fulfilment of any
such Scheme Conditions may be relied upon only by Nestlé in deciding
whether to waive any such breach or non-fulfilment of such Scheme
Condition(s) and whether to terminate the Implementation Agreement. Nestlé
may at any time and from time to time at its sole discretion waive any such
breach or non-fulfilment;
3.2.3
with respect to the Scheme Conditions set out in paragraphs 6(a), 7 (in respect
of the warranties by Nestlé and Nestlé’s compliance with the Implementation
Agreement only) of Appendix 1 of this Announcement, any breach or nonfulfilment of any such Scheme Condition may be relied upon only by the
Company in deciding whether to waive any such breach or non-fulfilment of
such Scheme Conditions and whether to terminate the Implementation
Agreement. The Company may at any time and from time to time at its sole
discretion waive any such breach or non-fulfilment; and
3.2.4
with respect to the Scheme Conditions set out in paragraphs 11 (to the extent
legally permissible) and 12 of Appendix 1 of this Announcement, each may
be jointly waived by the Company and Nestlé.
3.3
Where any approval or consent is required and any Scheme Condition is granted
subject to any condition or undertaking, such Scheme Condition will not be deemed
satisfied unless and until any such condition or undertaking is reasonably acceptable
to the Party suffering the burden of such condition or undertaking.
3.4
In the event that any Scheme Condition set out in paragraphs 6 to 12 of Appendix 1 of
this Announcement is not satisfied or waived prior to the Long Stop Date (as defined
below), the Party with the benefit of such Scheme Condition may only invoke the
non-satisfaction of the relevant Scheme Condition to terminate the Implementation
Agreement upon prior consultation with the Securities Industry Council (the “SIC”).
3
4.
TERMINATION RIGHT
4.1
The Implementation Agreement may be terminated by either Party (other than a Party
having prevented, by its actions or omissions in breach of the Implementation
Agreement, the Scheme from becoming effective) if the Scheme has not become
effective on or before 5.00 p.m. on the earlier of the date falling four (4) months from
the date of the Implementation Agreement if the approval of the Scheme has not been
approved by the Scheme Shareholders at the meeting (the “Court Meeting”) to be
convened pursuant to an order of the Grand Court of the Cayman Islands (the
“Court”) under Section 86 of the Cayman Companies Law by that date or 31 March
2012 (the “Long Stop Date”), and on the following:
4.1.1
by either Party at any time if any court of competent jurisdiction or
governmental authority has issued an injunction, order, decree or ruling or
taken any other action permanently enjoining, restraining or otherwise
prohibiting or preventing the consummation of the proposed acquisition of
the Scheme Shares or the implementation of the Scheme (or the proposed
transactions relating to the Scheme), and such order, decree, ruling, other
action or refusal shall have become final and non-appealable;
4.1.2
by either Party in the event of a material breach by the other Party, which if
capable of remedy, has not been remedied within ten (10) business days from
the termination for breach notification;
4.1.3
by either Party if the resolutions submitted to the Court Meeting are not
approved (without amendment) by the requisite majorities of Scheme
Shareholders;
4.1.4
by (a) either Party at any time if a proposal or offer by any person other than
Nestlé under Rule 14 or Rule 15 of the Code becomes or is declared
unconditional in all respects or becomes effective, as the case may be or (b) a
Party electing to terminate the Implementation Agreement for a breach of the
warranties therein; or
4.1.5
by either Party, in the event that, following the conclusion of the procedure
which may, from time to time, be established by the SIC to resolve a
competitive situation (the “SIC Competitive Procedure”), the latest bid
submitted by Nestlé pursuant to such SIC Competitive Procedure is lower
than the latest bid submitted by other competing offeror(s) pursuant to the
SIC Competitive Procedure.
4.2
Prior to exercising any termination right under the Implementation Agreement, the
Parties will consult the SIC and obtain the SIC’s approval of, or a statement that the
SIC has no objections to, such termination.
5.
SWITCH OPTION
5.1
Subject to prior consultation with the SIC, Nestlé may elect to proceed by way of a
general offer (the “Offer”) in lieu of proceeding with the Proposed Transaction by
way of the Scheme (the “Switch Option”) in the event of a Competing Offer (or
otherwise) subject to the prior written consent of the Individual Shareholders.
4
5.2
In such event, Nestlé will make the Offer on the same or better terms as those which
apply to the Scheme, including the same or a higher consideration than the Scheme
Consideration.
