Confirms recommendation that unitholders vote in favour of CPP Investment Board and Sterling Partners all-cash offer
TORONTO, Nov. 17 /CNW/ - Livingston International Income Fund (TSX: LIV.UN) ("Livingston") today confirmed that, as announced by Mullen Group Ltd. ("Mullen"), Livingston has received a binding proposal from Mullen to enter into a business combination by way of a plan of arrangement. Under Mullen's proposal, Mullen would acquire all of the outstanding trust units ("Units") of Livingston on the basis of 0.566 of a common share of Mullen for each Unit, subject to various conditions, including approval by more than 66 2/3% of Livingston unitholders (the "Mullen Proposal").
The Special Committee of Livingston had previously advised Mullen that it was not in a position to consider whether the Mullen Proposal might be a "superior proposal" for the purposes of the acquisition agreement between the consortium of the Canada Pension Plan Investment Board and Sterling Partners (collectively, "CPP/Sterling") and Livingston (the "CPP/Sterling Acquisition Agreement"). The reason for this is Mullen's unwillingness to pay the $3.5 million in expenses and the $6.5 million escrow break fee payment required by the CPP/Sterling Acquisition Agreement, after being advised that such payments would be a necessary condition to Livingston entering into a definitive agreement with Mullen.
Furthermore, Mullen has refused to reduce the volatility risk to unitholders inherent in the Mullen Proposal by providing a cash alternative and/or a minimum exchange value in its all-share offer. The Special Committee expects that it is unlikely that Livingston unitholders would support the Mullen Proposal as currently constituted. The Special Committee notes, however, that if completed the CPP/Sterling offer does provide certainty of value and immediate liquidity to unitholders.
Livingston's board of trustees and the Special Committee confirm their recommendation that unitholders vote in favour of the arrangement resolution in respect of the CPP/Sterling transaction that is set out in Appendix "B" to Livingston's Management Information Circular dated October 28, 2009, mailed to unitholders in advance of the upcoming special meeting, currently scheduled for November 24, 2009.
Under the CPP/Sterling Acquisition Agreement, Livingston's trustees have agreed to support the CPP/Sterling transaction unless a proposal that they consider to be a "superior proposal" is made that CPP/Sterling would be unwilling to match. Any change in recommendation by Livingston's board of trustees of the CPP/Sterling transaction could lead to a $10 million break fee (including $3.5 million in expense reimbursement) payable by Livingston to CPP/Sterling.
Unitholders are advised that the offer by Mullen includes a plan of arrangement that has not yet been reviewed in detail by Livingston from a tax or commercial perspective. Although Mullen is party to a confidentiality agreement, it is not subject to any standstill obligations in favour of Livingston.
Certain statements in this release may be considered forward-looking statements, which reflect the board's and management's current beliefs and expectations and which involve assumptions about expected future events or results that are subject to inherent risks and uncertainties. There is significant risk that assumptions and other forward-looking statements will not prove to be accurate. Many factors could cause actual future results, conditions or events to differ materially from the results or outcomes expressed, including risks related to trade volumes, deterioration of economic conditions, currency and interest-rate volatility, the ability to meet credit facility covenants and borrowing limits, the continued availability of credit facilities and bonds, pandemics and regulatory and tax changes, among others. Furthermore, there can be no assurance that the CPP/Sterling transaction will receive all necessary consents and approvals or that the CPP/Sterling transaction or any other transaction will materialize. Investors are cautioned not to place undue reliance on assumptions or forward-looking statements.
Livingston International Income Fund is a trust that holds the securities of Livingston International Inc., a leading North American provider of customs, transportation and integrated logistics services. Headquartered in Toronto, Ontario, Livingston has approximately 2,500 employees located at some 100 key border points, seaports, airports and other strategic locations across Canada and the United States.
SOURCE Livingston International Inc.
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