Rec. Cash Offer for CDBramall
Pendragon PLC
23 January 2004
Immediate Release 23 January 2004
This announcement is not for release, publication or distribution in or into the
United States, Canada, Australia, South Africa, the Republic of Ireland or
Japan.
RECOMMENDED CASH OFFER
by
KPMG CORPORATE FINANCE
on behalf of
PENDRAGON PLC
for
CD BRAMALL PLC
The boards of Pendragon and CD Bramall announce that they have reached agreement
on the terms of a recommended cash offer to be made by KPMG Corporate Finance on
behalf of Pendragon, to acquire the whole of the issued and to be issued share
capital of CD Bramall.
Summary of the Offer
• The Offer will be 600 pence in cash for each CD Bramall Share
and the right to Contingent Consideration as set out below.
• The CD Bramall Board has resolved to pay a second interim
dividend of 7 pence (net) per CD Bramall Share in respect of the financial year
ended 31 December 2003, which will be paid irrespective of whether or not the
Offer becomes unconditional in all respects.
• The Offer (excluding the Contingent Consideration) values the
entire issued share capital of CD Bramall at approximately £230.3 million.
• The Offer Price represents a premium of approximately 24.1 per
cent to the Closing Price of 483.5 pence on 14 January 2004 (being the last
dealing day prior to the announcement by CD Bramall that it had received an
approach which may or may not lead to an offer for CD Bramall) and a discount of
approximately 0.7 per cent to the Closing Price of 604.0 pence on 22 January
2004 (being the last dealing day prior to this announcement). Based on the
Closing Price of 604.0 pence on 22 January 2004, and taking account of the CD
Bramall Second Interim Dividend of 7 pence (net), the Offer Price represents a
premium of 0.5 per cent to the equivalent ex-dividend price of 597.0 pence.
• In consequence of recent changes in case law, CD Bramall has
made claims for recovery of overpaid VAT. As these claims may give rise to a
repayment of overpaid VAT to CD Bramall by HM Customs & Excise, the Pendragon
Board has agreed that, subject to the Offer becoming or being declared
unconditional in all respects, CD Bramall Shareholders who validly accept the
Offer will be entitled to receive Contingent Consideration based on a proportion
of any such repayment and calculated in accordance with Part C of Appendix I to
this announcement.
• Pendragon has received irrevocable undertakings to accept the
Offer from certain CD Bramall Shareholders in respect of a total of 18,714,994
CD Bramall Shares representing approximately 48.8 per cent of the existing
issued share capital of CD Bramall.
• The Offer is a Class 1 transaction for Pendragon under the
Listing Rules and is therefore conditional, inter alia, on the approval by
Pendragon Shareholders of the Offer and its funding at an Extraordinary General
Meeting to be held shortly.
• CD Bramall Shareholders (other than certain CD Bramall
overseas shareholders) who validly accept the Offer will be entitled to elect to
receive Loan Notes to be issued by Pendragon instead of some or all of the cash
consideration to which they would otherwise be entitled.
Commenting on the Offer, Trevor Finn, Chief Executive of Pendragon, said:
'We are making this offer to acquire CD Bramall at one of the most exciting
times for motor car retailers in the UK. The recent changes to retailers'
franchise agreements are likely to drive further consolidation in the industry
and through this transaction we are confirming our position as the number one
motor car retailer in the UK.'
Commenting on the Offer, Tony Bramall, Chairman of CD Bramall, said:
'I and my directors are pleased to recommend the offer from Pendragon to our
shareholders. We believe that our industry will continue to be subject to
restructuring and that groups of a substantial size will be able to take
commanding positions in the industry over the next few years. The acquisition by
Pendragon should bring attractive opportunities to the Enlarged Pendragon Group
and should provide significant opportunities for CD Bramall employees.'
This summary should be read in conjunction with the full text of the attached
announcement.
Enquiries:
Pendragon Trevor Finn Tel: 01623 725 101
David Forsyth
KPMG Corporate Finance Charles E Cattaneo Tel: 0121 232 3000
Andrew Wild
Finsbury Group Rupert Younger Tel: 020 7251 3801
Gordon Simpson
CD Bramall Tony Bramall Tel: 01423 529 888
Peter Jones
Arbuthnot Stephen Lockley Tel: 0207 002 4686
Richard Welton Tel: 0121 632 2100
Rickitt Mitchell Roger Clement Tel: 0161 834 0600
KPMG Corporate Finance, a division of KPMG LLP which is authorised in the United
Kingdom by the Financial Services Authority for investment business activities,
is acting for Pendragon as financial adviser in relation to the Offer and is not
acting for any other person in relation to the Offer. KPMG Corporate Finance
will not be responsible to anyone other than Pendragon for providing the
protections afforded to its clients or for providing advice in relation to the
contents of this announcement or any transaction or arrangement referred to
herein.
Arbuthnot, which is authorised and regulated in the United Kingdom by the
Financial Services Authority, is acting for CD Bramall and for no one else in
connection with the Offer and will not be responsible to anyone other than CD
Bramall for providing the protections afforded to customers of Arbuthnot or for
giving advice in relation to the Offer.
Rickitt Mitchell, which is authorised and regulated in the United Kingdom by the
Financial Services Authority, is acting for CD Bramall and for no one else in
connection with the Offer and will not be responsible to anyone other than CD
Bramall for providing the protections afforded to customers of Rickitt Mitchell
or for giving advice in relation to the Offer.
This announcement does not constitute an offer or invitation to purchase any
securities.
The contents of this announcement have been approved for the purposes of Section
21 of the Financial Services and Markets Act 2000 by KPMG Corporate Finance. The
address of KPMG Corporate Finance is 8 Salisbury Square, London, EC4Y 8BB.
The full text of the conditions and certain further terms of the Offer set out
in Appendix I to this announcement form part of and should be read in
conjunction with this announcement.
Appendix II to this announcement provides details of additional information
regarding the Offer including the basis of calculations and sources of certain
information included in this announcement.
Appendix III to this announcement provides a summary of the terms of the Loan
Notes.
Appendix IV to this announcement contains details of the Pendragon Profit
Estimate for the year ended 31 December 2003.
Appendix V to this announcement contains definitions of the terms used in this
announcement.
The Offer is not being and will not be made, directly or indirectly, in or into,
or by use of the mails of, or by any means or instrumentality (including,
without limitation, facsimile transmission, electronic mail, telex or telephone)
of interstate or foreign commerce of, or any facilities of a national securities
exchange of, the United States, Canada, Australia, South Africa, the Republic of
Ireland or Japan and the Offer will not be capable of acceptance by any such
use, means, instrumentality or facility, directly or indirectly from or within
the United States, Canada, Australia, South Africa, the Republic of Ireland or
Japan.
The Loan Notes to be issued pursuant to the Offer have not been nor will they be
registered under the United States Securities Act of 1933, as amended, or under
any of the relevant securities laws of Canada, Australia, South Africa, the
Republic of Ireland or Japan.
Accordingly, unless an exemption under any applicable laws is available, the
Loan Notes may not be offered, sold or delivered, directly or indirectly, in or
into the United States, Canada, Australia, South Africa, the Republic of Ireland
or Japan or any other country outside the United Kingdom where such distribution
may otherwise lead to a breach of any law or regulatory requirement or to or for
the account or benefit of any person in such countries.
The Pendragon Directors accept responsibility for the information contained in
this announcement apart from the information in this announcement relating to
the CD Bramall Group, the CD Bramall Directors and their immediate families and
persons connected with them (within the meaning of section 346 of the Act) for
which the CD Bramall Directors accept responsibility. Subject as aforesaid, to
the best of the knowledge and belief of the Pendragon Directors (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.
The CD Bramall Directors accept responsibility for the information contained in
this announcement relating to the CD Bramall Group, the CD Bramall Directors and
their immediate families and persons connected with them (within the meaning of
Section 346 of the Act). To the best of the knowledge and belief of the CD
Bramall Directors (who have taken all reasonable care to ensure that such is the
case) the information contained in this announcement relating to the CD Bramall
Group, the CD Bramall Directors and their immediate families and persons
connected with them (within the meaning of Section 346 of the Act) for which
they accept responsibility is in accordance with the facts and does not omit
anything likely to affect the import of such information.
Immediate Release 23 January 2004
This announcement is not for release, publication or distribution in or into the
United States, Canada, Australia, South Africa, the Republic of Ireland or
Japan.
