Position Statement of Funcom SE
Regarding the recommended cash offer by Tencent Cloud Europe B.V. for all issued and outstanding ordinary shares of Funcom SE
This position statement is published in accordance with section 18 paragraph 2 and Annex G of the Dutch Takeover Decree on public offers Wft (Besluit openbare biedingen Wft)
The extraordinary general meeting of Funcom SE will be held at 11.00 hours, CET, on 6 March 2020 at Prins Mauritslaan 37 – 39, 1171 LP, Badhoevedorp, the Netherlands.
This position statement (the Position Statement) does not constitute or form part of an offer to sell, or a solicitation of an offer to purchase or subscribe for, any securities to any person in any jurisdiction.
This position statement is published by Funcom SE (Funcom or the Company) for the sole purpose of providing information to its shareholders on the recommended cash offer by Tencent, through its wholly owned subsidiary Tencent Cloud Europe B.V. (Tencent or the Offeror), to all holders of issued and outstanding ordinary shares with a nominal value of EUR 0,20 (twenty eurocents) (the Shares, and each a Share, the holders of such Shares the Shareholders), in the share capital of Funcom to purchase for cash their Shares on the terms and subject to the conditions and restrictions set forth in the offer document dated February 19, 2020 (the Offer Document) (the Offer), as required pursuant to section 18 paragraph 2 and Annex G of the Dutch Takeover Decree on public offers Wft (Besluit openbare biedingen Wft) (the Takeover Decree).
Capitalised terms in this Position Statement other than in the Fairness Opinion (attached hereto as Schedule 1) and the agenda to the EGM together with the explanatory notes (attached hereto as Schedule 2) shall, unless otherwise defined in this Position Statement, have the meaning attributed to them in the Offer Document. Any reference in this Position Statement to defined terms in plural form shall constitute a reference to such defined terms in singular form, and vice versa. All grammatical and other changes required by the use of a definition in singular form shall be deemed to have been made herein and the provisions hereof shall be applied as if such changes have been made.
Copies of this Position Statement are available on, and can be obtained free of charge from, the website of Funcom investor.funcom.com.
The Offer, if completed, will result in the acquisition of securities of a European Company (Societas Europaea) governed by Dutch law and is subject to Dutch and Norwegian disclosure requirements, which differ from those in the United States. Any financial information included or referred to herein has been prepared in accordance with non-U.S. accounting standards and, accordingly, may not be comparable to the financial information of U.S. companies or of companies whose financial statements are prepared in accordance with generally accepted accounting principles in the United States.
It may be difficult for U.S. holders of Shares to enforce their rights and any claims arising under the U.S. federal securities laws, since the Offeror and Funcom are located in a country other than the United States, and some or all of their officers and directors may be residents of a country other than the United States. U.S. holders of Shares may not be able to sue a non-U.S. company or its officers or directors in a non- U.S. court for violations of the U.S. securities laws. Further, it may be difficult to compel a non-U.S. company and its affiliates to subject themselves to a U.S. court's judgment.
Neither the U.S. Securities and Exchange Commission nor any U.S. state securities commission or other regulatory authority in the U.S. has approved or disapproved the Offer, passed upon the fairness or merits of the offer or provided an opinion as to the accuracy or completeness of this Position Statement or any other documents regarding the Offer. Any declaration to the contrary constitutes a criminal offence in the United States. The Oslo Stock Exchange in Norway has approved the Offer Document.
As set forth in the Offer Document, the Offeror and/or its Affiliates or their brokers (acting as agents) will in the period from the date of the Transaction Agreement and until six months after the Settlement of the Offer not directly or indirectly acquire Shares (in the open market or privately negotiated transactions or otherwise) at a consideration higher than the Offer Price (the "Higher Consideration"), without increasing the consideration offered in the Offer to be at least equal to such Higher Consideration subject to the terms and conditions of the Offer Document. These purchases will be executed in accordance with applicable law and the Offeror will, to the extent required by Norwegian law, publicly disclose purchases of Shares in accordance with the procedures of the Offer Document.
This document is not for release, publication or distribution, in whole or in part in or into Canada, New Zealand, Japan, Hong Kong, Australia and South Africa.
The information included in this Position Statement reflects the situation as of the date of this Position Statement, unless otherwise indicated. Under no circumstances may the issue or distribution of this Position Statement be interpreted as implying that the information contained herein is true and accurate on a later date than the date hereof, unless otherwise indicated. Funcom does not undertake any obligation to publicly release any revision to this information to reflect events or circumstances after the date of this document, except as may be required by applicable Dutch and Norwegian securities laws or by any appropriate regulatory authority.
Funcom is exclusively responsible for the accuracy and completeness of the information contained in this Position Statement, provided that the only responsibility that is accepted for information concerning the Offeror and the Offer is the assurance that such information is properly reported and reproduced from the Offer Document.
This Position Statement includes forward-looking statements including statements regarding the Offer and the anticipated consequences and benefits of the Offer, the expected timing and completion of the Offer and language indicating trends. These forward-looking statements are based on currently available financial and economic data as well as Funcom’s current views and assumptions with respect to future events and financial performance. Forward-looking statements are inherently uncertain, because these statements relate to events and depend on circumstances that all occur in the future. Generally, words such as “will”, “expect”, “intend”, “may”, “believe”, “plan”, “seek”, “should”, “aim”, “estimate”, “anticipate”, “continue”, “project”, or similar expressions, identify forward-looking statements.
Although Funcom believes that the assumptions upon which its respective financial information and its respective forward-looking statements are based are reasonable, it can give no assurance that these assumptions or statements will prove to be correct. These forward-looking statements are subject to risks, uncertainties, assumptions and other important factors, many of which may be beyond Funcom’s control (such as political, economic or legal changes in the markets and environments in which Funcom conducts its business), and could cause the actual results, performance or achievements of Funcom to be materially different from those expressed or implied in these forward-looking statements. Moreover, the Shareholders should not interpret statements regarding trends or activities as representations that these trends and activities will continue in the future. Factors that could cause actual results to differ from such statements include, but are not limited to, the occurrence of any event, change or other circumstances that could give rise to the termination of the Offer, the failure to receive on a timely basis or otherwise the required approvals by government or regulatory authorities, the risk that a Condition for Completion may not be satisfied, and the ability of Funcom to retain and hire key personnel and to maintain relationships with customers, suppliers and other business partners pending completion of the Offer.
This Position Statement is governed by and shall be construed in accordance with the laws of the Netherlands. The Court of First Instance (rechtbank) in Amsterdam, the Netherlands, shall have exclusive jurisdiction to settle any dispute which may arise out of or in connection with this Position Statement, without prejudice to the rights of appeal (hoger beroep) and cassation (cassatie).
Funcom SE
Badhoevedorp, the Netherlands, 2 March 2020
This information is subject to the disclosure requirements acc. to §5-12 of vphl (Norwegian Securities Trading Act)
