Source - LSE Regulatory
RNS Number : 5718T
Vitol
25 November 2021
 

Vitol Holding B.V.

25 November 2021

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

INVESTORS SHOULD NOT MAKE ANY INVESTMENT DECISION IN RELATION TO VIVO SHARES EXCEPT ON THE BASIS OF THE INFORMATION IN THE SCHEME DOCUMENT, WHICH IS PROPOSED TO BE PUBLISHED IN DUE COURSE.

 

THIS ANNOUNCEMENT CONTAINS INSIDE INFORMATION FOR THE PURPOSES OF ARTICLE 7 OF THE MARKET ABUSE REGULATION (EU) NO. 596/2014 AND ARTICLE 7 OF THE MARKET ABUSE REGULATION (EU) NO. 596/2014 (AS IT FORMS PART OF THE LAWS OF THE UK BY VIRTUE OF THE EUROPEAN UNION (WITHDRAWAL) ACT 2018 (AS AMENDED)).

FOR IMMEDIATE RELEASE

25 November 2021

 

RECOMMENDED CASH OFFER

for

Vivo Energy plc

("Vivo" or the "Company")

by

VIP II Blue B.V.

(a newly-formed company ("BidCo"), being a wholly-owned, indirect subsidiary of Vitol Investment Partnership II Limited, itself being an investment vehicle advised by employees of the Vitol Group)

to be effected by means of a scheme of arrangement under Part 26 of the Companies Act

Summary

·      The boards of BidCo and Vivo are pleased to announce that they have reached agreement on the terms of a recommended cash offer pursuant to which BidCo shall acquire the entire issued and to be issued share capital of Vivo excluding Vivo Shares held by the Existing Vitol Shareholders (the "Offer"). The Offer is expected to be effected by means of a scheme of arrangement under Part 26 of the Companies Act.

·      BidCo is a company indirectly owned by Vitol Investment Partnership II Limited ("VIP II") (an entity advised by employees of the Vitol Group).

·      Under the terms of the Offer, which will be subject to the terms and Conditions set out in Appendix I to this announcement and to the full terms which will be set out in the Scheme Document, Vivo Shareholders on the register of members of Vivo as at the relevant Dividend Record Dates (other than the Existing Vitol Shareholders in relation to the Consideration, and except as set out below in relation to the Helios Entities) shall be entitled to receive the following:

Either:

1.   If the Effective Date would or is reasonably expected to occur on or prior to the 2022 Interim Dividend Record Date (which is expected to be in August 2022):

 

US$1.85 in cash for each Vivo Share (the "Cash Value"),
which is comprised of the following components:

i. US$1.79 in cash for each Vivo Share (the "Consideration"), which will be payable to all Vivo Shareholders other than the Existing Vitol Shareholders; plus

 

ii. US$0.04 per Vivo Share in the form of a 2021 Final Dividend (without any consequential reduction in the Consideration), which will be payable to all Vivo Shareholders on the register of members of Vivo as at the 2021 Final Dividend Record Date; plus

iii.  US$0.02 per Vivo Share in the form of a 2022 Special Dividend (without any consequential reduction in the Consideration), which will be payable to all Vivo Shareholders on the register of members of Vivo as at the 2022 Special Dividend Record Date, except the Helios Entities, which have each agreed to waive the right to receive the 2022 Special Dividend if it is announced, declared, made or paid or becomes payable.

 

·      The Cash Value of US$1.85 for each Vivo Share values the entire issued and to be issued share capital of Vivo on a fully diluted basis at approximately US$2.3 billion (calculated on the basis described in Appendix II), which is equivalent to £1.8 billion based on the Announcement Exchange Rate.

 

·      The Cash Value of US$1.85 for each Vivo Share, being equivalent to 139 pence per Vivo Share based on the Announcement Exchange Rate, would represent a premium of approximately:

 

24.6 per cent. to the Closing Price per Vivo Share of 111 pence on 24 November 2021 (being the last Business Day prior to this announcement);

 

30.6 per cent. to the volume weighted average price per Vivo Share of 106 pence in the one month to 24 November 2021 (being the last Business Day prior to this announcement); and

 

41.8 per cent. to the volume weighted average price per Vivo Share of 98 pence in the twelve months to 24 November 2021 (being the last Business Day prior to this announcement).

 

·      The board of BidCo and the Independent Vivo Directors expect the Effective Date to be before the 2022 Interim Dividend Record Date (but after the 2021 Final Dividend Record Date) in which case Vivo Shareholders who are on the register of members at the relevant Dividend Record Dates, except for the Existing Vitol Shareholders and the Helios Entities, will receive US$1.85 per Vivo Share in cash.

or;

 

2.   If the Effective Date occurs or is reasonably expected to occur after the 2022 Interim Dividend Record Date (which is expected to be in August 2022):

 

US$1.83 in cash for each Vivo Share
plus a 2022 Interim Dividend of up to US$0.02 per Vivo Share
(together, the "Variable Cash Value"), which is comprised of the following components:

 

i.    US$1.79 in cash for each Vivo Share payable to all Vivo Shareholders other than the Existing Vitol Shareholders; plus

 

ii.    US$0.04 per Vivo Share in the form of a 2021 Final Dividend (without any consequential reduction in the Consideration) which will be payable to all Vivo Shareholders on the register of members of Vivo as at the 2021 Final Dividend Record Date; plus

iii.   up to US$0.02 per Vivo Share in the form of a 2022 Interim Dividend (without any consequential reduction in the Consideration) which will be payable, in line with Vivo's progressive dividend policy at the date of this announcement (for reference Vivo's interim dividend for the 6 months ended 30 June 2021 was US$0.017 per Vivo Share) to all Vivo Shareholders on the register of members of Vivo as at the 2022 Interim Dividend Record Date.

 

·      The Variable Cash Value of US$1.83 for each Vivo Share plus up to US$0.02 per Vivo Share in the form of the 2022 Interim Dividend values the entire issued and to be issued share capital of Vivo on a fully diluted basis at a minimum (assuming no 2022 Interim Dividend is paid) of approximately US$2.3 billion (calculated on the basis described in Appendix II), which is equivalent to £1.7 billion based on the Announcement Exchange Rate; and at a maximum (assuming a 2022 Interim Dividend of US$0.02 per Vivo Share is paid) of approximately US$2.3 billion (calculated on the basis described in Appendix II), which is equivalent to £1.8 billion based on the Announcement Exchange Rate.

 

General matters relating to the value of the Offer

 

·      It is expected that the 2021 Final Dividend Record Date will be on 27 May 2022 and that the 2022 Interim Dividend Record Date will be in August 2022.

·      If the Effective Date occurs or is reasonably expected to occur prior to the 2021 Final Dividend Record Date:

Vivo Shareholders on the register of members of Vivo as at the 2021 Special (Final) Dividend Record Date shall be entitled to receive, without any consequential reduction in the Consideration, an interim dividend of US$0.04 per Vivo Share in lieu of the 2021 Final Dividend (the "2021 Special (Final) Dividend"); and

for the avoidance of doubt and except for the Helios Entities, which have each agreed to waive the right to receive the 2022 Special Dividend if it is announced, declared, made or paid or becomes payable, if the 2021 Special (Final) Dividend is paid, Vivo Shareholders on the register of members of Vivo as at the 2021 Special (Final) Dividend Record Date will also receive US$0.02 in the form of a Special 2022 Dividend without any consequential reduction in the Consideration.

·      For the avoidance of doubt, under the terms of the Offer, Vivo Shareholders will not be entitled to receive:

both the 2021 Final Dividend and the 2021 Special (Final) Dividend; or

both the 2022 Interim Dividend and the 2022 Special Dividend.

 

·      Vivo Shares will be acquired fully paid and free from all liens, charges, equitable interests, encumbrances, rights of pre-emption and other third party rights or interests together with all rights attaching thereto including, without limitation, the right to receive all dividends and other distributions (if any) announced, declared, made or paid after the date of this announcement other than: (i) either the 2021 Final Dividend or the 2021 Special (Final) Dividend (as applicable); and (ii) either the 2022 Interim Dividend or the 2022 Special Dividend (as applicable).

 

·      BidCo reserves the right to reduce the Consideration by the amount of any dividend, or other distribution or return of value, which is declared, made or paid or becomes payable by Vivo to the holders of Vivo Shares on or after the date of this announcement, but excluding:

 

the 2021 Final Dividend or, if applicable, the 2021 Special (Final) Dividend; and

 

either:

§ the 2022 Interim Dividend, if the 2022 Interim Dividend Record Date would or is reasonably expected to occur prior to the Effective Date; or

§ the 2022 Special Dividend, if the Effective Date would or is reasonably expected to occur prior to the 2022 Interim Dividend Record Date.

 

·      In the event any Vivo Dividend exceeds the relevant Agreed Amount, BidCo reserves the right to reduce the Consideration by an amount equal to the difference between that Vivo Dividend and the relevant Agreed Amount.

 

·      The Helios Entities have agreed to waive the right to receive the 2022 Special Dividend if the 2022 Special Dividend is announced, declared, made or paid or becomes payable. For the avoidance of doubt, the Helios Entities have not waived their right to receive either the 2021 Final Dividend (or if applicable the 2021 Special (Final) Dividend) or the 2022 Interim Dividend.

·      The Consideration under the Offer is priced in US Dollars. BidCo will procure that a facility will be made available under which shareholders on the UK register of Vivo will be able to elect (subject to the terms and conditions of the facility) to receive the Consideration in Sterling (after deduction of any transaction or dealing costs associated with the conversion) at the applicable market exchange rate on the latest practicable date for fixing such rate prior to the relevant payment date. Further details of this facility and the election by Vivo Shareholders wishing to receive the Consideration in Sterling will be set out in the Scheme Document. On the basis of the Announcement Exchange Rate, the Consideration implies an equivalent value of 134 pence per Vivo Share. For any Vivo Shareholder electing to be paid the Consideration in Sterling, the amount per Vivo Share received may, depending on the prevailing exchange rate, result in a payment below or above 134 pence per Vivo Share.

·      Shareholders on the South African register of Vivo will, as required, receive the Consideration due to them under the terms of the Offer in South African Rand. The Scheme Document will include further details in relation to this currency exchange. For the avoidance of doubt, any Vivo Dividends paid by Vivo to Vivo Shareholders on the South African register will be in South African Rand.

·      The long stop date for the Offer is 12 months from the date of the Scheme Document (unless extended with the consent of Vivo or the Panel) and BidCo expects the Offer will complete in the third quarter of 2022.

·      The Vitol Group has engaged with Helios, another founding shareholder of Vivo, on various occasions over the past few years in relation to acquiring the Helios Entities' 27.1 per cent. interest in Vivo. Following a series of negotiations, BidCo and Helios agreed a price at which both parties would be willing to transact at a purchase price of US$1.79 per Vivo Share.

 

·      Fuels distribution and marketing in Africa remains a core activity for the Vitol Group. BidCo and the Vitol Group will continue to support Vivo's management and its strategy, and believe that Vivo will benefit from Vitol's expertise and be better placed to pursue opportunities in a highly fragmented market.

 

·      BidCo and the Vitol Group believe the Cash Value represents a significant premium for a UK publicly listed company, particularly in light of the 36.0 per cent. holding the Vitol Group already owns, at a value that minority shareholders are not likely to otherwise achieve in the near to medium term for an otherwise relatively illiquid stock.

·      The Offer follows Vivo having received an unsolicited non-binding proposal from Vitol for a possible cash offer at US$1.55 per Vivo Share (113 pence per share on the basis of 1.37 exchange rate) on 2 February 2021 (the "February Proposal"). The February Proposal was unanimously rejected by the Independent Vivo Directors on 11 February 2021. Vivo received a further proposal in September 2021, informing it that Vitol had agreed on a non-binding basis to acquire the Helios Entities' 27.1 per cent. shareholding in Vivo (the "September Proposal"). Due to the Existing Vitol Shareholders' 36.0 per cent. shareholding, the agreement with Helios meant that there was a risk that minority shareholders may become disadvantaged through acceptance of an offer that they might otherwise not have wanted to accept, in order not to remain a shareholder in an illiquid position. As a result, the Independent Vivo Directors engaged with BidCo to negotiate a fair value for the minority Vivo Shareholders.

·      The Independent Vivo Directors, who have been so advised by J.P. Morgan and Rothschild & Co as to the financial terms of the Offer, consider the terms of the Offer to be fair and reasonable. In providing their advice to the Independent Vivo Directors, J.P. Morgan and Rothschild & Co have taken into account the commercial assessments of the Independent Vivo Directors. Rothschild & Co is providing independent financial advice to the Independent Vivo Directors for the purposes of Rule 3 of the Takeover Code.

 

·      Accordingly, the Independent Vivo Directors intend to recommend unanimously that Vivo Shareholders vote in favour of the Scheme at the Court Meeting and in favour of the Vivo Resolutions to be proposed at the General Meeting as the Independent Vivo Directors who have an interest in Vivo Shares have irrevocably undertaken to do in respect of their own beneficial holdings of 7,785,296 Vivo Shares representing, in aggregate, approximately 0.6 per cent. of the ordinary share capital of Vivo in issue on the last practicable date prior to the date of this announcement.

·      Vitol Africa B.V. and VIP Africa II B.V., which are concert parties of BidCo, have been founding shareholders of Vivo, following Shell's sale of some of its downstream business in 2011, and currently hold in aggregate 456,700,930 Vivo Shares representing a 36.0 per cent. interest in Vivo. BidCo has received irrevocable undertakings from (i) HIP Oils Mauritius Ltd; (ii) Helios Holdings Ltd; (iii) Helios Fairfax Partners Corporation; (iv) Baclaud Investments Ltd; and (v) Dover Investment Holdings Limited (together the "Helios Entities") to vote in favour of the Scheme at the Court Meeting and the Vivo Resolutions to be proposed at the General Meeting (or, if relevant, accept the Takeover Offer) in respect of, in aggregate, 343,167,512 Vivo Shares in which they have an interest, representing approximately 27.1 per cent. of the issued share capital of Vivo.

·      BidCo has also received irrevocable undertakings from each of the Vivo Directors who have an interest in Vivo Shares to vote in favour of the Scheme at the Court Meeting and the Vivo Resolutions to be proposed at the General Meeting (or, if relevant, accept the Takeover Offer) in respect of, in aggregate, 7,785,296 Vivo Shares in which they have an interest, representing approximately 0.6 per cent. of the issued share capital of Vivo

BidCo

·      BidCo is a private company with limited liability (in Dutch: besloten vennootschap met beperkte aansprakelijkheid) incorporated in the Netherlands with registered number 80375103. BidCo is a wholly owned indirect subsidiary of VIP II itself being an investment vehicle advised by employees of the Vitol Group. BidCo has not traded since its incorporation, nor has it entered into any obligations other than in connection with the Offer.

Vitol Group

·      The Vitol Group, founded in 1966, is one of the largest independent energy marketing and trading companies in the world. In 2020, Vitol traded over 339 million tonnes of crude oil and products and generated US$140 billion of revenues. Physical supply and distribution of crude oil, petroleum products and natural gas is Vitol's core business. Over the past 20 years, Vitol has significantly expanded its scale and scope through the acquisition of assets. Today, Vitol owns a significant number of assets across the energy value chain worldwide, including more than 480,000 barrels per day of refining capacity and 100 million barrels of terminalling and storage assets, and owns or markets to approximately 6,500 retail service stations.

 

·      In addition to its trading activities, Vitol has a long track record of making investments in energy-related assets, and more specifically leading downstream players in various markets such as Shell Africa, Shell Australia and Petrol Ofisi in Turkey.

 

·      Vitol has significant expertise in the downstream segment as well as owning several investments that could be complementary to Vivo's activities.

 

·      More recently Vitol has begun reviewing its business in the context of the energy transition. To date it has committed over US$1 billion of capital to renewable projects and is expanding its presence across the sustainable energy spectrum in both developed and developing markets.

VIP II

·      VIP II was established in 2017 with US$2.0 billion of committed capital. It is an investment vehicle advised by employees of the Vitol Group and has five shareholders committed to funding investments by VIP II. Vitol Holding S.à r.l., a wholly-owned indirect subsidiary of Vitol, has committed to fund 47.5 per cent. of investments made by VIP II. The other four are institutional shareholders with minority funding commitments, in each case on a passive basis. VIP II has made a number of investments to date including in a global terminalling company, an upstream oil and gas production platform in the US and a renewable energy platform in Ukraine.

·      Vivo distributes and markets Shell and Engen branded fuels and lubricants to retail and commercial customers in Africa and operates in 23 countries across north, west, east and southern Africa where it has a network of over 2,400 service stations. Vivo also exports lubricants to a number of other African countries. Vivo's retail offering includes fuels, lubricants, card services, shops and other non-fuel services (e.g. oil change and car wash). Vivo provide fuels and lubricants to its business customers across a range of sectors including mining, construction, transport and manufacturing. Vivo also supplies liquefied petroleum gas ("LPG"), primarily to consumers, but also to industrial users. Vivo reported revenues of US$6,918 million (2019: US$8,302 million) and a profit before tax of US$175 million (2019: US$246 million) for the year ended 31 December 2020.

·      The Offer is expected to be effected by means of a scheme of arrangement within the meaning of Part 26 of the Companies Act.

 

·      The Offer will be subject to the terms and Conditions set out in this announcement at Appendix I and to the full terms to be set out in the Scheme Document.

 

·      It is intended that the Scheme Document containing further details of the Offer and notices of the Court Meeting and the General Meeting, together with the associated forms of proxy will be posted to Vivo Shareholders (other than to persons in a Restricted Jurisdiction) no later than 28 days after the date of this announcement (unless agreed otherwise with the Panel).

 

·      Chris Bake, Head of Origination at Vitol, commented:

"Since we founded Vivo with Helios and Shell, we have believed in the business' potential and we are excited to have it within the Vitol family, as a pillar of our strategy in Africa. We are pleased that both Helios and the Independent Vivo Directors support our proposal. 

We very much look forward to working with management on this next phase of growth and we thank Helios for their support and collaboration over the last ten years."

·      John Daly, Chair of Vivo, commented:

"Since Vivo Energy was established 10 years ago, the company has had a clear growth strategy and looked to deliver sustainable value for all its stakeholders. The Independent Vivo Directors believe that Vivo's leading position in Africa means that it is well positioned to continue to capitalise on the opportunities that will arise from the fundamental growth drivers on the continent. Vivo also demonstrated the strength of its business model through the impacts of the pandemic, with a rapid recovery in operational and financial performance, supported by committed leadership and employees who embody the unique Vivo culture. This performance and strong financial position has enabled the business to deliver on its growth plans and allows the Independent Vivo Directors to consider its future and evaluate Vitol's offer from a position of strength.