5.3
If Nestlé exercises the Switch Option, the Parties agree that the Implementation
Agreement will terminate with effect from the date of the announcement by Nestlé of
its firm intention to make the Offer, and the Parties’ accrued rights and obligations
under the Implementation Agreement and the rights and obligations under certain
surviving provisions will continue to subsist, but in all other respects, the Parties’
rights and obligations under the Implementation Agreement will cease.
“Competing Offer” means an offer or proposal by any person (other than Nestlé)
pursuant to which such person or other person may, whether by share purchase,
scheme of arrangement or amalgamation, capital reconstruction, purchase of assets,
tender offer, general offer, partial offer, joint venture, dual listed company structure or
otherwise (a) acquire or become the holder or owner of, or otherwise have an
economic interest in (i) all or substantially all of the assets, business and/or
undertakings of the Company and its subsidiaries (the “Group”, each such company a
“Group Company”) or (ii) all or a significant portion of the share capital of the
Company; (b) acquire control of the Group; (c) merge with any member of the Group;
or (d) effect a transaction which would preclude or restrict the Scheme.
6.
NON-SOLICITATION
6.1
Under the Implementation Agreement, the Company will not, during the period from
(and including) the date of the Implementation Agreement up to (and including) the
date on which the Implementation Agreement is terminated in accordance with its
terms (the “Restricted Period”):
6.1.1
directly or indirectly, solicit, make any initial or further approach to, entertain
any approach from, or enter into or continue any discussion, understanding,
arrangement or agreement with any person other than Nestlé (“Third Party
Purchaser”) unless with the prior written consent of Nestlé, in relation to any
actual or proposed investment in, or acquisition of, all or any part of the
shares of the Company, business, undertakings and/or assets of the Company
or any of its subsidiaries which would preclude, restrict, delay or otherwise
affect the consummation of the transactions contemplated in the
Implementation Agreement;
6.1.2
reach any agreement or understanding (whether binding or non-binding, and
whether orally or in writing) with any Third Party Purchaser unless with the
prior written consent of Nestlé, in relation to any investment in, or acquisition
of, all or any part of the shares of the Company;
6.1.3
give any undertakings in relation to a Restricted Transaction; or
6.1.4
enter into, continue, solicit, facilitate or encourage any discussion, enquiry or
proposal from, or discussions or negotiations with, any person whatsoever in
relation to a Restricted Transaction or the financing thereof or solicit or assist
any such person to enter into a Restricted Transaction,
5
save that the restrictions set out above will not apply to (i) the making of normal
presentations, by or on behalf of the Company, to brokers, portfolio investors and
analysts in the ordinary and usual course of business and (ii) the provision of
information by or on behalf of the Company to the SGX-ST.
“Restricted Transaction” means (a) the possible acquisition of, or issue or grant of
any option over, the shares of the Company and/or (b) the possible acquisition of all
or substantially all of the assets of any Group Company, and will include any
Competing Offer.
6.2
Without prejudice to paragraph 6.1 above, neither the Company nor the directors of
the Company (the “Directors”) are prohibited or restricted, during the Restricted
Period, from receiving a bona fide unsolicited or uninitiated offer or proposal with
respect to any Competing Offer (an “Unsolicited Offer”). In the event that any Group
Company or their respective directors, employees, officers or advisers receives any
Unsolicited Offer, the Company and/or the Directors shall be entitled to, inter alia:
6.2.1
announce such Unsolicited Offer, insofar as such announcement is required
under the listing manual of the SGX-ST, the Code, or any applicable laws or
regulations;
6.2.2
comply with Rule 9.2 of the Code in relation to the equality of information to
any competing offeror;
6.2.3
enter into negotiations, discussions or otherwise entertain such Unsolicited
Offer if necessary for the Directors to comply with and discharge their
fiduciary duties to the Company; and
6.2.4
in the exercise of the fiduciary duties of the Directors, make or refrain from
making any recommendation to the shareholders of the Company as the
Directors may deem fit in respect of the Unsolicited Offer.
7.