RECOMMENDED CASH OFFER
by
KPMG CORPORATE FINANCE
on behalf of
PENDRAGON PLC
for
CD BRAMALL PLC
1. Introduction
The boards of Pendragon and CD Bramall announce that they have reached agreement
on the terms of a recommended cash offer to be made by KPMG Corporate Finance on
behalf of Pendragon to acquire the whole of the issued and to be issued share
capital of CD Bramall. The Offer (excluding the Contingent Consideration
referred to in paragraph 5 below) values each CD Bramall Share at 600 pence and
CD Bramall's entire issued share capital at approximately £230.3 million. The CD
Bramall Board has resolved to pay a second interim dividend of 7 pence (net) per
CD Bramall Share in respect of the financial year ended 31 December 2003, which
will be paid irrespective of whether or not the Offer becomes unconditional in
all respects.
Pendragon has received irrevocable undertakings to accept the Offer from certain
CD Bramall Shareholders in respect of a total of 18,714,994 CD Bramall Shares
representing approximately 48.8 per cent of the existing issued share capital of
CD Bramall.
The Offer is a Class 1 transaction for Pendragon under the Listing Rules and is
therefore conditional, inter alia, on the approval by Pendragon Shareholders of
the Offer and its funding at an Extraordinary General Meeting to be held
shortly.
2. The Offer
On behalf of Pendragon, KPMG Corporate Finance will offer to acquire, on the
terms and subject to the conditions to be set out in the Offer Document and in
the accompanying Form of Acceptance, the entire issued and to be issued share
capital of CD Bramall on the following basis:
for each CD Bramall Share 600 pence in cash
The Offer (excluding the Contingent Consideration) values the entire existing
issued share capital of CD Bramall at approximately £230.3 million. The Offer
Price represents a premium of approximately 24.1 per cent to the Closing Price
of 483.5 pence on 14 January 2004 (being the last dealing day prior to the
announcement by CD Bramall that it had received an approach which may or may not
lead to an offer for CD Bramall) and a discount of approximately 0.7 per cent to
the Closing Price of 604.0 pence on 22 January 2004 (being the last dealing day
prior to this announcement). Based on the Closing Price of 604.0 pence on 22
January 2004, and taking account of the CD Bramall Second Interim Dividend of 7
pence (net), the Offer Price represents a premium of 0.5 per cent to the
equivalent ex-dividend price of 597.0 pence.
In addition, subject to the Offer becoming or being declared unconditional, CD
Bramall Shareholders who validly accept the Offer will be entitled to receive
Contingent Consideration in accordance with paragraph 5 below and Part C of
Appendix I to this announcement.
The CD Bramall Shares will be acquired by Pendragon fully paid up and free from
all liens, equitable interests, charges, encumbrances, rights of pre-emption and
other third party rights or interests and together with all rights now or
hereafter attaching thereto, including the right to receive and retain all
dividends and other distributions (if any) declared, made or paid on or after
the date on which the Offer is made, save for the second interim dividend of 7
pence (net) per CD Bramall Share referred to below.
The Offer will extend to any CD Bramall Shares which are unconditionally
allotted or issued fully paid (or credited as fully paid) prior to the date on
which the Offer closes (or such earlier date as Pendragon may, subject to the
City Code and/or with the consent of the Panel, determine, being not earlier
than the date on which the Offer becomes or is declared unconditional as to
acceptances or, if later, the First Closing Date of the Offer) pursuant to the
exercise of options under the CD Bramall Share Option Schemes or otherwise. The
Offer will initially be open for acceptance for a period of 21 days following
the posting of the Offer Document but may be extended in accordance with the
provisions of the City Code.
The Offer will be subject to the conditions and further terms set out in
Appendix I to this announcement.
3. The Loan Note Alternative
CD Bramall Shareholders (other than certain CD Bramall overseas shareholders)
who validly accept the Offer will be entitled to elect to receive Loan Notes to
be issued by Pendragon instead of some or all of the initial cash consideration
to which they would otherwise be entitled under the Offer on the following
basis:
for every £1 of cash consideration £1 nominal of Loan Notes
The Loan Notes will be issued, credited as fully paid, in amounts and integral
multiples of £1 nominal value. No fractional entitlements will be issued. The
Loan Notes will bear interest at the rate of LIBOR less 0.5 per cent and will be
guaranteed as to principal only by Lloyds TSB Bank plc. A maximum of £80 million
in nominal value of Loan Notes is available to be issued under the Loan Note
Alternative. No Loan Notes will be issued unless by the time the Offer becomes
or is declared unconditional in all respects, valid elections have been received
for at least £2 million in nominal value of Loan Notes.
Further details of the terms of the Loan Notes are set out in Appendix III to
this announcement.
4. Second interim dividend
The CD Bramall Directors have resolved to pay a second interim dividend of 7
pence (net) per CD Bramall Share to be paid on 26 April 2004 to CD Bramall
Shareholders on the register at the close of business on 13 February 2004
including any holders of CD Bramall Shares issued pursuant to the exercise of
options under the CD Bramall Share Option Schemes provided that they are on the
register at the close of business on 13 February 2004.
This dividend will be paid irrespective of whether or not the Offer becomes
unconditional in all respects. The CD Bramall Board will not be recommending the
payment of a final dividend in respect of the year ended 31 December 2003.
5. The Contingent Consideration
CD Bramall has submitted applications to HM Customs & Excise for recovery of
overpaid VAT.
The CD Bramall Board is confident that CD Bramall will receive a repayment of
overpaid VAT from HM Customs & Excise, together with related interest, although
at the present time the amount which may become repayable to CD Bramall cannot
be quantified with certainty and the timing of any receipt has not been
ascertained.
Accordingly, Pendragon is unable to include, as part of its Offer, an amount to
reflect the refund of VAT that the CD Bramall Directors expect to be received by
CD Bramall. The CD Bramall Board and the Pendragon Board have agreed, however,
that it is appropriate that the terms of the Offer should, subject to the Offer
becoming or being declared unconditional in all respects, enable CD Bramall
Shareholders who validly accept the Offer to benefit from a proportion of any
VAT refund received and retained by CD Bramall net of associated costs and other
expenses.
Accordingly, the Pendragon Board has agreed that, subject to the Offer becoming
or being declared unconditional in all respects, CD Bramall Shareholders who
validly accept the Offer will, once the amount due to be repaid by HM Customs &
Excise to CD Bramall has been ascertained and paid (and this may take some
time), be entitled to receive Contingent Consideration calculated in accordance
with Part C of Appendix I to this announcement.
There can however be no guarantee that any such Contingent Consideration will
become payable.
6. Undertakings to accept the Offer
Pendragon has received irrevocable undertakings to accept the Offer from each of
the CD Bramall Directors in respect of their entire holdings of CD Bramall
Shares and holdings of those persons connected with them comprising, in
aggregate, 12,813,321 CD Bramall Shares (of which 9,340,684 are held
beneficially and 3,472,637 are non-beneficial holdings), representing
approximately 33.4 per cent of the entire existing issued share capital of CD
Bramall. These irrevocable undertakings will lapse only in the event of the
Offer lapsing or being withdrawn or if the Offer Document is not posted to CD
Bramall Shareholders by 1 February 2004.
In addition, irrevocable undertakings to accept the Offer have been received by
Pendragon from certain institutional CD Bramall Shareholders in respect of a
further 5,901,673 CD Bramall Shares, representing approximately 15.4 per cent of
the entire existing issued share capital of CD Bramall.
In total therefore, Pendragon has received irrevocable undertakings to accept
the Offer from CD Bramall Shareholders in respect of 18,714,994 CD Bramall
Shares, representing approximately 48.8 per cent of the entire existing issued
share capital of CD Bramall.
Further details of these undertakings, including the circumstances in which they
may cease to be binding, are set out in paragraph 5 of Appendix II to this
announcement.
7. Information on Pendragon
The Pendragon Group is one of the largest UK motor car retailers, operating a
total of 117 franchises from 109 outlets in the UK and 22 franchises from 16
outlets overseas. Pendragon has motor car franchises for Aston Martin, BMW,
Ferrari, Ford, Jaguar, Jeep, Land Rover, LDV, Maserati, Mercedes-Benz, MG Rover,
MINI, Porsche, smart, Vauxhall and Volvo together with franchises for Japanese
and American motor cycles.
In addition to retailing new and used motor vehicles, Pendragon provides
aftersales services and vehicle contract hire. Pendragon also sells software
products to the motor trade, mainly through its subsidiary, Pinewood
Technologies PLC.
Pendragon primarily operates in the UK but also has motor car retailing
businesses in Germany and the USA.
For the year ended 31 December 2002, Pendragon Group's consolidated annual
turnover was £1,875 million (2001: £1,549 million) and profit before tax was
£35.8 million (2001: £30.6 million). Net assets at 31 December 2002 were £145.4
million.
