2.5 Announcement
Irish Continental Group PLC
15 June 2007
PLEASE NOTE
THE HEADLINE OF THE ICG ANNOUNCEMENT RELEASED WEDNESDAY 14TH JUNE AT 6.07PM,
RNS NUMBER 4134Y NOW READS 2.5 ANNOUNCEMENT AND NOT 'STATEMENT RE POSSIBLE
OFFER' AS PREVIOUSLY STATED.
ALL OTHER DETAILS REMAIN THE SAME
Not for release, publication or distribution, in whole or in part, in, into or
from a Restricted Jurisdiction.
14 June 2007
RECOMMENDED ACQUISITION FOR CASH OF IRISH CONTINENTAL GROUP PLC
BY MOONDUSTER LIMITED BY MEANS OF A SCHEME OF ARRANGEMENT UNDER SECTION 201 OF
THE COMPANIES ACT, 1963
Summary
The Board of Moonduster and the Independent Board of ICG are pleased to announce
that they have reached agreement on the terms of a recommended acquisition for
cash of the entire issued and to be issued share capital of ICG by Moonduster by
means of a scheme of arrangement under Section 201 of the Companies Act, 1963.
The Board of Moonduster is being advised by Davy Corporate Finance and IBI
Corporate Finance.
Cash Consideration
Under the terms of the Scheme, ICG Shareholders will be entitled to receive:
€22.00 per ICG Unit in cash
The Cash Consideration values the entire issued and to be issued share capital
of ICG at approximately €560.9 million.
The Cash Consideration represents a premium of approximately:
• 18.9 per cent. to €18.50, being the price per ICG Unit offered under the
proposal from Aella;
• 7.3 per cent. to €20.50, being the Closing Price of an ICG Unit on 13 June
2007, being the last Business Day prior to this announcement;
• 41.0 per cent. to €15.60, being the Closing Price of an ICG Unit on 7 March
2007, being the last Business Day prior to the commencement of the Offer Period;
and
• 61.5 per cent. to €13.63, being the average daily Closing Price of an ICG
Unit over the 6 months up to the commencement of the Offer Period.
Recommendation of the Independent Board
The Independent Board, which has been so advised by NCB Corporate Finance,
considers the terms of the Acquisition to be fair and reasonable. In providing
its advice, NCB Corporate Finance has taken into account the commercial
assessments of the Independent Board. Accordingly, the Independent Board intends
unanimously to recommend to ICG Shareholders to vote in favour of the
Acquisition and the Scheme. The members of the Independent Board who hold ICG
Units will by 7.00 p.m. today and following the release of this announcement
enter into irrevocable undertakings under which they will irrevocably undertake
(subject to certain exceptions) to vote in favour of the Acquisition and the
Scheme in respect of their own beneficial holdings, amounting to, in aggregate
47,354 ICG Units, which represents approximately 0.2 per cent. of the issued
share capital of ICG.
The Executive Directors did not participate in the Board's consideration of the
Acquisition and the Scheme because of their interests in Aella.
The Acquisition, by means of the Scheme, is subject to the conditions and
further terms set out in paragraph 4 of this announcement and in Appendix I.
Moonduster is a wholly owned subsidiary of Rambone. Rambone is majority owned
and controlled by a subsidiary of One51. One51 Capital, a subsidiary of One51,
through contracts for difference, controls the voting of 2,642,189 ICG Units in
total, representing approximately 11.17 per cent. of the issued share capital of
ICG. One51 Capital has irrevocably committed to Moonduster and to ICG, in
respect of all of the aforementioned shares, to procure that voting instructions
are given to vote in favour of the Acquisition and the Scheme.
A subsidiary of Doyle Group is a minority shareholder in Rambone. Doyle Group
owns or, through contracts for difference, controls the voting of 2,177,217 ICG
Units in total, representing approximately 9.21 per cent. of the issued share
capital of ICG. Doyle Group has irrevocably committed to Moonduster and ICG, in
respect of all of the aforementioned shares, to vote, or to procure that voting
instructions are given to vote, in favour of the Acquisition and the Scheme.
Commenting on the Acquisition on behalf of the Independent Board, Mr John B
McGuckian, the Chairman of ICG, said:
'Having already presented Shareholders with an attractive offer from Aella, the
Independent Directors are now pleased to present Shareholders with a higher
offer from Moonduster. The Cash Consideration is at a price at which the
Independent Directors will recommend the Acquisition to Shareholders as it
represents an excellent opportunity for Shareholders to realise their investment
for the Cash Consideration.'
Commenting on the Acquisition on behalf of Moonduster, Philip Lynch, Chief
Executive of One51, said:
'We are pleased to have reached agreement with the Independent Directors on the
terms of a recommended acquisition of ICG at a price of €22.00 per share. We
believe that ICG represents an attractive investment opportunity and we look
forward to continuing the development of its business in the future.'
This summary should be read in conjunction with the full text of the following
announcement. Appendix III to the following announcement contains definitions of
certain terms used in this summary and the following announcement.
Enquiries:
One51 / Moonduster Tel: +353 (0) 1 612 1151
Philip Lynch
Paul Dixon
Joint Financial Advisers to Moonduster
Davy Corporate Finance Tel: +353 (0) 1 679 6363
Hugh McCutcheon
Des Carville
IBI Corporate Finance Tel: +353 (0) 1 637 7800
Tom Godfrey
John Tuite
Joint PR Advisers to One51 / Moonduster
Murray Consultants Tel: +353 (0) 1 498 0300
Jim Milton
Ed Micheau
Fleishman-Hillard Tel: +353 (0) 1 618 8433
James Morrissey
Irish Continental Group plc Tel: +353 (0) 1 855 2222
Independent Board
John B McGuckian
Financial Adviser to ICG
NCB Corporate Finance Tel: +353 (0) 1 611 5611
Liam Booth
Jonathan Simmons
PR Adviser to ICG
Drury Communications Tel: +353 (0) 1 260 5000
Billy Murphy
The directors of ICG accept responsibility for the information contained in this
announcement, other than that relating to Moonduster, Rambone, Doyle Group,
One51 and their respective subsidiaries and the recommendation and the related
opinions of the Independent Board. The Independent Board accepts responsibility
for the recommendation and the related opinions of the Independent Board
contained in this announcement. To the best of the knowledge and belief of the
directors of ICG and the Independent Board (who have taken all reasonable care
to ensure that such is the case), the information contained in this announcement
for which they respectively accept responsibility is in accordance with the
facts and does not omit anything likely to affect the import of such
information.
The directors of Moonduster accept responsibility for the information contained
in this announcement, other than that relating to ICG, the ICG Group, the
directors of ICG and members of their immediate families, related trusts and
persons connected with them, and the recommendation and related opinions of the
Independent Board. To the best of the knowledge and belief of the directors of
Moonduster (who have taken all reasonable care to ensure that such is the case),
the information contained in this announcement for which they accept
responsibility is in accordance with the facts and does not omit anything likely
to affect the import of such information.
Davy Corporate Finance which is regulated by the Financial Regulator, is acting
exclusively for Moonduster and no one else in connection with the Acquisition
and will not be responsible to anyone other than Moonduster for providing the
protections afforded to clients of Davy Corporate Finance or for providing
advice in relation to the Acquisition, the contents of this announcement or any
transaction or arrangement referred to herein.
IBI Corporate Finance, a subsidiary of The Governor and Company of the Bank of
Ireland (which is regulated by the Financial Regulator) is acting exclusively
for Moonduster and no one else in connection with the Acquisition and will not
be responsible to anyone other than Moonduster for providing the protections
afforded to clients of IBI Corporate Finance or for providing advice in relation
to the Acquisition, the contents of this announcement or any transaction or
arrangement referred to herein.
NCB Corporate Finance, which is authorised in Ireland by the Financial Regulator
under the Investment Intermediaries Act 1995, is acting exclusively for ICG and
no one else in connection with the Acquisition and will not be responsible to
anyone other than ICG for providing the protections afforded to customers of NCB
Corporate Finance or for providing advice in relation to the Acquisition, the
contents of this announcement or any transaction or arrangement referred to
herein.
The full text of the conditions and reference to certain further terms of the
Acquisition and the Scheme are set out in Appendix I.
This announcement does not constitute an offer to purchase, sell, subscribe or
exchange or the solicitation of an offer to purchase, sell, subscribe or
exchange any securities or the solicitation of any vote or approval in any
jurisdiction pursuant to the Acquisition or otherwise.