 

In considering Vitol's various approaches, the Independent Vivo Directors recognise that Vitol and its concert parties already own 36.0 per cent. of Vivo, and Vitol having secured agreement to acquire a further 27.1 per cent. of the company from Helios, meant that the Independent Vivo Directors have been focused on evaluating the value of such offers and the impact of a transaction on wider stakeholders. In securing the price available under the terms of the Offer, representing a near 19 per cent. increase on the original approach in February 2021, and around a 72 per cent. increase on the prevailing price at that time, the Independent Vivo Directors believe they have delivered a positive outcome for all stakeholders. The offer from Vitol represents an attractive value in cash for Vivo Shareholders, and Vitol's proven track record of supporting Vivo's long-term growth plans will support Vivo in continuing to deliver benefits to its wider stakeholders."

 

Enquiries:

BidCo                                                                           +44 20 7973 4230 / +44 7525 403796

Andrea Schlaepfer                                                                                
Head of Corporate Communications                  

HSBC (Financial adviser to BidCo)                               +44 20 7991 8888

Keith Welch

Alex Thomas

James Novelli

Joe Weaving (Corporate Broker)

Brunswick LLP (public relations adviser to BidCo)       +44 20 7404 5959

Patrick Handley

 

Vivo Energy plc                                                           +44 20 3034 3735

Giles Blackham

Head of Investor Relations

Rob Foyle

Head of Communications

J.P. Morgan Cazenove                                                     +44 20 7742 4000
(Joint financial adviser and corporate broker to Vivo)

Dwayne Lysaght

James Janoskey

Richard Walsh

Rothschild & Co (Joint financial adviser to Vivo)           +44 20 7280 5000

John Deans

Edoardo Fassati

Numis Securities (Corporate broker to Vivo)                  +44 207 260 1000

Stuart Dickson

George Price                

JSE Sponsor:

J.P. Morgan Equities South Africa Proprietary Limited

Tulchan Communications (public relations adviser to Vivo)     +44 207 353 4200         

Martin Robinson

Sunni Chauhan

Harry Cameron

                         

Akin Gump LLP is acting as legal adviser to BidCo. Freshfields Bruckhaus Deringer LLP is acting as legal adviser to Vivo.

 



 

IMPORTANT NOTES

HSBC, which is authorised by the Prudential Regulation Authority (the "PRA") and regulated by the PRA and the Financial Conduct Authority (the "FCA") in the United Kingdom, is acting exclusively for Vitol and BidCo and no one else in connection with the Offer and will not be responsible to anyone other than Vitol and BidCo for providing the protections afforded to clients of HSBC nor for giving advice in relation to the Offer or any matter or arrangement referred to in this announcement. Neither HSBC, nor any of its group undertakings or affiliates, owes or accepts any duty, liability or responsibility whatsoever (whether direct or indirect, whether in contract, in tort, under statute or otherwise) to any person who is not a client of HSBC in connection with this announcement, any statement contained herein or otherwise. HSBC has given, and not withdrawn, its consent to the inclusion in this announcement of the references to its name in the form and context in which they appear.

J.P. Morgan Securities plc, which conducts its UK investment banking business as J.P. Morgan Cazenove ("J.P. Morgan Cazenove"), is authorised in the United Kingdom by the PRA and regulated in the United Kingdom by the PRA and the FCA. J.P. Morgan Cazenove is acting as financial adviser exclusively for Vivo and no one else in connection with the matters set out in this announcement and will not regard any other person as its client in relation to such matters and will not be responsible to anyone other than Vivo for providing the protections afforded to clients of J.P. Morgan Cazenove or its affiliates, or for providing advice in relation to any matter or arrangement referred to herein.

J.P. Morgan Equities South Africa Proprietary Limited is acting exclusively as JSE sponsor to Vivo and no one else in connection with the matters set out in this announcement, and will be subject to the requirements imposed on such a sponsor under the JSE Listings Requirements.

N.M. Rothschild & Sons Limited ("Rothschild & Co"), which is authorised and regulated by the FCA in the United Kingdom, is acting exclusively for Vivo and no one else in connection with the matters described in this announcement and will not be responsible to anyone other than Vivo for providing the protections afforded to clients of Rothschild & Co nor for providing advice in connection with any matter referred to herein. Neither Rothschild & Co nor any of its affiliates (nor their respective directors, officers, employees or agents) owes or accepts any duty, liability or responsibility whatsoever (whether direct or indirect, whether in contract, in tort, under statute or otherwise) to any person who is not a client of Rothschild & Co in connection with this announcement, any statement contained herein or otherwise.

Numis Securities Limited ("Numis"), which is authorised and regulated in the United Kingdom by the Financial Conduct Authority, is acting as Corporate Broker exclusively for Vivo and no one else in connection with the matters set out in this announcement and will not regard any other person as its client in relation to the matters in this announcement and will not be responsible to anyone other than Vivo for providing the protections afforded to clients of Numis, nor for providing advice in relation to any matter referred to herein.

This announcement is for information purposes only. It is not intended to and does not constitute, or form part of, any offer or invitation or the solicitation of any offer to sell or purchase any securities or the solicitation of any offer to otherwise acquire, subscribe for, sell or otherwise dispose of any security pursuant to the Offer or otherwise. The Offer will be made solely by the Scheme Document, which will contain the full terms and conditions of the Offer, including details of how to vote in respect of the Offer. Any vote in respect of, acceptance or other response to the Offer should be made only on the basis of the information contained in the Scheme Document read in its entirety.

It is intended that the Scheme Document containing further details of the Offer and notices of the Court Meeting and the General Meeting, together with the associated forms of proxy will be posted to Vivo Shareholders (other than to persons in a Restricted Jurisdiction) no later than 28 days after the date of this announcement (unless agreed otherwise with the Panel).

This announcement does not constitute a prospectus or prospectus equivalent document.

Overseas jurisdictions

The availability of the Offer to Vivo Shareholders who are not resident in and citizens of the United Kingdom may be affected by the laws of the relevant jurisdictions in which they are located or of which they are citizens. Persons who are not resident in the United Kingdom should inform themselves of, and observe, any applicable legal or regulatory requirements of their jurisdictions. Any failure to comply with the applicable restrictions may constitute a violation of the securities laws of any such jurisdiction. To the fullest extent permitted by applicable law, the companies and persons involved in the Offer disclaim any responsibility or liability for the violation of such restrictions by any person. Further details in relation to Overseas Shareholders will be contained in the Scheme Document.

Unless otherwise determined by BidCo or required by the Takeover Code, and permitted by applicable law and regulation, the Offer will not be made available, directly or indirectly, in, into or from a Restricted Jurisdiction where to do so would violate the laws in that jurisdiction. Copies of this announcement and any formal documentation relating to the Offer are not being, and must not be, directly or indirectly, mailed or otherwise forwarded, distributed or sent in or into or from any Restricted Jurisdiction and persons receiving such documents (including custodians, nominees and trustees) must not mail or otherwise forward, distribute or send it in or into or from any Restricted Jurisdiction. Doing so may render invalid any related purported acceptance in respect of the Offer. The Offer may not be made directly or indirectly, in or into, or by the use of mails or any means or instrumentality (including, but not limited to, facsimile, e-mail or other electronic transmission, telex or telephone) of interstate or foreign commerce of, or of any facility of a national, state or other securities exchange of any Restricted Jurisdiction and the Offer may not be capable of acceptance by any such use, means, instrumentality or facilities.

In accordance with the Takeover Code, normal United Kingdom market practice and Rule 14e-5(b) of the US Exchange Act, HSBC and its respective affiliates will continue to act as exempt principal trader in Vivo securities on the London Stock Exchange. These purchases and activities by exempt principal traders which are required to be made public in the United Kingdom pursuant to the Takeover Code will be reported to a Regulatory Information Service and will be available on the London Stock Exchange website at www.londonstockexchange.com. This information will also be publicly disclosed: (i) in the US to the extent that such information is made public in the United Kingdom, and (ii) in South Africa, on the Stock Exchange News Service of the JSE, to the extent that it is reported to a Regulatory Information Service on the London Stock Exchange's website.

This announcement has been prepared for the purpose of complying with English law, the Takeover Code, the Market Abuse Regulation (EU) no. 596/2014, the Market Abuse Regulation (EU) no. 596/2014 (as it forms part of the laws of the UK by virtue of the European Union (Withdrawal) Act 2018 (as amended)), the Disclosure Guidance and Transparency Rules, and the Listing Rules, and information disclosed may not be the same as that which would have been disclosed if this announcement had been prepared in accordance with the laws of jurisdictions outside of England and Wales.

The information contained in this announcement constitutes factual information as contemplated in section 1(3)(a) of the South African Financial Advisory and Intermediary Services Act, 37 of 2002, as amended ("Fais Act") and should not be construed as an express or implied advice, recommendation, guide or proposal that any particular transaction in respect of the Offer, is appropriate to the particular investment objectives, financial situations or needs of a shareholder or offeree, and nothing in this announcement should be construed as constituting the canvassing for, or marketing or advertising of, financial services in South Africa. BidCo is not a financial services provider licensed as such under the Fais Act.

Nothing in this announcement should be viewed, or construed, as "advice", as that term is used in the South African Financial Markets Act, 19 of 2012, as amended.

Additional information for US investors

The Offer relates to shares of a UK company and is proposed to be effected by means of a scheme of arrangement under the laws of England and Wales. A transaction effected by means of a scheme of arrangement is not subject to the tender offer rules or the proxy solicitation rules under the US Exchange Act.

Accordingly, the Offer is expected to be made subject to the disclosure and procedural requirements and practices applicable in the United Kingdom and to schemes of arrangement under the laws of England and Wales which differ from the disclosure and other requirements of the United States tender offer and proxy solicitation rules. Neither the US Securities Exchange Commission, nor any securities commission of any state of the United States, has approved the Offer, passed upon the fairness of the Offer or passed upon the adequacy or accuracy of this document. Any representation to the contrary is a criminal offence in the United States.

However, if BidCo were to elect (with the consent of the Panel) to implement the Offer by means of a takeover offer, such takeover offer shall be made in compliance with all applicable United States laws and regulations, including any applicable exemptions under the US Exchange Act. Such a takeover would be made in the United States by BidCo and no one else.

In the event that the Offer is implemented by way of a takeover offer, in accordance with normal United Kingdom practice, BidCo or its nominees, or its brokers (acting as agents), may from time to time make certain purchases of, or arrangements to purchase, shares or other securities of Vivo outside of the United States, other than pursuant to the Offer, until the date on which the Offer and/or Scheme becomes effective, lapses or is otherwise withdrawn. These purchases may occur either in the open market at prevailing prices or in private transactions at negotiated prices. Any information about such purchases or arrangements to purchase shall be disclosed as required in the UK, shall be reported to a Regulatory Information Service and shall be available on the London Stock Exchange website at www.londonstockexchange.com. This information will also be publicly disclosed in South Africa, on Stock Exchange News Service of the JSE, to the extent that it is reported to a Regulatory Information Service on the London Stock Exchange's website.

Each Vivo Shareholder is urged to consult their independent professional adviser immediately regarding the tax consequences of the Offer applicable to them, including under applicable United States state and local, as well as overseas and other, tax laws.

Financial information relating to Vivo included in this announcement and the Scheme Document has been or shall have been prepared in accordance with accounting standards applicable in the United Kingdom and may not be comparable to financial information of US companies or companies whose financial statements are prepared in accordance with generally accepted accounting principles in the United States.

Vivo is organised under the laws of a country other than the United States. Some or all of the officers and directors of Vivo, respectively, are residents of countries other than the United States. In addition, most of the assets of Vivo are located outside the United States. As a result, it may be difficult for US shareholders of Vivo to effect service of process within the United States upon Vivo or its officers or directors or to enforce against them a judgment of a US court predicated upon the federal or state securities laws of the United States.

Forward-looking statements

This announcement (including information incorporated by reference in this announcement), oral statements made regarding the Offer, and other information published by BidCo contain statements which are, or may be deemed to be, "forward-looking statements". Forward-looking statements are prospective in nature and are not based on historical facts, but rather on current expectations and projections of the management of BidCo about future events, and are therefore subject to risks and uncertainties which could cause actual results to differ materially from the future results expressed or implied by the forward-looking statements.

The forward-looking statements contained in this announcement include statements relating to the expected effects of the Offer on BidCo, the Vitol Group, the Vivo Group and Vivo (including their future prospects, developments and strategies), the expected timing and scope of the Offer and other statements other than historical facts. Often, but not always, forward-looking statements can be identified by the use of forward-looking words such as "plans", "expects" or "does not expect", "is expected", "is subject to", "budget", "projects", "strategy", "scheduled", "estimates", "forecasts", "intends", "anticipates" or "does not anticipate", or "believes", or variations of such words and phrases or statements that certain actions, events or results "may", "could", "should", "would", "might" or "will" be taken, occur or be achieved. Although BidCo believes that the expectations reflected in such forward-looking statements are reasonable, BidCo can give no assurance that such expectations will prove to be correct. By their nature, forward-looking statements involve risk and uncertainty because they relate to events and depend on circumstances that will occur in the future. There are a number of factors that could cause actual results and developments to differ materially from those expressed or implied by such forward-looking statements.

These factors include, but are not limited to: the ability to complete the Offer; the ability to obtain requisite regulatory and shareholder approvals; future market conditions; changes in general economic and business conditions; the behaviour of other market participants; the anticipated benefits from the proposed transaction not being realised as a result of changes in general economic and market conditions in the countries in which each of the Vitol Group and the Vivo Group operates; weak, volatile or illiquid capital and/or credit markets; changes in tax rates; interest rate and currency value fluctuations; the degree of competition in the geographic and business areas in which each of the Vitol Group and the Vivo Group operates; and changes in laws or in supervisory expectations or requirements. Other unknown or unpredictable factors could cause actual results to differ materially from those in the forward-looking statements. Such forward-looking statements should therefore be construed in the light of such factors. Neither BidCo, nor any persons acting in concert with it, nor any of its associates or directors, officers or advisers, provide any representation, assurance or guarantee that the occurrence of the events expressed or implied in any forward-looking statements in this announcement will actually occur. You are cautioned not to place any reliance on these forward-looking statements. Other than in accordance with its legal or regulatory obligations, BidCo is not under any obligation, and expressly disclaims any intention or obligation, to update or revise any forward-looking statements, whether as a result of new information, future events or otherwise.

No profit forecasts

Nothing in this announcement is intended, or is to be construed, as a profit forecast, profit estimate or quantified benefits statement for any period and no statement in this announcement should be interpreted to mean that earnings or earnings per share for Vivo for the current or future financial years would necessarily match or exceed the historical published earnings or earnings per share for Vivo.

Dealing and Opening Position Disclosure requirements

Under Rule 8.3(a) of the Takeover Code, any person who is interested in 1 per cent. or more of any class of relevant securities of an offeree company or of any securities exchange offeror (being any offeror other than an offeror in respect of which it has been announced that its offer is, or is likely to be, solely in cash) must make an Opening Position Disclosure following the commencement of the Offer Period and, if later, following the announcement in which any securities exchange offeror is first identified.

An Opening Position Disclosure must contain details of the person's interests and short positions in, and rights to subscribe for, any relevant securities of each of (i) Vivo and (ii) any securities exchange offeror(s). An Opening Position Disclosure by a person to whom Rule 8.3(a) applies must be made by no later than 3.30 pm (London time) on the 10th Business Day following the commencement of the Offer Period and, if appropriate, by no later than 3.30 pm (London time) on the 10th Business Day following the announcement in which any securities exchange offeror is first identified. Relevant persons who deal in the relevant securities of Vivo or of a securities exchange offeror prior to the deadline for making an Opening Position Disclosure must instead make a Dealing Disclosure.

Under Rule 8.3(b) of the Takeover Code, any person who is, or becomes, interested in 1 per cent. or more of any class of relevant securities of Vivo or of any securities exchange offeror must make a Dealing Disclosure if the person deals in any relevant securities of Vivo or of any securities exchange offeror. A Dealing Disclosure must contain details of the dealing concerned and of the person's interests and short positions in, and rights to subscribe for, any relevant securities of each of (i) Vivo and (ii) any securities exchange offeror, save to the extent that these details have previously been disclosed under Rule 8. A Dealing Disclosure by a person to whom Rule 8.3(b) applies must be made by no later than 3.30 pm (London time) on the Business Day following the date of the relevant dealing.

If two or more persons act together pursuant to an agreement or understanding, whether formal or informal, to acquire or control an interest in relevant securities of an offeree company or a securities exchange offeror, they will be deemed to be a single person for the purpose of Rule 8.3 of the Takeover Code.

Opening Position Disclosures must also be made by Vivo and by any offeror and Dealing Disclosures must also be made by Vivo, by any offeror and by any persons acting in concert with any of them (see Rules 8.1, 8.2 and 8.4 of the Takeover Code).

Details of the offeree and offeror companies in respect of whose relevant securities Opening Position Disclosures and Dealing Disclosures must be made can be found in the Disclosure Table on the Panel's website at www.thetakeoverpanel.org.uk, including details of the number of relevant securities in issue, when the Offer Period commenced and when any offeror was first identified. You should contact the Panel's Market Surveillance Unit on +44 (0) 20 7638 0129 if you are in any doubt as to whether you are required to make an Opening Position Disclosure or a Dealing Disclosure.

Purchases outside the Offer

In the event the Offer is implemented by way of a Takeover Offer, in accordance with normal UK practice and pursuant to Rule 14e-5(b) of the US Exchange Act, BidCo or its nominees or brokers (acting as agents) may purchase Vivo Shares (outside of the United States) otherwise than under the Offer, such as in the open market or through privately negotiated purchases. Such purchases shall comply with the Takeover Code and the rules of the London Stock Exchange.

Publication on website

A copy of this announcement and other documents in connection with the Offer will, subject to certain restrictions relating to persons resident in Restricted Jurisdictions, be made available on Vitol's and Vivo's websites at www.vitol.com and www.vivoenergy.com by no later than 12 noon (London time) on the Business Day following the date of the relevant announcement or document, pursuant to Rule 26.1 of the Takeover Code. The contents of the website referred to in this announcement are not incorporated into, and do not form part of, this announcement.

