As previously disclosed, on March 28, 2022, Nielsen Holdings plc, a public limited company formed under the laws of England and Wales (“Nielsen”), entered into a Transaction Agreement (the “Transaction Agreement”) by and among Nielsen, Neptune Intermediate Jersey Limited, a private limited company formed under the laws of the Bailiwick of Jersey (“Parent”), and Neptune BidCo US Inc., a corporation formed under the laws of Delaware and a wholly owned subsidiary of Parent (“Purchaser”), pursuant to which the Purchaser will acquire the issued and to be issued ordinary share capital of Nielsen by way of a scheme of arrangement (the “Scheme”) between Nielsen and the Scheme Shareholders (as defined in the Scheme) under Part 26 of the United Kingdom Companies Act 2006, as amended. Parent and Purchaser are newly-formed entities established by a consortium of private investment funds led by Evergreen Coast Corporation, an affiliate of Elliott Investment Management L.P., and Brookfield Business Partners L.P., together with institutional partners (the “Consortium”) for the purpose of acquiring Nielsen (such acquisition of Nielsen by the Consortium in accordance with the provisions of the Scheme and the laws of England and Wales, the “Acquisition”).
On July 8, 2022, Nielsen filed a definitive proxy statement with the Securities and Exchange Commission (the “SEC”) in connection with the Acquisition (the “Proxy Statement”). As previously disclosed in the Proxy Statement, as of July 8, 2022, six lawsuits have been filed in federal and state court by purported Nielsen shareholders against Nielsen and members of the Board (collectively, the “Actions”) relating to the Acquisition. The Actions, in the order by which they were filed, are: O’Dell v. Nielsen Holdings PLC, et al., 1:22-cv-04340 (S.D.N.Y. May 26, 2022); Kuhn v. Nielsen Holdings PLC, et al., 1:22-cv-04352 (S.D.N.Y. May 26, 2022); Gonzalez v. Nielsen Holdings PLC, et al., 1:22-cv-03241 (E.D.N.Y. June 1, 2022); Levy v. Attwood, et al., Index No. 61244/2022 (N.Y. Sup. Ct. June 2, 2022); Hopkins v. Nielsen Holdings PLC, et al., 1:22-cv-03336 (E.D.N.Y. June 6, 2022); and Justice v. Nielsen Holdings PLC, et al., 1:22-cv-03338 (E.D.N.Y. June 6, 2022). The plaintiffs in the Gonzalez, Hopkins, and Justice Actions have since filed notices of voluntary dismissal and have sent demand letters to Nielsen making substantially the same allegations as were included in the complaints.
As of July 29, 2022, eight demand letters in total have been sent to Nielsen in connection with the Acquisition. The demand letters were each sent on behalf of a purported Nielsen shareholder, and each alleges similar deficiencies in the Proxy Statement as those noted in the complaints referenced above.
Nielsen believes that the claims asserted in the Actions and demand letters described above are without merit and that no additional disclosures were or are required under applicable law. However, to moot the unmeritorious disclosure claims, to avoid the risk of the actions described above delaying or adversely affecting the Acquisition and to minimize the costs, risks and uncertainties inherent in litigation, without admitting any liability or wrongdoing, Nielsen has determined to voluntarily make the following supplemental disclosures to the Proxy Statement as described in this Current Report on Form 8-K. Nothing in this Current Report on Form 8-K shall be deemed an admission of the legal necessity or materiality under applicable laws of any of the disclosures set forth herein. To the contrary, Nielsen specifically denies all allegations in the Actions described above that any additional disclosure was or is required.
Supplemental Disclosures to the Proxy Statement
The following disclosures in this Current Report on Form 8-K supplement the disclosures contained in the Proxy Statement and should be read in conjunction with the disclosures contained in the Proxy Statement, which in turn should be read in its entirety. All page references are to the Proxy Statement and terms used below, unless otherwise defined, shall have the meanings ascribed to such terms in the Proxy Statement. For clarity, new text added to the Proxy Statement is shown in bold, underlined text, and text deleted from the Proxy Statement is shown in stricken-through text.
The section of the Proxy Statement entitled “The Acquisition—Background of the Acquisition” is hereby amended and supplemented as follows:
The second and third full paragraphs on page 45 of the Proxy Statement are hereby amended and supplemented as follows:
On November 18, 2021, Nielsen entered into a non-disclosure agreement with Elliott, which included a customary standstill provision restricting Elliott from taking certain actions with respect to Nielsen and its securities, but that permitted Elliott to make confidential proposals to the Board, and included customary “fall-away” and “don’t ask, don’t waive” provisions, which are still in effect as of the date of this proxy statement. The standstill provision would automatically fall away upon the earlier to occur of (i) Nielsen’s entry into a definitive agreement with another party to acquire more than 50% of its outstanding voting equity securities or assets representing more than 50% of its consolidated earning power or (ii) the commencement of a tender or exchange offer which, if consummated, would result in the acquisition by any other party of more than 50% of its outstanding voting equity securities, and Nielsen does not recommend that its shareholders reject such tender or exchange offer.
