RNS No 1692q
CLEVELAND TRUST PLC
6 April 1999
PART 2
Not for release, publication or distribution in or into the
United States of America, Canada, Australia, Japan or the
Republic of Ireland
APPENDIX I
CONDITIONS AND FURTHER TERMS OF THE OFFER
The Offer is subject to the following conditions:
(i) valid acceptances being received (and not, where
permitted, withdrawn) by 3.00 p.m. on the first closing
date (or such later time(s) and/or date(s) as Ashtenne
may, subject to the rules of the City Code, decide) in
respect of not less than 90 per cent. (or such lesser
percentage as Ashtenne may decide) of the Cleveland
Shares to which the Offer relates, provided that this
condition shall not be satisfied unless Ashtenne shall
have acquired or agreed to acquire, whether pursuant to
the Offer or otherwise, directly or indirectly Cleveland
Shares carrying in aggregate more than 50% of the votes
then normally exercisable at general meetings of
Cleveland, including for this purpose, to the extent (if
any) required by the Panel, any votes attaching to
Cleveland Shares which are unconditionally allotted or
issued before the Offer becomes or is declared
unconditional as to acceptances, whether pursuant to the
exercise of conversion or subscription rights or
otherwise; and for this purpose, (a) the expression
"Cleveland Shares to which the Offer relates" shall be
construed in accordance with sections 428 to 430F of the
Companies Act, and (b) Cleveland Shares which have been
unconditionally allotted shall be deemed to carry the
votes they would carry on being entered in the register
of members of Cleveland;
(ii) the passing at an extraordinary general meeting of
Ashtenne (or at any adjournment thereof) of such
resolutions as are necessary or desirable to approve,
effect and implement the Offer and the acquisition of
Cleveland Shares, pursuant to the Offer or otherwise;
(iii) the Office of Fair Trading indicating, in terms
satisfactory to Ashtenne, that it is not the intention of
the Secretary of State to refer the proposed acquisition
of Cleveland by Ashtenne and/or any matters arising
therefrom to the Monopolies and Mergers Commission;
(iv) no government or governmental, quasi-governmental,
supranational, statutory, investigative or regulatory
body, court, trade agency, association, institution or
professional or environmental body or other similar
person or body in any jurisdiction (each, a "Third
Party") having, prior to the date when the Offer becomes
otherwise unconditional in all respects, decided to take,
instituted, implemented or threatened any action, suit,
proceeding, investigation, reference or enquiry, or
enacted, made or proposed any statute, regulation,
decision or order, or required, or taken any other step
which would or might:
(a) make the Offer or its implementation, or the
acquisition or proposed acquisition of any or all of
the Cleveland Shares or control of Cleveland by
Ashtenne void, illegal or unenforceable or, directly
or indirectly, materially restrain, prohibit, delay
or otherwise interfere with the implementation of,
or impose material additional conditions or
obligations with respect to, or otherwise impede or
challenge the Offer or its implementation, or the
acquisition or proposed acquisition of any or all of
the Cleveland Shares or control of Cleveland by
Ashtenne; or
(b) require or prevent the divestiture by any member of
the Wider Ashtenne Group or by any member of the
Wider Cleveland Group of all or any part of their
respective businesses, assets or properties or
impose any limitation on the ability of any of them
to conduct their respective businesses or own all or
any portion of their respective assets or properties
(which, in any such case, would be material in the
context of the Wider Ashtenne Group or the Wider
Cleveland Group, as appropriate, taken as a whole);
or
(c) impose any limitation on, or result in a delay in,
the ability of any member of the Wider Ashtenne
Group or any member of the Wider Cleveland Group to
acquire, or to hold or effectively to exercise,
directly or indirectly, all or any rights of
ownership in respect of shares or loans or other
securities in any member of the Wider Ashtenne Group
or the Wider Cleveland Group or to exercise
management control over any such member which would
be material in the context of the Wider Cleveland
Group taken as a whole; or
(d) require any member of the Wider Ashtenne Group or
the Wider Cleveland Group to offer to acquire
directly or indirectly any shares or other
securities owned by any third party in the capital
of any member of the Wider Cleveland Group; or
(e) otherwise adversely affect the business or profits
of any member of the Wider Cleveland Group or the
Wider Ashtenne Group (which, in any such case, would
be material in the context of the Wider Ashtenne
Group or the Wider Cleveland Group, as appropriate,
taken as a whole).