The distribution of this announcement in or into certain jurisdictions may be
restricted by the laws of those jurisdictions. Accordingly, copies of this
announcement and all other documents relating to the Acquisition are not being,
and must not be, mailed or otherwise forwarded, distributed or sent in, into or
from any Restricted Jurisdiction. Persons receiving such documents (including,
without limitation, nominees, trustees and custodians) should observe these
restrictions. Failure to do so may constitute a violation of the securities laws
of any such jurisdiction.
Any response in relation to the Acquisition should be made only on the basis of
the information contained in the Scheme Document or any document by which the
Acquisition and the Scheme are made.
This announcement is made pursuant to Rule 2.5 of the Irish Takeover Rules.
Any person, who is a holder of one per cent. or more of ICG Units may have
disclosure obligations under Rule 8.3 of the Irish Takeover Rules, effective
from the date of the commencement of the Offer Period.
Not for release, publication or distribution, in whole or in part, in, into or
from a Restricted Jurisdiction.
14 June 2007
RECOMMENDED ACQUISITION FOR CASH OF IRISH CONTINENTAL GROUP PLC
BY MOONDUSTER LIMITED BY MEANS OF A SCHEME OF ARRANGEMENT UNDER SECTION 201 OF
THE COMPANIES ACT, 1963
1. Introduction
The Board of Moonduster and the Independent Board of ICG are pleased to announce
that they have reached agreement on the terms of a recommended acquisition for
cash of the entire issued and to be issued share capital of ICG by Moonduster by
means of a scheme of arrangement under Section 201 of the Companies Act, 1963.
The Independent Board, which has been so advised by NCB Corporate Finance,
considers the terms of the Acquisition to be fair and reasonable. In providing
its advice, NCB Corporate Finance has taken into account the commercial
assessments of the Independent Board. Accordingly, the Independent Board intends
unanimously to recommend to ICG Shareholders to vote in favour of the
Acquisition and the Scheme. The members of the Independent Board who hold ICG
Units will by 7.00 p.m. today and following the release of this announcement
enter into irrevocable undertakings under which they will irrevocably undertake
(subject to certain exceptions) to vote in favour of the Acquisition and the
Scheme in respect of their own beneficial holdings, amounting to, in aggregate
47,354 ICG Units, which represents approximately 0.2 per cent. of the issued
share capital of ICG.
The Executive Directors did not participate in the Board's consideration of the
Acquisition and the Scheme because of their interests in Aella.
The Acquisition and the Scheme will be subject to the conditions and further
terms set out in paragraph 4 of this announcement and Appendix I, which will
also be set out in the Scheme Document.
Moonduster is a wholly owned subsidiary of Rambone. Rambone is majority owned
and controlled by a subsidiary of One51. One51 Capital, a subsidiary of One51,
through contracts for difference, controls the voting of 2,642,189 ICG Units
representing approximately 11.17 per cent. of the issued share capital of ICG.
One51 Capital has irrevocably committed to Moonduster and ICG, in respect of all
of the aforementioned shares, to procure that voting instructions are given to
vote in favour of the Acquisition and the Scheme.
A subsidiary of Doyle Group is a minority shareholder in Rambone. Doyle Group
owns or, through contracts for difference, controls the voting of 2,177,217 ICG
Units in total, representing approximately 9.21 per cent. of the issued share
capital of ICG. Doyle Group has irrevocably committed to Moonduster and ICG, in
respect of all of the aforementioned shares, to vote, or to procure that voting
instructions are given to vote, in favour of the Acquisition and the Scheme.
2. The Cash Consideration
The Cash Consideration represents:
for each ICG Unit €22.00 in cash
The Cash Consideration values the entire issued and to be issued share capital
of ICG at approximately €560.9 million.
The Cash Consideration represents a premium of approximately:
• 18.9 per cent. to €18.50, being the price per ICG Unit offered under the
proposal from Aella;
• 7.3 per cent. to €20.50, being the Closing Price of an ICG Unit on 13 June
2007, being the last Business Day prior to this announcement;
• 41.0 per cent. to €15.60, being the Closing Price of an ICG Unit on 7 March
2007, being the last Business Day prior to the commencement of the Offer
Period; and
• 61.5 per cent. to €13.63, being the average daily Closing Price of an ICG
Unit over the 6 months up to the commencement of the Offer Period.
3. Background to and Reasons for Recommending the Acquisition
On 8 March 2007, the Independent Board of ICG announced that they had reached
agreement with Aella, a company owned and controlled by members of ICG's senior
management team, on the terms of a recommended acquisition of the entire issued
and to be issued share capital of ICG, by means of a scheme of arrangement under
Section 201 of the Companies Act, 1963, for a cash consideration of €18.50 per
ICG Unit.
On 4 April 2007, One51 Capital and Doyle Group announced that they were in
discussions regarding a possible offer, of not less than €20.00 per ICG Unit, to
acquire the entire issued and to be issued share capital of ICG. The Independent
Board announced, also on 4 April 2007, that following initial discussions with
One51 Capital and Doyle Group, it intended to seek an adjournment of each of the
shareholder meetings scheduled to take place on 12 April 2007 to consider the
Aella Scheme. These meetings were duly adjourned and currently remain adjourned.
On 16 April 2007, the Independent Board announced that One51 Capital and Doyle
Group had entered into a formal process with the Company and commenced
confirmatory due diligence which, at the time, it was expected would take up to
four weeks to complete.
Following completion of its due diligence, Moonduster confirmed to the
Independent Board that it is prepared to proceed with an acquisition of the
entire issued and to be issued share capital of ICG for a cash consideration of
€22.00 per ICG Unit on a recommended basis.
Since the initial approach to the Company by members of ICG's senior management
team on 8 February 2007, the Independent Board has sought to achieve the best
possible offer for ICG Shareholders. In reaching its decision to recommend ICG
Shareholders to vote in favour of the Acquisition and the Scheme, the
Independent Board has taken the following factors into consideration:
• the Cash Consideration of €22.00 per ICG Unit provides Shareholders with an
opportunity to realise a higher cash consideration than currently available from
the Aella Scheme; and
• the Company has received no approach in relation to a higher offer being
available for Shareholders, either from Aella or from any other party.
The Independent Board is withdrawing its recommendation that the ICG
Shareholders vote in favour of the Aella Scheme. The adjournment of the
extraordinary general meeting and other shareholder meetings to be held in
relation to the Aella Scheme will continue in order to allow the Acquisition and
the Scheme to be put to Shareholders by Moonduster. It is expected that the
adjournment of the Aella Scheme will continue until further notice or such time
as the Aella Scheme is terminated.
4. The Acquisition and the Scheme
The Acquisition will be effected by way of a Scheme of Arrangement. Under the
Scheme (which will be subject to the conditions and on the terms set out in
Appendix I to this announcement and which will also be set out in the Scheme
Document) ICG Shareholders will receive the Cash Consideration in return for the
cancellation of their Shares.
The Scheme of Arrangement is an arrangement made between ICG and ICG
Shareholders under Section 201 of the Act and is subject to the approval of the
High Court. If the Scheme becomes effective, all ICG Units will be cancelled
pursuant to Sections 72 and 74 of the Act with the exception of seven ICG Units
held by seven nominees. ICG will then issue new ICG Units to Moonduster in place
of the ICG Units cancelled pursuant to the Scheme and Moonduster will pay the
consideration for the Acquisition to former ICG Shareholders. As a result of
these arrangements, ICG will become a wholly owned subsidiary of Moonduster.
To become effective, the Scheme requires, amongst other things, the approval at
the Court Meeting of a majority in number of ICG Shareholders, present and
voting either in person or by proxy, representing three-fourths (75 per cent.)
or more in value of the ICG Shares held by such holders, as well as the approval
by ICG Shareholders of resolutions relating to the implementation of the Scheme
at an EGM to be held directly after the Court Meeting.
Assuming the necessary approvals from the ICG Shareholders have been obtained
and all conditions have been satisfied or (where applicable) waived, the Scheme
will become effective upon delivery to the Registrar of Companies of a copy of
the Court Order of the High Court sanctioning the Scheme together with the
minute required by Section 75 of the Act confirming the capital reduction and
registration of the Court Order and minute by him. Upon the Scheme becoming
effective, it will be binding on all ICG Shareholders, irrespective of whether
or not they attended or voted at the Court Meeting or the Extraordinary General
Meeting.