Requesting hard copy documents

Subject to the paragraph below, in accordance with Rule 30.3 of the Takeover Code, Vivo Shareholders, persons with information rights and participants in the Vivo Share Plans may request a hard copy of this announcement by contacting Equiniti, during business hours on +44 371 384 2030 or at enquiries@equinitishareviewdealing.com.

For persons who receive a copy of this announcement in electronic form or via a website notification, a hard copy of this announcement will not be sent unless so requested. Such persons may also request that all future documents, announcements and information to be sent to you in relation to the Offer should be in hard copy form.

Information relating to Vivo Shareholders

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

Right to switch to a takeover offer

BidCo reserves the right to elect, with the consent of the Panel, to implement the Offer by way of a takeover offer under Part 28 of the Companies Act, as an alternative to the Scheme. In such an event, the Takeover Offer would be implemented on the same terms or, if BidCo so decides, on such other terms being no less favourable, so far as applicable, as those which would apply to the Offer, subject in each case to appropriate amendments to reflect the change in method of effecting the Offer.

Notwithstanding, BidCo has irrevocably and unconditionally agreed with the Helios Entities that it shall be required, subject to the consent of the Panel, to announce or proceed with the Takeover Offer, and to despatch the Offer Document (as applicable), in circumstances where:

·      the Scheme Document has not been posted within 28 days of the issue of this announcement (or within such longer period as BidCo, with the consent of the Panel, determines); or

·      Vivo does not convene the General Meeting or Court Meeting as required by the Scheme Document; or

·      having convened the General Meeting and/or Court Meeting Vivo indefinitely adjourns such meeting(s) such that no resolution proposed in respect of the Scheme is put to holders of ordinary shares of Vivo; or

·      the Scheme has not been approved by the necessary majority of Vivo Shareholders at the General Meeting or the Court Meeting and the Panel gives its consent; or

·      BidCo otherwise elects to exercise its right to implement the Offer by way of a Takeover Offer.

Rounding

Certain figures included in this announcement have been subjected to rounding adjustments. Accordingly, figures shown for the same category presented in different tables may vary slightly and figures shown as totals in certain tables may not be an arithmetic aggregation of figures that precede them.

Rule 2.9 Disclosure

In accordance with Rule 2.9 of the Takeover Code, Vivo confirms that as at the date of this announcement, it has in issue and admitted to trading on the Main Market of the London Stock Exchange 1,266,941,899 ordinary shares of US$0.50 each. The International Securities Identification Number of the ordinary shares is GB00BDGT2M75.

 

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

INVESTORS SHOULD NOT MAKE ANY INVESTMENT DECISION IN RELATION TO VIVO SHARES EXCEPT ON THE BASIS OF THE INFORMATION IN THE SCHEME DOCUMENT, WHICH IS PROPOSED TO BE PUBLISHED IN DUE COURSE.

 

THIS ANNOUNCEMENT CONTAINS INSIDE INFORMATION FOR THE PURPOSES OF ARTICLE 7 OF THE MARKET ABUSE REGULATION (EU) NO. 596/2014 AND ARTICLE 7 OF THE MARKET ABUSE REGULATION (EU) NO. 596/2014 (AS IT FORMS PART OF THE LAWS OF THE UK BY VIRTUE OF THE EUROPEAN UNION (WITHDRAWAL) ACT 2018 (AS AMENDED)).

FOR IMMEDIATE RELEASE

25 November 2021

 

RECOMMENDED CASH OFFER

for

Vivo Energy plc

("Vivo" or the "Company")

by

VIP II Blue B.V.

(a newly-formed company ("BidCo"), being a wholly-owned, indirect subsidiary of Vitol Investment Partnership II Limited, itself being an investment vehicle advised by employees of the Vitol Group)

to be effected by means of a scheme of arrangement under Part 26 of the Companies Act

1.   Introduction

The boards of BidCo and Vivo are pleased to announce that they have reached agreement on the terms of a recommended cash offer pursuant to which BidCo shall acquire the entire issued and to be issued share capital of Vivo excluding Vivo Shares held by the Existing Vitol Shareholders (the "Offer"). The Offer is expected to be effected by means of a scheme of arrangement under Part 26 of the Companies Act.

Vitol Africa B.V. and VIP Africa II B.V., which are concert parties of BidCo, have been founding investors in Vivo and currently hold in aggregate 456,700,930 Vivo Shares representing a 36.0 per cent. interest in Vivo.

BidCo will make the Offer through the Scheme Document which will be posted to Vivo Shareholders (or made available electronically in accordance with the Takeover Code) no later than 28 days after the date of this announcement (unless agreed otherwise with the Panel). The Scheme Document will contain the formal terms of the Offer and notices of the Court Meeting and the General Meeting.

2.   The Offer 

Under the terms of the Offer, which will be subject to the terms and Conditions set out in Appendix I to this announcement and to the full terms which will be set out in the Scheme Document, Vivo Shareholders on the register of members of Vivo as at the relevant Dividend Record Dates (other than the Existing Vitol Shareholders in relation to the Consideration, and except as set out below in relation to the Helios Entities) shall be entitled to receive the following:

Either:

1.   If the Effective Date would or is reasonably expected to occur on or prior to the 2022 Interim Dividend Record Date (which is expected to be in August 2022):

US$1.85 in cash for each Vivo Share (the "Cash Value"),
which is comprised of the following components:

i. US$1.79 in cash for each Vivo Share (the "Consideration"), which will be payable to all Vivo Shareholders other than the Existing Vitol Shareholders; plus

 

ii. US$0.04 per Vivo Share in the form of a 2021 Final Dividend (without any consequential reduction in the Consideration), which will be payable to all Vivo Shareholders on the register of members of Vivo as at the 2021 Final Dividend Record Date; plus

 

iii.          US$0.02 per Vivo Share in the form of a 2022 Special Dividend (without any consequential reduction in the Consideration), which will be payable to all Vivo Shareholders on the register of members of Vivo as at the 2022 Special Dividend Record Date, except the Helios Entities, which have each agreed to waive the right to receive the 2022 Special Dividend if it is announced, declared, made or paid or becomes payable.

The Cash Value of US$1.85 for each Vivo Share values the entire issued and to be issued share capital of Vivo on a fully diluted basis at approximately US$2.3 billion (calculated on the basis described in Appendix II), which is equivalent to £1.8 billion based on the Announcement Exchange Rate.

The Cash Value of US$1.85 for each Vivo Share, being equivalent to 139 pence per Vivo Share based on the Announcement Exchange Rate, would represent a premium of approximately:

·      24.6 per cent. to the Closing Price per Vivo Share of 111 pence on 24 November 2021 (being the last Business Day prior to this announcement);

·      30.6 per cent. to the volume weighted average price per Vivo Share of 106 pence in the one month to 24 November 2021 (being the last Business Day prior to this announcement); and

·      41.8 per cent. to the volume weighted average price per Vivo Share of 98 pence in the twelve months to 24 November 2021 (being the last Business Day prior to this announcement).

The board of BidCo and the Independent Vivo Directors expect the Effective Date to be before the 2022 Interim Dividend Record Date (but after the 2021 Final Dividend Record Date) in which case Vivo Shareholders who are on the register of members at the relevant Dividend Record Dates, except for the Existing Vitol Shareholders and the Helios Entities, will receive US$1.85 per Vivo Share in cash.

or;

2.   If the Effective Date occurs or is reasonably expected to occur after the 2022 Interim Dividend Record Date (which is expected to be in August 2022):

US$1.83 in cash for each Vivo Share
plus a 2022 Interim Dividend of up to US$0.02 per Vivo Share
(together, the "Variable Cash Value"), which is comprised of the following components:

 

i.    US$1.79 in cash for each Vivo Share payable to all Vivo Shareholders other than the Existing Vitol Shareholders; plus

 

ii.    US$0.04 per Vivo Share in the form of a 2021 Final Dividend (without any consequential reduction in the Consideration) which will be payable to all Vivo Shareholders on the register of members of Vivo as at the 2021 Final Dividend Record Date; plus

 

iii.   up to US$0.02 per Vivo Share in the form of a 2022 Interim Dividend (without any consequential reduction in the Consideration) which will be payable, in line with Vivo's progressive dividend policy at the date of this announcement (for reference Vivo's interim dividend for the 6 months ended 30 June 2021 was US$0.017 per Vivo Share) to all Vivo Shareholders on the register of members of Vivo as at the 2022 Interim Dividend Record Date.

The Variable Cash Value of US$1.83 for each Vivo Share plus up to US$0.02 per Vivo Share in the form of the 2022 Interim Dividend values the entire issued and to be issued share capital of Vivo on a fully diluted basis at a minimum (assuming no 2022 Interim Dividend is paid) of approximately US$2.3 billion (calculated on the basis described in Appendix II), which is equivalent to £1.7 billion based on the Announcement Exchange Rate; and at a maximum (assuming a 2022 Interim Dividend of US$0.02 per Vivo Share is paid) of approximately US$2.3 billion (calculated on the basis described in Appendix II), which is equivalent to £1.8 billion based on the Announcement Exchange Rate.

General matters relating to the value of the Offer

It is expected that the 2021 Final Dividend Record Date will be on 27 May 2022 and that the 2022 Interim Dividend Record Date will be in August 2022.

If the Effective Date occurs or is reasonably expected to occur prior to the 2021 Final Dividend Record Date:

(i)         Vivo Shareholders on the register of members of Vivo as at the 2021 Special (Final) Dividend Record Date shall be entitled to receive, without any consequential reduction in the Consideration, an interim dividend of US$0.04 per Vivo Share in lieu of the 2021 Final Dividend (the "2021 Special (Final) Dividend"); and

 

(ii)         for the avoidance of doubt and except for the Helios Entities, which have each agreed to waive the right to receive the 2022 Special Dividend if it is announced, declared, made or paid or becomes payable, if the 2021 Special (Final) Dividend is paid, Vivo Shareholders on the register of members of Vivo as at the 2021 Special (Final) Dividend Record Date will also receive US$0.02 in the form of a Special 2022 Dividend without any consequential reduction in the Consideration.

For the avoidance of doubt, under the terms of the Offer Vivo Shareholders will not be entitled to receive:

(i)         both the 2021 Final Dividend and the 2021 Special (Final) Dividend; or

(ii)         both the 2022 Interim Dividend and the 2022 Special Dividend.

Vivo Shares will be acquired fully paid and free from all liens, charges, equitable interests, encumbrances, rights of pre-emption and other third party rights or interests together with all rights attaching thereto including, without limitation, the right to receive all dividends and other distributions (if any) announced, declared, made or paid after the date of this announcement other than: (i) either the 2021 Final Dividend or the 2021 Special (Final) Dividend (as applicable); and (ii) either the 2022 Interim Dividend or the 2022 Special Dividend (as applicable).

BidCo reserves the right to reduce the Consideration by the amount of any dividend, or other distribution or return of value, which is declared, made or paid or becomes payable by Vivo to the holders of Vivo Shares on or after the date of this announcement, but excluding:

(a)  the 2021 Final Dividend or, if applicable, the 2021 Special (Final) Dividend; and

 

(b)  either:

 

i.    the 2022 Interim Dividend, if the 2022 Interim Dividend Record Date would or is reasonably expected to occur prior to the Effective Date; or

 

ii.    the 2022 Special Dividend, if the Effective Date would or is reasonably expected to occur prior to the 2022 Interim Dividend Record Date.

 

In the event any Vivo Dividend exceeds the relevant Agreed Amount, BidCo reserves the right to reduce the Consideration by an amount equal to the difference between that Vivo Dividend and the relevant Agreed Amount.

The Helios Entities have agreed to waive the right to receive the 2022 Special Dividend if the 2022 Special Dividend is announced, declared, made or paid or becomes payable. For the avoidance of doubt, the Helios Entities have not waived their right to receive either the 2021 Final Dividend (or if applicable the 2021 Special (Final) Dividend) or the 2022 Interim Dividend.

The Consideration payable under the Offer will paid in US Dollars. BidCo, through its registrars, will make a facility available under which shareholders on the UK register of Vivo will be able to elect (subject to the terms and conditions of the facility) to receive the Consideration in Sterling (after deduction of any transaction or dealing costs associated with the conversion) at the applicable market exchange rate on the latest practicable date for fixing such rate prior to the relevant payment date. Further details of this facility and the election by Vivo Shareholders wishing to receive the Consideration in Sterling will be set out in the Scheme Document.

For any Vivo Shareholder electing to be paid their Consideration in Sterling, the amount per Vivo Share received may, depending on the prevailing exchange rate, result in a payment below or above 134 pence per Vivo Share, which is the value of the Consideration in Sterling using the Announcement Exchange Rate.

Shareholders on the South African register of Vivo will, as required, receive any Consideration due to them under the terms of the Offer in South African Rand. The Scheme Document will include further details in relation to this currency exchange. For the avoidance of doubt, any Vivo Dividends paid by Vivo to Vivo Shareholders on the South African register will be in South African Rand.

3.   Background to and reasons for the Offer

Vitol Africa B.V. and VIP Africa II B.V., which are concert parties of BidCo, were founding shareholders of Vivo, following Shell's sale of parts of its downstream business in 2011, and currently hold in aggregate 456,700,930 Vivo Shares representing a 36.0 per cent. interest in Vivo.

Vivo completed an initial public offering in May 2018 (the "IPO"), pursuant to which the Vivo Shares were admitted to trading on the Main Market of the London Stock Exchange ("Admission") and admitted to listing on the Official List, with a secondary listing on the Main Board of the JSE. On completion of the IPO, the Vitol Group retained approximately 38.1 per cent. of the issued share capital of Vivo. Since the IPO, the Vitol Group has demonstrated its commitment to Vivo by not selling any Vivo Shares and continuing to remain its largest shareholder. However, its holding has been diluted to 36.0 per cent. due to Vivo Shares being issued pursuant to Vivo's acquisition of Engen's business in Sub-Saharan Africa and to satisfy awards under the Vivo Share Plans.

Fuels distribution and marketing in Africa remains a core activity for the Vitol Group. BidCo and the Vitol Group will continue to support Vivo's management and its strategy, and believe that Vivo will benefit from the Vitol Group's expertise and be better placed to pursue opportunities in a highly fragmented market.

BidCo and the Vitol Group believe that both the Cash Value and the Variable Cash Value represents a significant premium for a UK publicly listed company, particularly in light of the 36.0 per cent. holding the Vitol Group already owns, at a value that shareholders are not likely to otherwise achieve in the near to medium term for an otherwise relatively illiquid stock.

4.   Recommendation

The Independent Vivo Directors, who have been so advised by J.P. Morgan and Rothschild & Co as to the financial terms of the Offer, consider the terms of the Offer to be fair and reasonable. In providing their advice to the Independent Vivo Directors, J.P. Morgan and Rothschild & Co have taken into account the commercial assessments of the Independent Vivo Directors. Rothschild & Co is providing independent financial advice to the Independent Vivo Directors for the purposes of Rule 3 of the Takeover Code.

Accordingly, the Independent Vivo Directors intend to recommend unanimously that Vivo Shareholders vote in favour of the Scheme at the Court Meeting and in favour of the Vivo Resolutions to be proposed at the General Meeting as the Independent Vivo Directors who have an interest in Vivo Shares have irrevocably undertaken to do in respect of their own beneficial holdings of 7,785,296 Vivo Shares representing, in aggregate, approximately 0.6 per cent. of the ordinary share capital of Vivo in issue on the last practicable date prior to the date of this announcement.

5.   Background to and reasons for the recommendation

Vivo is a leading, pan-African retailer and distributor of high-quality Shell and Engen-branded fuels and lubricants to Retail and Commercial customers across the continent.

Since the Group's inception in 2011, Vivo has grown its retail footprint significantly, from 1,269 service stations in 15 countries to more than 2,400 in 23 countries, broadening its consumer offering into shops, restaurants and other non-fuel services. Alongside its retail offering, Vivo provides fuels and lubricants to business customers across a range of sectors including mining, construction, power, marine, aviation, transport, wholesalers and manufacturing. Vivo also supplies LPG, primarily to consumers, but also to industrial users.

Vivo has operated its business with a vision of becoming the most respected energy company in Africa. As such Vivo has focused on maintaining the highest governance standards, delivering industry leading health, safety and environmental practices, developing its employees and supporting local communities.

Vivo has a resilient business model, with diversified, structural, long-term profit drivers and a proven track record of delivering significant returns above its cost of capital. This is demonstrated by a five-year average return on average capital employed ("ROACE") of circa 20 per cent., as well as the Group's swift recovery from the impacts of COVID-19.

The Independent Vivo Directors are confident in Vivo's future prospects and believe Vivo's leading position in Africa means it is well positioned to capitalise on the consistent growth in fuel demand on the continent, driven by increasing car penetration, a growing middle class and major infrastructure investments. The Independent Vivo Directors have therefore considered the future of the Vivo Group and VIP II's approach from a position of strength.

The Offer, which consists of either the Cash Value of US$1.85 per Vivo Share or the Variable Cash Value of US$1.83 per Vivo Share plus up to US$0.02 per Vivo Share in the form of a 2022 Interim Dividend (without any consequential reduction in the Consideration) (together, the "Cash Value Structure") follows on from an unsolicited non-binding proposal for a possible cash offer of US$1.55 per Vivo Share (113 pence per Vivo Share on the basis of 1.37 exchange rate) made by BidCo on 2 February 2021 (the "February Proposal"). The February Proposal was unanimously rejected by the Independent Vivo Directors on 11 February 2021. Vivo received a further proposal in September 2021, informing it that Vitol had agreed on a non-binding basis to acquire the Helios Entities' 27.1 per cent. shareholding in Vivo (the "September Proposal"). Due to the Existing Vitol Shareholders' 36.0 per cent. shareholding, the agreement with Helios meant that there was a risk that minority shareholders may become disadvantaged through acceptance of an offer that they might otherwise not have wanted to accept, in order not to remain a shareholder in an illiquid position. As a result, the Independent Vivo Directors engaged with BidCo to negotiate a fair value for the minority Vivo Shareholders.

Following a period of discussion and negotiation the terms of the September Proposal were improved to the terms of the Cash Value Structure.