The Pendragon Group announced its interim results for the six month period ended
30 June 2003 on 14 August 2003. In those interim results, the Pendragon Group
reported for the six months to 30 June 2003 turnover of £948 million (2002: £998
million), operating profit of £29.2 million (2002: £22.2 million), profit on
ordinary activities before taxation of £23.7 million (2002: £15.5 million) and
earnings per share of 12.7 pence (2002: 7.4 pence).
8. Current trading and prospects for the Pendragon Group
As part of the interim results the Pendragon Board stated that trading
conditions in the UK had been stronger than anticipated and as a consequence
expected to report full year profit before tax, goodwill amortisation and
exceptionals ahead of the market consensus at the time of £33.8 million.
The buoyant trading continued to the end of the year as anticipated. As a result
the Pendragon Board expects that 2003 full year profit before tax, goodwill
amortisation and exceptional items will not be less than £37.0 million. Further
information in respect of the Pendragon Profit Estimate is included in Appendix
IV to this announcement.
Pendragon anticipates being able to release its preliminary results for the year
ended 31 December 2003 on or around 12 February 2004.
The Pendragon Board believes that the combined Pendragon and CD Bramall
businesses will be able to create economies of scale over and above those which
they have achieved as separate entities. The Pendragon Board anticipates that
the results for the year ending December 2004 will be in line with their
expectations.
9. Information on CD Bramall
The CD Bramall Group is one of the UK's largest motor car and truck retailers
with a total of 133 franchises from 111 outlets and is also involved in leasing,
contract hire and rental of vehicles. CD Bramall's car division includes
franchises with Audi, BMW, Citroen, Ford, Jaguar, Land Rover, Mercedes-Benz, MG
Rover, Peugeot and Vauxhall.
For the year ended 31 December 2002, CD Bramall's consolidated annual turnover
was £1,388 million (2001: £989 million) and profit before tax was £24.1 million
(2001: £19.1 million). Net assets at 31 December 2002 were £96.1 million.
On 12 August 2003, CD Bramall announced its results for the six months to 30
June 2003. For this six month period CD Bramall's consolidated turnover was £905
million (30 June 2002: £575 million) and profit before tax was £17.1 million (30
June 2002: £13.3 million). Net assets at 30 June 2003 were £106.8 million.
10. Recommendation of the CD Bramall Board
The CD Bramall Directors, who have been so advised by Rickitt Mitchell and
Arbuthnot, consider the terms of the Offer to be fair and reasonable. In
providing advice to the CD Bramall Directors, Rickitt Mitchell and Arbuthnot
have taken into account the commercial assessments of the CD Bramall Directors.
Accordingly, CD Bramall Directors unanimously recommend that CD Bramall
Shareholders should accept the Offer, as they intend to do so in respect of
their entire holdings and the holdings of those persons connected with them
amounting to an aggregate of 12,813,321 CD Bramall Shares representing
approximately 33.4 per cent of CD Bramall's existing issued share capital.
11. Background to and reasons for the Offer
(i) Background
Pendragon has pursued a strategy of growth with a few selected manufacturer
partners. This has enabled Pendragon to increase shareholder returns from scale
led efficiencies in its operations. Pendragon is committed to pursuing this
strategy.
New franchise agreements have now been entered into as a result of the Block
Exemption rule changes which came into place on 1 October 2002. Pendragon
believes that this new legislation will cause a change in the historic
relationship which motor dealers and manufacturers have had and is already
creating increased commercial independence for franchised dealers.
The principal advantages for large dealer groups such as Pendragon are:
• greater certainty and opportunity for motor dealers to
build value within their franchises as manufacturers are no longer able to
terminate franchise agreements without clear and objective reasons. This allows
dealers to take a longer term view and to build value in their businesses;
• the ability to acquire franchised dealerships without
prior approval from manufacturers provided that the acquirer already has at
least one franchised dealership of the particular brand;
• the ability to source parts from the original manufacturer
rather than from the vehicle manufacturer;
• the ability to have more than one franchise on a single
site; and
• the creation of stand alone authorised service and repair
operations.
Pendragon has structured its organisation for growth by focusing its management
on individual franchises and by investing in the development and implementation
of its in-house software and technology systems. As a consequence of the changes
in the Block Exemption rules, Pendragon's franchise focused structure and
information technology platform, Pendragon believes that it is well positioned
to actively participate in the consolidation of the motor retailing industry in
the UK. Pendragon believes that its ability to optimise the benefits of scale of
any acquisition will be enhanced through its centralised services centre at
Loxley House and its management information systems which enable effective
management and control of all aspects of its business.
(ii) Reasons for the Offer
Pendragon's stated strategy is to be big with a few selected manufacturer
partners. CD Bramall has pursued a somewhat similar strategy particularly with
respect to Ford and Vauxhall; two of Pendragon's main franchises. The
acquisition also adds further franchises in the important specialist brands of
Mercedes-Benz and BMW. The additional CD Bramall dealerships also provide
geographic benefits to Pendragon, giving greater national coverage with more
locations in Scotland and south west England.
Pendragon expects to benefit from economies of scale both in its cost base and
in purchasing. It believes that there will be duplicated costs which can be
eliminated, such as costs associated with CD Bramall's listed company status.
Increased size also enables the spreading of costs such as information
technology and advertising across the Enlarged Pendragon Group.
The Pendragon Directors believe that the acquisition will be immediately
earnings enhancing (although this should not be interpreted to mean that the
earnings per share of the Enlarged Pendragon Group will necessarily be greater
than the historical published earnings per share of Pendragon).
Upon the Offer becoming or being declared unconditional in all respects, the
borrowings of the Enlarged Pendragon Group will increase considerably. The
Pendragon Directors are satisfied with the Enlarged Pendragon Group's ability to
meet repayments as they fall due and expect borrowings to decrease as a result
of the strong operating cash flows of the Enlarged Pendragon Group, working
capital efficiencies, sale and leaseback of certain properties which are
considered to be core operating assets of the Enlarged Pendragon Group and
selected disposals of non-core assets and businesses.
The Pendragon Directors believe that they have demonstrated over the past five
years their ability to make substantial acquisitions and subsequently integrate
and manage the enlarged entities, such as the businesses bought from Lex Service
PLC in 1997 and 2000 and the takeover of Evans Halshaw Holdings plc in 1999.
These acquisitions caused Pendragon's borrowings to increase significantly, but
in each case Pendragon's management was able quickly to return the Group to its
ongoing target borrowing levels.
12. Management and employees
The Pendragon Board has given assurances to the CD Bramall Board that, following
the Offer becoming or being declared unconditional in all respects, the existing
employment rights, including pension rights, of all the employees of CD Bramall
will be fully safeguarded. The Pendragon Board will, following the Offer
becoming or being declared unconditional in all respects, assume full
responsibility for the management of the business currently carried on by the CD
Bramall Board.
The CD Bramall Directors have agreed to resign from the CD Bramall Board upon
the Offer becoming or being declared unconditional in all respects.
13. Inducement fee
In consideration of, and as an inducement to, Pendragon making preparations for
the Offer, CD Bramall has agreed to pay to Pendragon an inducement fee in
certain limited circumstances. This agreement is described in further detail in
paragraph 1 of Appendix II to this announcement.
14. CD Bramall Share Option Schemes
The Offer will extend to any CD Bramall Shares which are issued or
unconditionally allotted fully paid (or credited as fully paid) before the date
on which the Offer closes (or such earlier date as Pendragon may, subject to the
City Code, determine being not earlier than the date on which the Offer becomes
or is declared wholly unconditional as to acceptances or, if later, the First
Closing Date) pursuant to the exercise of options granted under the CD Bramall
Share Option Schemes.
Appropriate proposals will be made to CD Bramall Option Holders as soon as
reasonably possible.
The CD Bramall Directors have resolved to pay a second interim dividend of 7
pence (net) per CD Bramall Share to be paid on 26 April 2004 to CD Bramall
Shareholders on the register at the close of business on 13 February 2004
including any holders of CD Bramall Shares issued pursuant to the exercise of
options under the CD Bramall Share Option Schemes provided that they are on the
register at the close of business on 13 February 2004.
15. Compulsory acquisition, de-listing and re-registration
If the Offer becomes or is declared unconditional in all respects, it is the
intention of Pendragon, assuming it becomes so entitled, to acquire compulsorily
any outstanding CD Bramall Shares pursuant to the provisions of sections 428 to
430F (inclusive) of the Act.
