Rec. Offer for Meconic - Pt 2
Johnson,Matthey PLC
21 June 2001
PART 2
APPENDIX 1
CONDITIONS AND FURTHER TERMS OF THE OFFER
The Offer, which will be made by Schroder Salomon Smith Barney on behalf of
Johnson Matthey, will comply with the applicable rules and regulations of the
City Code and the UKLA, will be governed by English law and be subject to the
jurisdiction of the English courts and to the terms and conditions set out
below and as set out in the Offer Document and related Form of Acceptance.
Part A:
Conditions of the Offer
The Offer will be conditional upon:-
1. valid acceptances of the Offer being received (and not, where
permitted, withdrawn) by not later than 3.00 p.m. on the first closing
date of the Offer (or such later time(s) and/or date(s) as Johnson
Matthey may, subject to the rules of the City Code, decide) in respect
of not less than 90 per cent. (or such lesser percentage as Johnson
Matthey may decide) in nominal value of Meconic Shares to which the
Offer relates, provided that this condition will not be satisfied
unless Johnson Matthey shall have acquired or agreed to acquire,
whether pursuant to the Offer or otherwise, Meconic Shares carrying
more than 50 per cent. of the voting rights then normally exercisable
at a general meeting of Meconic Shareholders including for this
purpose, to the extent, if any, required by the Panel, any voting
rights attaching to any Meconic Shares which are unconditionally
allotted before the Offer becomes or is declared unconditional as to
acceptances, whether pursuant to the exercise of any outstanding
conversion or subscription rights or otherwise; and for the purposes of
this condition:-
1.1 shares which have been unconditionally allotted shall be deemed
to carry the voting rights which they will carry upon issue; and
1.2 the expression 'Meconic Shares to which the Offer relates' shall
be construed in accordance with Sections 428 to 430F of the Act;
2. no government or governmental, quasi- governmental, supranational,
statutory, regulatory or investigative body, court, trade agency,
professional association or institution , environmental body or any
other similar person or body whatsoever in any relevant jurisdiction
(each a 'Third Party') having decided to take, instituted, or
threatened any action, proceeding, suit, investigation, enquiry or
reference or having required any action to be taken or otherwise having
done anything or having made, proposed or enacted any statute,
regulation, order or decision or having done anything and there not
continuing to be outstanding any statute, regulation, order or decision
which would or might reasonably be expected to:-
2.1 make the Offer, its implementation, or the acquisition or
the proposed acquisition of any shares in, or control or the
change of control of, Meconic by Johnson Matthey, void, illegal
or unenforceable in any jurisdiction, or otherwise directly or
indirectly prohibit, restrict or materially delay the same or
impose additional conditions or obligations with respect
thereto, or otherwise challenge, materially hinder or interfere
therewith or otherwise challenge or require amendment of the
Offer or the acquisition or proposed acquisition of any Meconic
Shares or control or change of control of Meconic by Johnson
Matthey, in each case in a manner which is material in the
context of the Offer;
2.2 require, prevent or delay the divestiture by any member of
the wider Johnson Matthey group or the wider Meconic group of
all or any material portion of their respective businesses,
assets or property, or (to an extent which is material in the
context of the Offer or the wider group concerned taken as a
whole) impose any material 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;
2.3 impose any material limitation on, or result in any
material delay in, the ability of any member of the wider
Johnson Matthey group or any member of the wider Meconic group,
to acquire, directly or indirectly, or to hold or to exercise
effectively all or any rights of ownership of any shares or
securities convertible into shares in any member of the wider
Meconic group or to exercise management control over any member
of the wider Meconic group;
2.4 require any member of the wider Johnson Matthey group
and/or of the wider Meconic group to acquire or offer to acquire
any shares or other securities in any member of the wider
Meconic group owned by any Third Party, such acquisition being
material in the context of the wider Meconic group taken as a
whole;
2.5 otherwise adversely affect any or all of the businesses,
assets, prospects or profits of any member of the wider Meconic
group or any member of the wider Johnson Matthey group to an
extent which is material in the context of the wider Johnson