Following careful consideration, the Independent Vivo Directors have concluded that the Cash Value Structure and the terms of the Offer recognise the strength of Vivo's business and its prospects. In considering the terms of the Offer, the Independent Vivo Directors have taken into account a number of factors, including:

·      the opportunity for Vivo Shareholders to crystallise the value of their holdings in cash today, and realise the potential future value creation through a substantial premium to the undisturbed share price;

·      the irrevocable commitment from Vivo's second largest shareholder, Helios, to accept the offer in respect of its total shareholding of 27.1 per cent. and that combined with Vitol's current holding of 36.0 per cent. in Vivo, BidCo together with the Existing Vitol Entities could have acquired a controlling 63.1 per cent. shareholding in Vivo;

·      the Cash Value Structure represents a premium of approximately 23.2-24.6 per cent. to the Closing Price per Vivo Share of 111 pence on 24 November 2021 (being the last Business Day prior to this announcement);

·      the Cash Value Structure represents a 29.2-30.6 per cent. premium to the one-month volume weighted average price per Vivo Share of 106 pence on 24 November 2021 (being the last Business Day prior to this announcement); and

·      the Cash Value Structure represents a premium of approximately 40.3-41.8 per cent. to the twelve-month volume weighted average price per Vivo Share of 98 pence on 24 November 2021 (being the last Business Day prior to this announcement).

The Independent Vivo Directors have also considered BidCo's intentions for the business, management, employees and other stakeholders of Vivo. In particular the Independent Vivo Directors note the high regard attached by BidCo to the quality of Vivo's management and what has been achieved at Vivo in recent years.

Accordingly, following careful consideration of the above factors, the Independent Vivo Directors believe that Vivo Shareholders should have the opportunity to approve the Offer, as the Independent Vivo Directors who have an interest in Vivo Shares intend to do so in respect of their Vivo Shares, and unanimously recommend the Offer to Vivo Shareholders.

6.   Information about the Vitol Group and BidCo

BidCo

BidCo is a private company with limited liability (in Dutch: besloten vennootschap met beperkte aansprakelijkheid) incorporated in the Netherlands with registered number 80375103. BidCo is a wholly owned indirect subsidiary of VIP II itself being an investment vehicle advised by employees of the Vitol Group. BidCo has not traded since its incorporation, nor has it entered into any obligations other than in connection with the Offer.

 

The Vitol Group, founded in 1966, is one of the largest independent energy marketing and trading companies in the world. In 2020, Vitol traded over 339 million tonnes of crude oil and products and generated US$140 billion of revenues. Physical supply and distribution of crude oil, petroleum products and natural gas is Vitol's core business. Over the past 20 years, Vitol has significantly expanded its scale and scope through the acquisition of assets. Today, Vitol owns a significant number of assets across the energy value chain worldwide, including more than 480,000 barrels per day of refining capacity and 100 million barrels of terminalling and storage assets, and owns or markets to approximately 6,500 retail service stations.

In addition to its trading activities, Vitol has a long track record of making investments in energy-related assets, and more specifically leading downstream players in various markets such as Shell Africa, Shell Australia and Petrol Ofisi in Turkey.

Vitol has significant expertise in the downstream segment as well as owning several investments that could be complementary to Vivo's activities.

More recently Vitol has begun reviewing its business in the context of the energy transition. To date it has committed over US$1 billion of capital to renewable projects and is expanding its presence across the sustainable energy spectrum in both developed and developing markets.

VIP II was established in 2017 with US$2.0 billion of committed capital. It is an investment vehicle advised by employees of the Vitol Group and has five shareholders committed to funding investments by VIP II. Vitol Holding S.à r.l., a wholly-owned indirect subsidiary of Vitol, has committed to fund 47.5 per cent. of investments made by VIP II. The other four are institutional shareholders with minority funding commitments, in each case on a passive basis. VIP II has made a number of investments to date including in a global terminalling company, an upstream oil and gas production platform in the US and a renewable energy platform in Ukraine.

 

7.   Information about Vivo

Vivo is a public limited company incorporated in England and Wales on 12 March 2018 under the Companies Act with registered number 11250655.

On 10 May 2018, Vivo's ordinary shares were admitted to the premium listing segment of the Official List, to trading on the London Stock Exchange's Main Market for listed securities, and also obtained a secondary inward listing on the Main Board of the JSE. Vivo distributes and markets Shell and Engen branded fuels and lubricants to retail and commercial customers in Africa and operates in 23 countries across north, west, east and southern Africa where it has a network of over 2,400 service stations. Vivo also exports lubricants to a number of other African countries. Vivo's retail offering includes fuels, lubricants, card services, shops and other non-fuel services (e.g. oil change and car wash). Vivo provide fuels and lubricants to its business customers across a range of sectors including mining, construction, transport and manufacturing. Vivo also supplies LPG, primarily to consumers, but also to industrial users.

Vivo reported revenues of US$6,918 million (2019: US$8,302 million) and a profit before tax of US$175 million (2019: US$246 million) for the year ended 31 December 2020.

8.   Intentions of BidCo

BidCo and the Vitol Group have a high regard for the quality of Vivo's management and what has been achieved at Vivo in recent years. In particular, BidCo and the Vitol Group are supportive of the appointment of Stanislas Mittelman as CEO and are confident that, given his strong track record, he will grow the business successfully. BidCo intends for management to remain in place following completion of the Offer and to continue to execute Vivo's current strategic plans. BidCo looks forward to discussing with management how BidCo and the Vitol Group can continue to support Vivo with its strategy and growth ambitions. This is particularly relevant in the longer-term context of the energy transition in which the Vitol Group has a fast-growing portfolio and expertise, which will likely be of benefit to Vivo.

BidCo intends to fully safeguard the existing employment rights, including pension rights, of the management and employees of Vivo. Furthermore, it is expected that there will be no material repercussions on employment or the locations of Vivo's places of business. BidCo intends to conduct a review of the best location to domicile the parent company of the Vivo group of companies and its headquarters but no decisions have been made at this time.

Owing to the nature of its business Vivo does not have any research and development function. BidCo has no intention to make material changes to the fixed asset base of Vivo. 

 

9.   Vivo Share Plans

Participants in or other holders of rights under the Vivo Share Plans will be contacted regarding appropriate proposals under Rule 15 of the Takeover Code that will be made to them, and details of the courses of action which will be open to them, in due course. Details of the impact of the Scheme on the Vivo Share Plans will be set out in the Scheme Document.

The Scheme will not extend to Vivo Shares issued after the Scheme Record Time. However, it is proposed to amend the articles of association of Vivo at the General Meeting to provide that, if the Scheme becomes effective, any Vivo Shares issued to any person other than BidCo or its nominees after the Scheme Record Time (including in satisfaction of an award or option exercised under one of the Vivo Share Plans) will be automatically transferred to BidCo in consideration for the payment by BidCo to such persons on the same terms as are available to Vivo Shareholders as set out in paragraph 2. The provisions of the articles of association of Vivo (as amended) will avoid any persons (other than BidCo and its nominees) holding shares in the capital of Vivo after the Effective Date.

10.  Financing of the Offer

The Consideration payable under the Offer will be financed through a combination of fully committed debt financing from HSBC Bank plc ("HSBC") and its affiliates, and equity from VIP II.

HSBC, as financial adviser to BidCo, is satisfied that sufficient cash resources are available to BidCo to satisfy in full the Consideration payable to Vivo Shareholders under the terms of the Offer.

11.  Irrevocable undertakings

BidCo has received irrevocable undertakings from (i) HIP Oils Mauritius Ltd; (ii) Helios Holdings Ltd; (iii) Helios Fairfax Partners Corporation; (iv) Baclaud Investments Ltd; and (v) Dover Investment Holdings Limited (together the "Helios Entities") to vote in favour of the Scheme at the Court Meeting and the Vivo Resolutions to be proposed at the General Meeting (or, if relevant, accept the Takeover Offer) in respect of, in aggregate, 343,167,512 Vivo Shares in which they have an interest, representing approximately 27.1 per cent. of the issued share capital of Vivo. The Helios Entities have also agreed to waive the right to receive the 2022 Special Dividend if the 2022 Special Dividend is announced, declared, made or paid or becomes payable.

BidCo has also received irrevocable undertakings from each of the Vivo Directors who has an interest in Vivo Shares to vote in favour of the Scheme at the Court Meeting and the Vivo Resolutions to be proposed at the General Meeting (or, if relevant, accept the Takeover Offer) in respect of, in aggregate, 7,785,296 Vivo Shares in which they have an interest, representing approximately 0.6 per cent. of the issued share capital of Vivo.

In each case, the undertakings will cease to be binding only if: (i) the Scheme Document is not posted within 28 days of this announcement (or such longer period with the consent of the Panel); (ii) the Offer is withdrawn or lapses in accordance with its terms (other than in circumstances where BidCo has exercised its right to implement the Offer by way of a Takeover Offer) or, to the extent implemented by way of a Takeover Offer, the Takeover Offer is withdrawn or lapses in accordance with its terms; or (iii) the Scheme becomes effective in accordance with its terms or, to the extent the Offer is implemented by way of a Takeover Offer, the Takeover Offer is declared unconditional in accordance with the requirements of the Takeover Code.

Therefore, as at the date hereof, BidCo has received irrevocable undertakings in respect of a total of 350,952,808 Vivo Shares representing approximately 27.7 per cent. of the Vivo Shares in issue as at 24 November 2021 (being the last Business Day prior to the publication of this announcement).

Further details of these undertakings, including the circumstances in which they cease to be binding, are set out in at Appendix III to this announcement.

12.  Offer related arrangements

Confidentiality Agreement

BidCo and Vivo have entered into a confidentiality agreement dated 18 November 2021 (the "Confidentiality Agreement") pursuant to which BidCo has undertaken to: (i) keep confidential information relating to, inter alia, the Offer and the Vivo Group and not to disclose it to third parties (other than to certain authorised recipients); and (ii) use the confidential information only in connection with the Offer, in each case subject to certain exceptions. These confidentiality obligations shall remain in force until the earlier of 18 months from the date of the Confidentiality Agreement and completion of the Offer by BidCo.

 

Co-operation Agreement

 

BidCo, VIP II and Vivo have entered into a co-operation agreement dated 25 November 2021 (the "Co-operation Agreement") pursuant to which (amongst other things):

 

·      BidCo has agreed to use all reasonable endeavours to secure any regulatory approvals in connection with the Offer as soon as reasonably practicable and in any event in sufficient time to enable the Effective Date to occur prior to the Long-Stop Date;

·      BidCo and Vivo have each agreed to certain undertakings to co-operate and provide each other with reasonable assistance in respect of the filings, submissions and notifications to be made in relation to such clearances; and

·      BidCo and Vivo have each agreed to co-operate in relation to certain employee-related matters and matters relating to the Vivo Share Plans.

 

The Co-operation Agreement records the parties' intention to implement the Offer by way of the Scheme, subject to the ability of BidCo in certain circumstances to elect to implement the Offer by way of a Takeover Offer, with the consent of the Panel. The Co-operation Agreement will terminate if: (i) agreed in writing by the parties at any time; (ii) if the Offer, with the consent of the Panel, is withdrawn or lapses in accordance with its terms prior to the Longstop Date.

 

13.  De-listing and re-registration

Prior to the Scheme becoming effective, it is intended that an application will be made for the cancellation of admission to trading of the Vivo Shares on the London Stock Exchange's main market for listed securities and for the cancellation of the listing of Vivo Shares on the premium listing segment of the Official List, in each case to take effect following the Effective Date. The last day of dealings in Vivo Shares on the London Stock Exchange's Main Market for listed securities is expected to be the Business Day immediately prior to the Effective Date and no transfers shall be registered after 6.00 p.m. on that date.

 

It is further intended that, prior to the Scheme becoming effective, an application will be made for the termination of the inward secondary listing of Vivo Shares on the JSE, to take effect following the Effective Date. The last day of dealings in Vivo Shares on the Main Board of the JSE is expected to be three Business Days immediately prior to the Effective Date and no transfers shall be registered after that date.

 

It is also proposed that, following the Effective Date, Vivo shall be reregistered as a private limited

company.

 

14.  Structure of and Conditions to the Offer

It is intended that the Offer shall be effected by means of a Court-sanctioned scheme of arrangement between Vivo and the Scheme Shareholders under Part 26 of the Companies Act, although BidCo reserves the right to implement the Offer by means of a Takeover Offer with the consent of the Panel.

The purpose of the Scheme is to provide for BidCo to become the holder of the entire issued, and to be issued, ordinary share capital of Vivo excluding Vivo Shares held by the Existing Vitol Shareholders. This is to be achieved by the transfer of the Scheme Shares to BidCo, in consideration for which the Scheme Shareholders shall receive the Cash Value on the basis set out in paragraph 2 of this announcement.

The Offer shall be subject to the terms and Conditions (certain of which are summarised below) set out in Appendix I to this announcement and to the full terms to be set out in the Scheme Document and shall only become effective, if, among other things, the following events occur on or before the Long Stop Date:

 

(i)         the approval of the Scheme by a majority in number representing not less than 75 per cent. in value of the Scheme Shareholders who are on the register of members of Vivo at the Voting Record Time, present and voting (and entitled to vote), whether in person or by proxy, at the Court Meeting or any adjournment thereof (and any separate class meeting which may be required);

(ii)         the Vivo Resolutions being duly passed by Vivo Shareholders representing the requisite majority or majorities of votes cast at the General Meeting (or any adjournment thereof);

(iii)        the sanction of the Scheme by the Court (with or without modification but subject to any modification being on terms acceptable to BidCo and Vivo) and the delivery of a copy of the Court Order to the Registrar of Companies; and

(iv)        the satisfaction or waiver (by BidCo) of the Antitrust Conditions.

 

The Scheme shall lapse if:

 

·      the Court Meeting and the General Meeting are not held by the 22nd day after the expected date of such meetings to be set out in the Scheme Document in due course (or such later date (if any) as may be agreed between BidCo and Vivo);

·      the Court Hearing is not held by the 22nd day after the expected date of such hearing to be set out in the Scheme Document in due course (or such later date (if any) as may be agreed between BidCo and Vivo); or

·      the Scheme does not become effective by the Long Stop Date,

 

provided, however, that the deadlines for the timing of the Court Meeting, the General Meeting and the Court Hearing as set out above may be waived by BidCo, and the deadline for the Scheme to become effective may be extended by agreement between BidCo and Vivo.

 

The Offer is currently expected to complete and the Scheme is expected to become effective in the third quarter of 2022, subject to satisfaction (or waiver, where applicable) of the Conditions (certain of which are summarised above) set out in Appendix I. Upon the Scheme becoming effective, it shall be binding on all Scheme Shareholders, irrespective of whether or not they attended or voted at the Court Meeting or the General Meeting (and if they attended and voted, whether or not they voted in favour).

 

Further details of the Scheme, including an indicative timetable for its implementation, shall be set out in the Scheme Document which shall be published as soon as reasonably practicable and, in any event, within 28 days of this announcement (or on such later date as may be agreed by BidCo and Vivo with the consent of the Panel) and shall include notices of the Court Meeting and the General Meeting, together with the associated forms of proxy. Vivo Shareholders will be given the opportunity to vote at the Court Meeting and the General Meeting, each expected to be held as soon as reasonably practicable following the publication of the Scheme Document.

 

15.  Disclosure of Interests in Relevant Securities

In this paragraph 15, "Relevant Securities" means Vivo Shares and securities convertible into, or rights to subscribe for, options (including traded options) in respect thereof and derivatives referenced thereto.

As of the date of this announcement, BidCo has entered into irrevocable undertakings in respect of 350,952,808 Vivo Shares as described in paragraph 11. Vitol Africa B.V. and VIP Africa II B.V., which are concert parties of BidCo, hold in aggregate 456,700,930 Vivo Shares representing a 36.0 per cent. interest in Vivo.

As at the close of business on 24 November 2021 (being the last Business Day prior to the publication of this announcement), save as disclosed in this announcement, neither BidCo, nor its directors, nor so far as BidCo is aware, any persons acting in concert with it:

(a)  has an interest in, or right to subscribe for, any Relevant Securities;

(b)  has any short position (whether conditional or absolute and whether in the money or otherwise), including any short position under a derivative, any agreement to sell or any delivery obligation or right to require another person to purchase or take delivery of Relevant Securities;

(c)  has borrowed or lent (including, for these purposes, entering into any financial collateral arrangements of the kind referred to in Note 4 on Rule 4.6 of the Takeover Code) any Relevant Securities; or

(d)  has any outstanding irrevocable commitment or letter of intent with respect to Relevant Securities.

Furthermore, save as disclosed in this announcement, no arrangement exists with BidCo in relation to Relevant Securities. For these purposes, an "arrangement" includes any indemnity or option arrangement, any agreement or any understanding, formal or informal, of whatever nature, relating to Relevant Securities which may be an inducement to deal or refrain from dealing in such securities.

16.  Retention and CEO designate arrangements

Retention arrangements

For the purpose of facilitating retention of employees of the Vivo Group, Vivo and BidCo have agreed that the Vivo Group may implement certain employee retention arrangements for a number of key employees whose retention is considered critical for the business.

As part of such arrangements, BidCo have agreed that the Vivo Group may grant transaction bonuses up to a maximum aggregate value of US$1.25 million, to certain employees of the Vivo Group. 50 per cent. of any bonus will be paid at the Effective Date, with the remaining 50 per cent. paid in December 2023, save that an award whose value is US$50,000 or less will be paid in full at the Effective Date.

BidCo has also agreed that the Vivo Group may grant cash retention awards up to a maximum aggregate value of US$1.25 million, to certain employees of the Vivo Group (potentially including members of the executive committee). 50 per cent. of the retention awards will be payable six months following the Effective Date, with the remaining 50 per cent. payable on the first anniversary of the Effective Date, save that an award whose value is US$50,000 or less will be paid in full six months following the Effective Date.

No one employee may receive both the transaction bonus and the retention award. An employee will not be entitled to any payment, if they have resigned or been dismissed for serious misconduct before the payment date, unless otherwise agreed by BidCo, save that an employee who has had their employment terminated by the employer other than for serious misconduct will be paid in full upon termination.

As required by, and solely for the purpose of Rule 16.2 of the Takeover Code, J.P. Morgan and Rothschild & Co reviewed the terms of the retention arrangements together with other information deemed relevant and advised the Independent Vivo Directors that the retention arrangements are fair and reasonable so far as Vivo Shareholders are concerned. In providing their advice, J.P. Morgan and Rothschild & Co have taken into account the commercial assessment of the Independent Vivo Directors. Rothschild & Co is providing independent financial advice to the Independent Vivo Directors for the purposes of Rule 3 of the Takeover Code.

It is the current intention of BidCo to establish a new incentive scheme to be put in place by BidCo soon after the Effective Date. However, the terms and the nature of such scheme have not been discussed between the parties.