Following the Offer becoming or being declared unconditional in all respects and
as soon as it is able to do so (subject to any applicable requirements of the UK
Listing Authority), Pendragon will procure that CD Bramall will apply for the
cancellation of the listing of the CD Bramall Shares on the Daily Official List
and trading on the London Stock Exchange's market for listed securities. It is
anticipated that such cancellation will take effect no earlier than 20 business
days following the Offer becoming or being declared unconditional in all
respects. It is also proposed that resolutions will be proposed to re-register
CD Bramall as a private company. De-listing is likely to reduce significantly
the liquidity and marketability of any CD Bramall Shares in respect of which the
Offer has not been accepted.
16. Further information
Your attention is drawn to the further information contained in the Appendices
which form part of this announcement.
The Offer Document and Form of Acceptance setting out in full the terms and
conditions of the Offer will be dispatched to CD Bramall Shareholders as soon as
possible.
Enquiries:
Pendragon Trevor Finn Tel: 01623 725 101
David Forsyth
KPMG Corporate Finance Charles E Cattaneo Tel: 0121 232 3000
Andrew Wild
Finsbury Group Rupert Younger Tel: 020 7251 3801
Gordon Simpson
CD Bramall Tony Bramall Tel: 01423 529 888
Peter Jones
Arbuthnot Stephen Lockley Tel: 020 7002 4686
Richard Welton Tel: 0121 632 2100
Rickitt Mitchell Roger Clement Tel: 0161 834 0600
KPMG Corporate Finance, a division of KPMG LLP which is authorised in the United
Kingdom by the Financial Services Authority for investment business activities,
is acting for Pendragon as financial adviser in relation to the Offer and is not
acting for any other person in relation to the Offer. KPMG Corporate Finance
will not be responsible to anyone other than Pendragon for providing the
protections afforded to its clients or for providing advice in relation to the
contents of this announcement or any transaction or arrangement referred to
herein.
Arbuthnot, which is authorised and regulated in the United Kingdom by the
Financial Services Authority, is acting for CD Bramall and for no one else in
connection with the Offer and will not be responsible to anyone other than CD
Bramall for providing the protections afforded to customers of Arbuthnot or for
giving advice in relation to the Offer.
Rickitt Mitchell, which is authorised and regulated in the United Kingdom by the
Financial Services Authority, is acting for CD Bramall and for no one else in
connection with the Offer and will not be responsible to anyone other than CD
Bramall for providing the protections afforded to customers of Rickitt Mitchell
or for giving advice in relation to the Offer.
This announcement does not constitute an offer or invitation to purchase any
securities.
The contents of this announcement have been approved for the purposes of Section
21 of the Financial Services and Markets Act 2000 by KPMG Corporate Finance. The
address of KPMG Corporate Finance is 8 Salisbury Square, London, EC4Y 8BB.
The full text of the conditions and certain further terms of the Offer set out
in Appendix I to this announcement form part of and should be read in
conjunction with this announcement.
Appendix II to this announcement provides details of additional information
regarding the Offer including the basis of calculations and sources of certain
information included in this announcement.
Appendix III to this announcement provides a summary of the terms of the Loan
Notes.
Appendix IV to this announcement contains details of the Pendragon Profit
Estimate for the year ended 31 December 2003.
Appendix V to this announcement contains definitions of the terms used in this
announcement.
The Offer is not being and will not be made, directly or indirectly, in or into,
or by use of the mails of, or by any means or instrumentality (including,
without limitation, facsimile transmission, electronic mail, telex or telephone)
of interstate or foreign commerce of, or any facilities of a national securities
exchange of, the United States, Canada, Australia, South Africa, the Republic of
Ireland or Japan and the Offer will not be capable of acceptance by any such
use, means, instrumentality or facility, directly or indirectly from or within
the United States, Canada, Australia, South Africa, the Republic of Ireland or
Japan.
The Loan Notes to be issued pursuant to the Offer have not been nor will they be
registered under the United States Securities Act of 1933, as amended, or under
any of the relevant securities laws of Canada, Australia, South Africa, the
Republic of Ireland or Japan. Accordingly, unless an exemption under any
applicable laws is available, the Loan Notes may not be offered, sold or
delivered, directly or indirectly, in or into the United States, Canada,
Australia, South Africa, the Republic of Ireland or Japan or any other country
outside the United Kingdom where such distribution may otherwise lead to a
breach of any law or regulatory requirement or to or for the account or benefit
of any person in such countries.
The Pendragon Directors accept responsibility for the information contained in
this announcement apart from the information in this announcement relating to
the CD Bramall Group, the CD Bramall Directors and their immediate families and
persons connected with them (within the meaning of section 346 of the Act) for
which the CD Bramall Directors accept responsibility. Subject as aforesaid, to
the best of the knowledge and belief of the Pendragon Directors (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.
The CD Bramall Directors accept responsibility for the information contained in
this announcement relating to the CD Bramall Group, the CD Bramall Directors and
their immediate families and persons connected with them (within the meaning of
Section 346 of the Act). To the best of the knowledge and belief of the CD
Bramall Directors (who have taken all reasonable care to ensure that such is the
case) the information contained in this announcement relating to the CD Bramall
Group, the CD Bramall Directors and their immediate families and persons
connected with them (within the meaning of Section 346 of the Act) for which
they accept responsibility is in accordance with the facts and does not omit
anything likely to affect the import of such information.
APPENDIX I
CONDITIONS AND CERTAIN FURTHER TERMS OF THE OFFER
PART A: CONDITIONS OF THE OFFER
The Offer will be subject to the following conditions:
(a) valid acceptances being received (and not, where permitted, withdrawn) by
not later than 3.00 p.m. on the First Closing Date (or such later time(s) and/or
date(s) as Pendragon may, subject to the rules of the Code or with the consent
of the Panel, decide) in respect of not less than 90 per cent (or such lesser
percentage as Pendragon may decide) in nominal value of the CD Bramall Shares to
which the Offer relates, provided that this condition will not be satisfied
unless Pendragon and/or any of its wholly-owned subsidiaries shall have acquired
or agreed to acquire, whether pursuant to the Offer or otherwise, CD Bramall
Shares carrying, in aggregate, more than 50 per cent of the voting rights then
normally exercisable at a general meeting of CD Bramall, including for this
purpose, to the extent (if any) required by the Panel, any such voting rights
attaching to any CD Bramall Shares that are unconditionally allotted or issued
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 this purpose:
(i) the expression 'CD Bramall Shares to which the Offer relates' shall be
construed in accordance with sections 428-430F of the Act; and
(ii) shares that have been unconditionally allotted shall be deemed to
carry the voting rights that they will carry upon issue;
(b) the passing at an Extraordinary General Meeting of Pendragon (or at any
adjournment thereof) of all necessary resolutions to approve, fund, implement
and effect the Offer and the acquisition of any CD Bramall Shares;
(c) Pendragon not having discovered or otherwise having become aware that
the Secretary of State for Trade and Industry has referred or intends to refer
the Acquisition or any matter arising therefrom or relating thereto to the
Competition Commission in the UK;
(d) no relevant authority having intervened in a way that would or might
reasonably:
(i) make the Offer or its implementation or the acquisition by the Offeror
or any member of the Pendragon Group of any shares or other securities in, or
control of, CD Bramall, void, illegal or unenforceable or directly or indirectly
restrict, restrain, prohibit, delay or otherwise materially interfere with the
implementation of, or impose additional material conditions or obligations with
respect to, or otherwise challenge, the Offer or the acquisition of any shares
or other securities in, or control of, CD Bramall by the Offeror or any member
of the Pendragon Group; or
(ii) require, impede, delay or prevent the divestiture, or alter the terms
of any proposed divestiture, by any member of the wider CD Bramall Group or by
any member of the wider Pendragon Group of all or any portion of their
respective businesses (or any of them), assets or property or impose any
limitation on the ability of any of them to conduct their respective businesses
or to own or continue to enjoy the benefits currently enjoyed in relation to
their respective assets or property or any part of them and which in any such
case is material in the context of the CD Bramall Group and the Pendragon Group
(in each case taken as a whole, being the group on which such a requirement or
imposition is made) as the case may be; or
(iii) impose any limitation on or result in a delay in the ability of any
member of the wider CD Bramall Group or the wider Pendragon Group to acquire or
to hold or effectively to exercise (whether directly or indirectly) all or any
rights of ownership of shares or other securities (or the equivalent) in, or
management control over, any member of the wider CD Bramall Group in a manner or
to an extent which would be material in the context of the Offer, the CD Bramall
Group and the Pendragon Group (in each case taken as a whole) as the case may
be; or
(iv) require any member of the wider Pendragon Group or the wider CD
Bramall Group to offer to acquire any shares or other securities (or the
equivalent) or interest in any member of the wider CD Bramall Group and the