IRREVOCABLE UNDERTAKINGS
7.1
Each of Arisaig Asia Consumer Fund Limited, Winmoore Holdings Limited and Star
Candy Ltd, which hold 71,176,000, 13,324,000 and 117,738,864 issued shares of the
Company representing approximately 8.95%, 1.68% and 14.81% of the existing
issued share capital of Company respectively as at the date of this Announcement, has
given an irrevocable undertaking to Nestlé to, inter alia:
7.1.1
vote all its Company shares at the Court Meeting in favour of any resolutions
required to give effect to the Scheme as set out in the notice of meeting in the
Scheme Document (as defined below); and
7.1.2
if Nestlé elects to proceed with the Offer, to accept or procure the acceptance
of such Offer in respect of its Company shares.
Further, Arisaig Asia Consumer Fund Limited, Winmoore Holdings Limited and Star
Candy Ltd have agreed to be bound by certain non-solicitation provisions during the
term of their undertakings, save for certain exceptions.
6
Winmoore Holdings Limited and Star Candy Ltd (together, the “BPEA
Subsidiaries”) are subsidiaries of The Baring Asia Private Equity Fund IV, L.P.
7.2
7.3
The irrevocable undertaking of Arisaig Asia Consumer Fund Limited will lapse and
shall cease to have any effect:
7.2.1
if the Announcement is not released on or before 5.30 p.m. (Singapore time)
on the date of the irrevocable undertaking;
7.2.2
if the Scheme lapses or is withdrawn, other than pursuant to Nestlé’s exercise
of the Switch Option in accordance with certain provisions of the irrevocable
undertaking;
7.2.3
if the Offer lapses or is withdrawn;
7.2.4
if the Switch Option has not been exercised and the Company’s shareholders
have not approved the Scheme with the requisite majority by 5.30 p.m.
(Singapore time) on the day falling four (4) months after the Announcement;
or
7.2.5
immediately following the close of the Court Meeting.
The irrevocable undertaking of the BPEA Subsidiaries will lapse and cease to have
any effect at the earliest of any of the following occurrences:
7.3.1
at 5.30p.m. (Singapore time) on 11 July 2011, if the Announcement is not
released on or before 5.30 p.m. (Singapore time) on 11 July 2011;
7.3.2
save where Nestlé had exercised the Switch Option, if the Implementation
Agreement is terminated, on the date on which the Implementation
Agreement is terminated;
7.3.3
if the acquisition is implemented by way of an Offer pursuant to the exercise
of the Switch Option, on the date such BPEA Subsidiary accepts (or procure
the acceptance of) the Offer in respect of all the relevant securities;
7.3.4
at 5.30 p.m. (Singapore time) on 31 March 2012, if the acquisition is
implemented by way of an Offer pursuant to the exercise of the Switch
Option and the Offer has not been declared unconditional in all respects by
5.30 p.m. (Singapore time) 31 March 2012;
7.3.5
if the Offer lapses or is withdrawn, on the date that the Offer lapses or is
withdrawn;
7.3.6
if the terms of the Scheme deviate substantially from those set out in the
Announcement;
7.3.7
if any term of the Implementation Agreement is amended, supplemented or
varied in any material respect;
7.3.8
at 5.30 p.m. (Singapore time) on the day falling four (4) months after the
Announcement: (i) if the Company’s shareholders have not approved the
7
Scheme with the requisite majority by such day; and (ii) Nestlé has not
exercised the Switch Option;
7.3.9
if at any time prior to the Court Meeting, the irrevocable undertaking dated 11
July 2011 by Arisaig Asia Consumer Fund Limited in favour of Nestlé lapses,
is withdrawn or terminated;
7.3.10 if any time prior to the Court Meeting, the transaction agreement entered into
or to be entered into by the Individual Shareholders and Nestlé lapses, is with
drawn or terminated; or
7.3.11 if the Company’s shareholders approve the Scheme with the requisite
majority at the Court Meeting, on the date of the Court Meeting.
7.4
Each of the Individual Shareholders will deliver to the Company an undertaking to the
Court that they will, inter alia, support the Scheme and comply with the terms of the
Scheme subject to the Scheme becoming effective and binding.
8.
SHARE ACQUISITION
8.1
Subject only to the Scheme being effective, the Individual Shareholders will sell, and
Nestlé will acquire, an aggregate total of 131,000,000 shares in the Company (the
“Sale Shares”) representing 16.48% of the issued share capital of the Company as at
the date of this Announcement.
8.2
The consideration to be paid is S$4.35 for each Sale Share, payable in cash, which is
identical to the Scheme Consideration.