Chief executive officer designate arrangements

Separately, in connection with the appointment of the new chief executive officer designate which was announced on 9 November 2021 and is due to take effect in March 2022, BidCo agreed directly with the chief executive officer designate that in the event Vivo ceased to be a listed company following the Effective Date, and Vivo terminates his employment within the period of 24 months following the Effective Date for any reason (other than due to serious misconduct), Vivo will make a severance payment of a sum equal to:

(a)  basic salary and pension contribution (or cash in lieu) the chief executive officer designate would have received for the 24 months following the termination date; and

(b)  the cost to Vivo of providing the chief executive officer designate with private medical and life assurance benefits during that 24 month period.

17.  Overseas Vivo Shareholders

The availability of the Offer to Vivo Shareholders who are not resident in the UK may be affected by the laws and/or regulations of their relevant jurisdiction. Therefore, such persons should inform themselves about and observe any applicable legal or regulatory requirements in their jurisdiction. Further details in relation to overseas Vivo Shareholders will be set out in the Scheme Document. If you are in any doubt, you should consult your professional adviser in the relevant jurisdiction without delay.

18.  Documents on display

Copies of the following display documents required to be published pursuant to Rule 26.1 and Rule 26.2 of the Takeover Code will, by no later than 12 noon (London time) on the Business Day following the date of this announcement, be published on Vitol's and Vivo's websites at www.vitol.com and www.vivoenergy.com respectively, and will be available for inspection on such websites until the end of the Offer Period:

a)   this announcement;

b)   the irrevocable undertakings described in paragraph 11 above;

c)   the Confidentiality Agreement;

d)   the Co-operation Agreement;

e)   HSBC letter of consent;

f)    J.P. Morgan and Rothschild & Co letters of consent; and

g)   the financing documentation entered into in connection with the financing of the Offer.

Copies of further announcements and other documents in connection with the Offer will, subject to certain restrictions relating to persons resident in Restricted Jurisdictions, be made available on Vitol's and Vivo's websites by no later than 12 noon (London time) on the Business Day following the date of the relevant announcement or document, pursuant to Rule 26.1 of the Takeover Code.

The contents of the websites referred to in this announcement are not incorporated into, and do not form part of, this announcement.

19.  Requesting hard copy documents

Subject to the paragraph below, in accordance with Rule 30.3 of the Takeover Code, Vivo Shareholders, persons with information rights and participants in the Vivo Share Plans may request a hard copy of this announcement by contacting Equiniti during business hours on +44 371 384 2030 or at enquiries@equinitishareviewdealing.com.

For persons who receive a copy of this announcement in electronic form or via a website notification, a hard copy of this announcement will not be sent unless so requested. Such persons may also request that all future documents, announcements and information to be sent to them in relation to the Offer should be in hard copy form.

20.  General

BidCo reserves the right to elect, with the consent of the Panel, to implement the Offer by way of a Takeover Offer for the Vivo Shares as an alternative to the Scheme. In such event, the Takeover Offer shall be implemented on the same terms, so far as applicable, as those which would apply to the Scheme, subject to appropriate amendments, including (without limitation) an acceptance condition set at 50 per cent. plus one share of the voting rights then exercisable at a general meeting of Vivo.

Notwithstanding, BidCo has irrevocably and unconditionally agreed with the Helios Entities that it shall be required, subject to the consent of the Panel, to announce or proceed with the Takeover Offer, and to despatch the Offer Document (as applicable), in circumstances where:

·      the Scheme Document has not been posted within 28 days of the issue of this announcement (or within such longer period as BidCo, with the consent of the Panel, determines); or

·      Vivo does not convene the General Meeting or Court Meeting as required by the Scheme Document; or

·      having convened the General Meeting and/or Court Meeting Vivo indefinitely adjourns such meeting(s) such that no resolution proposed in respect of the Scheme is put to holders of ordinary shares of Vivo; or

·      the Scheme has not been approved by the necessary majority of Vivo Shareholders at the General Meeting or the Court Meeting and the Panel gives its consent; or

·      BidCo otherwise elects to exercise its right to implement the Offer by way of a Takeover Offer.

The Offer will be subject to the terms and Conditions set out in this announcement at Appendix I and to the full terms to be set out in the Scheme Document. The bases and sources of certain financial information contained in this announcement are set out in Appendix II to this announcement. A summary of the irrevocable undertakings given in relation to the Offer is contained in Appendix III to this announcement. Certain terms used in this announcement are defined in Appendix IV to this announcement.

It is expected that the Scheme Document and the forms of proxy accompanying the Scheme Document shall be published as soon as practicable and, in any event, within 28 days of this announcement. The Scheme Document and forms of proxy shall be made available to all Vivo Shareholders at no charge to them.

The Offer will be governed by English law and will be subject to the jurisdiction of the English courts. The Offer will be subject to the applicable requirements of the Takeover Code and the Listing Rules.

Please be aware that addresses, electronic addresses and certain other information provided by Vivo Shareholders, persons with information rights and other relevant persons in connection with the receipt of communications from Vivo may be provided to BidCo during the course of the Offer Period as required under Section 4 of Appendix 4 of the Takeover Code.

There are no agreements or arrangements to which BidCo is a party which relate to the circumstances in which it may or may not invoke or seek to invoke a precondition or a condition to the Offer.

There are no inducement fees or similar arrangements between BidCo and Vivo.

 

Enquiries:

BidCo                                                                           +44 20 7973 4230 / +44 7525 403796

Andrea Schlaepfer                                                                                
Head of Corporate Communications                  

HSBC (Financial adviser to BidCo)                               +44 20 7991 8888

Keith Welch

Alex Thomas

James Novelli

Joe Weaving (Corporate Broker)

Brunswick LLP (public relations adviser to BidCo)       +44 20 7404 5959

Patrick Handley                                                

 

Vivo Energy plc                                                           +44 20 3034 3735

Giles Blackham

Head of Investor Relations

Rob Foyle

Head of Communications

J.P. Morgan Cazenove                                                     +44 20 7742 4000
(Joint financial adviser and corporate broker to Vivo)

 

Dwayne Lysaght

James Janoskey

Richard Walsh

Rothschild & Co (Joint financial adviser to Vivo)           +44 20 7280 5000

John Deans

Edoardo Fassati

Numis Securities (Corporate broker to Vivo)                  +44 207 260 1000

Stuart Dickson

George Price

JSE Sponsor:

J.P. Morgan Equities South Africa Proprietary Limited

Tulchan Communications (public relations adviser to Vivo)     +44 207 353 4200         

Martin Robinson

Sunni Chauhan

Harry Cameron

 

 

Akin Gump LLP is acting as legal adviser to BidCo. Freshfields Bruckhaus Deringer LLP is acting as legal adviser to Vivo.

IMPORTANT NOTES

HSBC, which is authorised by the Prudential Regulation Authority (the "PRA") and regulated by the PRA and the Financial Conduct Authority (the "FCA") in the United Kingdom, is acting exclusively for Vitol and BidCo and no one else in connection with the Offer and will not be responsible to anyone other than Vitol and BidCo for providing the protections afforded to clients of HSBC nor for giving advice in relation to the Offer or any matter or arrangement referred to in this announcement. Neither HSBC, nor any of its group undertakings or affiliates, owes or accepts any duty, liability or responsibility whatsoever (whether direct or indirect, whether in contract, in tort, under statute or otherwise) to any person who is not a client of HSBC in connection with this announcement, any statement contained herein or otherwise. HSBC has given, and not withdrawn, its consent to the inclusion in this announcement of the references to its name in the form and context in which they appear.

J.P. Morgan Securities plc, which conducts its UK investment banking business as J.P. Morgan Cazenove ("J.P. Morgan Cazenove"), is authorised in the United Kingdom by the PRA and regulated in the United Kingdom by the PRA and the FCA. J.P. Morgan Cazenove is acting as financial adviser exclusively for Vivo and no one else in connection with the matters set out in this announcement and will not regard any other person as its client in relation to such matters and will not be responsible to anyone other than Vivo for providing the protections afforded to clients of J.P. Morgan Cazenove or its affiliates, or for providing advice in relation to any matter or arrangement referred to herein.

J.P. Morgan Equities South Africa Proprietary Limited is acting exclusively as JSE sponsor to Vivo and no one else in connection with the matters set out in this announcement, and will be subject to the requirements imposed on such a sponsor under the JSE Listings Requirements.

N.M. Rothschild & Sons Limited ("Rothschild & Co"), which is authorised and regulated by the FCA in the United Kingdom, is acting exclusively for Vivo and no one else in connection with the matters described in this announcement and will not be responsible to anyone other than Vivo for providing the protections afforded to clients of Rothschild & Co nor for providing advice in connection with any matter referred to herein. Neither Rothschild & Co nor any of its affiliates (nor their respective directors, officers, employees or agents) owes or accepts any duty, liability or responsibility whatsoever (whether direct or indirect, whether in contract, in tort, under statute or otherwise) to any person who is not a client of Rothschild & Co in connection with this announcement, any statement contained herein or otherwise.

Numis Securities Limited ("Numis"), which is authorised and regulated in the United Kingdom by the Financial Conduct Authority, is acting as Corporate Broker exclusively for Vivo and no one else in connection with the matters set out in this announcement and will not regard any other person as its client in relation to the matters in this announcement and will not be responsible to anyone other than Vivo for providing the protections afforded to clients of Numis, nor for providing advice in relation to any matter referred to herein.

This announcement is for information purposes only. It is not intended to and does not constitute, or form part of, any offer or invitation or the solicitation of any offer to sell or purchase any securities or the solicitation of any offer to otherwise acquire, subscribe for, sell or otherwise dispose of any security pursuant to the Offer or otherwise. The Offer will be made solely by the Scheme Document, which will contain the full terms and conditions of the Offer, including details of how to vote in respect of the Offer. Any vote in respect of, acceptance or other response to the Offer should be made only on the basis of the information contained in the Scheme Document read in its entirety.

It is intended that the Scheme Document containing further details of the Offer and notices of the Court Meeting and the General Meeting, together with the associated forms of proxy will be posted to Vivo Shareholders (other than to persons in a Restricted Jurisdiction) no later than 28 days after the date of this announcement (unless agreed otherwise with the Panel).

This announcement does not constitute a prospectus or prospectus equivalent document.

Overseas jurisdictions

The availability of the Offer to Vivo Shareholders who are not resident in and citizens of the United Kingdom may be affected by the laws of the relevant jurisdictions in which they are located or of which they are citizens. Persons who are not resident in the United Kingdom should inform themselves of, and observe, any applicable legal or regulatory requirements of their jurisdictions. Any failure to comply with the applicable restrictions may constitute a violation of the securities laws of any such jurisdiction. To the fullest extent permitted by applicable law, the companies and persons involved in the Offer disclaim any responsibility or liability for the violation of such restrictions by any person. Further details in relation to Overseas Shareholders will be contained in the Scheme Document.

Unless otherwise determined by BidCo or required by the Takeover Code, and permitted by applicable law and regulation, the Offer will not be made available, directly or indirectly, in, into or from a Restricted Jurisdiction where to do so would violate the laws in that jurisdiction. Copies of this announcement and any formal documentation relating to the Offer are not being, and must not be, directly or indirectly, mailed or otherwise forwarded, distributed or sent in or into or from any Restricted Jurisdiction and persons receiving such documents (including custodians, nominees and trustees) must not mail or otherwise forward, distribute or send it in or into or from any Restricted Jurisdiction. Doing so may render invalid any related purported acceptance in respect of the Offer. The Offer may not be made directly or indirectly, in or into, or by the use of mails or any means or instrumentality (including, but not limited to, facsimile, e-mail or other electronic transmission, telex or telephone) of interstate or foreign commerce of, or of any facility of a national, state or other securities exchange of any Restricted Jurisdiction and the Offer may not be capable of acceptance by any such use, means, instrumentality or facilities.

In accordance with the Takeover Code, normal United Kingdom market practice and Rule 14e-5(b) of the US Exchange Act, HSBC and its respective affiliates will continue to act as exempt principal trader in Vivo securities on the London Stock Exchange. These purchases and activities by exempt principal traders which are required to be made public in the United Kingdom pursuant to the Takeover Code will be reported to a Regulatory Information Service and will be available on the London Stock Exchange website at www.londonstockexchange.com. This information will also be publicly disclosed: (i) in the US to the extent that such information is made public in the United Kingdom, and (ii) in South Africa, on the Stock Exchange News Service of the JSE, to the extent that it is reported to a Regulatory Information Service on the London Stock Exchange's website.

This announcement has been prepared for the purpose of complying with English law, the Takeover Code, the Market Abuse Regulation (EU) no. 596/2014, the Market Abuse Regulation (EU) no. 596/2014 (as it forms part of the laws of the UK by virtue of the European Union (Withdrawal) Act 2018 (as amended)), the Disclosure Guidance and Transparency Rules, and the Listing Rules, and information disclosed may not be the same as that which would have been disclosed if this announcement had been prepared in accordance with the laws of jurisdictions outside of England and Wales.

The information contained in this announcement constitutes factual information as contemplated in section 1(3)(a) of the South African Financial Advisory and Intermediary Services Act, 37 of 2002, as amended ("Fais Act") and should not be construed as an express or implied advice, recommendation, guide or proposal that any particular transaction in respect of the Offer, is appropriate to the particular investment objectives, financial situations or needs of a shareholder or offeree, and nothing in this announcement should be construed as constituting the canvassing for, or marketing or advertising of, financial services in South Africa. BidCo is not a financial services provider licensed as such under the Fais Act.

Nothing in this announcement should be viewed, or construed, as "advice", as that term is used in the South African Financial Markets Act, 19 of 2012, as amended.

Additional information for US investors

The Offer relates to shares of a UK company and is proposed to be effected by means of a scheme of arrangement under the laws of England and Wales. A transaction effected by means of a scheme of arrangement is not subject to the tender offer rules or the proxy solicitation rules under the US Exchange Act.

Accordingly, the Offer is expected to be made subject to the disclosure and procedural requirements and practices applicable in the United Kingdom and to schemes of arrangement under the laws of England and Wales which differ from the disclosure and other requirements of the United States tender offer and proxy solicitation rules. Neither the US Securities Exchange Commission, nor any securities commission of any state of the United States, has approved the Offer, passed upon the fairness of the Offer or passed upon the adequacy or accuracy of this document. Any representation to the contrary is a criminal offence in the United States.

However, if BidCo were to elect (with the consent of the Panel) to implement the Offer by means of a takeover offer, such takeover offer shall be made in compliance with all applicable United States laws and regulations, including any applicable exemptions under the US Exchange Act. Such a takeover would be made in the United States by BidCo and no one else.

In the event that the Offer is implemented by way of a takeover offer, in accordance with normal United Kingdom practice, BidCo or its nominees, or its brokers (acting as agents), may from time to time make certain purchases of, or arrangements to purchase, shares or other securities of Vivo outside of the United States, other than pursuant to the Offer, until the date on which the Offer and/or Scheme becomes effective, lapses or is otherwise withdrawn. These purchases may occur either in the open market at prevailing prices or in private transactions at negotiated prices. Any information about such purchases or arrangements to purchase shall be disclosed as required in the UK, shall be reported to a Regulatory Information Service and shall be available on the London Stock Exchange website at www.londonstockexchange.com. This information will also be publicly disclosed in South Africa, on Stock Exchange News Service of the JSE, to the extent that it is reported to a Regulatory Information Service on the London Stock Exchange's website.

Each Vivo Shareholder is urged to consult their independent professional adviser immediately regarding the tax consequences of the Offer applicable to them, including under applicable United States state and local, as well as overseas and other, tax laws.

Financial information relating to Vivo included in this announcement and the Scheme Document has been or shall have been prepared in accordance with accounting standards applicable in the United Kingdom and may not be comparable to financial information of US companies or companies whose financial statements are prepared in accordance with generally accepted accounting principles in the United States.

Vivo is organised under the laws of a country other than the United States. Some or all of the officers and directors of Vivo, respectively, are residents of countries other than the United States. In addition, most of the assets of Vivo are located outside the United States. As a result, it may be difficult for US shareholders of Vivo to effect service of process within the United States upon Vivo or its officers or directors or to enforce against them a judgment of a US court predicated upon the federal or state securities laws of the United States.

Forward-looking statements

This announcement (including information incorporated by reference in this announcement), oral statements made regarding the Offer, and other information published by BidCo contain statements which are, or may be deemed to be, "forward-looking statements". Forward-looking statements are prospective in nature and are not based on historical facts, but rather on current expectations and projections of the management of BidCo about future events, and are therefore subject to risks and uncertainties which could cause actual results to differ materially from the future results expressed or implied by the forward-looking statements.

The forward-looking statements contained in this announcement include statements relating to the expected effects of the Offer on BidCo, the Vitol Group, the Vivo Group and Vivo (including their future prospects, developments and strategies), the expected timing and scope of the Offer and other statements other than historical facts. Often, but not always, forward-looking statements can be identified by the use of forward-looking words such as "plans", "expects" or "does not expect", "is expected", "is subject to", "budget", "projects", "strategy", "scheduled", "estimates", "forecasts", "intends", "anticipates" or "does not anticipate", or "believes", or variations of such words and phrases or statements that certain actions, events or results "may", "could", "should", "would", "might" or "will" be taken, occur or be achieved. Although BidCo believes that the expectations reflected in such forward-looking statements are reasonable, BidCo can give no assurance that such expectations will prove to be correct. By their nature, forward-looking statements involve risk and uncertainty because they relate to events and depend on circumstances that will occur in the future. There are a number of factors that could cause actual results and developments to differ materially from those expressed or implied by such forward-looking statements.

These factors include, but are not limited to: the ability to complete the Offer; the ability to obtain requisite regulatory and shareholder approvals; future market conditions; changes in general economic and business conditions; the behaviour of other market participants; the anticipated benefits from the proposed transaction not being realised as a result of changes in general economic and market conditions in the countries in which each of the Vitol Group and the Vivo Group operates; weak, volatile or illiquid capital and/or credit markets; changes in tax rates; interest rate and currency value fluctuations; the degree of competition in the geographic and business areas in which each of the Vitol Group and the Vivo Group operates; and changes in laws or in supervisory expectations or requirements. Other unknown or unpredictable factors could cause actual results to differ materially from those in the forward-looking statements. Such forward-looking statements should therefore be construed in the light of such factors. Neither BidCo, nor any persons acting in concert with it, nor any of its associates or directors, officers or advisers, provide any representation, assurance or guarantee that the occurrence of the events expressed or implied in any forward-looking statements in this announcement will actually occur. You are cautioned not to place any reliance on these forward-looking statements. Other than in accordance with its legal or regulatory obligations, BidCo is not under any obligation, and expressly disclaims any intention or obligation, to update or revise any forward-looking statements, whether as a result of new information, future events or otherwise.