Pendragon Group owned by any third party which would be material in the context
of the CD Bramall Group or the Pendragon Group (in each case taken as a whole)
as the case may be; or
(v) require the divestiture by any member of the wider Pendragon Group of
any shares or other securities in CD Bramall which would be material in the
context of the Pendragon Group (taken as a whole); or
(vi) impose any limitation on the ability of any member of the wider CD
Bramall Group or the wider Pendragon Group to co-ordinate their respective
businesses, or any part of them, with the businesses of any other member of the
wider CD Bramall Group or the wider Pendragon Group and which in any such case
is material in the context of the CD Bramall Group or the Pendragon Group (in
each case taken as a whole), as the case may be; or
(vii) result in any member of the wider CD Bramall Group or the wider
Pendragon Group ceasing to be able to carry on business under any name under
which it presently does so; or
(viii) otherwise adversely affect the business, financial position,
profits or prospects of any member of the wider Pendragon Group or of any member
of the wider CD Bramall Group in each case taken as a whole, in a manner which
is material and adverse;
and all applicable waiting and other time periods during which any relevant
authority could intervene in respect of the Offer or the Acquisition or proposed
acquisition of any shares or other securities or control of CD Bramall by
Pendragon or any member of the Pendragon Group, having expired, lapsed or
terminated;
(e) all necessary filings having been made, clearances obtained and all
appropriate waiting and other time periods under any applicable legislation or
regulations in any jurisdiction having expired, lapsed or been terminated and
all authorisations necessary or appropriate for, or in respect of, the Offer or
the proposed acquisition of any shares or other securities in, or control of, CD
Bramall by any member of the wider Pendragon Group or the carrying on by any
member of the wider CD Bramall Group or the wider Pendragon Group of its
business having been obtained, in terms and in a form reasonably satisfactory to
Pendragon, from all relevant authorities or from any person or body with whom
any member of the wider Pendragon Group or any member of the wider CD Bramall
Group has entered into contractual arrangements (and which are in any event
material in the context of the CD Bramall Group or the Pendragon Group (in each
case taken as a whole) as the case may be) and all such authorisations remaining
in full force and effect and there has not been received any notice or
intimation of an intention to revoke, or not to renew, any of the same (in each
case in a manner which is material and adverse in the context of the CD Bramall
Group or the Pendragon Group (in each case taken as a whole) as the case may be)
and all applicable statutory or regulatory obligations in any jurisdiction
having been complied with;
(f) there being no provision of any arrangement, agreement, licence, permit,
franchise or other instrument to which any member of the wider CD Bramall Group
is a party or by or to which any such member or any of its assets are or may be
bound, entitled or subject (which is material in the context of the CD Bramall
Group taken as a whole) and which, in consequence of the Offer or the
Acquisition or the proposed acquisition of any shares or other securities in, or
control of CD Bramall by Pendragon or any member of the wider Pendragon Group or
because of a change in the control or management of any member of the wider CD
Bramall Group or otherwise, would or might (to an extent material in the context
of the CD Bramall Group taken as a whole) result in:
(i) any monies borrowed by, or other indebtedness (actual or contingent)
of, or grant available to any such member of the wider CD Bramall Group being or
becoming repayable, or becoming capable of being declared repayable, immediately
or prior to its stated maturity, or the ability of any such member to borrow
monies or incur any indebtedness being withdrawn or inhibited or being capable
of being withdrawn or materially inhibited; or
(ii) the creation or enforcement of any mortgage, charge or other security
interest over the whole or any significant part of the business, property or
assets of any such member of the wider CD Bramall Group, or any such mortgage,
charge or other security interest (whenever arising or having arisen) becoming
enforceable; or
(iii) any such arrangement, agreement, licence, permit, franchise or other
instrument or the rights, liabilities, obligations or interests of any such
member of the wider CD Bramall Group under any such arrangement, agreement,
licence, permit, franchise or other instrument being terminated or modified
adversely or affected adversely or any action being taken, or any obligation or
liability arising thereunder; or
(iv) any assets or interests of any such member of the wider CD Bramall
Group being or falling to be disposed of or charged or any right arising under
which any such asset or interest could be required to be disposed of or charged
otherwise than in the ordinary course of business; or
(v) the rights, liabilities, obligations, interest or business of any such
member of the wider CD Bramall Group in or with any firm or body or person, or
any arrangements relating to such interest or business, being terminated or
adversely modified or affected adversely, in each case in a way in which is
material in the context of the CD Bramall Group taken as a whole; or
(vi) any such member of the wider CD Bramall Group ceasing to be able to
carry on business under any name under which it presently does so; or
(vii) the financial or trading position or prospects of the wider CD Bramall
Group being adversely affected,
and no event having occurred which, under any provision of such agreement,
arrangement, licence, permit, franchise or other instrument to which any member
of the wider CD Bramall Group is a party or by or to which any such member or
any of its assets may be bound, entitled or subject, could or might, whether
with the giving of notice, effluxion of time or otherwise, result in or give
rise to any of the events or circumstances as are referred to in paragraphs (i)
to (vii) of this paragraph (f);
(g) except as disclosed in the CD Bramall annual report and accounts for the
year ended 31 December 2002 and/or in CD Bramall's announcement of its interim
results for the six month period ended 30 June 2003 ('CD Bramall's Financial
Results') and/or otherwise publicly announced by CD Bramall by notifying a
Regulatory Information Service prior to 23 January 2004 ('publicly announced'),
no member of the wider CD Bramall Group having, since 31 December 2002:
(i) issued or agreed to issue or authorised or proposed the issue of
additional shares of any class, or of securities convertible into, or rights,
warrants or options to subscribe for or acquire, any such shares or convertible
securities (save as between CD Bramall and wholly-owned subsidiaries of CD
Bramall and save for options granted, or the issue of any CD Bramall Shares upon
exercise of options granted, under the CD Bramall Share Option Schemes prior to
31 December 2002); or
(ii) recommended, declared, paid or made or proposed to recommend, declare,
pay or make any bonus, dividend or other distribution except to a member of the
wider CD Bramall Group other than the CD Bramall Second Interim Dividend; or
(iii) purchased, redeemed or repaid or announced any proposal to purchase,
redeem or repay any of its own shares or other securities (whether or not
convertible into shares) or reduced or made any other change to any part of its
share capital; or
(iv) issued, authorised or proposed or announced the issue of any
debentures or made, recognised or proposed or announced any change in its loan
capital or, save in the ordinary course of business, incurred or increased any
indebtedness or contingent liability or become subject to any contingent
liability other than to a wholly-owned subsidiary of CD Bramall; or
(v) merged with or acquired any body corporate or acquired or disposed of
or transferred, mortgaged or encumbered any asset (including shares and trade
investments) or any right, title or interest in any asset, or undertaken any
liability, other than in the ordinary course of business and which is material
to the CD Bramall Group taken as a whole or authorised or proposed or announced
any intention to propose any such merger, acquisition, disposal, mortgage or
encumbrance (in each case other than in the ordinary course of business and
which is material to the CD Bramall Group taken as a whole); or
(vi) entered into or varied, or authorised, proposed or announced its
intention to enter into or vary any contract, transaction, arrangement or
commitment which is of a long term, unduly onerous or unusual nature or
magnitude or which would be restrictive on the business of any member of the
wider CD Bramall Group or which involves or would involve an obligation of such
a nature or magnitude or which is not in the ordinary course of business
(including, without limitation, the acquisition or disposal of any interest in
any undertaking or the implementation of any merger, demerger, reconstruction,
scheme or amalgamation) and which in each case is material in the context of the
CD Bramall Group taken as a whole; or
(vii) taken any corporate action or had any legal proceedings instituted or
threatened against it or any order made for its winding-up (voluntarily or
otherwise), dissolution or reorganisation or any analogous procedures in any
jurisdiction, or for the appointment of a receiver, administrator,
administrative receiver, trustee or similar officer over all or any of its
assets or revenues (in each case in a manner which could reasonably be expected
to have a material adverse effect on the CD Bramall Group taken as a whole); or
(viii) with the exception of R Gregson, entered into, or varied the terms
of any contract, arrangement or commitment with any of the directors of CD
Bramall or senior executives of any member of the wider CD Bramall Group other
than to a nature or extent which is normal in the course of the business
concerned which would be restrictive on the CD Bramall Group taken as a whole;
or
(ix) been unable or having 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 or threatened to cease carrying on all or a
substantial part of its business; or