8.3
Under the terms of the Share Acquisition:
8.3.1
the Individual Shareholders would give customary representations and
warranties; and
8.3.2
the Individual Shareholders (acting through HoldCo) will enter into a joint
venture agreement with Nestlé (the “Joint Venture Agreement”).
Further details of the Joint Venture Agreement will be set out in the Scheme
Document.
9.
INFORMATION ON THE COMPANY
9.1
The Company is a company incorporated in the Cayman Islands on 18 October 2006.
Its shares were listed on the main board of the SGX-ST on 1 December 2006 (Code:
AS5). The main business of the Company is to develop, manufacture and distribute
Hsu Fu Chi branded food products, in particular candy products, cake and cookie
products and sachima products in the People’s Republic of China.
9.2
As at the date of this Announcement, the Directors are Hsu Chen, Hsu Pu, Hu ChiaHsun, Hsu Hang, Lim Hock San, Lam Khin Khui, Lee Tsu-Der and Shaw Sun Kan
Gordon.
8
10.
INFORMATION ON NESTLÉ
10.1
Nestlé is a company incorporated in Switzerland and listed on the SIX Swiss
Exchange (Code: NESN.VX). Nestlé is the largest food and nutrition company in the
world and its principal business is the production of food products.
10.2
As at the date of this Announcement, the directors of Nestlé are Peter BrabeckLetmathe, Paul Bulcke, Andreas Koopmann, Rolf Hänggi, Jean-René Fourtou, Daniel
Borel, Jean-Pierre Meyers, André Kudelski, Carolina Müller-Möhl, Steven George
Hoch, Naïna Lal Kidwai, Beat Hess, Titia De Lange, Jean-Pierre Roth and Ann
Veneman.
11.
BACKGROUND TO AND REASONS FOR THE PROPOSED TRANSACTION
11.1
The Proposed Transaction is intended to achieve the following objectives:
11.1.1 offer the opportunity for the shareholders of the Company other than the
Individual Shareholders to realise their investment;
11.1.2 create a long-term partnership between Nestlé and the Individual
Shareholders; and
11.1.3 delist the Company from the SGX-ST.
11.2
It is the intention of both Nestlé and the Individual Shareholders that the Company
will continue with its existing business activities and Nestlé and the Individual
Shareholders presently have no intention to (i) introduce any major changes to the
business of the Company, (ii) redeploy the fixed assets of the Company, or (iii)
discontinue the employment of the employees of the Company.
11.3
It is also the intention of both Nestlé and the Individual Shareholders to continue to
develop and expand the Company business and preserve the legacy of the Hsu Fu Chi
brand.
12.
FINANCIAL EVALUATION OF THE SCHEME CONSIDERATION
12.1
The Scheme Consideration represents a premium / (discount) as compared to the
share prices of the Company as follows:
Company
Share
Price
(S$)
2.683
360-day VWAP(1)(2)
Scheme
Consideration
(S$)
4.350
Premium / (Discount)
to Company Share
Price
(S$)
(%)
1.667
62.1%
180-day VWAP(1)(2)
3.490
4.350
0.860
24.7%
90-day VWAP(1)(2)
3.759
4.350
0.591
15.7%
3.956
4.350
0.394
10.0%
4.000
4.350
0.350
8.7%
30-day VWAP(1)(2)
Closing price on 1 July 2011
Source:
Notes:
(3)
Bloomberg
(1) Volume weighted average price ("VWAP").
(2) Up to 1 July 2011 (being the last full trading day preceding the Company's holding announcement and suspension
of its shares on 4 July 2011).
9
(3) Being the last full trading day preceding the Company's holding announcement and suspension of its shares on 4
July 2011.
13.
APPROVALS REQUIRED
13.1
The Scheme will require, inter alia, the following approvals:
13.1.1 the approval of the Scheme by a majority in number of, and representing not
less than seventy five percent (75%) in value of the Scheme Shares held by,
Scheme Shareholders present and voting, either in person or by proxy, at the
Court Meeting; and
13.1.2 the approval of the Scheme by the Court.
13.2
The Scheme will only come into effect if all the Scheme Conditions have been
satisfied (or, where applicable, waived) in accordance with the terms of the
Implementation Agreement and when a copy of the court order has been lodged with
the Registrar in the Cayman Islands.
13.3
Upon the Scheme becoming effective, it will be binding on all Scheme Shareholders,
whether or not they attended or voted at the Court Meeting (and if they attended and
voted, whether or not they voted in favour of the Scheme).
