OKOTOKS, AB, Nov. 16 /CNW/ - (TSX - MTL) Mullen Group Ltd. ("Mullen") announced today that it has, with its Board's unanimous approval, executed and delivered an acquisition agreement (the "Acquisition Agreement") to Livingston International Income Fund ("Livingston") which is open for acceptance by Livingston until 5:00 p.m. (Eastern time) on Friday, November 20, 2009. The provisions of the Acquisition Agreement are consistent with those announced by Mullen on November 5, 2009, and provide for a business combination by way of plan of arrangement whereby Mullen would acquire all of the outstanding trust units of Livingston on the basis of 0.566 of a common share of Mullen for each trust unit.
Mullen's proposal will provide the opportunity for certain Livingston unitholders to benefit from the transaction on a tax-deferred basis and will not require withholding of tax for non-resident holders of trust units, which represents a significant benefit for taxable unitholders and non-resident unitholders at no cost to tax-deferred unitholders.
Mullen's proposal represents approximately $9.17 of value per Livingston unit based on Mullen's closing price on November 13, 2009 of $16.21, a premium of approximately 15% to the $8.00 per trust unit offer to the Livingston unitholders under the terms of the acquisition agreement (the "CPP/Sterling Agreement") among Livingston and 2219987 Ontario Inc., SPC III AIV ONE, LP ("Sterling") and Canada Pension Plan Investment Board ("CPP"). The Acquisition Agreement is subject to approval by two-thirds of Livingston unitholders and the receipt of certain other approvals and consents such as those required under the Transportation Act and Competition Act.
To ensure that all Livingston unitholders and Mullen shareholders have the opportunity to assess its proposal, Mullen intends to post the Acquisition Agreement on its website (www.mullen-group.com) and file it on the SEDAR website at www.sedar.com.
"Mullen and Livingston have been conducting reciprocal due diligence and exchanging comments on the appropriate form of acquisition agreement for some time now. In light of the pending Livingston unitholder meeting currently scheduled for November 24, 2009, we felt the time had come to submit our formal Acquisition Agreement to the trustees of Livingston for their consideration. We believe the transaction we are proposing, as outlined in the Acquisition Agreement, constitutes a Superior Proposal under the CPP/Sterling Agreement and that the trustees of Livingston, after reviewing the Acquisition Agreement with their financial advisors and outside counsel, will reach the same conclusion," stated Stephen H. Lockwood, President and Co-Chief Executive Officer.
The formal Acquisition Agreement was delivered to Livingston even though Mullen had been advised by Livingston's representatives yesterday that the Livingston Special Committee had concluded that it would not be in a position to consider whether the Mullen proposal, if received in the form suggested by Mullen, would be a Superior Proposal. The reason given for such position was Mullen's insistence that Livingston would have to pay the $3.5 million in expenses and the $6.5 million escrow payment required by the CPP/Sterling Agreement. In addition, Mullen was advised that the Special Committee believed that Livingston's unitholders would likely not approve Mullen's proposed share offer and accordingly, the Special Committee would not be prepared to recommend paying any amount required by the CPP/Sterling Agreement. Mullen was also advised that the only way the Special Committee could consider the Mullen proposal further would be if either (a) Mullen agreed to fund the full $10.0 million expenses and break-fee, or (b) Mullen entered into support agreements with the holders of Livingston's units sufficient to convince Livingston that Mullen's offer would be accepted.
"In light of our Press Release of November 5, 2009, the increase of approximately 15% in the price of Livingston's units from the close of business on November 4, 2009 to the close of business on November 13, 2009 and despite the view of Livingston's Special Committee, our Board decided to proceed with the execution of the Acquisition Agreement and its delivery to the Livingston trustees. It is our belief that our proposal constitutes a Superior Proposal under the CPP/Sterling Agreement and that under the terms of such agreement, Livingston should present this Superior Proposal to CPP and Sterling and they would then have three business days to match our proposal. Since issuing our Press Release on November 5, 2009, we have explained to the Livingston unitholders and Mullen shareholders the reasons and rationale for our proposal and the advantages of a Mullen/Livingston business combination. It is our intention to immediately seek support agreements from Livingston unitholders and then to successfully complete this transaction," commented Murray K. Mullen, Chairman and Chief Executive Officer.
"We find Livingston's position that Mullen should fund the full $10.0 million of expenses and break-fee contemplated by the CPP/Sterling Agreement unacceptable. Mullen is not prepared to pay $3.5 million of CPP/Sterling expenses and post a further $6.5 million in return for the right to make a proposal to the Livingston unitholders," stated Steve Lockwood.
Mullen is recognized as the largest provider of specialized transportation and related services to the oil and natural gas industry in western Canada and as one of the leading suppliers of trucking and logistics services in Canada - two sectors of the economy in which Mullen has strong business relationships and industry leadership. Additional information on Mullen is available on our website at www.mullen-group.com.
ADVISORY
This press release does not constitute an offer to sell or the solicitation of an offer to buy any securities of Mullen within the United States. The securities of Mullen have not been and will not be registered under the United States Securities Act of 1933, as amended (the "1933 Act"), or any state securities laws. Accordingly, the common shares of Mullen may not be offered or sold in the United States or to U.S. persons (as such terms are defined in Regulation S under the 1933 Act) unless registered under 1933 Act and applicable state securities laws or an exemption from such registration is available.
This press release contains forward-looking statements and forward-looking information within the meaning of applicable securities laws. The use of any of the words "expect", "anticipate", "continue", "objective", "will", "should", "believe", "plans", "intends", "hope" and similar expressions are intended to identify forward-looking information or statements. More particularly and without limitation, this press release contains forward looking statements and information concerning the benefits of the acquisition of Livingston.
The forward-looking statements and information are based on certain key expectations and assumptions made by Mullen, including the ability of Mullen to complete the acquisition of Livingston on the terms proposed. Although Mullen believes that the expectations and assumptions on which such forward-looking statements and information are based are reasonable, undue reliance should not be placed on the forward looking statements and information because Mullen can give no assurance that they will prove to be correct.
Since forward-looking statements and information address future events and conditions, by their very nature they involve inherent risks and uncertainties. Actual results could differ materially from those currently anticipated due to a number of factors and risks. These include, but are not limited to, the risks associated with the current financial markets; the service and energy industry in general achieving the anticipated benefits of the transaction; the determination by the trustees of Livingston of whether the transaction is a Superior Proposal, and the failure to obtain required regulatory, court, securityholder and approvals. Accordingly, readers should not place undue reliance on the forward-looking statements and information contained in this press release concerning these times.
Readers are cautioned that the foregoing list of factors is not exhaustive. Additional information on these and other factors that could affect the operations or financial results of Mullen are included in reports of Mullen on file with applicable securities regulatory authorities and may be accessed through the SEDAR website (www.sedar.com) of Mullen. The forward-looking statements and information contained in this press release are made as of the date hereof and Mullen undertakes no obligation to update publicly or revise any forward-looking statements or information, whether as a result of new information, future events or otherwise, unless so required by applicable securities law. Mullen relies on litigation protection for "forward-looking" statements.
Mullen is a publicly traded corporation listed on the Toronto Stock Exchange under the symbol "MTL". Additional information is available on our website at www.mullen-group.com.
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