The Acquisition is conditional on the Scheme becoming effective. The conditions
to the Acquisition and the Scheme are set out in full in Appendix I of this
announcement. The implementation of the Scheme is conditional, amongst other
things, upon:
• the Scheme becoming effective by not later than 31 October 2007 or such
later date as Moonduster, ICG and the High Court may agree, failing which the
Scheme will lapse;
• the lapse, withdrawal or termination of the Aella Scheme;
• the approval of the Acquisition by the Competition Authority;
• the approval by a majority in number representing three-fourths (75 per
cent.) or more in value of the holders of ICG Shares, present and voting either
in person or by proxy, at the Court Meeting (or at any adjournment of such
meeting);
• the passing of such resolutions as are required to approve or implement the
Scheme at the Extraordinary General Meeting;
• the sanction of the Scheme and confirmation of the reduction of capital
involved therein by the High Court and the delivery of an office copy of the
Court Order and the minute required by Section 75 of the Act to the Registrar of
Companies and the registration of such Court Order and minute by him; and
• the conditions, which are not otherwise identified above, being satisfied
or waived on or before the Effective Date.
The Scheme Document, containing further information relating to the
implementation of the Scheme, the full terms and conditions of the Scheme, and
the notices of the Court Meeting to be convened by direction of the High Court
and the separate Extraordinary General Meeting required to approve the Scheme,
will be posted as soon as reasonably practicable, after the date of this
announcement, to ICG Shareholders and, for information only, to ICG
Optionholders.
The Scheme Document will also specify the actions to be taken by ICG
Shareholders. It is expected that the Acquisition and the Scheme will become
effective prior to 31 October 2007.
5. Information on ICG
ICG is a focussed provider of maritime passenger and freight services with its
principal operations in the area of North West Europe. The Group operates
through two divisions:
• the Ferries Division comprising Irish Ferries, the leading ferry operator
in the Republic of Ireland, with international routes between Ireland and the UK
and Ireland and France, ship chartering activities and a holiday business; and
• the Container & Terminal Division, comprising three intermodal freight
carriers, Eucon, Eurofeeders and Feederlink, and a container terminal, DFT,
within the Port of Dublin.
The Group operates four ferries and fourteen time chartered feeder vessels.
Irish Ferries announced on 22 January 2007 that it had purchased a newer, more
luxurious cruise ferry, the Kronprins Harald, for its Ireland-France routes. The
acquisition will cost approximately €45 million including modifications and
delivery.
On 8 March 2007, ICG reported its results for the year to 31 December 2006:
• Turnover for the year grew 4.6 per cent. to €312.1 million (2005: €298.5
million).
• EBITDA, before non-recurring items, was up 30.3 per cent. at €59.7 million
(2005: €45.8 million) while trading profit before non-recurring items amounted
to €32.2 million (2005: €18.1 million).
• The improvement in EBITDA and operating profit was due to the absence of
industrial action during the period (in comparison with 2005), an increase in
freight revenue and lower costs as a result of the restructuring in 2005
partially offset by higher fuel costs (up 12.3 per cent. to €32.8 million).
• Adjusted EPS amounted to 108.5 cent (2005: 54.1 cent restated).
6. Information on Moonduster
Moonduster is a private limited company, which was incorporated in Ireland on 10
May 2007. Moonduster has not traded prior to the date of this announcement
(except for entering into transactions relating to the Acquisition). Moonduster
is a wholly owned subsidiary of Rambone. Moonduster has no employees.
Moonduster is being advised by Davy Corporate Finance and IBI Corporate Finance.
7. Information on Rambone
Rambone is a private limited company, which was incorporated in Ireland on 15
February 2007. Rambone has not traded prior to the date of this announcement
(except for entering into transactions relating to the Acquisition). A
subsidiary of One51 owns 80 per cent. of the issued share capital of Rambone
with the remaining 20 per cent. shareholding being owned by a subsidiary of
Doyle Group. Rambone has no employees.
8. Information on One51
One51 is an unlisted plc with a diversified business portfolio comprising
operations in Ireland, the United Kingdom and Continental Europe. One51 Capital
is a wholly owned subsidiary of One51.
One51 is pursuing a strategy focused on developing a substantial presence in
high growth niche sub-sectors of the infrastructure, waste, energy and related
markets.
One51 was established as part of a reconstruction and reorganisation process of
the Irish Agricultural Wholesale Society Limited whereby key businesses and
assets were transferred from the Irish Agricultural Wholesale Society Limited to
One51 in December 2005.
9. Information on Doyle Group
Originally based in Cork, Doyle Group is a private company. The group has
operated in the shipping industry for over 100 years and now has operations in
Belfast, Cork, Dublin, Foynes and Waterford. Doyle Group is an integrated
provider of port-side services including agency, chartering, forwarding,
stevedoring and terminal operations.
10. Financing
The Acquisition will be financed by debt facilities made available to Moonduster
by Bank of Scotland (Ireland) Limited and by debt and equity contributions from
One51 Capital and Doyle Group or their respective nominees. Further information
on the financing of the Acquisition will be set out in the Scheme Document.
Davy Corporate Finance and IBI Corporate Finance, as joint financial advisers to
Moonduster, are satisfied that the necessary financial resources are available
to Moonduster to satisfy in full the consideration payable to ICG Shareholders
under the terms of the Acquisition.
11. Directors, Management and Employees
The Board of Moonduster confirms that, following the Scheme becoming effective,
the existing employment rights, including pension rights, of all employees of
the ICG Group will be fully safeguarded.
Upon the Scheme becoming effective, the non-executive directors of ICG intend to
resign from the Board of ICG.
12. ICG Share Option Schemes
Appropriate proposals will be made to ICG Optionholders in due course.
13. Delisting and Cancellation of Trading
It is intended that, subject to and following the Scheme becoming effective, and
subject to applicable requirements of the Irish Stock Exchange and the UK
Listing Authority, Moonduster will procure that ICG applies for cancellation of
the listing of the ICG Units on the Official Lists and for cancellation of
trading of the ICG Units on the markets of the Irish Stock Exchange and of the
London Stock Exchange. The last day of dealing in ICG Shares on the Irish Stock
Exchange and the London Stock Exchange will be the last business day before the
Effective Date.
14. Expenses Reimbursement Agreement
ICG has entered into an expenses reimbursement and non-solicitation agreement
dated 14 June 2007, with Moonduster, the terms of which have been approved by
the Panel. Under the Expenses Reimbursement Agreement, ICG has agreed to pay
specific quantifiable third party costs and expenses incurred by Moonduster in
connection with the Acquisition in the circumstances outlined below. The
liability of ICG to pay these amounts is limited to a maximum amount equal to 1
per cent. of the aggregate value of the number of ICG Units which are the
subject of the Acquisition multiplied by the Cash Consideration per ICG Unit.
The circumstances in which such payment will be made include:
(a) if, prior to the Acquisition lapsing or being withdrawn (or, in certain
circumstances, not being made), a competing offer or offers or scheme or schemes
are recommended by the Independent Board or any such offer becomes or is
declared unconditional in all respects or scheme becomes effective);
(b) if the Independent Board no longer recommends (or intends to recommend) ICG
Shareholders to accept or vote in favour of the Acquisition or the Independent
Board adversely modifies or withdraws its recommendation and subsequently the
Acquisition lapses or is withdrawn or, in certain circumstances, is not made;
(c) if, as a result of an act or omission of ICG or any ICG Group company or any
of their respective directors, employees, agents or advisers, the Scheme
Document is not posted by ICG to ICG Shareholders within such timeframe as is
required by the High Court; or
(d) if the Acquisition is withdrawn or does not become effective in which case
the amount payable by ICG shall be limited to one-third of all third party costs
and expenses incurred by Moonduster or by or on behalf of One51 Capital or Doyle
Group in connection with the Acquisition up to a maximum amount of €500,000.
ICG will not be liable to make any payment to Moonduster in circumstances where:
(a) a recommended higher competing offer or scheme is announced and either of
One51 Capital or Doyle Group do not accept such offer in respect of ICG Units
actually held by them, or do not vote, or do not procure that voting
instructions are given to vote, in favour of such scheme; or
(b) other than as a result of any act or omission of the ICG Group, the
Acquisition does not succeed due to non-satisfaction of condition 2 (a) in
Appendix I to this announcement by 31 October 2007 or such later date as may be
agreed between ICG and Moonduster.
The non-solicitation undertaking provides that until the Acquisition and the
Scheme become effective (or are withdrawn), ICG shall procure that no member of
the Group or none of their respective directors, employees, agents or advisers,
in their capacities as directors, employees, agents or advisers, shall solicit
interest or initiate discussions or negotiations with any person with a view to
making a competing offer which would preclude or materially restrict or delay
the Acquisition.