13.4
In relation to the Code, the SIC has confirmed that the Scheme is exempted from
Rules 14, 15, 16, 17, 20.1, 21, 22, 28, 29 and 33.2 and Note 1(b) to Rule 19 of the
Code, subject to the following conditions:
13.4.1 The Individual Shareholders, Nestlé and their concert parties abstain from
voting on the proposed Scheme;
13.4.2 The Individual Shareholders, Nestlé and their concert parties abstain from
making a recommendation on the proposed Scheme to the shareholders of the
Company; and
13.4.3 The Company appoints an independent financial adviser to advise its
shareholders on the proposed Scheme.
14.
FINANCIAL ADVISERS
14.1
Credit Suisse (Singapore) Limited (“Credit Suisse”) is the financial adviser to Nestlé.
14.2
The directors of the Company who are considered to be independent for the purposes
of the Scheme (the “Independent Directors”) will appoint an independent financial
adviser (the “IFA”) to advise them in respect of the Scheme.
15.
CONFIRMATION OF FINANCIAL RESOURCES
Credit Suisse, in its capacity as financial adviser to Nestlé, confirms that sufficient
financial resources are available to Nestlé to satisfy in full the Scheme Consideration
payable by Nestlé for all the Scheme Shares to be acquired by it pursuant to the
Scheme.
10
16.
DISCLOSURES
16.1
Save as disclosed in this Announcement, no director or substantial shareholder of the
Company has any interest in the Scheme (other than by reason only of being a
director or shareholder of the Company as disclosed in paragraph 17 of this
Announcement).
16.2
None of Nestlé, any of its directors or wholly-owned subsidiaries, or Credit Suisse (a)
owns, controls or has agreed to acquire any shares in the Company or securities which
carry voting rights or which are convertible into shares of the Company or securities
which carry voting rights or any rights to subscribe for or options in the shares of the
Company or in respect of which carry voting rights in the Company at the date of this
Announcement, (b) has dealt for value in any shares of the Company during the threemonth period immediately preceding the date of this Announcement or (c) has
received any irrevocable undertaking from any party to vote in favour of the Scheme
at the Court Meeting as at the date of this Announcement other than the undertakings
from Arisaig Asia Consumer Fund Limited, the BPEA Subsidiaries and the Individual
Shareholders disclosed in paragraph 7 above.
16.3
In the interests of confidentiality, Nestlé and the Individual Shareholders have not,
prior to the release of this Announcement, asked other persons who may be presumed
to act in concert with it in relation to the Scheme whether they hold or have dealt in
any shares in the Company. Similarly, in the interests of confidentiality, Credit Suisse
has not made any enquiries in respect of other members of its group. Further enquiries
will be made of such persons and the relevant disclosures will be made in due course
and in the Scheme Document.
17.
DIRECTORS’ AND SUBSTANTIAL SHAREHOLDERS’ INTERESTS
As at the date of this Announcement, the interests of the Directors and substantial
shareholders of the Company, as recorded in the Register of Directors’ Shareholdings
of the Company and Register of Substantial Shareholders of the Company, are as
follows:
Direct Interest
Directors
Hsu Chen
Hu Chia-Hsun
Hsu Hang 1
Hsu Pu
Shaw Sun Kan Gordon
Cheong Tuck Kuen (Alternate director
Shaw Sun Kan Gordon)
Lim Hock San
Lam Khin Khui
Lee Tsu-Der
Substantial Shareholders
Hsu Keng 2
Ophira Finance Ltd
Deemed
Interest
%
%
134,000,000
650,000
87,200,000
36,000
16.86
0.08%
10.97
0.005
107,200,000
7,000
36,000
13.48
0.0009
0.005
-
-
-
-
107,200,000
13.48
120,600,000
-
15.17
-
11
Suncove Investments Ltd
Arisaig Asia Consumer Fund Limited
(formerly known as Arisaig Asia Fund
Limited) 3
Arisaig Partners (Mauritius) Limited 4
Arisaig Partners (Asia) Pte Ltd 4
Arisaig Partners (Holdings) Ltd 4
Skye Partners Limited 4
Perivoli Trust 4
Lindsay Cooper 4
Sannox Trust 4
Star Candy Ltd
Baring Private Equity Asia IV Holding
(12) Limited 5
The Baring Asia Private Equity Fund IV,
L.P. 5
Baring Private Equity Asia GP IV, L.P. 5
Baring Private Equity Asia GP IV
Limited 6
Jean Eric Salata 7
Notes:
120,600,000
71,176,000
15.17
8.95
-
-
117,738,854
-
14.81
-
71,176,000
71,176,000
71,176,000
71,176,000
71,176,000
71,176,000
71,176,000
131,062,854
8.95
8.95
8.95
8.95
8.95
8.95
8.95
16.49
-
-
131,062,854
16.49
-
-
131,062,854
131,062,854
16.49
16.49
-
-
131,062,854
16.49
(1) Mr Hsu Hang is deemed interested in the shares held by Ophira Finance Ltd, of which he is the sole shareholder.