No profit forecasts

Nothing in this announcement is intended, or is to be construed, as a profit forecast, profit estimate or quantified benefits statement for any period and no statement in this announcement should be interpreted to mean that earnings or earnings per share for Vivo for the current or future financial years would necessarily match or exceed the historical published earnings or earnings per share for Vivo.

Dealing and Opening Position Disclosure requirements

Under Rule 8.3(a) of the Takeover Code, any person who is interested in 1 per cent. or more of any class of relevant securities of an offeree company or of any securities exchange offeror (being any offeror other than an offeror in respect of which it has been announced that its offer is, or is likely to be, solely in cash) must make an Opening Position Disclosure following the commencement of the Offer Period and, if later, following the announcement in which any securities exchange offeror is first identified.

An Opening Position Disclosure must contain details of the person's interests and short positions in, and rights to subscribe for, any relevant securities of each of (i) Vivo and (ii) any securities exchange offeror(s). An Opening Position Disclosure by a person to whom Rule 8.3(a) applies must be made by no later than 3.30 pm (London time) on the 10th Business Day following the commencement of the Offer Period and, if appropriate, by no later than 3.30 pm (London time) on the 10th Business Day following the announcement in which any securities exchange offeror is first identified. Relevant persons who deal in the relevant securities of Vivo or of a securities exchange offeror prior to the deadline for making an Opening Position Disclosure must instead make a Dealing Disclosure.

Under Rule 8.3(b) of the Takeover Code, any person who is, or becomes, interested in 1 per cent. or more of any class of relevant securities of Vivo or of any securities exchange offeror must make a Dealing Disclosure if the person deals in any relevant securities of Vivo or of any securities exchange offeror. A Dealing Disclosure must contain details of the dealing concerned and of the person's interests and short positions in, and rights to subscribe for, any relevant securities of each of (i) Vivo and (ii) any securities exchange offeror, save to the extent that these details have previously been disclosed under Rule 8. A Dealing Disclosure by a person to whom Rule 8.3(b) applies must be made by no later than 3.30 pm (London time) on the Business Day following the date of the relevant dealing.

If two or more persons act together pursuant to an agreement or understanding, whether formal or informal, to acquire or control an interest in relevant securities of an offeree company or a securities exchange offeror, they will be deemed to be a single person for the purpose of Rule 8.3 of the Takeover Code.

Opening Position Disclosures must also be made by Vivo and by any offeror and Dealing Disclosures must also be made by Vivo, by any offeror and by any persons acting in concert with any of them (see Rules 8.1, 8.2 and 8.4 of the Takeover Code).

Details of the offeree and offeror companies in respect of whose relevant securities Opening Position Disclosures and Dealing Disclosures must be made can be found in the Disclosure Table on the Panel's website at www.thetakeoverpanel.org.uk, including details of the number of relevant securities in issue, when the Offer Period commenced and when any offeror was first identified. You should contact the Panel's Market Surveillance Unit on +44 (0) 20 7638 0129 if you are in any doubt as to whether you are required to make an Opening Position Disclosure or a Dealing Disclosure.

Purchases outside the Offer

In the event the Offer is implemented by way of a Takeover Offer, in accordance with normal UK practice and pursuant to Rule 14e-5(b) of the US Exchange Act, BidCo or its nominees or brokers (acting as agents) may purchase Vivo Shares (outside of the United States) otherwise than under the Offer, such as in the open market or through privately negotiated purchases. Such purchases shall comply with the Takeover Code and the rules of the London Stock Exchange.

Publication on website

A copy of this announcement and other documents in connection with the Offer will, subject to certain restrictions relating to persons resident in Restricted Jurisdictions, be made available on Vitol's and Vivo's websites at www.vitol.com and www.vivoenergy.com by no later than 12 noon (London time) on the Business Day following the date of the relevant announcement or document, pursuant to Rule 26.1 of the Takeover Code. The contents of the website referred to in this announcement are not incorporated into, and do not form part of, this announcement.

Requesting hard copy documents

Subject to the paragraph below, in accordance with Rule 30.3 of the Takeover Code, Vivo Shareholders, persons with information rights and participants in the Vivo Share Plans may request a hard copy of this announcement by contacting Equiniti, during business hours on +44 371 384 2030 or at enquiries@equinitishareviewdealing.com.

For persons who receive a copy of this announcement in electronic form or via a website notification, a hard copy of this announcement will not be sent unless so requested. Such persons may also request that all future documents, announcements and information to be sent to you in relation to the Offer should be in hard copy form.

Information relating to Vivo Shareholders

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

Right to switch to a takeover offer

BidCo reserves the right to elect, with the consent of the Panel, to implement the Offer by way of a takeover offer under Part 28 of the Companies Act, as an alternative to the Scheme. In such an event, the Takeover Offer would be implemented on the same terms or, if BidCo so decides, on such other terms being no less favourable, so far as applicable, as those which would apply to the Offer, subject in each case to appropriate amendments to reflect the change in method of effecting the Offer.

Notwithstanding, BidCo has irrevocably and unconditionally agreed with the Helios Entities that it shall be required, with the consent of the Panel, to announce or proceed with the Takeover Offer, and to despatch the Offer Document (as applicable), in circumstances where:

·      the Scheme Document has not been posted within 28 days of the issue of this announcement (or within such longer period as BidCo, with the consent of the Panel, determines); or

·      Vivo does not convene the General Meeting or Court Meeting as required by the Scheme Document; or

·      having convened the General Meeting and/or Court Meeting Vivo indefinitely adjourns such meeting(s) such that no resolution proposed in respect of the Scheme is put to holders of ordinary shares of Vivo; or

·      the Scheme has not been approved by the necessary majority of Vivo Shareholders at the General Meeting or the Court Meeting and the Panel gives its consent; or

·      BidCo otherwise elects to exercise its right to implement the Offer by way of a Takeover Offer.

Rounding

Certain figures included in this announcement have been subjected to rounding adjustments. Accordingly, figures shown for the same category presented in different tables may vary slightly and figures shown as totals in certain tables may not be an arithmetic aggregation of figures that precede them.

Rule 2.9 Disclosure

In accordance with Rule 2.9 of the Takeover Code, Vivo confirms that as at the date of this announcement, it has in issue and admitted to trading on the Main Market of the London Stock Exchange 1,266,941,899 ordinary shares of US$0.50 each. The International Securities Identification Number of the ordinary shares is GB00BDGT2M75.

 



 

APPENDIX I

CONDITIONS TO AND CERTAIN FURTHER TERMS OF THE OFFER

PART A
CONDITIONS TO THE OFFER AND THE SCHEME

1.         The Offer is conditional upon the Scheme or the Takeover Offer becoming unconditional and effective, subject to the Takeover Code, by no later than the Long Stop Date.

2.         The Scheme shall be subject to the following conditions:

(i)        

i. its approval by a majority in number representing not less than 75 per cent. in value of the Scheme Shareholders who are on the register of members of Vivo at the Voting Record Time, present and voting (and entitled to vote), whether in person or by proxy, at the Court Meeting or any adjournment thereof (and any separate class meeting which may be required); and

ii. such Court Meeting being held on or before the 22nd day after the expected date of the Court Meeting to be set out in the Scheme Document in due course (or such later date (if any) as may be agreed by BidCo and Vivo and, if required, the Court may allow);

(ii)        

i. the Vivo Resolutions being duly passed by at the General Meeting or any adjournment thereof; and

ii. such General Meeting being held on or before the 22nd day after the expected date of the General Meeting to be set out in the Scheme Document in due course (or such later date (if any) as may be agreed by BidCo and Vivo and, if required, the Court may allow); and

(iii)       

i. the Court Hearing being held on or before the 22nd day after the expected date of the Court Hearing to be set out in the Scheme Document in due course (or such later date (if any) as may be agreed by BidCo and Vivo and, if required, the Court may allow); and

ii. the sanction of the Scheme by the Court (with or without modification but subject to any modification being on terms acceptable to Vivo and BidCo) and the delivery of a copy of the Court Order to the Registrar of Companies.

In addition, the Offer shall be conditional upon the following Conditions, and accordingly, the necessary actions to make the Scheme effective will not be taken unless such Conditions (as amended, if appropriate) have been satisfied, or where relevant, waived:

Antitrust Conditions

3.         a merger notification to the Botswana Competition and Consumer Authority (the "Botswana Competition Authority") for the acquisition of control of Vivo by BidCo having been made and either (i) all applicable suspensions and other relevant time periods (including any extensions thereof) in relation to such notification have expired, lapsed or been terminated under the Botswana Competition Act 2018, or (ii) the Botswana Competition Authority's approval has been obtained unconditionally or subject to such conditions as are reasonably acceptable to BidCo;

4.         a merger notification to the Cape Verde National Directorate for Trade, Industry and Energy for the acquisition of control of Vivo by BidCo having been made and either (i) all applicable suspensions and other relevant time periods (including any extensions thereof) in relation to such notification have expired, lapsed or been terminated under the Decree Law No. 53 of 2003, or (ii) the Minister for Trade, Industry and Energy's approval has been obtained unconditionally or subject to such conditions as are reasonably acceptable to BidCo;

5.         a merger notification to the Central African Economic and Monetary Community ("CEMAC") Community Competition Commission for the acquisition of control of Vivo by BidCo having been made and either (i) all applicable suspensions and other relevant time periods (including any extensions thereof) in relation to such notification have expired, lapsed or been terminated under the CEMAC Regulation No. 06/19-UEAC-639-CM-33, of 7 April 2019, or (ii) the approval of the CEMAC Community Competition Commission has been obtained unconditionally or subject to such conditions as are reasonably acceptable to BidCo;

6.         a merger notification to the Autorité de la Concurrence (the "French Competition Authority") for the acquisition of control of Vivo by BidCo having been made and the approval of the French Competition Authority has been obtained (or is deemed to have been obtained) under Article L 430-5 or Article L 430-7 of the French Commercial Code either unconditionally or subject to such conditions as are reasonably acceptable to BidCo;

7.         a merger notification to the Conseil de la Concurrence (the "Moroccan Competition Council") for the acquisition of control of Vivo by BidCo having been made and the approval of the Moroccan Competition Council has been obtained (or is deemed to have been obtained) under Article 15 or Article 17 of Law No. 104-12 of 30 June 2014 either unconditionally or subject to such conditions as are reasonably acceptable to BidCo;

8.         a merger notification to the Mozambican Autoridade Reguladora da Concorrência (the "ARC") for the acquisition of control of Vivo by BidCo having been made in accordance with applicable law or practice and either (i) all applicable suspensions and other relevant time periods (including any extensions thereof) in relation to such notification have expired, lapsed or been terminated under Mozambican Law No. 10/2013, dated 11 April 2013 and the regulations promulgated by the adoption of Decree 97/2014 of 31 December 2014, or (ii) the ARC's approval has been obtained either unconditionally or subject to such conditions as are reasonably acceptable to BidCo;

9.         a merger notification to the Namibian Competition Commission for the acquisition of control of Vivo by BidCo having been made and either (i) all applicable suspensions and other relevant time periods (including any extensions thereof) in relation to such notification have expired, lapsed or been terminated under the Namibian Competition Act, No. 2 of 2003, or (ii) the Namibian Competition Commission's approval has been obtained either unconditionally or subject to such conditions as are reasonably acceptable to BidCo;

10.        a merger notification to the Tanzania Fair Competition Commission (the "Tanzanian Competition Authority") for the acquisition of control of Vivo by BidCo having been made and either (i) all applicable suspensions and other relevant time periods (including any extensions thereof) in relation to such notification have expired, lapsed or been terminated under the Tanzanian Fair Competition Act, No. 8 of 2003, or (ii) the Tanzanian Competition Authority's approval has been obtained either unconditionally or subject to such conditions as are reasonably acceptable to BidCo;

11.        a merger notification to the Tunisian Minister of Trade for the acquisition of control of Vivo by BidCo having been made in accordance with applicable law or practice and either (i) the approval of the Tunisian Minister of Trade has been obtained under Article 10 of Law No. 2015-36 of 15 September 2015 unconditionally or subject to such conditions as are reasonably acceptable to BidCo, or (ii) tacit approval of the Tunisian Minister of Trade is deemed to have been obtained under Article 9 of Law No. 2015-36 of 15 September 2015);

12.        a merger notification to the South African Competition Commission (the "South African Competition Authority") for the acquisition of control of Vivo by BidCo having been made and either (i) all applicable suspensions and other relevant time periods (including any extensions thereof) in relation to such notification have expired, lapsed or been terminated under the Competition Act, No. 89 of 1998 (as amended), or (ii) the South African Competition Authority's approval has been obtained unconditionally or subject to such conditions as are reasonably acceptable to BidCo;

13.        a merger notification to the West African Economic and Monetary Union Commission (the "WAEMU Commission") for the acquisition of control of Vivo by BidCo having been made and the WAEMU Commission having acknowledged receipt of such notification in writing;

14.        a merger notification to the Common Market for Eastern and Southern Africa Competition Commission (the "COMESA Competition Commission") for the acquisition of control of Vivo by BidCo having been made in accordance with applicable law or practice and the COMESA Competition Commission having acknowledged receipt of such notification in writing;

Certain matters arising as a result of any arrangement, agreement etc.

15.        save as disclosed, there being no provision of any agreement, arrangement, licence, permit or other instrument to which any member of the Wider Vivo Group is a party or by or to which any such member or any of its assets may be bound, entitled or subject, or any circumstance which in consequence of the Offer or the proposed Offer of any shares or other securities (or equivalent) in Vivo or because of a change in the control or management of Vivo or otherwise, could or might result in any of the following to an extent which is material and adverse in the context of the Vivo Group, or the Wider Vitol Group, in either case taken as a whole, or in the context of the Offer:

(i)         any moneys borrowed by or any other indebtedness or liabilities (actual or contingent) of, or grant available to any such member, being or becoming repayable or capable of being declared repayable immediately or earlier than their or its stated maturity date or repayment date or the ability of any such member to borrow moneys or incur any indebtedness being withdrawn or inhibited or being capable of becoming or being withdrawn or inhibited;

(ii)         any such agreement, arrangement, licence, permit or instrument or the rights, liabilities, obligations or interests of any such member thereunder being terminated or adversely modified or affected or any obligation or liability arising or any action being taken or arising thereunder;

(iii)        any asset or interest of any such member being or failing to be disposed of or charged or ceasing to be available to any such member or any right arising under which any such asset or interest could be required to be disposed of or charged or could cease to be available to any such member otherwise than in the ordinary course of business;

(iv)        the creation or enforcement of any mortgage, charge or other security interest over the whole or any part of the business, property, assets or interest of any such member;

(v)        the rights, liabilities, obligations or interests of any such member, or the business of any such member with, any person, firm, company or body (or any arrangement or arrangements relating to any such interest or business) being terminated, adversely modified or affected;

(vi)        the value of any such member or its financial or trading position or prospects being prejudiced or adversely affected;

(vii)       any such member ceasing to be able to carry on business under any name under which it presently does so; or

(viii)      the creation or acceleration of any liability, actual or contingent, by any such member (including any material tax liability or any obligation to obtain or acquire any material authorisation, notice, waiver, concession, agreement or exemption from any third party or any person) other than trade creditors or other liabilities incurred in the ordinary course of business or in connection with the Offer,

and no event having occurred which, under any provision of any agreement, arrangement, licence, permit or other instrument to which any member of the Wider Vivo Group is a party or by or to which any such member or any of its assets may be bound, entitled or subject, would or might reasonably be expected to result in any of the events or circumstances as are referred to in sub-paragraphs (i) to (viii) of this Condition;

Certain events occurring since Last Accounts Date

16.        save as disclosed, no member of the Wider Vivo Group having, since the Last Accounts Date:

(i)         save as between Vivo and wholly-owned subsidiaries of Vivo or for Vivo Shares issued under or pursuant to the exercise of options and vesting of awards granted under the Vivo Share Plans, issued or agreed to issue, authorised or proposed the issue of additional shares of any class;

(ii)         save as between Vivo and wholly-owned subsidiaries of Vivo or for the grant of options and awards and other rights under the Vivo Share Plans, issued or agreed to issue, authorised or proposed the issue of securities convertible into shares of any class or rights, warrants or options to subscribe for, or acquire, any such shares or convertible securities;

(iii)        other than to another member of the Vivo Group and save for the two dividends already paid by Vivo in 2021 (declared March 2021 and July 2021), prior to completion of the Offer, recommended, declared, paid or made any dividend or other distribution payable in cash or otherwise or made any bonus issue, other than: (i) either the 2021 Final Dividend or the 2021 Special (Final) Dividend; and (ii) either the 2022 Interim Dividend or the 2022 Special Dividend;

(iv)        save for intra-Vivo Group transactions, merged or demerged with any body corporate or acquired or disposed of or transferred, mortgaged or charged or created any security interest over any assets or any right, title or interest in any asset (including shares and trade investments) or authorised or proposed or announced any intention to propose any merger, demerger, disposal, transfer, mortgage, charge or security interest, in each case, other than in the ordinary course of business and, in each case, to the extent which is material in the context of the Vivo Group taken as a whole;

(v)        save for intra-Vivo Group transactions, made or authorised or proposed or announced an intention to propose any change in its loan capital in each case, to the extent which is material in the context of the Vivo Group taken as a whole;

(vi)        issued, authorised or proposed the issue of, or made any change in or to, any debentures or (save for intra-Vivo Group transactions), save in the ordinary course of business, incurred or increased any indebtedness or become subject to any contingent liability;

(vii)       purchased, redeemed or repaid or announced any proposal to purchase, redeem or repay any of its own shares or other securities or reduced or, save in respect to the matters mentioned in sub-paragraphs (i) or (ii) above, made any other change to any part of its share capital in each case, to the extent which is material in the context of the Vivo Group taken as a whole;

(viii)      save for intra-Vivo Group transactions, implemented, or authorised, proposed or announced its intention to implement, any reconstruction, merger, demerger, amalgamation, scheme, commitment or other transaction or arrangement otherwise than in the ordinary course of business;