NCB Corporate Finance, the independent financial adviser to the Independent
Board, has confirmed in writing to the Panel that, in the opinion of the
Independent Board and NCB Corporate Finance, in the context of the Acquisition,
the Expenses Reimbursement Agreement is in the best interests of ICG and ICG
Shareholders.
15. Implementation Agreement
ICG and Moonduster have entered into an Implementation Agreement which contains
certain assurances in relation to the implementation of the Scheme and the
conduct of ICG's business up to the Effective Date.
Further information regarding the Implementation Agreement will be set out in
the Scheme Document.
16. Undertakings to Vote in Favour of the Acquisition and the Scheme
Moonduster has received irrevocable undertakings, in respect of approximately
20.38 per cent. of the entire issued share capital of ICG, to vote, or to
procure that voting instructions are given to vote, in favour of the Acquisition
and the Scheme as follows:
One51 Capital
Moonduster has received irrevocable undertakings from One51 Capital in respect
of its interest in 2,642,189 ICG Units (representing approximately 11.17 per
cent. of the issued share capital of ICG) held through contracts for difference,
to procure that irrevocable voting instructions are given to vote the ICG Units
underlying such contracts for difference in favour of the Acquisition and the
Scheme. These irrevocable undertakings will cease to have effect in the event
that the Acquisition and the Scheme lapse or are withdrawn or the Scheme does
not become effective on or before 31 October 2007 or Moonduster announces that
it will not proceed with the Acquisition.
Doyle Group
Moonduster has received irrevocable undertakings from Doyle Group in respect of
its interest in 2,177,217 ICG Units (representing approximately 9.21 per cent.
of the issued share capital of ICG) to vote, or in respect of that part of its
interest held through contracts for difference to procure that irrevocable
voting instructions are given to vote the ICG Units underlying such contracts
for difference, in favour of the Acquisition and the Scheme. These irrevocable
undertakings will cease to have effect in the event that the Acquisition and the
Scheme lapse or are withdrawn or the Scheme does not become effective on or
before 31 October 2007 or Moonduster announces that it will not proceed with the
Acquisition.
17. Undertakings to be received from members of the Independent Board
The members of the Independent Board who hold ICG Units, will by 7.00 p.m. today
and following the release of this announcement enter into irrevocable
undertakings under which they will irrevocably undertake to vote in favour of
the Acquisition and the Scheme in respect of their own beneficial shareholdings
which amount, in aggregate, to 47,354 ICG Units, representing approximately 0.2
per cent. of the issued share capital of ICG. These irrevocable undertakings,
once given, will lapse in the event that the Acquisition and the Scheme lapse or
are withdrawn or the Scheme does not become effective on or before 31 October
2007 or a higher competing offer is made or a firm intention to make a higher
competing offer is announced or Moonduster announces that it will not proceed
with the Acquisition.
18. Interests in ICG
As at 13 June 2007, being the latest practicable date prior to the date of this
announcement, One51 Capital controlled the voting of 2,642,189 ICG Units.
As at 13 June 2007, being the latest practicable date prior to the date of this
announcement, Doyle Group owned, or controlled the voting of 2,177,217 ICG
Units.
As at 13 June 2007, being the latest practicable date prior to the date of this
announcement, an affiliate of Davy Corporate Finance held 424,896 ICG Units on
behalf of certain discretionary clients.
Save as disclosed in this paragraph 18, neither Moonduster nor, as far as
Moonduster is aware, any person acting in concert with Moonduster, owns or
controls any ICG Units or any securities convertible or exchangeable into, or
rights to subscribe for or purchase, or holds any options to purchase any ICG
Units or has entered into any derivative referenced to ICG Units which remains
outstanding or has any arrangements in relation to ICG Units.
So far as the directors of Moonduster and ICG are aware, no Arrangement exists
with Moonduster, ICG or with any associate of Moonduster or ICG.
19. General
The Acquisition and the Scheme will be made subject to the conditions and
further terms set out in Appendix I and to be set out in the Scheme Document.
The Scheme Document will include full details of the Acquisition and will be
accompanied by the appropriate forms of proxy. These will be despatched to ICG
Shareholders and, for information only, to ICG Optionholders, in due course. The
Acquisition and the Scheme will be governed by the laws of Ireland and will be
subject to the applicable requirements of the Irish Takeover Rules, the Irish
Stock Exchange, the London Stock Exchange, the UK Listing Authority and
applicable laws.
Details of the sources and bases of certain information set out in this
announcement are included in Appendix II. Certain terms used in this
announcement are defined in Appendix III.
This announcement is being made pursuant to Rule 2.5 of the Irish Takeover
Rules.
Enquiries:
One51 / Moonduster Tel: +353 (0) 1 612 1151
Philip Lynch
Paul Dixon
Joint Financial Advisers to Moonduster
Davy Corporate Finance Tel: +353 (0) 1 679 6363
Hugh McCutcheon
Des Carville
IBI Corporate Finance Tel: +353 (0) 1 637 7800
Tom Godfrey
John Tuite
Joint PR Advisers to One51 / Moonduster
Murray Consultants Tel: +353 (0) 1 498 0300
Jim Milton
Ed Micheau
Fleishman-Hillard Tel: +353 (0) 1 618 8433
James Morrissey
Irish Continental Group plc Tel: +353 (0) 1 855 2222
Independent Board
John B McGuckian
Financial Adviser to ICG
NCB Corporate Finance Tel: +353 (0) 1 611 5611
Liam Booth
Jonathan Simmons
PR Adviser to ICG
Drury Communications Tel: +353 (0) 1 260 5000
Billy Murphy
The directors of ICG accept responsibility for the information contained in this
announcement, other than that relating to Moonduster, Rambone, Doyle Group,
One51 and their respective subsidiaries and the recommendation and the related
opinions of the Independent Board. The Independent Board accepts responsibility
for the recommendation and the related opinions of the Independent Board
contained in this announcement. To the best of the knowledge and belief of the
directors of ICG and the Independent Board (who have taken all reasonable care
to ensure that such is the case), the information contained in this announcement
for which they respectively accept responsibility is in accordance with the
facts and does not omit anything likely to affect the import of such
information.
The directors of Moonduster accept responsibility for the information contained
in this announcement, other than that relating to ICG, the ICG Group, the
directors of ICG and members of their immediate families, related trusts and
persons connected with them, and the recommendation and related opinions of the
Independent Board. To the best of the knowledge and belief of the directors of
Moonduster (who have taken all reasonable care to ensure that such is the case),
the information contained in this announcement for which they accept
responsibility is in accordance with the facts and does not omit anything likely
to affect the import of such information.
Davy Corporate Finance which is regulated by the Financial Regulator, is acting
exclusively for Moonduster and no one else in connection with the Acquisition
and will not be responsible to anyone other than Moonduster for providing the
protections afforded to clients of Davy Corporate Finance or for providing
advice in relation to the Acquisition, the contents of this announcement or any
transaction or arrangement referred to herein.
IBI Corporate Finance, a subsidiary of The Governor and Company of the Bank of
Ireland (which is regulated by the Financial Regulator), is acting exclusively
for Moonduster and no one else in connection with the Acquisition and will not
be responsible to anyone other than Moonduster for providing the protections
afforded to clients of IBI Corporate Finance or for providing advice in relation
to the Acquisition, the contents of this announcement or any transaction or
arrangement referred to herein.
NCB Corporate Finance, which is authorised in Ireland by the Financial Regulator
under the Investment Intermediaries Act 1995, is acting exclusively for ICG and
no one else in connection with the Acquisition and will not be responsible to
anyone other than ICG for providing the protections afforded to customers of NCB
Corporate Finance or for providing advice in relation to the Acquisition, the
contents of this announcement or any transaction or arrangement referred to
herein.
The full text of the conditions and reference to certain further terms of the
Acquisition and the Scheme are set out in paragraph 4 of this announcement and
in Appendix I.
This announcement does not constitute an offer to purchase, sell, subscribe or
exchange or the solicitation of an offer to purchase, sell, subscribe or
exchange any securities or the solicitation of any vote or approval in any
jurisdiction pursuant to the Acquisition or otherwise.
The distribution of this announcement in or into certain jurisdictions may be
restricted by the laws of those jurisdictions. Accordingly, copies of this
announcement and all other documents relating to the Acquisition are not being,
and must not be, mailed or otherwise forwarded, distributed or sent in, into or
from any Restricted Jurisdiction. Persons receiving such documents (including,
without limitation, nominees, trustees and custodians) should observe these
restrictions. Failure to do so may constitute a violation of the securities laws
of any such jurisdiction.