and all applicable waiting and other time periods during
which any Third Party could decide to take, institute,
implement or threaten any such action, suit, proceeding,
investigation, reference or enquiry having expired,
lapsed or been terminated;
(v) all necessary filings having been made, and all
appropriate waiting periods (including any extension(s)
thereof) under any applicable legislation or regulation
in any jurisdiction having expired, lapsed or been
terminated, in respect of the Offer;
(vi) all authorisations, orders, recognitions, grants,
consents, licences, confirmations, clearances,
certificates, permissions and approvals
("Authorisations") necessary or appropriate for or in
respect of the Offer, and the acquisition or proposed
acquisition of any shares in, or control of, Cleveland by
Ashtenne having been obtained, in terms and in a form
satisfactory to Ashtenne, from all appropriate Third
Parties and all such Authorisations, remaining in full
force and effect and there being no intimation of any
intention to revoke or not to renew any of them and all
necessary and material statutory or regulatory
obligations in connection with the Offer in any
jurisdiction having been complied with;
(vii) except as fairly disclosed to Ashtenne before 24 March
1999, since 31 March 1998, other than as disclosed in the
annual report and accounts of Cleveland for the year
ended on that date or as otherwise publicly announced by
delivery of an announcement to the Company Announcements
Office of the London Stock Exchange on or prior to 24
March 1999:
(a) no member of the Wider Cleveland Group having
recommended, declared, paid or made, or proposed the
declaration, paying or making of, any dividend,
bonus or other distribution other than distributions
by any wholly-owned subsidiaries within the
Cleveland Group;
(b) no member of the Wider Cleveland Group having, save
as between a wholly owned subsidiary of Cleveland
and Cleveland or between wholly owned subsidiaries
of Cleveland or upon exercise of rights to convert
into or subscribe for Cleveland Shares pursuant to
the exercise or grant of options under the Cleveland
Share Option Scheme, issued, or authorised or
proposed the issue or grant of, additional shares of
any class or securities convertible into or rights,
warrants or options to subscribe for or acquire any
such shares or purchased, redeemed, repaid or
reduced, or proposed the purchase, redemption,
repayment or reduction of any part of its share
capital;
(c) no member of the Wider Cleveland Group having
issued, or proposed or authorised the issue of, any
debentures, or incurred or increased any
indebtedness (save in the ordinary course of
business in acquiring assets or funding
developments) or contingent liability of an
aggregate amount which is in any such case material
in the context of the Wider Cleveland Group taken as
a whole;
(d) there having been no adverse change or deterioration
of the business, financial or trading position or
profits of any member of the Wider Cleveland Group
which is material in the context of the Wider
Cleveland Group taken as a whole;
(e) no member of the Wider Cleveland Group having merged
with any body corporate or effected any demerger or
acquired or disposed (in either case otherwise than
in the ordinary course of trading) of any assets
which are material in the context of the Cleveland
Group taken as a whole (including shares in
subsidiaries or associates and trade investments) or
any right or interest in any such assets (including
by way of mortgage or charge) or made any material
change in its share capital (other than intra-group
issues), or authorised or proposed or announced any
intention to propose any merger, de-merger,
acquisition, disposal or change as aforesaid;
(f) no litigation or arbitration proceedings,
prosecution, investigation or other legal
proceedings to which any member of the Wider
Cleveland Group is or might become a party (whether
as plaintiff, defendant or otherwise) having been
instituted or threatened or announced or remaining
outstanding by, against or in respect of any member
of the Wider Cleveland Group which is or may be
material and adverse (in the context of the Wider
Cleveland Group taken as whole);
(g) no member of the Wider Cleveland Group having
entered into or varied any contract, transaction,
arrangement or commitment (whether in respect of
capital expenditure or otherwise) which is not in
the ordinary course of business and is of a long-
term or unusual or onerous nature or which involves
or could involve an obligation of a nature or
magnitude which is material in the context of the
Wider Cleveland Group taken as a whole;
(h) save for intra-group asset transfers, no member of
the Wider Cleveland Group having implemented or
entered into any reconstruction or amalgamation;
(i) saves for normal increases in salary in the ordinary
course of business, no member of the Wider Cleveland
Group having entered into or varied the terms of any
service agreement with any of the directors of any
member of the Wider Cleveland Group or made an offer
to do so which is still outstanding;
(j) no member of the Wider Cleveland Group having taken
any corporate action, or had an order made or
threatened against it, for its winding-up,
dissolution or reorganisation (in each case, on an
insolvent basis) or for the appointment of a
receiver, administrator, administrative receiver or
similar officer or had any such person appointed or
any analogous or similar event having occurred in
any jurisdiction;
(k) no member of the Wider Cleveland Group having been,
or admitted in writing that it is, unable to pay its
debts generally 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 material part of its business;
(l) no member of the Wider Cleveland Group having
entered into any contract, transaction or
arrangement which would be materially restrictive of
the scope of the business of any member of the Wider
Cleveland Group and would have a material effect on
the business of the Wider Cleveland Group taken as a
whole;
(m) no member of the Wider Cleveland Group having waived
or compromised any claim which in any such case is
material in the context of the Wider Cleveland Group
taken as a whole;
(n) no member of the Wider Cleveland Group having
proposed or made any offer (which is still
outstanding) to enter into or entered into any
agreement, arrangement or commitment with respect to
any of the transactions or events referred to in