(ix)        entered into or varied or authorised, proposed or announced its intention to enter into or vary any contract, transaction or commitment (whether in respect of capital expenditure or otherwise) which is of a long term, onerous or unusual nature or magnitude or which involves or could involve an obligation of such a nature or magnitude other than in the ordinary course of business, in each case, to the extent which is material in the context of the Vivo Group taken as a whole;

(x)        (other than in respect of a member which is dormant and was solvent at the relevant time) taken any corporate action or steps or had any legal proceedings started or threatened against it in relation to the suspension of payments, a moratorium of any indebtedness, its winding-up, dissolution or reorganisation or for the appointment of a receiver, administrative receiver, administrator, manager, trustee or similar officer of all or any part of its assets or revenues or any analogous proceedings in any jurisdiction or appointed any analogous person in any jurisdiction or had any such person appointed, in each case, to the extent which is material in the context of the Vivo Group taken as a whole;

(xi)        entered into any contract, transaction or arrangement which would be restrictive on the business of any member of the Wider Vivo Group or the Wider Vitol Group other than of a nature and extent which is normal in the context of the business concerned;

(xii)       waived or compromised any claim otherwise than in the ordinary course of business which is material in the context of the Vivo Group taken as a whole;

(xiii)      made any material alteration to its memorandum or articles of association or other incorporation documents;

(xiv)      been unable, or admitted in writing that it is unable, to pay its debts or commenced negotiations with one or more of its creditors with a view to rescheduling or restructuring any of its indebtedness, or having stopped or suspended (or threatened to stop or suspend) payment of its debts generally or ceased or threatened to cease carrying on all or a substantial part of its business;

(xv)       entered into any contract, commitment, arrangement or agreement otherwise than in the ordinary course of business or passed any resolution or made any offer (which remains open for acceptance) with respect to or announced any intention to, or proposed to, effect any of the transactions, matters or events referred to in this Condition 16;

(xvi)      made or agreed or consented to any change to:

i. the terms of the trust deeds constituting the pension scheme(s) established by any member of the Wider Vivo Group for its directors, employees or their dependents;

ii. the contributions payable to any such scheme(s) or to the benefits which accrue or to the pensions which are payable thereunder;

iii.            the basis on which qualification for, or accrual or entitlement to, such benefits or pensions are calculated or determined; or

iv.            the basis upon which the liabilities (including pensions) of such pension schemes are funded, valued or made,

in each case, to the extent which is material in the context of the Vivo Group taken as a whole;

(xvii)     proposed, agreed to provide or modified the terms of any of the Vivo Share Plans or other benefit constituting a material change relating to the employment or termination of employment of a material category of persons employed by the Wider Vivo Group or which constitutes a material change to the terms or conditions of employment of any senior employee of the Wider Vivo Group, save as agreed by the Panel (if required) and by BidCo, or entered into or changed the terms of any contract with any director or senior executive;

(xviii)    taken (or agreed or proposed to take) any action which requires, or would require, the consent of the Panel or the approval of Vivo Shareholders in general meeting in accordance with, or as contemplated by, Rule 21.1 of the Takeover Code;

(xix)      entered into or varied in a material way the terms of, any contracts, agreement or arrangement with any of the directors or senior executives of any members of the Wider Vivo Group; or

(xx)       waived or compromised any claim which is material in the context of the Vivo Group taken as a whole, otherwise than in the ordinary course;

No adverse change, litigation or regulatory enquiry

17.        save as disclosed, since the Last Accounts Date:

(i)         no adverse change or deterioration having occurred in the business, assets, financial or trading position or profits or prospects or operational performance of any member of the Wider Vivo Group which, in any such case, is material in the context of the Vivo Group taken as a whole and no circumstances have arisen which would or might reasonably be expected to result in such adverse change or deterioration;

(ii)         no litigation, arbitration proceedings, prosecution or other legal proceedings to which any member of the Wider Vivo Group is or may become a party (whether as a plaintiff, defendant or otherwise) and no enquiry, review or investigation by, or complaint or reference to, any third party or other investigative body against or in respect of any member of the Wider Vivo Group having been instituted, announced, implemented or threatened by or against or remaining outstanding in respect of any member of the Wider Vivo Group which in any such case has had or might reasonably be expected to have an adverse effect on the Vivo Group taken as a whole or in the context of the Offer;

(iii)        no contingent or other liability of any member of the Wider Vivo Group having arisen or become apparent to BidCo or increased which has had or might reasonably be expected to have an adverse effect on the Vivo Group taken as a whole; or in the context of the Offer;

(iv)        no enquiry or investigation by, or complaint or reference to, any third party having been threatened, announced, implemented, instituted by or remaining outstanding against or in respect of any member by or the Wider Vivo Group which in any case is material in the context of the Vivo Group taken as a whole;

(v)        no member of the Wider Vivo Group having conducted its business in breach of any applicable laws and regulations and which is material in the context of the Vivo Group as a whole or material in the context of the Offer; and

(vi)        no steps having been taken which are likely to result in the withdrawal, cancellation, termination or modification of any licence or permit held by any member of the Wider Vivo Group which is necessary for the proper carrying on of its business and the withdrawal, cancellation, termination or modification of which has had, or would reasonably be expected to have, an adverse effect on the Vivo Group taken as a whole;

No discovery of certain matters

18.        save as disclosed, the Vitol Group not having discovered:

(i)         that any financial, business or other information concerning the Wider Vivo Group as contained in the information publicly disclosed at any time by or on behalf of any member of the Wider Vivo Group is materially misleading, contains a material misrepresentation of fact or omits to state a fact necessary to make that information not misleading and which was not subsequently corrected before the date of this Announcement by disclosure either publicly or otherwise to the BidCo or its professional advisers, in each case, to the extent which is material in the context of the Vivo Group taken as a whole;

(ii)         that any member of the Wider Vivo Group or partnership, company or other entity in which any member of the Wider Vivo Group has a significant economic interest and which is not a subsidiary undertaking of Vivo, is subject to any liability (contingent or otherwise) which is not disclosed in the Vivo Accounts, in each case, to the extent which is material in the context of the Vivo Group taken as a whole; or

(iii)        any information which affects the import of any information disclosed at any time by or on behalf of any member of the Wider Vivo Group and which is material in the context of the Vivo Group taken as a whole;

19.        save as disclosed, the Vitol Group not having discovered that:

(i)         any past or present member of the Wider Vivo Group has failed to comply with any and/or all applicable legislation or regulation, of any jurisdiction with regard to the use, treatment, handling, storage, carriage, disposal, spillage, release, discharge, leak or emission of any waste or hazardous substance or any substance likely to impair the environment or harm human health or animal health or otherwise relating to environmental matters or the health and safety of humans, or that there has otherwise been any such use, treatment, handling, storage, carriage, disposal, spillage, release, discharge, leak or emission (whether or not the same constituted a non-compliance by any person with any such legislation or regulations, and wherever the same may have taken place) any of which storage, carriage, disposal, spillage, release, discharge, leak or emission would be likely to give rise to any liability (actual or contingent) or cost on the part of any member of the Wider Vivo Group and which is material in the context of the Vivo Group taken as a whole;

(ii)         there is, or is likely to be, for any reason whatsoever, any liability (actual or contingent) of any past or present member of the Wider Vivo Group to make good, remediate, repair, reinstate or clean up any property or any controlled waters now or previously owned, occupied, operated or made use of or controlled by any such past or present member of the Wider Vivo Group (or on its behalf) or by any person for which a member of the Wider Vivo Group is or has been responsible, or in which any such member may have or previously have had or be deemed to have had an interest, under any environmental legislation, regulation, notice, circular or order of any third party and which is material in the context of the Vivo Group taken as a whole or the Offer;

(iii)        circumstances exist (whether as a result of the making of the Offer or otherwise) which would be reasonably likely to lead to any third party instituting, or whereby any member of the Wider Vitol Group or any present or past member of the Wider Vivo Group would be likely to be required to institute, an environmental audit or take any other steps which would in any such case be reasonably likely to result in any liability (whether actual or contingent) to improve, modify existing or install new plant, machinery or equipment or carry out changes in the processes currently carried out or make good, remediate, repair, re-instate or clean up any land or other asset currently or previously owned, occupied or made use of by any past or present member of the Wider Vivo Group (or on its behalf) or by any person for which a member of the Wider Vivo Group is or has been responsible, or in which any such member may have or previously have had or be deemed to have had an interest which is material in the context of the Vivo Group taken as a whole or the Offer; or

(iv)        circumstances exist whereby a person or class of persons would be likely to have any claim or claims in respect of any product or process of manufacture or materials used therein currently or previously manufactured, sold or carried out by any past or present member of the Wider Vivo Group which claim or claims would be likely, materially and adversely, to affect any member of the Wider Vivo Group and which is material in the context of the Vivo Group taken as a whole or the Offer; and

Anti-corruption, economic sanctions, criminal property and money laundering

20.        save as disclosed, the Vitol Group not having discovered that:

(i)         (A) any past or present member, director, officer or employee of the Wider Vivo Group is or has at any time engaged in any activity, practice or conduct which would constitute an offence under the Bribery Act 2010, the US Foreign Corrupt Practices Act of 1977 or any other applicable anti-corruption or anti-bribery law, rule or regulation or any other applicable law, rule, or regulation concerning improper payments or kickbacks or (B) any person that performs or has performed services for or on behalf of the Wider Vivo Group is or has at any time engaged in any activity, practice or conduct in connection with the performance of such services which would constitute an offence under the Bribery Act 2010, the US Foreign Corrupt Practices Act of 1977 or any other applicable anti-corruption or anti-bribery law, rule or regulation or any other applicable law, rule, or regulation concerning improper payments or kickbacks; or

(ii)         any asset of any member of the Wider Vivo Group constitutes criminal property as defined by section 340(3) of the Proceeds of Crime Act 2002 (but disregarding paragraph (b) of that definition) or proceeds of crime under any other applicable law, rule, or regulation concerning money laundering or proceeds of crime or any member of the Wider Vivo Group is found to have engaged in activities constituting money laundering under any applicable law, rule, or regulation concerning money laundering; or

(iii)        any past or present member, director, officer or employee of the Wider Vivo Group, or any other person for whom any such person may be liable or responsible, is or has engaged in any conduct which would violate applicable economic sanctions or dealt with, made any investments in, made any funds or assets available to or received any funds or assets from:

i. any government, entity or individual in respect of which US, UK or European Union persons, or persons operating in those territories, are prohibited from engaging in activities or doing business, or from receiving or making available funds or economic resources, by US, UK or European Union laws or regulations, including the economic sanctions administered by the United States Office of Foreign Assets Control, or HMRC; or

ii. any government, entity or individual targeted by any of the economic sanctions of the United Nations, the United States, the United Kingdom, the European Union or any of its member states, save that this shall not apply if and to the extent that it is or would be unenforceable by reason of breach of any applicable Blocking Law; or

(iv)        any past or present member, director, officer or employee of the Wider Vivo Group, or any other person for whom any such person may be liable or responsible:

i. has engaged in conduct which would violate any relevant anti-terrorism laws, rules, or regulations, including but not limited to the U.S. Anti-Terrorism Act;

ii. has engaged in conduct which would violate any relevant anti-boycott law, rule, or regulation or any applicable export controls, including but not limited to the Export Administration Regulations administered and enforced by the U.S. Department of Commerce or the International Traffic in Arms Regulations administered and enforced by the U.S. Department of State;

iii.            has engaged in conduct which would violate any relevant laws, rules, or regulations concerning human rights, including but not limited to any law, rule, or regulation concerning false imprisonment, torture or other cruel and unusual punishment, or child labour; or

iv.            is debarred or otherwise rendered ineligible to bid for or to perform contracts for or with any government, governmental instrumentality, or international organisation or found to have violated any applicable law, rule, or regulation concerning government contracting or public procurement; or

(v)        any member of the Wider Vivo Group is or has been engaged in any transaction which would cause the Vitol Group to be in breach of any law or regulation upon its Offer of Vivo, including but not limited to the economic sanctions of the United States Office of Foreign Assets Control, or HMRC, or any other relevant government authority.

 



 

PART B
FURTHER TERMS, WAIVER AND INVOCATION OF THE CONDITIONS

1.         BidCo reserves the right to waive, in whole or in part, all or any of the Conditions set out in Part A of this Appendix I above, except for Conditions 1, 2(i)i, 2(ii)i and 2(iii)ii, which cannot be waived. The Offer will be subject to the satisfaction (or waiver, if permitted) of the Conditions set out in this Appendix I and to the full terms and conditions which will be set out in the Scheme Document and such further terms as may be required to comply with the Takeover Code and applicable law.

2.         If any of Conditions 2(i)ii, 2(ii)ii or 2(iii)i are not satisfied by the relevant deadline specified in the relevant Condition, BidCo shall make an announcement by 8:00 a.m. on the Business Day following such deadline confirming whether it has invoked the relevant Condition, waived the relevant deadlines or agreed with Vivo to extend the relevant deadline.

3.         BidCo shall be under no obligation to waive (if capable of waiver), to determine to be or remain satisfied or to treat as satisfied any of Conditions 1 to 20 (inclusive) by a date earlier than the latest date specified above for the fulfilment of the relevant Condition, notwithstanding that the other Conditions to the Offer may at such earlier date have been waived or fulfilled and that there are at such earlier date no circumstances indicating that any such Condition(s) may not be capable of fulfilment.

4.         Under Rule 13.5(a) of the Takeover Code, except as set out in paragraph 6 of Part B, BidCo may not invoke a Condition to the Offer so as to cause the Offer not to proceed, to lapse or to be withdrawn unless the circumstances which give rise to the right to invoke the Condition are of material significance to BidCo in the context of the Offer.

5.         BidCo may only invoke a condition that is subject to Rule 13.5(a) with the consent of the Panel and any condition that is subject to Rule 13.5(a) may be waived by BidCo.

6.         Conditions 1, 2(i)i, 2(ii)i and 2(iii)ii are not subject to Rule 13.5(a) of the Takeover Code.

7.         If BidCo is required by the Panel to make an offer or offers for Vivo Shares under the provisions of Rule 9 of the Takeover Code, BidCo may make such alterations to the Conditions as are necessary to comply with the provisions of that Rule.

8.         Each of the Conditions shall be regarded as a separate Condition and shall not be limited by reference to any other Condition.



 

9.         Vivo Shares will be acquired by BidCo pursuant to the Offer fully paid with full title guarantee and free from all liens, charges, encumbrances, equitable interests, pre-emption rights and other interests and rights of whatsoever nature and together with all rights now or hereafter attaching thereto, including the right to receive and retain in full all dividends and other distributions (if any) declared, made or paid or becomes payable after the date of this announcement other than, in accordance with paragraphs 10 and 11 of Part B below, (i) either the 2021 Final Dividend or the 2021 Special (Final) Dividend; and (ii) either the 2022 Interim Dividend or the 2022 Special Dividend.

10.        BidCo reserves the right (without prejudice to any right of BidCo, with the consent of the Panel, to invoke the Condition set out in paragraph 16(iii) of Part A of this Appendix I) to reduce the Consideration by the amount of any dividend, or other distribution or return of value, which is declared, made or paid or becomes payable by Vivo to the holders of Vivo Shares on or after the date of this announcement, but excluding:

(i)         the 2021 Final Dividend (or, if applicable, the 2021 Special (Final) Dividend); and

(ii)         either:

i. the 2022 Interim Dividend, if the 2022 Interim Dividend Record Date would or is reasonably expected to occur prior to the Effective Date; or

ii. the 2022 Special Dividend, if the Effective Date would or is reasonably expected to occur prior to the 2022 Interim Dividend Record Date.

11.        In the event a Vivo Dividend exceeds the relevant Agreed Amount, BidCo reserves the right to reduce the Consideration by an amount equal to the difference between that Vivo Dividend and the relevant Agreed Amount. The Helios Entities have agreed to waive the right to receive the 2022 Special Dividend if the 2022 Special Dividend is announced, declared, made or paid or becomes payable.

12.        If (but only to the extent) BidCo exercises the right to reduce the Consideration under paragraph 10 or 11 of Part B in respect of a dividend or other distribution or return of value (and subject to the limitations in paragraphs 10 and 11 Part B), Vivo Shareholders will be entitled to receive and retain that dividend (or portion of the dividend) or other distribution or return of value. Any exercise by BidCo of the rights referred to in this paragraph shall be the subject of an announcement and, for the avoidance of doubt, shall not constitute a revision or variation of the terms of the Offer.

13.        The Offer will comply with the applicable rules and regulations of the London Stock Exchange and the Takeover Code. The Offer and any acceptances thereunder will be governed by English law and will be subject to the jurisdiction of the English Courts.

14.        The availability of the Offer to persons not resident in the United Kingdom may be affected by the laws of the relevant jurisdictions. Persons who are not resident in the United Kingdom should inform themselves about and observe any applicable requirements.

15.        The Offer will not be made, directly or indirectly, in or into, or by use of the mails of, or by any means or instrumentality (including, without limitation, facsimile transmission, telex, telephone, internet or e-mail) of interstate or foreign commerce of, or of any facility of a national securities exchange of, any Restricted Jurisdiction and the Offer will not be capable of acceptance by any such use, means, instrumentality or facility or from within, any Restricted Jurisdiction.

 



 

Appendix II

Bases of Calculation and Sources of Information

In this announcement, unless otherwise stated or the context otherwise requires, the bases of calculation and sources of information are used as described below:

1.         Unless otherwise stated, financial information relating to Vivo has been extracted or derived (without any adjustment) from the Vivo Accounts.

2.         The Cash Value values the entire issued and to be issued share capital of Vivo at approximately US$2.3 billion on the basis of 1,266,941,899 Vivo Shares in issue on 24 November 2021.

3.         The Variable Cash Value values the entire issued and to be issued share capital of Vivo at a minimum of approximately US$2.3 billion and at a maximum of approximately US$2.3 billion on the basis of 1,266,941,899 Vivo Shares in issue on 24 November 2021.

4.         The International Securities Identification Number for Vivo Shares is GB00BDGT2M75.

5.         Unless otherwise stated, all Closing Prices have been derived from the London Stock Exchange Daily Official List (SEDOL).