Any response in relation to the Acquisition should be made only on the basis of
the information contained in the Scheme Document or any document by which the
Acquisition and the Scheme are made.
Any person, who is a holder of one per cent. or more of ICG Units may have
disclosure obligations under Rule 8.3 of the Irish Takeover Rules, effective
from the date of the commencement of the Offer Period.
Not for release, publication or distribution, in whole or in part, in, into or
from a Restricted Jurisdiction.
Appendix I
Conditions of the Acquisition and the Scheme
The Acquisition and the Scheme comply with the Takeover Rules and, where
relevant, the respective rules and regulations of the Irish Stock Exchange, the
London Stock Exchange and the UK Listing Authority and are subject to the terms
and conditions set out in this document and to be set out in the Scheme
Document. The Acquisition and the Scheme are governed by laws of Ireland and
subject to the exclusive jurisdiction of the courts of Ireland, which
exclusivity shall not limit the right to seek provisional or protective relief
in the courts of another State during or after any substantive proceedings have
been instituted in Ireland, nor shall it limit the right to bring enforcement
proceedings in another State on foot of an Irish judgment.
1. The Acquisition will be conditional upon the Scheme becoming effective and
unconditional by not later than 31 October 2007 (or such later date as
Moonduster and ICG may, with (if required) the consent of the Panel, agree and
(if required) the Court may allow). The Scheme will be conditional upon:
(i) the lapse, withdrawal or termination of the Aella Scheme;
(ii) the approval of the Scheme by a majority in number of the Shareholders
representing three-fourths or more in value of the holders of ICG Units,
present and voting either in person or by proxy, at the Court Meeting
(or at any adjournment of such meeting);
(iii) such resolution(s) required to approve or implement the Scheme and set out
in the notice convening the Extraordinary General Meeting being duly passed by
the requisite majority at the Extraordinary General Meeting (or at any
adjournment of such meeting);
(iv) the sanction by the High Court (with or without modification) of the Scheme
pursuant to Section 201 of the Act and the confirmation of the reduction of
capital involved therein by the Court; and
(v) office copies of the Court Orders and the minute required by Section 75 of
the Act in respect of the reduction (referred to in paragraph 1(iv)), being
delivered for registration to the Registrar of Companies and registration of the
Court Order and minute confirming the reduction of capital involved in the
Scheme by the Registrar of Companies.
2. ICG and Moonduster have agreed that, subject to paragraph 3 of this Appendix
I, the Acquisition will also be conditional upon the following matters having
been satisfied or waived on or before (i) the sanction of the Scheme by the High
Court pursuant to Section 201 of the Act in respect of conditions (a) and (c)
below; or (ii) the Effective Date in respect of conditions (b), (d) and (e) to
(j) below:
(a) to the extent that Part 3 of the Irish Competition Act, 2002 is applicable,
the Irish Competition Authority (the 'Authority') having determined, pursuant to
Section 21(2)(a) or 22(3)(a) of that Act, that the Acquisition may be put into
effect or, the Authority having made a determination pursuant to Section 22(3)
(c) of that Act on conditions acceptable to Moonduster, acting reasonably, in
relation to the Acquisition, or Section 19(1)(c) or (d) of that Act being
applicable, whichever is the first to occur;
(b) no central bank, government or governmental, quasi-governmental,
supranational, statutory, regulatory or investigative body, including any
national or supranational anti-trust or merger control authorities, (provided
however that this condition (b) shall not apply to the Authority, the sole
condition in respect of which is set out in (a) above) court, tribunal, trade
agency, professional association, environmental body, any analogous body
whatsoever or tribunal in any jurisdiction or any other person (each a 'Third
Party') having decided to take, institute or implement any action, proceeding,
suit, investigation, enquiry or reference or having made, proposed or enacted
any statute, regulation or order or having withheld any consent or having done
or decided to do anything which would or might reasonably be expected to:
(i) make the Acquisition or its implementation, or the acquisition or proposed
acquisition by Moonduster of any shares in, or control of, ICG, or any of the
assets of ICG void, illegal or unenforceable under the laws of any jurisdiction
or otherwise, directly or indirectly, restrain, revoke, prohibit, restrict or
materially delay the same or impose additional or different conditions or
obligations with respect thereto (except for restraints, prohibitions,
restrictions, delays, conditions or obligations that would not be material (in
value terms or otherwise) in the context of the Wider ICG Group taken as a
whole), or otherwise challenge or interfere therewith (except where the result
of such challenge or interference would not have, or would not reasonably be
expected to have, a material adverse effect (in value terms or otherwise) on the
Wider ICG Group taken as a whole);
(ii) result in a material delay in the ability of Moonduster, or render
Moonduster unable, to acquire some or all of the ICG Units or require a
divestiture by any member of the Moonduster Group or any shares in ICG;
(iii) except where the consequences thereof would not be material (in value
terms or otherwise) in the context of the Wider ICG Group taken as a whole,
require, prevent or delay the divestiture by any member of the Moonduster Group
or by any member of the Wider ICG Group of all or any portion of their
respective businesses, assets (including, without limitation, the shares or
securities of any other member of the ICG Group) or property or impose any
limitation on the ability of any of them to conduct their respective businesses
(or any of them) or own their respective assets or properties or any part
thereof;
(iv) impose any limitation on or result in a material delay in the ability of
Moonduster to acquire, or to hold or to exercise effectively, directly or
indirectly, all or any rights of ownership of shares, ICG Units, (or the
equivalent) in, or to exercise voting or management control over, ICG or any
subsidiary or subsidiary undertaking of ICG which is material in the context of
the Wider ICG Group taken as a whole (each a 'Material Subsidiary') or on the
ability of any member of the Wider ICG Group to hold or exercise effectively,
directly or indirectly, rights of ownership of shares (or the equivalent) in, or
to exercise rights of voting or management control over, any member of the Wider
ICG Group;
(v) except where the consequences thereof would not be material (in value terms
or otherwise) in the context of the Wider ICG Group taken as a whole, require
any member of the Moonduster Group or any member of the Wider ICG Group to
acquire or offer to acquire any shares or other securities (or the equivalent)
in, or any interest in any asset owned by, any member of the Wider ICG Group
owned by any third party;
(vi) except where the consequences thereof would not be material (in value terms
or otherwise) in the context of the Wider ICG Group taken as a whole, impose any
limitation on the ability of any member of the ICG Group to integrate or
co-ordinate its business, or any part of it, with the businesses of any member
of the Wider ICG Group;
(vii) except where the consequences thereof would not be material (in value
terms or otherwise) in the context of the Wider ICG Group taken as a whole,
result in any member of the Wider ICG Group ceasing to be able to carry on
business in any jurisdiction in which it currently does;
(viii) except where the consequences thereof would not be material (in value
terms or otherwise) in the context of the Wider ICG Group taken as a whole,
cause any member of the Wider ICG Group to cease to be entitled to any
Authorisation (as defined in paragraph (c) below) used by it in the carrying on
of its business; or
(ix) except where the consequences thereof would not be material (in value terms
or otherwise) in the context of the Wider ICG Group taken as a whole, otherwise
adversely affect the business, profits, assets, liabilities, financial or
trading position of any member of the Wider ICG Group;
(c) (other than to the Irish Competition Authority in respect of the entire of
this condition (c)) all necessary notifications and filings having been made,
all necessary waiting and other time periods (including any extensions thereof)
under any applicable legislation or regulation of any jurisdiction in which ICG
or any Material Subsidiary shall be incorporated or carry on any business which
is material (in value terms or otherwise) in the context of the Wider ICG Group
taken as a whole having expired, lapsed or having been terminated (as
appropriate) (save to an extent which would not be material (in value terms or
otherwise) in the context of the Wider ICG Group taken as a whole) and all
statutory or regulatory obligations in any jurisdiction in which ICG or a
Material Subsidiary shall be incorporated or carry on any business which is
material (in value terms or otherwise) in the context of the Wider ICG Group
taken as a whole having been complied with (save to an extent which would not be
material (in value terms or otherwise) in the context of the Wider ICG Group
taken as a whole), in each case, in connection with the Acquisition or its
implementation and all authorisations, orders, recognitions, grants, consents,
clearances, confirmations, licences, permissions and approvals in any
jurisdiction ('Authorisations' and each an 'Authorisation') reasonably deemed
necessary or appropriate by Moonduster for or in respect of the Acquisition
having been obtained on terms and in a form reasonably satisfactory to
Moonduster from all appropriate Third Parties (except where the consequence of
the absence of any such Authorisation would not be material (in value terms or
otherwise) in the context of the Wider ICG Group taken as a whole), all such
Authorisations remaining in full force and effect, there being no notified
intention to revoke or vary or not to renew the same at the time at which the
Acquisition becomes otherwise unconditional and all necessary statutory or
regulatory obligations in any such jurisdiction having been complied with
(except where the consequence thereof would not be material (in value terms or
otherwise) in the context of the Wider ICG Group taken as a whole);
(d) (other than to the Irish Competition Authority in respect of the entire of
this condition (d)) all applicable waiting periods and any other time periods
during which any Third Party could, in respect of the Acquisition or the
acquisition or proposed acquisition of any shares or other securities (or the
equivalent) in, or control of, ICG or any member of the Wider ICG Group by
Moonduster, institute or implement any action, proceedings, suit, investigation,