Matthey group and the wider Meconic group taken as a whole;
and all applicable waiting and other time periods during which any
Third Party could institute, implement or threaten any such action,
proceedings, suit, investigation, enquiry or reference under the laws
of any relevant jurisdiction, having expired, lapsed or been
terminated;
3. all necessary filings and applications having been made and all
necessary waiting periods (including extensions thereof) under any
applicable legislation or regulations of any jurisdiction having
expired, lapsed or been terminated and all statutory or regulatory
obligations in any relevant jurisdiction having been complied with in
each case as may be necessary in connection with the Offer and its
implementation or the proposed acquisition by Johnson Matthey of any
shares in, or control of, Meconic and all authorisations, orders,
recognitions, grants, consents, clearances, confirmations, licences,
certificates, permissions and approvals ('Authorisations') which are
material and necessary or appropriate for or in respect of the Offer
and the proposed acquisition by Johnson Matthey of any shares in, or
control of, Meconic or in relation to the affairs of any member of the
wider Johnson Matthey group or the wider Meconic group having been
obtained in terms and in a form reasonably satisfactory to Johnson
Matthey from all appropriate Third Parties (as defined in paragraph 2)
and all such Authorisations remaining in full force and effect and
there being no notice or intimation of any intention to revoke, suspend
or amend or not to renew any of these at the time at which the Offer
becomes or is declared wholly unconditional, in each case where the
absence of such Authorisation would have a material adverse effect on
the Meconic Group or of the wider Johnson Matthey group taken as a
whole;
4. except as disclosed to Johnson Matthey prior to 21 June 2001, there
being no provision of any arrangement, agreement, licence or other
instrument to which any member of the wider Meconic group is a party or
by or to which any such member or any of its respective assets may be
bound or be subject and which, in consequence of the making or
implementation of the Offer or the proposed acquisition of any shares
in, or control of, Meconic by Johnson Matthey or because of a change in
the control or management of Meconic or otherwise, in each case would
or might reasonably be expected to result in (to an extent which is
material in the context of the wider Meconic group taken as a whole):-
4.1 any monies borrowed by or indebtedness actual or
contingent of any member of the wider Meconic group being or
becoming repayable or capable of being declared repayable
immediately or prior to its stated maturity or the ability of
any such member to borrow monies or to incur any indebtedness
being withdrawn or inhibited;
4.2 the creation or enforcement of any mortgage, charge or
other security interest over the whole or any part of the
business, property or assets of any member of the wider Meconic
group or any such security (whenever arising or having arisen)
becoming enforceable;
4.3 the rights, liabilities, obligations, interests or business
of any member of the wider Meconic group under any such
arrangement, agreement, licence or instrument (or any agreement
or arrangement relating to any such right, liability,
obligation, interest or business) being terminated or adversely
modified or any adverse action being taken or any onerous
obligation arising thereunder;
4.4 the creation of any liabilities (actual or contingent) by
any such member (otherwise than in the ordinary course of
business);
4.5 any asset or interest of any member of the wider Meconic
group being or falling to be disposed of or charged (otherwise
than in the ordinary course of business) or any right arising
under which any such asset or interest could be required to be
disposed of or charged;
4.6 any change in or effect on the ownership or use of any
intellectual property rights owned or used by any member of the
wider Meconic group; or
4.7 the interest or business of any such member in or with any
firm or body or person, or any agreements or arrangements
relating to such interest or business, being terminated or
materially adversely modified or affected; or
4.8 the financial or trading position or prospects of any
member of the wider Meconic group being prejudiced or adversely
affected;
and no event having occurred which, under any provision of any such
arrangement, agreement, licence or other instrument, might reasonably
be expected to result in any of the events or circumstances referred to
in paragraphs 4.1 to 4.8 to an extent which would be material in the
context of the wider Meconic group taken as a whole.