(2) Mr Hsu Keng is deemed interested in the shares held by Suncove Investments Ltd, of which he is the sole shareholder.
(3) Until 31 March 2010 Arisaig Asia Fund Limited (“AAF”) has been organized as a “feeder fund” which has invested
indirectly in Asia Securities through its investments in the shares of a number of wholly-owned (100%) underlying funds
which include Arisaig Korea Fund Limited, Arisaig Greater China Fund Limited and Arisaig ASEAN Fund Limited (the
“Underlying Funds”).
On 31 March 2010 Shareholders in AAF approved a restructuring as a result of which, from 1 April 2010, AAF would
directly own the securities previously held by the Underlying Funds. AAF’s name was changed to Arisaig Asia
Consumer Fund Limited (“Asia Consumer Fund”).
The process to transfer these securities was effected on 1 April 2010 and hence from this date the Arisaig Asia Consumer
Fund Limited is the owner of securities previously held by the Underlying Funds.
(4) Arisaig Partners (Mauritius) Limited (“AP Mauritius”), being the fund manager of Asia Consumer Fund, is deemed to
be interested in the shares of the Company held by Asia Consumer Fund.
Arisaig Partners (Asia) Pte Ltd (“AP Asia”), being the investment adviser of Asia Consumer Fund is deemed to be
interested in the shares of the Company held by Asia Consumer Fund.
Arisaig Partners (Holdings) Ltd (“AP Holdings”) has a controlling interest in AP Mauritius and AP Asia, and is therefore
deemed interested in all the shares of the Company in which AP Mauritius and AP Asia are deemed interested in.
Skye Partners Limited (“SPL”) has a controlling interest in AP Holdings, and SPL is therefore deemed interested in all
the shares of the Company in which AP Holdings is deemed interested in.
Perivoli Trust, Lindsay Cooper and Sannox Trust each has 33.33% interest in SPL, and each is therefore deemed
interested in all the shares of the Company in which SPL is deemed interested in.
(5) Star Candy Ltd is a wholly-owned subsidiary of Baring Private Equity Asia IV Holding (12) Limited (“BPEA(12)”).
The Baring Asia Private Equity Fund IV, L.P. (“BPE Fund IV L.P.”) owns approximately 99% of BPEA(12).
BPE GP I is the general partner of BPE Fund IV L.P.
By virtue of Section 7 of the Companies Act, Chapter 50 of Singapore, BPE GP I is deemed to be interested in the shares
held by Star Candy Ltd.
(6) Baring Private Equity Asia GP IV Limited (“BPE GP II”) is the general partner of BPE GPI.
By virtue of Section 7 of the Companies Act, Chapter 50 of Singapore, BPE GP II is deemed to be interested in the shares
held by Star Candy Ltd.
(7) Jean Eric Salata is the holder of all the issued share capital of BPE GP II.
By virtue of Section 7 of the Companies Act, Chapter 50 of Singapore, Jean Eric Salata is deemed to be interested in the
shares held by Star Candy Ltd. Jean Eric Salata disclaims beneficial ownership of the shares owned by Star Candy Ltd.
18.
DOCUMENTS
18.1
Full details of the Scheme (including, inter alia, the recommendation of the
Independent Directors along with the advice from the IFA (the “IFA Opinion”)) will
be contained in a document (the “Scheme Document”) to be despatched to the
shareholders of the Company in due course.
12
Scheme Shareholders are advised to refrain from taking any action in relation to their
Scheme Shares which may be prejudicial to their interests until they have considered
the information and the recommendations of the Independent Directors on the Scheme
as well as the IFA Opinion set out in the Scheme Document.
Persons who are in doubt as to the action they should take should consult their
stockbroker, bank manager, solicitor or other professional advisers.