enquiry or reference under the laws of any jurisdiction which would be
reasonably expected adversely to affect (to an extent which would be material
(in value terms or otherwise) in the context of the Wider ICG Group taken as a
whole) any member of the ICG Group, having expired, lapsed or been terminated;
(e) except as disclosed, there being no provision of any arrangement, agreement,
licence, permit, franchise, facility, lease or other instrument to which any
member of the Wider ICG Group is a party or by or to which any such member or
any of its respective assets may be bound, entitled or be subject and which, in
consequence of the Acquisition or the acquisition or proposed acquisition by
Moonduster of any shares or other securities (or the equivalent) in or control
of ICG or any member of the ICG Group or because of a change of control or
management of ICG or otherwise, would or would be reasonably expected to result
(except where, in any of the following cases, the consequences thereof would not
be material (in value terms or otherwise) in the context of the Wider ICG Group
taken as whole) in:
(i) any monies borrowed by, or any indebtedness or liability (actual or
contingent) of, or any grant available to any member of the Wider ICG Group
becoming, or becoming capable of being declared, repayable immediately or prior
to their or its stated maturity or the ability of any such member to borrow
monies or incur any indebtedness being withdrawn or materially inhibited;
(ii) the creation or enforcement of any mortgage, charge or other security
interest wherever existing or having arisen over the whole or any part of the
business, property or assets of any member of the Wider ICG Group or any such
mortgage, charge or other security interest becoming enforceable;
(iii) any such arrangement, agreement, licence, permit, franchise, facility,
lease or other instrument or the rights, liabilities, obligations or interests
of any member of the Wider ICG Group thereunder, or the business of any such
members with, any person, firm or body (or any arrangement or arrangements
relating to any such interest or business) being terminated or adversely
modified or any adverse action being taken or any obligation or liability
arising thereunder;
(iv) any material assets or material interests of, or any material asset the use
of which is enjoyed by, any member of the Wider ICG Group being or falling to be
disposed of or charged, or ceasing to be available to any member of the Wider
ICG Group or any right arising under which any such asset or interest would be
required to be disposed of or charged or would cease to be available to any
member of the Wider ICG Group otherwise than in the ordinary course of business;
(v) any member of the Wider ICG Group ceasing to be able to carry on business;
(vi) the value of, or financial or trading position of any member of the Wider
ICG Group being prejudiced or adversely affected; or
(vii) the creation of any liability or liabilities (actual or contingent) by any
member of the Wider ICG Group;
unless, if any such provision exists, such provision shall have been waived,
modified or amended on terms satisfactory to Moonduster and no event having
occurred which, under any provision of any agreement, arrangement, licence,
permit or other instrument to which any member of the Wider ICG Group is a party
or by or to which any such member or any of its assets is bound, entitled or
subject, is reasonably likely to result (except where, in any of the following
cases, the consequences thereof would not be material (in value terms or
otherwise) in the context of the Wider ICG Group taken as a whole) in any of the
events or circumstances as are referred to in sub-paragraphs (i) to (vii) of
this condition 2(e);
(f) save as publicly disclosed by the delivery of an announcement to the Irish
Stock Exchange or the London Stock Exchange at any time up to 14 June 2007
(being the date of this announcement) or otherwise publicly disclosed in the
preliminary results of the ICG Group for the year ended 31 December 2006, no
member of the Wider ICG Group having, since 31 December 2006:
(i) issued or agreed to issue additional shares of any class, or securities
convertible into or exchangeable for, or rights, warrants or options to
subscribe for or acquire, any such shares or convertible or exchangeable
securities (except for (A) issues to ICG or wholly-owned subsidiaries of ICG; or
(B) upon any exercise of ICG Options);
(ii) recommended, declared, paid or made or issued any bonus issue, dividend or
other distribution other than bonus issues, dividends or other distributions
lawfully paid or made to another member of the ICG Group;
(iii) save for transactions between two or more members of the ICG Group
('intra-ICG Group transactions'), made or authorised, proposed or announced any
change in its loan capital (save in respect of loan capital which is not
convertible into share capital and is not material (in value terms or otherwise)
in the context of the ICG Group taken as a whole);
(iv) save for intra-ICG Group transactions, implemented, authorised, proposed or
announced its intention to propose any merger, demerger, reconstruction,
amalgamation, scheme or (except in the ordinary and usual course of trading)
acquisition or disposal of (or of any interest in) assets or shares (or the
equivalent thereof) in any undertaking or undertakings (except in any such case
where the consequences of any such merger, demerger, reconstruction,
amalgamation, scheme, acquisition or disposal would not be material (in value
terms or otherwise) in the context of the ICG Group taken as a whole);
(v) except in the ordinary and usual course of business entered into or
materially improved, or made any offer (which remains open for acceptance) to
enter into or materially improve, the terms of any non-executive director (save
as disclosed) or the terms of the employment contract with any director of ICG
or any person occupying one of the senior executive positions in the ICG Group
or permitted a variation in the terms or rules governing the ICG Share Option
Schemes (save as disclosed);
(vi) issued any loan capital or debentures or (save in the ordinary course of
business and save for intra-ICG Group transactions and except where the
consequences thereof would not be material (in value terms or otherwise) in the
context of the ICG Group, taken as a whole) incurred any indebtedness or
contingent liability;
(vii) purchased, redeemed or repaid or announced any offer to purchase, redeem
or repay any of its own shares or other securities (or the equivalent) or
reduced or made any other change to any part of its share capital;
(viii) merged with any body corporate, partnership or business, or (except where
the consequences thereof would not be material (in value terms or otherwise) in
the context of the ICG Group, taken as a whole) acquired or disposed of,
transferred any material asset or mortgaged or encumbered any material assets or
any material right, title or interest in any asset (including shares and trade
investments);
(ix) (except where the consequences thereof would not be material (in value
terms or otherwise) in the context of the Wider ICG Group taken as a whole or
save as disclosed) entered into or varied any contract, transaction, arrangement
or commitment or announced its intention to enter into or vary any contract,
transaction, arrangement or commitment (whether in respect of capital
expenditure or otherwise) which is of a long term, onerous or unusual nature or
magnitude or which is or would be materially restrictive on the business of any
member of the Wider ICG Group;
(x) (save as disclosed) entered into or varied any material contract,
transaction or arrangement or announced its intention to enter into or vary any
material contract, transaction or arrangement otherwise than in the ordinary and
usual course of business, except where the consequences thereof would not be
material (in value terms or otherwise) in the context of the Wider ICG Group
taken as a whole;
(xi) waived or compromised any claim which would be material (in value terms or
otherwise) in the context of the Wider ICG Group taken as a whole;
(xii) (except where the consequences thereof would not be material (in value
terms or otherwise) in the context of the Wider ICG Group taken as a whole) been
unable, or admitted in writing that it is unable, to pay its debts or having
stopped or suspended (or threatened to stop or suspend) payment of its debts
generally or ceased to carry on all or a substantial part of any business;
(xiii) (except where the consequences thereof would not be material (in value
terms or otherwise) in the context of the Wider ICG Group taken as a whole) made
or agreed to any significant change to the terms of the trust deeds (including
the termination or partial termination of the trusts) constituting the pension
schemes established for its directors and/or employees and/or their dependants
or to the benefits which accrue, or to the pensions which are payable
thereunder, or to the basis on which qualification for or accrual or entitlement
to such benefits or pensions are calculated or determined, or to the basis upon
which the liabilities (including pensions) of such pension schemes are funded or
made, or agreed or consented to any change to the trustees involving the
appointment of a trust corporation or caused any employee of the Wider ICG Group
to cease to be a member of any UK pension scheme by withdrawing as a
participating employer in such pension scheme, or unlawfully terminating the
employment of any active member of a UK pension scheme, or making any employee
member of the Wider ICG Group redundant, or exercising any discretion under the
provisions governing such pension scheme;
(xiv) save in respect of a voluntary solvent liquidation of a member of the
Wider ICG Group which was solvent and dormant at the relevant time or a member
of the Wider ICG Group which is not a Material Subsidiary, taken any corporate
action or (except where the consequences thereof would not be material (in value
terms or otherwise) in the context of the Wider ICG Group taken as a whole) had
any legal proceedings instituted against it in respect of its winding-up,
dissolution, examination or reorganisation or for the appointment of a receiver,
examiner, administrator, administrative receiver, trustee or similar officer of
all or any part of its assets or revenues, or (A) been the subject of any
analogous proceedings in any jurisdiction, or (B) appointed any analogous person
in any jurisdiction in which ICG or any Material Subsidiary shall be
incorporated or carry on any business;
(xv) entered into any agreement, contract or binding commitment or passed any
resolution or made any offer or announcement with respect to, or to effect any
of the transactions, matters or events set out in this condition (without
prejudice to the exceptions to each paragraph with regard to materiality and
other matters); or
(xvi) except in the case of amendments to the memoranda or articles of
association of subsidiaries which are not material, amended its memorandum and
articles of association (save as set out herein or agreed with Moonduster).