5. since 30 April 2000 and except as disclosed in Meconic's annual report
and accounts for the year then ended or in Meconic's preliminary
statement of results for the year ended 30 April 2001, or as publicly
announced by Meconic by delivery of an announcement to the Company
Announcements Office of the London Stock Exchange or as otherwise
disclosed to Johnson Matthey prior to 21 June 2001, no member of the
wider Meconic group having (save, in each case for transactions between
Meconic and any of its wholly-owned subsidiaries or between such wholly-
owned subsidiaries):-
5.1 issued or agreed to issue or authorised or proposed the
issue of additional shares or securities of any class, or
securities convertible into, or rights, warrants or options to
subscribe for or acquire, any such shares, securities or
convertible securities (save for options granted under the
Meconic Share Option Schemes before 21 June 2001 or the issue of
any Meconic Shares allotted upon the exercise of options granted
before 21 June 2001 under the Meconic Share Option Schemes) or
redeemed, purchased or reduced any part of its share capital;
5.2 recommended, declared, made or paid or proposed to
recommend, declare, make or pay any bonus, dividend or other
distribution whether payable in cash or otherwise;
5.3 effected, authorised, proposed or announced its intention
to propose any change in its share or loan capital;
5.4 effected, authorised, proposed or announced its intention
to propose any merger, demerger, reconstruction, arrangement,
amalgamation, commitment or scheme or any acquisition or
disposal or transfer of assets or shares (other than in the
ordinary course of business);
5.5 mortgaged, charged or encumbered any asset or any right,
title or interest in any asset or shares or trade investments
(other than in the ordinary course of business);
5.6 entered into, varied or terminated or authorised, proposed
or announced its intention to enter into or vary or terminate or
authorise any agreement, transaction or commitment (other than
in the ordinary course of business and whether in respect of
capital expenditure or otherwise) which is material and adverse
in the context of the wider Meconic group or entered into any
contract which might reasonably be expected to be restrictive
upon the business of any member of the wider Meconic group;
5.7 issued, authorised or proposed the issue of any debentures
(other than in the ordinary course of business) or 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 caused or threatened to cease
carrying on all or a substantial part of its business;
5.8 made, or announced any proposal to make, any significant
change or addition to any retirement, death or disability
benefit of or in respect of any of its directors, employees,
former directors or former employees;
5.9 granted any lease or third party rights in respect of any
of the leasehold or freehold property owned or occupied by it or
transferred or otherwise disposed of any such property;
5.10 entered into or varied the terms of any service agreement
with any director or senior executive of Meconic;
5.11 taken any corporate action or had any legal proceedings
started or threatened against it for its winding up, dissolution
or reorganisation or for the appointment of a receiver,
administrator, administrative receiver, trustee or similar
officer of all or any of its assets or revenues;
5.12 made any amendment to its memorandum or articles of
association;
5.13 waived or compromised any claim or authorised any such
waiver or compromise;
5.14 entered into an agreement or passed any resolution with
respect to any of the transactions, matters or events referred
to in this paragraph 5;
in any such case (unless otherwise stated) which is material in the context
of the wider Meconic group taken as a whole;
6. since 30 April 2000 and except as disclosed in Meconic's annual report
and accounts in the year then ended, or in Meconic's preliminary
statement of results for the year ended 30 April 2001 or as publicly
announced by Meconic by delivery of an announcement to the Company
Announcements Office of the London Stock Exchange or otherwise
disclosed to Johnson Matthey prior to 21 June 2001:-
6.1 there having been no material adverse change or
deterioration in the business, financial or trading position or
profits or prospects of the Meconic Group taken as a whole;
6.2 no material litigation, arbitration proceedings,
prosecution or other legal proceedings to which any member of
the wider Meconic group is or may become a party (whether as
plaintiff or defendant or otherwise), and no material
investigation by any Third Party, against or in respect of any
member of the wider Meconic group, having been threatened,
announced or instituted or remaining outstanding by, against or
in respect of any member of the wider Meconic group in any way
which is material in the context of the wider Meconic group
taken as a whole; and
6.3 no contingent or other liability having arisen or become
apparent which might be likely in either case materially and
adversely affect the wider Meconic group taken as a whole;
7. Johnson Matthey not having discovered that:
7.1 any financial, business or other information concerning
Meconic or the wider Meconic group which is contained in the
information publicly disclosed at any time by any member of the
wider Meconic group either contains a material misrepresentation
of fact or omits to state a fact necessary to make the
information contained therein not materially misleading (which
has not, prior to the date of this announcement, been corrected
by public announcement), in any case which is material in the
context of the wider Meconic group taken on a whole;
7.2 any member of the wider Meconic group is subject to any
liability, contingent or otherwise, which is not disclosed in
Meconic's annual report and accounts for the year ended 30 April
2000, or in Meconic's preliminary statement of results for the
year ended 30 April 2001 or otherwise disclosed to Johnson
Matthey prior to 21 June 2001 and which is material in the
context of the Meconic Group taken as a whole;