(x) made or agreed or consented to any change to the terms of any trust
deed constituting the pension scheme(s) 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 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
(xi) made any amendment to its memorandum or articles of association; or
(xii) waived or compromised any claim which is material in the context of
the CD Bramall Group taken as a whole; or
(xiii) entered into any agreement, arrangement or commitment (other than in
the ordinary course of business) or passed any resolution or made any
announcement, with respect to any of the transactions, matters or events
referred to in this paragraph (g);
(h) except as disclosed in CD Bramall's Financial Results, or as otherwise
publicly announced since 31 December 2002:
(i) there having been no material adverse change in the business, assets,
financial or trading position or profits or prospects of any member of the wider
CD Bramall Group;
(ii) there having been no litigation, arbitration proceedings, prosecution
or other legal proceedings or investigation instituted, announced or threatened
by or against or remaining outstanding in respect of any member of the wider CD
Bramall Group which in any such case is material in the context of the CD
Bramall Group taken as a whole; and
(iii) no contingent or other liability having arisen which would or might
reasonably be expected to materially adversely affect the business of the wider
CD Bramall Group, taken as a whole;
(i) Pendragon not having discovered that:
(i) any financial or business or other information concerning the wider CD
Bramall Group disclosed at any time by or on behalf of any member of the wider
CD Bramall Group (whether publicly or otherwise) to Pendragon either contains a
misrepresentation of fact or omits to state a material fact necessary to make
the information contained therein not misleading, in either case, where the
misrepresentation or omission is material in the context of the wider CD Bramall
Group taken as a whole; or
(ii) any member of the wider CD Bramall Group is subject to any liability,
contingent or otherwise, which is not disclosed in CD Bramall's Financial
Results and which is material in the context of the CD Bramall Group taken as a
whole; or
(iii) there has been an emission, disposal, discharge, deposit, spillage
or leak of waste or hazardous or harmful substances on or about or from any
property now or previously owned, occupied or made use of by any past or present
member of the wider CD Bramall Group which could give rise to any liability
(whether actual or contingent) or cost on the part of any member of the wider CD
Bramall Group which is or would be material in the context of the wider CD
Bramall Group taken as a whole; or
(iv) any past or present member of the wider CD Bramall Group has not
complied with all applicable laws or regulations of any relevant jurisdiction in
relation to environmental matters, which noncompliance would be likely to give
rise to any liability (whether actual or contingent) or cost on the part of any
member of the wider CD Bramall Group which would be material in the context of
the business of the wider CD Bramall Group taken as a whole; or
(v) circumstances exist whereby a person or class of persons would be
likely to have any material claim or claims in respect of any service provided
by or carried out by any past or present member of the wider CD Bramall Group;
or
(vi) there is or is likely to be any liability (whether actual or
contingent) or requirement of any past or present member of the wider CD Bramall
Group to make good, repair, reinstate or clean up any property now or previously
owned, occupied, made use of or harmed by any past or present member of the
wider CD Bramall Group or any controlled waters under any environmental
legislation, regulation, notice, circular or order of any relevant authority or
otherwise which is material in the context of the business of the wider CD
Bramall Group taken as a whole.
For the purposes of these conditions:
(a) 'relevant authority' means any government or governmental,
quasi-governmental, supranational, statutory, regulatory or investigative body,
court, trade agency, association, institution or professional or environmental
body or any other regulatory body or person in any jurisdiction;
(b) a relevant authority shall be regarded as having 'intervened' if it has
decided or intimated a decision to take, institute, implement or threaten any
action, proceeding, suit, investigation, reference or enquiry, or made, enacted
or proposed any statute, regulation, decision or order, or taken any other steps
and 'intervene' shall be construed accordingly;
(c) 'authorisations' mean authorisations, determinations, orders, grants,
recognitions, confirmations, consents, licences, clearances, permissions,
certificates and approvals; and
(d) the 'wider CD Bramall Group' means CD Bramall and its subsidiary
undertakings, associated undertakings and any other undertaking in which CD
Bramall and such undertakings (aggregating their interests) have a significant
interest and the 'wider Pendragon Group' means Pendragon and its subsidiary
undertakings, associated undertakings and any other undertaking in which
Pendragon and such undertakings (aggregating their interests) have a significant
interest and, for these purposes, 'subsidiary undertaking', 'associated
undertaking' and 'undertaking' have the meanings given by the Act (but for this
purpose ignoring paragraph 20(1)(b) of Schedule 4A of the Act) and 'significant
interest' means a direct or indirect interest in, in aggregate, 10 per cent or
more of the equity capital of an undertaking.
Pendragon reserves the right to waive all or any of the above conditions, in
whole or in part, except conditions (a) and (b). Pendragon shall be under no
obligation to waive or treat as fulfilled any of conditions (c) to (i) inclusive
by a date earlier than specified below notwithstanding that any of the other
conditions of the Offer may at such earlier date have been fulfilled or waived
and/or that there are at such earlier date no circumstances indicating that any
of such conditions may not be capable of fulfilment.
If Pendragon is required by the Panel to make an offer for the CD Bramall Shares
under Rule 9 of the Code, Pendragon may make such alterations to the above
conditions, including, without limitation, condition (a), as are necessary to
comply with the provisions of that Rule.
Unless the Panel otherwise agrees, the Offer will lapse unless the conditions
set out above (other than condition (a)) are fulfilled or (if capable of waiver)
waived or, where appropriate, have been determined by Pendragon in its
reasonable opinion to be or to remain satisfied no later than 21 days after the
later of (i) the First Closing Date and (ii) the date on which the Offer becomes
or is declared unconditional as to acceptances, or such later date as the Panel
may agree.
The Offer will lapse if the Acquisition is referred to the Competition
Commission in the UK before 3.00 p.m. on the later of the First Closing Date and
the date on which the Offer becomes or is declared unconditional as to
acceptances.
If the Offer lapses, the Offer will cease to be capable of further acceptance
and accepting CD Bramall Shareholders and Pendragon will cease to be bound by
the Form of Acceptance submitted on or before the time when the Offer lapses.
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 I, 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 or purchase any securities.
The CD Bramall Shares will be acquired by Pendragon fully paid up and free from
all liens, equitable interests, charges, encumbrances, rights of pre-emption and
other third party rights or interests and together with all rights now or
hereafter attaching thereto, including the right to receive and retain all
dividends and other distributions (if any) declared, made or paid on or after
the date on which the Offer is made, save the second interim dividend of 7 pence
(net) per CD Bramall Share referred to in paragraph 4 of this announcement.
The Offer is not being and will not be made, directly or indirectly, in or into,
or by use of the mails of, or by any means or instrumentality (including,
without limitation, facsimile transmission, electronic mail, telex or telephone)
of interstate or foreign commerce of, or any facilities of a national securities
exchange of the United States, Canada, Australia, South Africa, the Republic of
Ireland or Japan and the Offer will not be capable of acceptance by any such
use, means, instrumentality or facility, directly or indirectly from or within
the United States, Canada, Australia, South Africa, the Republic of Ireland or
Japan.
Accordingly, copies of this announcement and any other documents related to the
Offer are not being, and must not be, mailed or otherwise distributed or sent in
or into or from the United States, Canada, Australia, South Africa, the Republic
of Ireland or Japan and persons receiving this announcement, the Form of
Acceptance or such other documents (including custodians, nominees and trustees)
must not distribute or send them in, or into or from, the United States, Canada,
Australia, South Africa, the Republic of Ireland or Japan.
PART C: CONTINGENT CONSIDERATION
a) The Contingent Consideration payable per CD Bramall Share will be
calculated using the formula:
(0.5 x (R - D))/N
Where:
R is the gross amount before tax received by CD Bramall (in respect of the claim
submitted on 27 June 2003) from HM Customs & Excise by way of repayment of VAT
(including interest thereon) which would not have been received but for the
cases of Marks and Spencer v C&E Commrs (2002) STC 1036, Elida Gibbs Ltd v C E
Commrs, Case C-317/94 (1996) STC 1387 and EC Commission v. Italian Republic,
Case C-45/95 (1997) STC 1062.
D is the aggregate of certain expenses to be deducted, including any fees of
Deloitte & Touche or any other professional advisers, including legal costs,
incurred in connection with such VAT claims.
N is 39,296,469 being the sum of (i) the number of CD Bramall Shares in issue on
22 January 2004; and (ii) the number of CD Bramall Shares held under option
under the CD Bramall Option Schemes on 22 January 2004.
b) No Contingent Consideration shall be payable if the Contingent
Consideration per CD Bramall Share shall be less than 1 pence per CD Bramall
Share.
c) The Contingent Consideration shall be payable within 14 days of receipt by
CD Bramall of repayment of overpaid VAT.