18.2
Copies of the Implementation Agreement and the Irrevocable Undertakings will be
made available for inspection during normal business hours at the offices of Loo &
Partners LLP at 16 Gemmill Lane, Singapore 069254 from the date of this
Announcement up to the Effective Date.
19.
OVERSEAS SHAREHOLDERS
The applicability of the Scheme to persons not resident in Singapore may be affected
by the laws of the relevant jurisdiction. Scheme Shareholders who are not resident in
Singapore should keep themselves informed of, and observe, any applicable
restrictions or prohibitions. Further details in relation to overseas shareholders will be
contained in the Scheme Document.
20.
RESPONSIBILITY STATEMENTS
20.1
The Directors (including those who may have delegated detailed supervision of the
preparation of this Announcement) have taken all reasonable care to ensure that the
facts stated and opinions expressed in this Announcement (other than those relating to
Nestlé) are fair and accurate and no material facts have been omitted from this
Announcement, and they jointly and severally accept responsibility accordingly.
Where any information has been extracted from published or publicly available
sources, the sole responsibility of the Directors has been to ensure, through reasonable
enquiries, that such information is accurately extracted from such sources or, as the
case may be, reflected or reproduced in this Announcement. The Directors do not
accept any responsibility for any information relating to or opinions expressed by
Nestlé.
20.2
The directors of Nestlé (including those who may have delegated detailed supervision
of the preparation of this Announcement) (the “Nestlé Directors”) have taken all
reasonable care to ensure that the facts stated and opinions expressed in this
Announcement (other than those relating to the Company) are fair and accurate and
no material facts have been omitted from this Announcement, and they jointly and
severally accept responsibility accordingly. Where any information has been extracted
from published or publicly available sources, the sole responsibility of the Nestlé
Directors has been to ensure, through reasonable enquiries, that such information is
accurately extracted from such sources or, as the case may be, reflected or reproduced
in this Announcement. Nestlé Directors do not accept any responsibility for any
information relating to or opinions expressed by the Company.
13
By Order of the Board
Nestlé S.A.
By Order of the Board
Hsu Fu Chi International Limited
11 July 2011
ENQUIRIES
For further information contact:
Nestlé’s Adviser:
Pankaj Goel
Credit Suisse (Singapore) Limited
1 Raffles Link #03/#04-01
South Lobby, Singapore 039393
Phone: +65 6212 2000
Fax: +65 6212 4868
Company’s Adviser:
Investor Relations Office
Zhouwu Industrial District, Dongcheng,
Dongguan, Guangdong 523118, PRC
Phone: +86 769 22259888
Fax: +86 769 22264864
This document contains forward-looking statements. These forward-looking statements
include, without limitation, statements relating to the future plans of the Company following
the Proposed Transaction and the expected benefits from the Proposed Transaction. These
forward-looking statements are based on risks and uncertainties that could cause actual
results to differ materially from expectations. These forward-looking statements should not be
relied upon as predictions of future events as we cannot assure you that the events or
circumstances reflected in these statements will be achieved or will occur. In particular, we
cannot assure you that the Scheme will be approved by the Scheme Shareholders or that the
Scheme Conditions will be satisfied or that the Scheme or Proposed Transaction will occur.
14
APPENDIX 1
SCHEME CONDITIONS
All capitalised terms used and not defined in the Announcement will have the same meanings given
to them in the Implementation Agreement. A copy of the Implementation Agreement is available
for inspection at the offices of Loo & Partners LLP at 16 Gemmill Lane, Singapore 069254, during
normal business hours until the Effective Date.
The Parties agree that the Scheme and the completion of the Acquisition will be conditional
upon the following occurring (or, if applicable, waived) on or prior to 5.00 p.m. (Singapore
time) on the Long Stop Date (the “Scheme Conditions”):
1.
Regulatory Approvals
Prior to the first application to the Court for an order to convene the Court Meeting,
the following regulatory approvals having been obtained, satisfied, and not having
been withdrawn or revoked (if applicable) on or before the Effective Date:
2.
(a)
confirmation from the SIC that Rules 14, 15, 16, 17, 20.1, 21, 22, 28, 29 and
33.2 and note 1(b) to Rule 19 of the Code will not apply to the Scheme subject
to any conditions the SIC may deem fit to impose;
(b)
the approval-in-principle from the SIC and SGX-ST of the Scheme, the
Scheme Document, the acquisition of the Sale Shares by the Purchaser and for
the proposed delisting of the Company from the SGX-ST; and
(c)
confirmation from the SIC that it has no objection to the transfer of Shares
from the Majority Shareholders to Holdco and such transfer will not trigger a
mandatory general offer under the Code.