(g) save as publicly announced by ICG (by the delivery of an announcement to the
Irish Stock Exchange or the London Stock Exchange at any time up to 14 June 2007
(being the date of this announcement) or otherwise publicly disclosed in the
preliminary results of the ICG Group for the year ended 31 December 2006, since
31 December 2006:
(i) there not having arisen any adverse change or adverse deterioration in the
business, assets, financial or trading position or profits of ICG or any member
of the Wider ICG Group (save to an extent which would not be material (in value
terms or otherwise) in the context of the Wider ICG Group taken as a whole);
(ii) save as disclosed, no litigation, arbitration proceedings, prosecution or
other legal proceedings to which any member of the Wider ICG Group is or would
reasonably be expected to become a party (whether as plaintiff or defendant or
otherwise) and no investigation by any Third Party against or in respect of any
member of the Wider ICG Group having been instituted or remaining outstanding
by, against or in respect of any member of the ICG Group (save where the
consequences of such litigation, arbitration proceedings, prosecution or other
legal proceedings or investigation are not or would not be material (in value
terms or otherwise) in the context of the Wider ICG Group taken as a whole); and
(iii) save as disclosed, no contingent or other liability existing or having
arisen which would reasonably be expected to affect adversely any member of the
Wider ICG Group (save where such liability is not or would not be material (in
value terms or otherwise) in the context of the Wider ICG Group taken as a
whole) and no steps having been taken which are likely to result in the
withdrawal, cancellation, termination or modification of any licence, consent,
permit, access right or authorisation held by any member of the Wider ICG Group
which is necessary for the proper carrying on of its business and which is
material in the context of the Wider ICG Group;
(h) Moonduster not having discovered:
(i) that any financial, business or other information concerning the Wider ICG
Group which is material (in value terms or otherwise) in the context of the
Wider ICG Group taken as a whole and which has been publicly disclosed is
materially misleading, contains a material misrepresentation of fact or omits to
state a fact necessary to make the material information contained therein not
misleading, (save where the consequences of which would not be material (in
value terms or otherwise) in the context of the Wider ICG Group taken as a
whole);
(ii) save as disclosed, that any member of the Wider ICG Group is subject to any
liability (actual or contingent) which is not disclosed in the ICG Annual Report
and Accounts for the financial year ended 31 December 2006 and which is material
in the context of the Wider ICG Group taken as a whole; or
(iii) any information which affects the import of any information disclosed to
Moonduster at any time up to 14 June 2007 (being the date of this announcement)
by or on behalf of any employees, officers, advisers or members of the Wider ICG
Group to the extent which is material in the context of the Wider ICG Group
taken as a whole;
(i) save as publicly announced by ICG (by the delivery of an announcement to the
Irish Stock Exchange or the London Stock Exchange at any time up to 14 June 2007
(being the date of this announcement) or otherwise publicly disclosed in the
preliminary results of the ICG Group for the year ended 31 December 2006,
Moonduster not having discovered:
(i) in relation to any release, emission, discharge, disposal or other fact or
circumstance which has caused or reasonably might impair or harm human health,
that any past or present member of the Wider ICG Group has acted in material
violation of any laws, statutes, regulations, notices or other legal or
regulatory requirements of any Third Party (except where the consequences
thereof would not be material (in value terms or otherwise) in the context of
the Wider ICG Group taken as a whole);
(ii) that there is any liability, whether actual or contingent, to make good,
repair, reinstate or clean up any property now or previously owned, occupied or
made use of by any past or present member of the ICG Group or any other property
or any controlled waters under any environmental legislation, regulation,
notice, circular, order or other lawful requirement of any relevant authority
(whether by formal notice or order or not) or Third Party or otherwise (except
where such liability is not or would not be material (in value terms or
otherwise) in the context of the Wider ICG Group taken as a whole); and
(iii) after 14 June 2007 (being the date of this announcement), that
circumstances exist which are likely to result in any actual or contingent
liability to any member of the Wider ICG Group under any applicable legislation
referred to in sub-paragraph (ii) above to improve or modify existing or install
new plant, machinery or equipment to carry out any changes in the processes
currently carried out (save where such liability is not or would not be material
(in value terms or otherwise) in the context of the ICG Group taken as a whole);
(j) no member of the ICG Group being in default under the terms or conditions of
any material facility or agreement or arrangement for the provision of loans,
credit or drawdown facilities, or of any security, surety or guarantee in
respect of any facility or agreement or arrangement for the provision of loans,
credit or drawdown facilities to any member of the ICG Group (save where such
default is not or would not be material (in value terms or otherwise) in the
context of the ICG Group taken as a whole);
(k) for the purposes of the conditions set out above:
(i) 'Moonduster Group' means Moonduster and its parent undertaking and its
subsidiaries and subsidiary undertakings and any other subsidiary or subsidiary
undertaking of its parent undertaking;
(ii) 'disclosed' means fairly disclosed in writing by or on behalf of ICG to
Moonduster or IBI Corporate Finance, Davy Corporate Finance or its or their
respective employees, officers or advisers at any time up to 14 June 2007 (being
the date of this announcement) including (for the avoidance of doubt)
documentation, notified to Moonduster in writing as being available for
inspection, contained in the dataroom at the offices of A&L Goodbody as at 14
June 2007 and the documentation contained in the ICG audit files for 2005 and
2006 which have been made available to Moonduster and its advisers;
(iii) 'ICG Group' means ICG and its subsidiaries and subsidiary undertakings;
(iv) 'parent undertaking' 'subsidiary undertaking', 'associated undertaking' and
'undertaking' have the meanings given by the European Communities (Companies:
Group Accounts) Regulations, 1992;
(v) 'substantial interest' means an interest in 20 per cent. or more of the
voting equity capital of an undertaking;
(vi) 'Wider Moonduster Group' means the Moonduster Group, its associated
undertakings and any entities in which any member of the Moonduster Group holds
a substantial interest; and
(vii) 'Wider ICG Group' means the ICG Group, its associated undertakings and any
entities in which any member of the ICG Group holds a substantial interest.
3. Subject to the requirements of the Panel, Moonduster reserves the right (but
shall be under no obligation) to waive, in whole or in part, all or any of the
conditions except for 1 (ii), (iii), (iv) and (v) and 2 (a).
4. The Acquisition will lapse unless all of the conditions set out above have
been fulfilled or (if capable of waiver) waived or, where appropriate, have been
determined by Moonduster to be or to remain satisfied on the Effective Date.
5. If Moonduster is required to make an offer for ICG Units under the provisions
of Rule 9 of the Takeover Rules, Moonduster may make such alterations to any of
the above conditions as are necessary to comply with the provisions of that
rule.
6. Moonduster reserves the right to effect the Acquisition by way of a takeover
offer. In such event, such offer will be implemented on the same terms (subject
to appropriate amendments, including (without limitation) an acceptance
condition set at 90 per cent. of the nominal value and voting rights of the ICG
Units to which such an offer relates and which are not already in the beneficial
ownership of Moonduster within the meaning of the Takeover Regulations (but
capable of waiver on a basis consistent with Rule 10 of the Takeover Rules)), so
far as applicable, as those which would apply to the Scheme.
Appendix II
Sources and Bases of Information
1. Unless otherwise stated, the financial information relating to the ICG Group
is extracted from the audited consolidated financial statements of the ICG Group
for the relevant financial year.