7.3 save as disclosed by Meconic to Johnson Matthey prior to
21 June 2001;
7.3.1 there has been a disposal, spillage or
leakage of waste or hazardous substance or any substance
likely to impair the environment or harm human health on;
or
7.3.2 there has been an emission or discharge of
any waste or hazardous substance or any substance likely
to impair the environment or harm human health from,
any land or other asset now or previously owned, occupied
or made use of by any past or present member of the wider
Meconic group which would be reasonably likely to give rise to
any liability (whether actual or contingent) on the part of any
member of the wider Meconic group which would be material in the
context of the wider Meconic group taken as a whole;
7.4 save as disclosed by Meconic to Johnson Matthey prior to 21
June 2001, any past or present member of the wider Meconic group
has not complied with all applicable legislation or regulations
of any jurisdiction or any notice or requirement of any Third
Party with regard to the storage, disposal, discharge, spillage,
leak or emission of any waste or hazardous substance or any
substance likely to impair the environment or harm human health
which non-compliance would be reasonably likely to give rise to
any liability (whether actual or contingent) on the part of any
member of the wider Meconic group which is material in the case
of the wider Meconic group taken as a whole;
7.5 save as disclosed by Meconic to Johnson Matthey prior to
21 June 2001 there is, or is reasonably likely to be, any
liability (whether actual or contingent) or requirement to make
good, repair, re-instate or clean up any property now or
previously owned, occupied or made use of by any past or present
member of the wider Meconic group or in which any such member
may now or previously have had an interest under any
environmental legislation, regulation, notice, circular or order
of any Third Party which would be material in the context of the
wider Meconic group taken as a whole;
7.6 circumstances exist whereby a person or class of persons
would be reasonably likely to have a claim or claims in respect
of any product or process of manufacture or materials used
therein now or previously manufactured, sold or carried out by
any past or present member of the wider Meconic group which
claim or claims would be reasonably likely to have a material
adverse affect on any member of the wider Meconic group to an
extent which is material in the context of the wider Meconic
group taken as a whole;
7.7 save as disclosed by Meconic or Johnson Matthey prior to
21 June 2001 circumstances exist (whether as a result of the
making of the Offer or otherwise):
7.7.1 which would reasonably be likely to lead to
any Third Party instituting; or
7.7.2 whereby any member of the wider Meconic
group or any present or past member of the wider Meconic
group would be reasonably likely to be required to
institute;
an environmental audit or take any other steps which
would, in any such case, be reasonably likely to result in any
actual or contingent liability to improve or install new plant
or equipment or make good, repair, re-instate or clean up any
land or other asset now or previously owned, occupied or made
use of by any member of the wider Meconic group, which, in any
such case, would be material in the context of the wider Meconic
group taken as a whole;
Johnson Matthey reserves the right to waive all or any of conditions 2 to 7
inclusive, in whole or in part.
Conditions 2 to 7 must be fulfilled or waived within 21 days after the later
of the first closing date of the Offer and the date on which condition 1 is
fulfilled (or, in each case, such later date as the Panel may agree).
Johnson Matthey shall be under no obligation to waive or treat as fulfilled
any of conditions 2 to 7 by a date earlier than the date specified above for
the fulfilment thereof notwithstanding that the other conditions of the Offer
may at such earlier date have been fulfilled and that there are at such
earlier date no circumstances indicating that any of such conditions may not
be capable of fulfilment.
Johnson Matthey reserves the right to make such changes to the above
conditions as may be appropriate in the event that the conditions of the
Offer are required to be amended to comply with Rule 9 of the City Code.
For the purposes of these conditions, (i) 'wider Meconic group' means
Meconic, its subsidiaries, subsidiary undertakings and associated
undertakings and any other body corporate, partnership, joint venture or
person in which Meconic and such undertakings (aggregating their interests)
have an interest of more than 20 per cent. in the voting or equity capital
(or the equivalent); and (ii) 'wider Johnson Matthey group' means Johnson
Matthey and its subsidiaries, subsidiary undertakings and associated
undertakings and any other body corporate, partnership, joint venture or
person in which Johnson Matthey and such undertakings (aggregating their
interests) have an interest of more than 20 per cent. in the voting or equity
capital (or the equivalent).
Part B:
Certain further terms of the Offer
The Offer will be made on the terms and will be subject to the conditions
which are set out in this Appendix 1, those terms which will be set out in
the Offer Document and the Form of Acceptance and such further terms as may
be required to comply with the provisions of the City Code. This
announcement does not constitute an offer or invitation to purchase any
securities.
The Loan Note Alternative will be conditional upon the Offer becoming
unconditional in all respects.
The Offer will lapse if the proposed acquisition by Johnson Matthey of
Meconic is referred to the Competition Commission before 3.00pm on the first
closing date of the Offer or the date when the Offer is declared
unconditional as to acceptances, whichever is the later. In such
circumstances the Offer will cease to become capable of further acceptances
and persons accepting the Offer and Johnson Matthey shall cease to be bound
by acceptances delivered on or before the date on which the Offer so lapses.
