Re Nielsen Holdings Plc
| Jurisdiction | England & Wales |
| Judge | Mr Justice Norris |
| Judgment Date | 07 August 2015 |
| Neutral Citation | [2015] EWHC 2966 (Ch) |
| Date | 07 August 2015 |
| Court | Chancery Division |
| Docket Number | Case No: 5197/2015 |
[2015] EWHC 2966 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
The Rolls Building,
7 Rolls Building, Fetter Lane, London,
EC4A 1NL
Mr Justice Norris
Case No: 5197/2015
REPRESENTATION
Martin Moore QC instructed by Clifford Chance
THE JUDGE: This is a hearing of an application by Nielsen NV ("NV") and its wholly-owned subsidiary, Nielsen Holdings Limited ("Holdings"), respectively a Dutch and a UK company, for approval of a cross border merger. The transaction is a merger by absorption whereby Holdings will acquire NV. The object is that NV will in substance change its domicile to that of the United Kingdom in order to free itself from certain limitations upon expansion occasioned by the terms of a US-Netherlands tax treaty. The shares in Holdings are intended to be listed on the New York Stock Exchange.
The jurisdiction to approve the merger is that granted by regulation 16 of the Companies (Cross-Border Mergers) Regulations of 2007. On the evidence the six formal preconditions set out in regulation 16 are all satisfied. The only question is whether as a matter of discretion the court ought to approve the completion of the merger. In that connection Mr Moore has drawn to my attention three relevant authorities bearing on particular features of this merger. They are Re Fiberweb Plc [2013] EWHC 4653 (Ch), Re Lombard Medical Technologies Plc [2014]. EWHC 2457 (Ch) and Re International Game Technology Plc and Another [2015] EWHC 717 (Ch). As with all cases concerning the exercise of a discretion, these cases may provide guidelines but of course cannot lay down rules. I have derived the following guidance material to the issues before me from those cases. What follows is sufficient for the purposes of this application and is not intended as anything like a comprehensive summary.
First, the discretion is unfettered. Secondly, the order approving the merger may be made subject to satisfaction of conditions as to the date upon which the merger may take effect. Thirdly, the nature of those conditions is a factor to be taken into account in the exercise of the discretion (alongside the more conventional factors relating to the protection of creditors and employees). Fourthly, the court will normally expect a condition to have as its object the need to ensure that the transaction which is rendered effective is that which the shareholders approved at an...
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Smile Telecoms Holdings Ltd
...provides. 55 In a slightly different context (an application for the approval of a cross-border merger in Re Nielsen Holdings Plc [2015] EWHC 2966 (Ch)), Norris J made the same point in paragraph 3 of his judgment. He gave a helpful summary of the principles in relation to conditionality w......