1.1. Pre-Application
It is proposed that the application for dissolution will be made 3 months after the completion of the later of:
the delisting;
the transfer of the assets to a foundation or interested parties (noting that if and to the extent that the assets are not sold to a foundation or interested parties by 18 February 2018, the assets are to vest bona vacantia as part of a subsequent dissolution, entailing that these assets go to the Crown (the Treasurer)).
The Board will ensure that in the 3 month period prior to making the application for dissolution, OIM has not:
traded or otherwise carried on business
changed its name
engaged in any other activity except one which is necessary for the purpose of:
o making an application for strike off or deciding whether to do so
o concluding the affairs of the company, such as settling trading or business debts
o complying with any statutory requirement
made a disposal for value of property or rights that, immediately before ceasing to trade or otherwise carry on business, it held for the purpose of disposal for gain in the normal course of trading or otherwise carrying on business
Prepare sale of assets
At least 3 months prior to its dissolution, OIM wishes to dispose of its assets. It attempted to do so through the auction protocol, but was unsuccessful therein due to lack of interest. The Auction Protocol has foreseen this situation and states:
“If the shareholders do not approve the Transaction, if no Binding Offers are received within the timeframes set out above, or if the Transaction does not take place for any
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reason, the Assets shall be sold to a foundation to be incorporated for this purpose for their current market value.
The foundation will administer the Assets to the benefit of OIM's shareholders that are formally registered as shareholders on the shareholders register kept at Capita Registrars on the date of the start of the legal transfer of Assets, to the extent allowable by law. The Board aims to subsequently liquidate OIM and its subsidiaries.”
Option 1: transfer of assets to foundation
OIM therefore wishes to “sell” its assets (rights under the agreements with Your Drinks for royalties and interests, shares in Out of Africa AG (in liquidation), shares in Algo Vision Systems GmbH ((by then) in liquidation) to a foundation. We can assume that the current market value for such assets is extremely low (e.g. EUR 1,00). In its settlement with Your Drinks AG, Your Drinks agreed to a transfer of the agreements Algo Vision and OIM have with Your Drinks to such a foundation.
Following OIM's dissolution, this foundation (a Dutch “Stichting”) will administer the assets for the benefit of those persons that are formally registered as shareholders on the register of members for OIM on the date of the start of the legal transfer of assets to the foundation ("Ultimate Beneficiaries"). The foundation would therefore, amongst other things, receive any payment of royalty fees, as well as the repayment of a principal loan amount and the payment of interest from 1 January 2018 onwards.
OIM is in contact with a public notary and an independent (trust) director in view of setting up this foundation.
In order to set up the foundation and to sell and transfer the assets, OIM requires financing for this foundation. Shareholders (and other interested parties) are invited to make a proposal in this respect prior to the shareholders meeting to be held on 18 January 2018.
OIM has calculated that the minimum financing needed to set up and run a foundation to 2021 (see below) amounts to approximately EUR 65.000 excluding tax. These costs include the payment of an independent (trust)director (including initial costs, annual fee and estimated time spent per year), registration of the office address of the foundation, administration, bookkeeping and annual accounts, supplying information to the (then former) registered shareholders of OIM and finally the liquidation of the foundation. The foundation is expected to remain in existence until (at least) 2021 when the loan agreement with Your Drinks AG terminates and the loan becomes due.
The financing could in theory be repaid by any interest, royalties and loan repayments received from Your Drinks AG, depending on whether and to what extent such amounts are received. The remainder – after costs – would be distributed to the aforementioned shareholders upon liquidation to the extent allowable by law. The Board is obligated to state that it expresses doubts as to whether any such royalty fees, interest payments or repayments will take place in the future and/or be recoverable from Your Drinks.