APPENDIX II
DEFINITIONS
In this document, the following definitions apply, unless the context
requires otherwise:
'Act' or 'the Companies the Companies Act 1985, as amended
Act'
'Australia' the Commonwealth of Australia, its states,
territories or possessions
'Board' or 'Directors' the Board of Directors of Meconic or Johnson
Matthey (as the case may be)
'Canada' Canada, its possessions and territories and all
areas subject to its jurisdiction or any
political sub-division thereof
'Close Brothers' Close Brothers Corporate Finance Limited
'Closing Price' the closing middle market price of a Meconic
Share as derived from SEDOL
'City Code' the City Code on Takeovers and Mergers
'Form of Acceptance' the form of acceptance, authority and election to
accompany the Offer Document
'Japan' Japan, its cities, prefectures, territories and
possessions
'Johnson Matthey' Johnson Matthey plc
'Johnson Matthey Group' Johnson Matthey and its subsidiaries
'LIBOR' London Inter-bank Offered rate
'Loan Notes' the loan notes to be issued pursuant to the Loan
Note Alternative
'Loan Note Alternative' the alternative to be made available under the
Offer whereby Meconic Shareholders (other than
certain overseas shareholders) who validly accept
the Offer may elect to receive Loan Notes instead
of all or part of the cash consideration to which
they will otherwise be entitled to under the
basic terms of the Offer
'London Stock Exchange' London Stock Exchange plc
'Macfarlan Smith' Macfarlan Smith Limited
'Meconic' or 'the Meconic plc
Company'
'Meconic Group' or 'the Meconic and the subsidiaries
Group'
'Meconic Shareholders' the holders of Meconic Shares
'Meconic Share Option the Meconic 1991 Share Option Scheme, the Meconic
Scheme(s)' 1995 Share Option Scheme, the Meconic Sharesave
Scheme, the Meconic 1996 Share Option Scheme and
the Long Term Incentive Scheme
'Meconic Shares' the existing unconditionally allotted or issued
and fully paid ordinary shares of 2 pence each in
the capital of Meconic and any further such
shares which are unconditionally allotted or
issued prior to the date on which the Offer
closes (or such earlier date or dates, as Johnson
Matthey may, subject to the City Code decide)
'Offer' the recommended offer to be made by Schroder
Salomon Smith Barney on behalf of Johnson Matthey
to acquire the whole of the issued and to be
issued share capital of Meconic on the terms and
subject to the conditions to be set out in the
Offer Document, including, where the context
requires any subsequent revision, extension or
variation of such Offer
'Offer Document' the formal Offer document to be sent to Meconic
Shareholders (and, for information only, to
participants in the Meconic Share Option Schemes)
in connection with the Offer
'Official List' the Official List of the UKLA
'Panel' the Panel on Takeovers and Mergers
'pounds' or '£' UK pounds sterling
'Schroder Salomon Smith Salomon Brothers International Limited, trading
Barney' as Schroder Salomon Smith Barney. Salomon Smith
Barney is a service mark of Salomon Smith Barney
Inc. Schroder is a trademark of Schroders
Holdings plc and is used under licence by Salomon
Brothers International Limited
'SEDOL' the London Stock Exchange Daily Official List
'subsidiary', shall be construed in accordance with the Act
'subsidiary (but for this purpose ignoring paragraph 20(i)(b)
undertaking', of Schedule 4A of the Act)
'associated
undertaking' and
'undertaking'
'UKLA' the UK Listing Authority, being the Financial
Services Authority acting in its capacity as the
competent authority for the purposes of Part IV
of the Financial Services Act 1986
'United Kingdom' or 'UK' United Kingdom of Great Britain and Northern
Ireland
'United States' or 'US' the United States of America, its territories and
or 'USA' possessions, any State of the United States of
America and the District of Columbia and all
other areas subject to its jurisdiction
'US Person' as defined in Regulation S under the United
States Securities Act of 1933.
All times referred to in this announcement are London times.
Salomon Brothers International Limited (trading as Schroder Salomon Smith
Barney) is regulated in the United Kingdom by the Securities and Futures
Authority Limited. Salomon Smith Barney is a service mark of Salomon Smith
Barney Inc. Schroders is a trademark of Schroders Holdings PLC and is used
under licence.
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