APPENDIX II
ADDITIONAL INFORMATION
1. Inducement fee
Pursuant to a letter dated 24 December 2003 from Pendragon to CD Bramall, and in
consideration of Pendragon making preparations for the Offer, it was agreed that
Pendragon would have exclusivity for the period between 24 December 2003 and 18
February 2004 and that an inducement fee would be payable by CD Bramall to
Pendragon on the following events (each a 'Payment Event'):
(a) a termination of discussions with the Pendragon Board by the CD Bramall
Board; or
(b) a notification by the CD Bramall Board to the Pendragon Board that they
are not prepared to unanimously recommend that the CD Bramall Shareholders
accept the Offer; or
(c) failure by D C A Bramall irrevocably to undertake to accept the Offer in
respect of his entire beneficial holding of CD Bramall Shares; or
(d) the announcement of an independent competing offer which becomes or is
declared unconditional in all respects; or
(e) the Panel finding that there has been a breach of Rule 21 of the Code
(which shall not include the entering into of R Gregson's new service agreement
with CD Bramall dated 1 September 2003).
The amount of the inducement fee depends on the date of the Payment Event and is
subject to a minimum of £130,000 and a maximum of £1,000,000 (exclusive of VAT).
The inducement fee is not payable if the Pendragon Shareholders do not consent
to the making of the Offer other than as a result of a Payment Event having
occurred.
2. General
Unless otherwise stated, financial information relating to Pendragon has been
extracted from the audited consolidated financial statements of the Pendragon
Group for the financial year ended 31 December 2002 and the unaudited interim
results for the six months ended 30 June 2003.
Unless otherwise stated, financial information relating to CD Bramall has been
extracted from the audited consolidated financial statements of the CD Bramall
Group for the financial year ended 31 December 2002 and the unaudited interim
results for the six months ended 30 June 2003.
As at 22 January 2004 (being the latest practicable date prior to the issue of
this announcement) neither Pendragon nor any of its directors nor, so far as
Pendragon is aware, any person acting in concert with Pendragon owns or controls
any CD Bramall Shares or has any option to acquire any CD Bramall Shares.
KPMG Corporate Finance has given and not withdrawn its written consent to the
issue of this announcement with the inclusion of references to its name and its
letter in Appendix IV to this announcement in the form and context in which they
appear.
KPMG Audit Plc has given and not withdrawn its written consent to the issue of
this announcement with the inclusion in Appendix IV to this announcement of its
report in respect of the Pendragon Profit Estimate in the form and context in
which it appears.
3. Share prices
The closing middle market prices of CD Bramall Shares have been derived from the
Daily Official List.
4. Value of the Offer
References to the value of the Offer for the whole of the issued share capital
of CD Bramall are based on 38,386,611 CD Bramall Shares currently in issue and
600 pence for each CD Bramall Share.
5. Undertakings
(a) Irrevocable undertakings to accept the Offer have been given by the CD
Bramall Directors and persons connected with them in respect of the following
holdings of CD Bramall Shares:
Number of CD
Bramall Shares
D C A Bramall 12,644,367
W F Charnley -
L A Fowler 54,345
R A Gregson 1,845
K R Hartrick 55,814
J Holroyd 20,000
P Jones 18,200
P E Rickitt 18,750
These irrevocable undertakings will lapse only in the event of the Offer lapsing
or being withdrawn or if the Offer Document is not posted to CD Bramall
Shareholders by 1 February 2004.
(b) Irrevocable undertakings to accept or procure acceptance of the Offer in
respect of CD Bramall Shares of which they are the registered holders and
beneficial owners (or in respect of which they are otherwise able to control the
rights attaching thereto including the ability to procure the transfer thereof)
have also been received by Pendragon from the following institutions in respect
of the following holdings of CD Bramall Shares:
Number of CD
Bramall Shares
Framlington Investment Management Limited 1,725,186
Jupiter Asset Management Limited 3,339,000
AEGON UK plc 837,487
Notes
1) The undertaking given by Framlington Investment Management Limited
('Framlington') is irrevocable but shall cease to have effect if a competing or
higher offer for the entire issued share capital of CD Bramall is made by a
third party at an all cash price of greater than 600 pence per CD Bramall Share
within 14 days of receipt of the Offer Document by Framlington.
2) The undertaking given by Jupiter Asset Management Limited ('Jupiter') is
irrevocable but shall cease to have effect if:
(a) Pendragon is not obliged to make the Offer because:
(i) the Panel consents to Pendragon not making the Offer;
(ii) an event occurs which means that Pendragon is no longer required by the
City Code to proceed with the Offer; or
(iii) Pendragon becomes aware that any condition of the Offer as set out in
this document has become or may become incapable of being fulfilled; or
(b) the Offer Document is not posted within 28 days of the date of the
undertaking given by Jupiter (22 January 2004) or within such longer period as
Pendragon, with the consent of the Panel, determines (being no later than 6
weeks after the date of this undertaking); or
(c) a competing or higher offer for the entire issued share capital of CD
Bramall is made by a third party at a price of greater than 660 pence per CD
Bramall Share before the First Closing Date; or
(d) the Offer lapses or is withdrawn.
(3) The undertaking by AEGON UK plc ('Aegon') is irrevocable but shall cease to
have effect if a competing or higher offer for the entire issued share capital
of CD Bramall is made by a third party at an all cash price of greater than 660
pence per CD Bramall Share within 14 days of receipt of the Offer Document by
Aegon.
APPENDIX III
SUMMARY OF THE TERMS OF THE LOAN NOTES
CD Bramall Shareholders (other than certain CD Bramall overseas shareholders)
who validly accept the Offer will be entitled to elect to receive Loan Notes to
be issued by Pendragon instead of some or all of the cash consideration to which
they would otherwise be entitled under the Offer on the following basis:
for every £1 of cash consideration £1 nominal of Loan Notes
The Loan Notes will be issued, credited as fully paid, in amounts and integral
multiples of £1 nominal value. No fractional entitlements will be issued. The
Loan Notes will be guaranteed as to principal only by Lloyds TSB Bank plc.
The Loan Notes will bear interest at the rate of LIBOR less 0.5 per cent. LIBOR
will be determined prior to the first business day of each interest period.
Interest on the Loan Notes (less any tax required by law to be deducted
therefrom) will be payable every six months in arrears on 14 February and 14
August (or, if not a business day in any year, on the immediately following
business day) (each being an 'Interest Payment Date'). The first interest
payment on the Loan Notes, which will be made on 16 August 2004, will be in
respect of the period from (and including) the first date of issue of the Loan
Notes up to (and including) 14 August 2004.
A maximum of £80 million in nominal value of Loan Notes is available to be
issued under the Loan Note Alternative. To the extent that valid elections for
the Loan Note Alternative exceed the maximum amount of Loan Notes available,
such elections will be scaled back pro rata, as nearly as practicable, according
to the number of CD Bramall Shares for which a Loan Note election has been made.
The Loan Note Alternative will remain open for so long as the Offer remains open
for acceptance. No Loan Notes will be issued unless by the time the Offer
becomes or is declared unconditional in all respects, valid elections have been
received for at least £2 million in nominal value of Loan Notes. If insufficient
elections are received, CD Bramall Shareholders who have validly accepted the
Offer and elected for the Loan Note Alternative will (unless the Board of
Pendragon otherwise determines) receive cash in accordance with the terms of the
Offer.
The Loan Notes will be redeemable in whole or in part in multiples of £1,000 in
nominal amount or any integral multiple thereof at the option of the holder on
each Interest Payment Date from (and including) 14 February 2005 (or if not a
business day, on the first business day thereafter). Unless previously redeemed
or purchased the Loan Notes will be redeemed on 14 February 2006 (or if not a
business day on the first business day thereafter). The Loan Notes will, subject
to certain conditions, be transferable but no application is intended to be made
for the Loan Notes to be listed or dealt in on any stock exchange. If at any
time after 14 February 2005 the principal amount of the Loan Notes outstanding
is 20 per cent or less of the total nominal amount of Loan Notes which have been
issued Pendragon will have the right to redeem the remaining Loan Notes.
APPENDIX IV
PENDRAGON PROFIT ESTIMATE
On 14 August 2003, Pendragon announced its interim results for the six months
ended 30 June 2003 and the Pendragon Board stated that it expected to report
full year profit before tax, goodwill amortisation and exceptionals ahead of the
current market consensus of £33.8 million.