 



 

Appendix III

Details of irrevocable undertakings

Irrevocables in respect of the Helios Entities

The following Helios Entities, who have an interest in Vivo Shares, have given irrevocable undertakings to vote in favour of the Scheme at the Court Meeting and the Vivo Resolutions to be proposed at the General Meeting (or, if relevant, accept the Takeover Offer) in respect of their Vivo Shares:

Name

Number of Vivo Shares

Percentage of Vivo Shares in issue on 24 November 2021 (being the last practicable date before the date of this Announcement)

HIP Oils Mauritius Ltd

306,143,746

24.16%

Helios Holdings Ltd

25,724,661

2.03%

Helios Fairfax Partners Corporation

5,734,089

0.45%

Baclaud Investments Ltd*

3,282,508

0.26%

Dover Investment Holdings Limited*

2,282,508

0.18%

Total

343,167,512

27.09%


*Family trusts of which Babatunde Soyoye and Tope Lawani, the co-founders of Helios, are respectively the controllers and principal beneficiaries.

Pursuant to such irrevocable undertakings, the Helios Entities have irrevocably agreed to waive all right and entitlement to receive and retain, in respect of their entire holding of Vivo Shares, the 2022 Special Dividend if it is announced, declared, made or paid or becomes payable. For the avoidance of doubt, the Helios Entities have not waived their right to receive either the 2021 Final Dividend (or if applicable the 2021 Special (Final) Dividend) or the 2022 Interim Dividend.

In addition, BidCo irrevocably and unconditionally agreed that it shall be required (subject to the consent of the Panel) to announce or proceed with the Takeover Offer, and to despatch the Offer Document (as applicable), in circumstances where:

·      the Scheme Document has not been posted within 28 days of the issue of this announcement (or within such longer period as BidCo, with the consent of the Panel, determines); or

·      Vivo does not convene the General Meeting or Court Meeting as required by the Scheme Document; or

·      having convened the General Meeting and/or Court Meeting Vivo indefinitely adjourns such meeting(s) such that no resolution proposed in respect of the Scheme is put to holders of ordinary shares of Vivo; or

·      the Scheme has not been approved by the necessary majority of Vivo Shareholders at the General Meeting or the Court Meeting and the Panel gives its consent; or

·      BidCo otherwise elects to exercise its right to implement the Offer by way of a Takeover Offer.

 

 

Irrevocables in respect of the Independent Vivo Directors

The following Independent Vivo Directors, who have an interest in Vivo Shares, have given irrevocable undertakings to vote in favour of the Scheme at the Court Meeting and the Vivo Resolutions to be proposed at the General Meeting (or, if relevant, accept the Takeover Offer) in respect of their Vivo Shares:

Name

Number of Vivo Shares

Percentage of Vivo Shares in issue on 24 November 2021 being the last practicable date before the date of this Announcement (excluding shares under options)

John Daly

271,666

0.02%

Christian Chammas

7,367,949

0.58%

Doug Lafferty

Nil*

N/A

Thembalihle Hixonia Nyasulu

22,000

0.002%

Carol Arrowsmith

37,878

0.003%

Christopher Rogers

65,803

0.01%

Gawad Abaza

20,000

0.002%

Total

7,785,296

0.61%


*Irrevocable undertaking is in respect of entitlements under the Vivo LTIP.

 

Lapsing of undertakings

In each case, the undertakings in respect of the Helios Entities and in respect of the Independent Vivo Directors who have an interest in Vivo Shares will cease to be binding only if:

(i)   the Scheme Document is not posted within 28 days of this announcement (or such longer period with the consent of the Panel) or, to the extent that BidCo elects, with the consent of the Panel, to implement the Offer by way of a Takeover Offer, if an offer document is not sent to Vivo Shareholders containing an explanatory statement in respect of the Takeover Offer within 28 days of the press announcement announcing the change in structure (or such other date for the posting of the Offer Document or the Scheme Document (as applicable) as the Panel may require);

(ii)   the Offer is withdrawn or lapses in accordance with its terms (other than in circumstances where BidCo has exercised its right to implement the Offer by way of a Takeover Offer) or, to the extent implemented by way of a Takeover Offer, the Takeover Offer, is withdrawn or lapses in accordance with its terms; or



 

(iii)  the Scheme becomes effective in accordance with its terms or, to the extent the Offer is implemented by way of a Takeover Offer, the Takeover Offer is declared unconditional in accordance with the requirements of the Takeover Code.

Appendix IV

Definitions

The following definitions apply throughout this announcement, unless otherwise stated or the context otherwise requires.

"2021 Final Dividend"

a dividend of the Company of US$0.04 in respect of the twelve months ending on 31 December 2021;

"2021 Final Dividend Record Date"

the date to be specified in an announcement by Vivo on which the record of the Vivo register of members will be taken in respect of the 2021 Final Dividend;

"2021 Special (Final) Dividend"

a special dividend of the Company of US$0.04 (payable in lieu of the 2021 Final Dividend);

"2021 Special (Final) Dividend Record Date"

the date, prior to the Effective Date, on which the record of the Vivo register of members will be taken in respect of the 2021 Special (Final) Dividend;

"2022 Interim Dividend"

a dividend of the Company of up to US$0.02 in respect of the six months ending on 30 June 2022 payable in the ordinary course in line with Vivo's progressive dividend policy at the date of this agreement;

"2022 Interim Dividend Record Date"

the date to be specified in an announcement by Vivo on which the record of the Vivo register of members will be taken in respect of the 2022 Interim Dividend;

"2022 Special Dividend"

a special dividend of the Company of US$0.02;

"2022 Special Dividend Record Date"

the date, prior to the Effective Date, on which the record of the Vivo register of members will be taken in respect of the 2022 Special Dividend;

"Agreed Amounts"

(a)  in respect of the 2021 Final Dividend, an amount of US$0.04;

(b)  in respect of the 2022 Interim Dividend, an amount of up to US$0.02;

(c)  in respect of the 2022 Special Dividend, an amount of US$0.02; and

(d)  in respect of the 2021 Special (Final) Dividend, an amount of US$0.04,

and "Agreed Amount" shall mean (a), (b), (c) and (d) as the context requires;

"Announcement Exchange Rate"

the exchange rate of £:US$ of £1 : US$1.33 as at 24 November 2021 as derived from data provided by Factset;

"Antitrust Conditions"

the Conditions set out at paragraphs 3 to 11 (inclusive) of Appendix I;

"ARC"

has the meaning given in paragraph 8 of Appendix I;

"BidCo"

VIP II Blue B.V., a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) incorporated in the Netherlands with registered number 80375103;

"Blocking Law"

any provision of Council Regulation (EC) No 2271/1996 of 22 November 1996, including, for the avoidance of doubt, its annex, as amended as of the date of this Announcement (or any law or regulation implementing such Regulation in any member state of the European, or the United Kingdom);

"Botswana Competition Authority"

has the meaning given in paragraph 3 of Appendix I;

"Business Day"

a day (excluding Saturdays, Sundays and public holidays) on which banks are open for business in the City of London and Johannesburg;

"Cash Value"

has the meaning given in paragraph 2;

"Cash Value Structure"

the Offer, which consists of either the Cash Value or the Variable Cash Value;

"CEMAC"

has the meaning given in paragraph 5 of Appendix I;

"Closing Price"

the closing middle market price as derived from the Daily Official List of the London Stock Exchange;

"COMESA Competition Commission"

has the meaning give in paragraph 14 of Appendix I;

"Companies Act"

the UK Companies Act 2006;

"Concert Parties"

Vitol Africa B.V., VIP Africa II B.V. and any other members of the Vitol Group;

"Conditions"

the Conditions to implementation of the Offer (including the Scheme) set out in Part A of Appendix I to this Announcement and to be set out in the Scheme Document

"Confidentiality Agreement"

a confidentiality agreement dated 18 November 2021 between BidCo and Vivo;

"Consideration"

US$1.79 for each Vivo Share, or US$2.3 billion in aggregate;

"Co-operation Agreement"

a co-operation agreement dated 25 November 2021 between BidCo, VIP II and Vivo;

"Court"

the High Court of Justice in England and Wales;

"Court Hearing"

the hearing by the Court of the petition to sanction the Scheme and to grant the Court Order;

"Court Meeting"

the meeting of Scheme Shareholders to be convened at the direction of the Court pursuant to Part 26 of the Companies Act for the purpose of considering and, if thought fit, approving the Scheme (with or without amendment) and any adjournment thereof;

"Court Order"

the order of the Court sanctioning the Scheme under Part 26 of the Companies Act;

"Dealing Disclosure"

has the meaning given in Rule 8 of the Takeover Code;

"Disclosure Guidance and Transparency Rules"

the Disclosure Guidance and Transparency Rules of the FCA published under section 73A of the Financial Services and Markets Act 2000, as amended from time to time and forming part of the FCA Handbook;

"Dividend Record Dates"

the 2021 Final Dividend Record Date, the 2022 Interim Dividend Record Date, the 2022 Special Dividend Record Date and the 2021 Special (Final) Dividend Record Date;

"Effective Date"

the date on which the Scheme becomes effective in accordance with its terms or, in the case of the Takeover Offer, the unconditional date (as defined in the Takeover Code);

"Engen"

Engen Petroleum;

"Equiniti"

Equiniti Group plc;

"Existing Vitol Shareholders"

Vitol Africa B.V. and VIP Africa II B.V.;

"Fais Act"

the South African Financial Advisory and Intermediary Services Act, 37 of 2002, as amended

"FCA"

the UK Financial Conduct Authority;

"February Proposal"

the unsolicited non-binding proposal received from Vitol on 2 February 2021 for a possible cash offer at US$1.55 per Vivo Share;

"French Competition Authority"

has the meaning given in paragraph 6 of Appendix I;

"General Meeting"

the general meeting of Vivo Shareholders to be convened to consider and if thought fit pass, inter alia, the Vivo Resolutions in relation to the Scheme and the Offer, including any adjournments thereof;

"Helios"

Helios Investment Partners;

"Helios Entities"

has the meaning given in paragraph 11;

"HSBC"

HSBC Bank plc, sole financial adviser to BidCo;

"Independent Vivo Directors"

the Vivo Directors other than Javed Ahmed (who is the Vitol Group's nominee on the board of Vivo), except in relation to the February Proposal where Independent Vivo Directors means the Vivo Directors other than Javed Ahmed and Tope Lawani (who is the Helios nominee on the board of Vivo);

"Interim Results"

Vivo's interim results and accounts for the six month period ending on 30 June 2022;

"J.P. Morgan" or "J.P. Morgan Cazenove"

J.P. Morgan Securities plc, which conducts its UK investment banking business as J.P. Morgan Cazenove

"JSE"

(i) JSE Limited, a public company incorporated in accordance with the laws of South Africa and licensed as an exchange under the South African Financial Markets Act, 19 of 2012; or

(ii) the securities exchange operated by JSE Limited, as the context indicates;

"Last Accounts Date"

31 December 2020 being the date of the Vivo Accounts;

"Listing Rules"

the Listing Rules of the FCA published under section 73A(2) of the Financial Services and Markets Act 2000, as amended from time to time and forming part of the FCA Handbook;

"London Stock Exchange"

the London Stock Exchange plc;

"Long-Stop Date"

23:59 on the date falling 12 months after the date of the Scheme Document or such later date (if any) as BidCo may, with the consent of Vivo or with the consent of the Panel, specify;

"LPG"

liquefied petroleum gas;

"Moroccan Competition Council"

has the meaning given in paragraph 7 of Appendix I;

"Numis"

Numis Securities Limited;

"Offer"

the recommended cash offer to be made by BidCo to acquire the whole of the issued and to be issued share capital of Vivo excluding Vivo Shares held by the Existing Vitol Shareholders to be effected by means of the Scheme (or by way of a Takeover Offer), including, where the context so requires, any subsequent revision, variation, extension or renewal of such offer;

"Offer Period"

the offer period (as defined in the Takeover Code) relating to the Company that commenced on 25 November 2021 and ending on the earlier of the Effective Date and/or the date on which the Offer lapses or is withdrawn (or such other date as the Panel may decide);

"Official List"

the official list maintained by the FCA;

"Opening Position Disclosure"

has the meaning given in Rule 8 of the Takeover Code;

"Overseas Shareholders"

holders of Vivo Shares who are resident in, ordinarily resident in, or citizens of, jurisdictions outside the United Kingdom;

"Panel"

The Panel on Takeovers and Mergers;

"PRA"

the UK Prudential Regulation Authority;

"Regulatory Information Service"

any of the services authorised from time to time by the FCA for the purposes of disseminating regulatory announcements;

"Relevant Securities"

has the meaning given in paragraph 14;

"Restricted Jurisdiction"

any jurisdiction where the release, publication or distribution in whole or in part, in, into or from or where the extension of the Offer would constitute a violation of the relevant laws of the jurisdiction or would result in a requirement to comply with any consent or other formality which BidCo regards as unduly onerous;

"Rothschild & Co"

N.M. Rothschild & Sons Limited

"Scheme"

the proposed scheme of arrangement under Part 26 of the Companies Act between Vivo and the Scheme Shareholders in connection with the Offer with or subject to any modification, addition or condition approved or imposed by the Court and agreed by BidCo and Vivo;

"Scheme Document"

the document to be sent to Vivo Shareholders containing, amongst other things, the Scheme, the terms and conditions of the Offer and the notices convening the Court Meeting and the General Meeting;

"Scheme Record Time"

the time and date to be specified in the Scheme Document, expected to be 6.00 p.m. on the Business Day immediately after the date of the Court Hearing, or such later time as BidCo and Vivo may agree;

"Scheme Shareholder"

a holder of Scheme Shares at any relevant date or time;

"Scheme Shares"

all Vivo Shares:

(a)  in issue at the date of the Scheme Document;

 

(b)  (if any) issued after the date of the Scheme Document but prior to the Voting Record Time; and

 

(c)  (if any) issued at or after the Voting Record Time and prior to the Scheme Record Time in respect of which the original or any subsequent holder thereof is bound by the Scheme, or shall by such time have agreed in writing to be bound by the Scheme,

but excluding any Vivo Shares held by BidCo, the Existing Vitol Shareholders or any other member of the Vitol Group or any shares that are, or become, held in treasury.

"September Proposal"

the offer made by Vitol to Vivo in September 2021 to acquire the entire issued and to be issued ordinary share capital of Vivo (excluding Vivo Shares held by the Existing Vitol Shareholders), in which Vitol informed Vivo that Vitol had agreed on a non-binding basis to acquire the Helios Entities' 27.1 per cent. shareholding in Vivo;

"Shell"

Royal Dutch Shell plc;

"South African Competition Authority

has the meaning in paragraph 12 of Appendix I;

"Takeover Code"

the City Code on Takeovers and Mergers;

"Takeover Offer"

the offer to be made by or on behalf of BidCo to acquire the entire issued and to be issued ordinary share capital of Vivo and, where the context admits, any subsequent revision, variation, extension or renewal of such takeover offer, should the Offer be implemented by way of a takeover offer under Part 28 of the Companies Act;

"Tanzanian Competition Authority"

has the meaning given in paragraph 10 of Appendix I;

"UK" or "United Kingdom"

the United Kingdom of Great Britain and Northern Ireland;

"US"

the United States of America, the territories and possessions, any state of the United States of America, the District of Columbia and all areas subject to its jurisdiction or any political sub-division thereof;

"US Exchange Act"

United States Securities Exchange Act of 1934, as amended;

"Variable Cash Value"

has the meaning given in paragraph 2;

"VIP II"

Vitol Investment Partnership II Limited, a private limited company incorporated in Jersey with registered number 124016;

"Vitol Group"

Vitol and its subsidiaries and its subsidiary undertakings;

"Vitol"

Vitol Holding B.V., a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) incorporated under the laws of the Netherlands with registration number 24126769;

"Vivo" or the "Company"

Vivo Energy plc, a public limited company incorporated in England and Wales with registered number 11250655;

"Vivo Accounts"

Annual Report and Accounts of Vivo for the year ended 31 December 2020;

"Vivo Directors"

the directors of Vivo from time to time;

"Vivo Dividends"

any or all of the 2021 Final Dividend, the 2022 Interim Dividend, the 2022 Special Dividend and the 2021 Special (Final) Dividend;

"Vivo Group"

Vivo and its subsidiaries and its subsidiary undertakings;

"Vivo IPO Share Awards"

one-off awards under the Vivo 2018 IPO Plan;

"Vivo LTIP"

the Vivo Long-Term Incentive Plan;

"Vivo Resolutions"

the special resolutions to be proposed at the General Meeting necessary to implement the Scheme;

"Vivo Share Plans"

the Vivo LTIP and, to the extent relevant, the Vivo IPO Share Awards, buy-out awards over Vivo Shares granted from time to time, and any other Vivo share, option or award plan or scheme;

"Vivo Shareholders"

holders of Vivo Shares;

"Vivo Shares"

the unconditionally allotted or issued and fully paid up (or credited as fully paid up) ordinary shares of US$0.50 each in the capital of Vivo, and "Vivo Share" shall be construed accordingly;

"Voting Record Time"

the time and date to be specified in the Scheme Document by reference to which entitlement to vote on the Scheme will be determined;

"WAEMU Commission"

has the meaning given in paragraph 13 of Appendix I;

"Wider Vitol Group"

Vitol and its subsidiary undertakings, associated undertakings and any other undertaking in which Vitol and/or such undertakings (aggregating their interests) have a significant interest, including BidCo, and for these purposes subsidiary undertaking and undertaking have the meanings given by the Companies Act, associated undertaking has the meaning given by paragraph 19 of Schedule 6 to the Large and Medium-sized Companies and Groups (Accounts and Reports) Regulations 2008, other than paragraph 19(1)(b) of Schedule 6 to those regulations which shall be excluded for this purpose, and significant interest means a direct or indirect interest in 20 per cent. or more of the total voting rights conferred by the equity share capital (as defined in section 548 of the Act); and

"Wider Vivo Group"

Vivo and its subsidiary undertakings, associated undertakings and any other undertaking in which Vivo and/or such undertakings (aggregating their interests) have a significant interest, and the words undertaking, subsidiary undertakings, associated undertakings and significant interest shall have the meaning given to them in the Wider Vitol Group definition.

 

A reference to "includes" shall mean "includes without limitation", and references to "including" and any other similar term shall be construed accordingly.

All times referred to are London time unless otherwise stated.

All references to statutory provision or law or to any order or regulation shall be construed as a reference to that provision, law, order or regulation as extended, modified, replaced or re-enacted from time to time and all statutory instruments, regulations and orders from time to time made thereunder or deriving validity therefrom.

All references to "GBP", "pence", "Sterling" or "£" are to the lawful currency of the United Kingdom.

All references to "US Dollars" "USD", "US$", "dollars", "$" or "cents" are to the lawful currency of the United States of America.

All references to "Rand", "South African Rand" and "ZAR" are to the lawful currency of the Republic of South Africa

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