Court Meeting
The approval of the Scheme having been granted by the shareholders at the Court
Meeting in compliance with the requirements of Section 86 of the Cayman
Companies Law.
3.
Court Order
The grant of the Court Order by the Court and such Court Order having become final.
4.
Lodgement with Registrar
The lodgement and registration of the Court Order with the Registrar pursuant to
Section 86 of the Cayman Companies Law.
5.
Anti-trust Approvals
Approval or clearance of the Acquisition having been granted by the competent
Competition Authorities, including MOFCOM pursuant to the merger control laws of
PRC, and such approvals or clearances not having been withdrawn or revoked (if
applicable) on or before the Effective Date.
15
6.
Authorisations
The following having been obtained prior to the Effective Date and not having been
withdrawn or revoked (if applicable):
(a)
in relation to the Purchaser, all authorisations, consents, clearances,
permissions and approvals as are necessary or required by the Purchaser under
any and all applicable laws from all relevant Authorities for or in respect of
the Acquisition and the implementation of the Scheme; and
(b)
in relation to the Company, all authorisations, consents, clearances,
permissions and approvals as are necessary or required by the Company under
any and all applicable laws from all relevant Authorities for or in respect of
the Acquisition and the implementation of the Scheme,
and if any such authorisations, consents, clearances, permissions and approvals is
subject to any conditions or requires any actions or obligations to be taken or
performed, all such actions having been duly taken or performed on or prior to the
first application to the Court for the order to convene the Court Meeting.
7.
Warranties and Covenants
7.1
The Warranties given by each of the Parties being true and correct in all material
aspects and not misleading in any material respect as at the date of the
Implementation Agreement and as of the Effective Date as if they had been made on
and as of the Effective Date except (i) to the extent of any matters or events relating to
facts, circumstances or events arising or occurring after the date of the
Implementation Agreement notified by either Party to the other Party in accordance
with Clause 10.4 of the Implementation Agreement and (ii) any such Warranty
expressly relates to an earlier date (in which case as at such earlier date).
7.2
The Parties having, as at the Effective Date, performed and complied in all material
respects with all covenants and agreements contained in the Implementation
Agreement which are required to be performed or complied with by each of them, on
or prior to the Effective Date.
8.
No Material Adverse Effect
No Material Adverse Effect having occurred or being likely to occur between the date
of the Implementation Agreement and the Effective Date.
9.
Irrevocable Undertakings
The Irrevocable Undertakings having been provided and delivered duly executed to
the Purchaser prior to or on the date of the Implementation Agreement.
10.
Consent and Waiver
The written consent and waiver (in the agreed form) in relation to the Acquisition or
the implementation of the Scheme having been obtained by Company from the
relevant counterparty in relation to any agreement, and such agreement continuing in
force and not terminating as a consequence of the Acquisition or the implementation
16
of the Scheme and if any such consent and waiver is subject to any conditions, all
such conditions being reasonably acceptable to the Purchaser.
11.
No Legal or Regulatory Restraint
Between the date of the Implementation Agreement and up to the Effective Date, no
injunction or other order, legal or regulatory restraint, prohibition or condition
preventing the consummation of the Acquisition or the implementation of the Scheme
(or the proposed transactions relating to the Scheme) having been issued by any
Governmental Authority or by any court of competent jurisdiction, and remaining in
effect as at the Effective Date.
12.
No Termination
The Implementation Agreement has not been terminated pursuant to Clause 11
(Termination) of the Implementation Agreement.
17
APPENDIX 2
Material Covenants
From the date of the Implementation Agreement until the earlier of (i) the Effective Date and
(ii) the termination of the Implementation Agreement in accordance with its terms, the
Company will not, and will procure that no member of its group will, without the prior
written consent of Nestlé (to the extent lawful to do so):
(a)
carry on its business other than in the ordinary and usual course as conducted prior to
the date of the Implementation Agreement, consistently with past practices and in
compliance with all applicable laws and regulations;
(b)
take any frustrating action referred to, in Rule 5 of the Code (including the Notes to
Rule 5 of the Code); or
(c)
agree to, or publicly announce or announce to a third party an intention to agree to, do
any of the above.
18