In the absence of unforeseen circumstances and on the basis of preparation
outlined below, the Pendragon Board now estimates that the profit before tax,
goodwill amortisation and exceptional items for the Pendragon Group for the year
ended 31 December 2003 (the 'Pendragon Profit Estimate') will not be less than
£37.0 million. In the second half of 2003 the profit of £2.6 million on the
disposal of the Ryland Group plc investment on 1 September 2003 will be treated
as an exceptional item.
Pendragon anticipates being able to release its preliminary results for the year
ended 31 December 2003 on or around 12 February 2004.
Basis of preparation
The Pendragon Profit Estimate is based on the consolidated management accounts
for the 12 months ended 31 December 2003. The Pendragon Profit Estimate has been
prepared using accounting policies consistent with those set out in the
statutory financial statements for the year ended 31 December 2002. No provision
has been made in the Pendragon Profit Estimate for any gain or loss arising from
the Offer or for the costs associated with the Offer.
Text extracted from a letter from KPMG Audit Plc relating to the Pendragon
Profit Estimate:
KPMG Audit Plc
2 Cornwall Street
Birmingham
B3 2DL
United Kingdom
The Directors
Pendragon PLC
Loxley House
2 Oakwood Court
Little Oak Drive
Annesley
Nottingham
NG15 0DR
KPMG Corporate Finance
2 Cornwall Street
Birmingham
B3 2DL
23 January 2004
Dear Sirs
Pendragon PLC
We have reviewed the accounting policies and calculations for the estimate of
profit before taxation, goodwill amortisation and exceptional items ('the
estimate') of Pendragon PLC ('the Company') and its subsidiary undertakings
('the Group') for the year ended 31 December 2003, set out in Appendix IV to the
announcement dated 23 January 2004 ('the Announcement') The directors of the
Company are solely responsible for the estimate.
The estimate includes results shown by unaudited consolidated management
accounts for the 12 months ended 31 December 2003.
We conducted our work in accordance with Statements of Investment Circular
Reporting Standards issued by the Auditing Practices Board of the United
Kingdom.
In our opinion the estimate, so far as the accounting policies and calculations
are concerned, has been properly compiled by the directors on the basis set out
in Appendix IV to the Announcement and is presented on a basis consistent with
the accounting policies normally adopted by the Group.
Yours faithfully
KPMG Audit Plc
Text extracted from a letter from KPMG Corporate Finance relating to the
Pendragon Profit Estimate:
KPMG Corporate Finance
2 Cornwall Street
Birmingham
B3 2DL
United Kingdom
The Board of Directors
Pendragon PLC
Loxley House
2 Oakwood Court
Little Oak Drive
Annesley
Nottingham
NG15 0DR
23 January 2004
Dear Sirs
Pendragon PLC
We refer to the estimate of profit before taxation of Pendragon PLC (the
'Company') and its subsidiary and associated undertakings (the 'Group') for the
year ended 31 December 2003, set out in Appendix IV to the announcement dated 23
January 2004.
We have discussed the estimate, together with the basis upon which the estimate
has been made, with the directors of the Company. We have also discussed with
KPMG Audit Plc the work they have done in respect of the estimate as set out in
their letter dated 23 January 2004.
On the basis of the foregoing, we consider that the estimate, for which you as
Pendragon Directors are solely responsible, has been made after due and careful
enquiry.
Yours faithfully
for KPMG Corporate Finance
Charles E Cattaneo
Partner
APPENDIX V
DEFINITIONS
The following definitions apply throughout this document, unless the context
requires otherwise:
'Acquisition' the proposed acquisition by Pendragon of CD Bramall under the
terms of the Offer
'Act' the Companies Act 1985 (as amended)
'Arbuthnot' Arbuthnot Securities Limited
'Australia' The Commonwealth of Australia, its states, territories and
possessions
'Canada' Canada, its provinces and territories and all areas subject to
its jurisdiction and any political sub-divisions thereof
'CD Bramall' CD Bramall PLC
'CD Bramall the directors of CD Bramall
Directors' or
'CD Bramall
Board'
'CD Bramall CD Bramall and its subsidiary undertakings
Group'
'CD Bramall holders of CD Bramall Options
Option
Holders'
'CD Bramall options granted under the CD Bramall Share Option Schemes
Options'
'CD Bramall the second interim dividend of 7 pence (net) per share payable
Second Interim on 26 April 2004 to CD Bramall Shareholders on the register of
Dividend' members of CD Bramall at the close of business on 13 February
2004
'CD Bramall the Sanderson & Elder (Holdings) PLC Executive Share Option
Share Option Scheme, the Sanderson Bramall Motor Group PLC Unapproved
Schemes' Discretionary Share Option Scheme, the Sanderson Bramall Motor
Group PLC Savings - Related Share Option Scheme and the CD
Bramall PLC Approved Discretionary Share Option Scheme
'CD Bramall holders of CD Bramall Shares
Shareholders'
'CD Bramall the existing unconditionally allotted or issued and fully paid
Shares' ordinary shares of 10 pence each in the capital of CD Bramall
and any further ordinary shares which are unconditionally
allotted or issued on or prior to the date on which the Offer
closes (or such earlier date or dates as Pendragon may, subject
to the Code or with the consent of the Panel, decide)
'City Code' or the City Code on Takeovers and Mergers
'Code'
'Closing the middle-market quotation of a CD Bramall Share at the close
Price' of business on a particular trading day, as derived from the
Daily Official List
'Contingent the additional consideration payable under the Offer, which is
Consideration' contingent upon the outcome of claims for the recovery of
overpaid VAT made by CD Bramall, full details of which are set
out in Part C of Appendix I to this announcement
'Daily Official the Daily Official List of the London Stock Exchange
List'
'Enlarged the Pendragon Group as enlarged by the Acquisition
Pendragon
Group'
'Extraordinary the extraordinary general meeting of Pendragon to approve,
General inter alia, the proposed acquisition by Pendragon of the entire
Meeting' issued and to be issued share capital of CD Bramall under the
terms of the Offer
'First Closing the first closing date of the Offer
Date'
'Form of the form of acceptance, election and authority relating to the
Acceptance' Offer which will accompany the Offer Document
'FSMA' the Financial Services and Markets Act 2000
'Japan' Japan, its cities and prefectures, territories and
possessions
'LIBOR' the London Inter Bank Offered Rate
'Listing the Listing Rules made by the UK Listing Authority under
Rules' section 74 of FSMA
'Loan Note the loan note alternative under which CD Bramall Shareholders
Alternative' who validly accept the Offer will be entitled to elect to
receive Loan Notes in lieu of all or part of the cash
consideration which they would otherwise be entitled to receive
under the Offer
'Loan Notes' the guaranteed loan notes of £1 each to be issued by Pendragon
pursuant to the Loan Note Alternative
'London Stock the London Stock Exchange plc
Exchange'
'Offer' the recommended cash offer (including the Loan Note
Alternative) to be made by KPMG Corporate Finance on behalf of
Pendragon to acquire all of the issued and to be issued CD
Bramall Shares on the terms and subject to the conditions set
out in the Offer Document and the Form of Acceptance and
including, where the context so permits, any subsequent
revision, variation, extension or renewal of such offer
'Offer the offer document to be issued to CD Bramall Shareholders
Document' detailing the terms and conditions of the Offer
'Offer Price' 600 pence per CD Bramall Share
'Panel' the Panel on Takeovers and Mergers
'Pendragon' or Pendragon PLC
'Company' or
'Offeror'
'Pendragon the directors of Pendragon
Directors' or
'Pendragon
Board'
'Pendragon Pendragon and its subsidiary undertakings
Group'
'Pendragon the profit estimate for the year ended 31 December 2003
Profit prepared by the Pendragon Directors
Estimate'
'Pendragon holders of Pendragon Shares
Shareholders'
'Pendragon the ordinary shares of 25 pence each in the capital of
Shares' Pendragon
'Republic of the Republic of Ireland
Ireland'
'Rickitt Rickitt Mitchell & Partners Limited
Mitchell'
'South Africa' the Republic of South Africa
'UK Listing the Financial Services Authority acting in its capacity as the
Authority' competent authority for the purposes of Part VI of the
Financial Services and Markets Act 2000
'UK' or the United Kingdom of Great Britain and Northern Ireland
'United
Kingdom'
'US' or 'United the United States of America, including the states of the
States' United States and the District of Columbia, its territories and
possessions and all areas subject to its jurisdiction
The terms 'subsidiary' and 'subsidiary undertaking' as used in these definitions
shall have the meanings given by the Act.
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