2. The value of the entire issued and to be issued ordinary share capital of ICG
is based upon 23,644,108 ICG Units in issue, and 1,849,850 ICG Units issuable to
ICG Optionholders under the ICG Share Option Schemes as at 13 June 2007. This
excludes 899,500 ICG Units held by ICG as treasury shares.
3. ICG Share prices are sourced from the Daily Official List of the Irish Stock
Exchange.
4. References to a percentage of ICG Shares are based on the number of ICG
Shares in issue as at 13 June 2007 but do not include any shares issuable to ICG
Optionholders under the ICG Share Option Schemes.
5. References to the Aella offer are based on the Aella scheme document dated 20
March 2007.
6. Reference to the arrangements in place between ICG and Moonduster regarding
an expenses reimbursement agreement are sourced from the terms of the agreement
approved by the Panel.
7. References to the irrevocable undertakings to vote, or to procure that voting
instructions are given to vote, in favour of the Acquisition and the Scheme are
sourced from the signed Irrevocable Undertakings of One51 Capital and Doyle
Group.
8. References to the irrevocable undertakings to vote in favour of the
Acquisition and the Scheme to be given by the Independent Directors are sourced
from the agreed form irrevocable undertakings which the Independent Directors
will enter into by 7.00 p.m. today and following the release of this
announcement.
Appendix III
Definitions
The following definitions apply throughout this document, unless the context
requires otherwise:
'Acquisition' the proposed acquisition by Moonduster of ICG by
means of the Scheme as described in this document;
the 'Act' the Companies Act, 1963 of Ireland, as amended;
'Aella' Aella plc, a public limited company with registered
number 434571;
'Aella Scheme' the proposed acquisition of the Company by Aella by
means of a scheme of arrangement under Section 201
of the Act or otherwise;
'Arrangement' any indemnity or option arrangement and any
agreement or understanding, formal or informal, of
whatever nature between two or more persons,
relating to Relevant Securities of Moonduster or ICG
which is or may be an inducement to one or more such
persons to deal or refrain from dealing in such
securities;
'Business Day' any day, other than a Saturday or Sunday, on which
clearing banks are normally open for business in
Dublin;
'Cash Consideration' the cash consideration of €22.00 per ICG Unit
payable to ICG Shareholders for each ICG Share
cancelled pursuant to the Scheme;
'Closing Price' the closing price of an ICG Unit as derived from the
Official List;
'Companies Acts' the Companies Acts 1963 to 2005 and Parts 2 and 3 of
the Investment Funds, Companies and Miscellaneous
Provisions Act 2006;
'Court Meeting' the meeting or meetings of the ICG Shareholders (and
any adjournment thereof) convened by order of the
High Court pursuant to Section 201 of the Act to
consider and, if thought fit, approve the Scheme
(with or without amendment);
'Court Order' the order or orders of the High Court sanctioning
the Scheme under Section 201 of the Act and
confirming the reduction of share capital which
forms part of it under Sections 72 and 74 of the
Act;
'Davy Corporate Davy Corporate Finance Limited;
Finance'
'directors of ICG' or the board of directors of ICG;
'the Board'
'directors of the board of directors of Moonduster;
Moonduster'
'Doyle Group' Doyle Group Limited;
'EBITDA' earnings before interest, taxation, depreciation and
amortisation;
'Effective Date' the date on which the Scheme becomes effective in
accordance with its terms;
'EPS' earnings per share;
'euro' or '€' or 'EUR' the currency unit of participating member states of
or 'cent' or 'c' the European Union as defined in Recital (2) of
Council Regulation 974/98/EC on the introduction of
the euro;
'Executive Directors' Eamonn Rothwell, Garry O'Dea and Anthony Kelly;
'Expenses the agreement described in paragraph 14 hereof;
Reimbursement
Agreement'
'Extraordinary General the extraordinary general meeting of the ICG
Meeting' or 'EGM' Shareholders to be convened in connection with the
Scheme, expected to be held on the same day as the
Court Meeting (and any adjournment thereof);
'Financial Regulator' the Irish Financial Services Regulatory Authority;
'High Court' the High Court of Ireland;
'IBI Corporate Finance' IBI Corporate Finance Limited;
'ICG' or the 'Company' Irish Continental Group plc;
'ICG Group' or the ICG, its subsidiaries and associated undertakings;
'Group'
'ICG Options' options to subscribe for ICG Units pursuant to the
ICG Share Option Schemes;
'ICG Optionholders' the holders of options to subscribe for ICG Units
under the ICG Share Option Schemes;
'ICG Share Option the ICG plc Irish Share Option Scheme and the ICG
Schemes' plc 1998 Share Option Plan;
'ICG Shareholders' or holders of ICG Units;
'Shareholders'
'ICG Share' or the existing and allotted or issued and fully paid
'Shares' ICG Units in the capital of ICG and any further such
shares which may be issued or allotted prior to the
Effective Date;
'ICG Unit' or 'ICG units in the share capital of ICG (each such unit
Units' comprising one ordinary share of €0.65 and three
redeemable shares of €0.0001);
'Implementation the implementation agreement dated 14 June 2007
Agreement' between ICG and Moonduster in relation to the
implementation of the Scheme;
'Independent Board' or John B McGuckian (Chairman) and Peter Crowley
'Independent Directors'(Non-Executive Director) and Bernard Somers
(Non-Executive Director);
'Ireland' or 'Republic Ireland excluding Northern Ireland and the word
of Ireland' 'Irish' shall be construed accordingly;
'Irish Stock Exchange' the Irish Stock Exchange Limited;
'Listing Rules' the listing rules of the Irish Stock Exchange and
the listing rules of the UK Listing Authority;
'London Stock Exchange'the London Stock Exchange plc;
'NCB Corporate NCB Corporate Finance Limited;
Finance'
'Moonduster' Moonduster Limited, a private limited company
incorporated in Ireland with registered number
439475;
'Moonduster Group' Moonduster and its parent undertaking and its
subsidiaries and subsidiary undertakings and any
other subsidiary or subsidiary undertaking of its
parent undertaking;
'Northern Ireland' the counties of Antrim, Armagh, Derry, Down,
Fermanagh and Tyrone on the island of Ireland;
'Offer Period' the period commencing on 8 March 2007 (the date of
an announcement of a possible offer for ICG by
Aella) and ending on the earlier of the date on
which the Scheme becomes effective and/or the date
on which the Scheme lapses or is withdrawn (or such
other date as the Panel may decide or the Takeover
Rules dictate);
'Official Lists' the Official List of the Irish Stock Exchange and
the UK Listing Authority;
'One51' One Fifty One plc;
'One51Capital' One Fifty One Capital Limited, a wholly owned
subsidiary of One51;
'Panel' the Irish Takeover Panel;
'Rambone' Rambone Limited, a private limited company
incorporated in Ireland with registered number
434954;
'Registrar of the Registrar of Companies in Dublin, Ireland;
Companies'
'Relevant Securities' has the meaning assigned by Rule 8.9 of the Takeover
Rules;
'Restricted any jurisdiction in respect of which it would be
Jurisdiction' unlawful for this announcement to be released,
published or distributed, in whole or in part, in,
into or from, including for the avoidance of doubt,
Canada, South Africa, Australia and Japan;
'Scheme' or 'Scheme of the proposed scheme of arrangement under Section 201
Arrangement' of the Act and the capital reduction under Sections
72 and 74 of the Act to effect the Acquisition with
or subject to any modifications, addition or
condition approved or imposed by the High Court and
agreed by Moonduster and ICG;
'Scheme Document' a circular for distribution to ICG Shareholders and,
for information only, to ICG Optionholders
containing: (i) the Scheme; (ii) the notice or
notices of the Court Meeting and EGM; (iii) an
explanatory statement as required by Section 202 of
the Act with respect to the Scheme; (iv) such other
information as may be required or necessary pursuant
to the Act, the Takeover Rules or the Listing Rules;
and (v) such other information as ICG and Moonduster
shall agree;
'Takeover Regulations' the European Communities (Takeover Bids (Directive
2004/25/EC)) Regulations 2006;
'Takeover Rules' the Irish Takeover Panel Act, 1997, Takeover Rules
2001 to 2006 (where applicable) and Substantial
Acquisition Rules 2001 and 2005;
'UK Listing Authority' the Financial Services Authority of the United
Kingdom in its capacity as the competent authority
under the Financial Services and Markets Act 2000;
and
'United Kingdom' or ' the United Kingdom of Great Britain and Northern
UK' Ireland.
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