this paragraph (vii);
(viii)save as fairly disclosed to Ashtenne before 24 March
1999 there being no provision of any arrangement,
agreement, licence or other instrument to which any
member of the Wider Cleveland Group is a party or by or
to which any such member or any of its assets is or are
or may be bound, entitled or subject, which would or
would be likely, as a result of the making of the Offer
or the acquisition or proposed acquisition by Ashtenne of
any Cleveland Shares or the proposed acquisition of
control of Cleveland by Ashtenne or a change in the
management or control of Cleveland or otherwise, result
(to an extent which is material in the context of the
Wider Cleveland Group taken as a whole)in:
(a) any monies borrowed by, or other indebtedness or
liabilities (actual or contingent) of, or grant
available to, any such member being or becoming
repayable or being capable of being or becoming
declared repayable immediately or prior to their or
its stated repayment or maturity date or the ability
of any such member to borrow monies or incur any
indebtedness being or being capable of being
withdrawn or inhibited;
(b) the creation of any mortgage, charge or other
security interest over or in relation to the whole
or any part of the business, property or assets of
any such member or any such security (whenever
arising or having arisen) becoming enforceable or
being enforced;
(c) any such arrangement, agreement, licence or
instrument being terminated or adversely modified or
adversely affected or any action being taken or any
obligation or liability arising thereunder;
(d) any interest, assets, or property of any such member
being or becoming liable to be disposed of or
charged otherwise than in the ordinary course of
business;
(e) the rights, interests or business of any such member
in or with any other person, firm, company or body,
or any arrangements relating to such rights,
interests or business, being terminated or adversely
modified or affected;
(f) any assets of any member of the Wider Cleveland
Group falling to be disposed of other than in the
ordinary course of business;
(g) the respective financial or trading position of any
such member being adversely affected
and no event having occurred which, under any provision
of any arrangement, agreement, licence or other
instrument to which any member of the Wider Cleveland
Group is a party, or by or to which any such member or
any of its assets may be bound, entitled or subject,
would or would be likely to result in any of the events
or circumstances as are referred to in items (a) to (g)
of this paragraph (viii) to an extent which is material
in the context of the Wider Cleveland Group taken as a
whole;
(ix)Ashtenne not having discovered:
(a) that any financial, business or other information
about the Wider Cleveland Group disclosed at any
time publicly by or on behalf of any member of the
Wider Cleveland Group is materially misleading,
contains a material misrepresentation of fact or
omits to state a fact necessary to make the
information contained therein not materially
misleading to an extent which is material in the
context of the Wider Cleveland Group taken as a
whole or which has not subsequently been corrected
by a public announcement before 24 March 1999;
(b) that any member of the Wider Cleveland Group is
subject to any liability, contingent or otherwise,
which is not disclosed or reflected in the audited
consolidated financial statements of Cleveland for
the financial year ended 31 March 1998 and which
would or might materially and adversely affect the
business of the Wider Cleveland Group taken as
whole;
(c) that any past or present member of the Wider
Cleveland Group has not complied with all applicable
legislation or regulations in any jurisdiction or
any contractual term or arrangement with regard to
the storage, disposal, spillage, leak or emission of
waste or hazardous substances which non-compliance
would be likely to give rise to any liability
(whether actual, prospective or contingent) on the
part of any member of the Wider Cleveland Group
which would be material in relation to that member
of the Wider Cleveland Group taken as a whole and
which has not already been fully provided for in
Cleveland's consolidated accounts or the accounts of
the relevant member of the Wider Cleveland Group in
any of the years preceding the current financial
year;
(d) that there is any material liability (whether
actual, prospective or contingent) to make good,
repair, reinstate or clean up any property now or
previously owned, occupied or made use of by any
past or present member of the Wider Cleveland Group
under any statute, regulation, order or decision of
any government or governmental, quasi-governmental,
state or local government, supranational, statutory
or regulatory body, court, trade agency,
professional association, institution or
environmental body or any other person or body in
any jurisdiction which is material in relation to
the Cleveland Group taken as whole and which has not
already been fully Provided for in Cleveland's
consolidated accounts or the accounts of the
relevant member of the Wider Cleveland Group in any
of the years preceding the current financial year;
or
(e) that circumstances exist (whether as a result of the
making of the Offer or otherwise) which would be
likely to lead to any government or governmental,
quasi-governmental, state or local government,
supranational, statutory or regulatory body, court,
trade agency, professional association, institution,
or any environmental body or other person or body in
any jurisdiction instituting, or whereby any member
of the Wider Ashtenne Group or any present or past
member of the Wider Cleveland Group would be likely
to be required to institute, any environmental audit
or take any other steps which would in any such case
be likely to result in any actual, prospective or
contingent liability to make good, repair, reinstate
or clean up any property now or previously owned,
occupied or made use of by any past or present
member of the Wider Cleveland Group which liability
would be material in relation to that member of the
Wider Cleveland Group, which is material in relation
to the Cleveland Group taken as whole and which has
not already been fully Provided for in Cleveland's
consolidated accounts or the accounts of the
relevant member of the Wider Cleveland Group in any
of the years preceding the current financial year.
Ashtenne reserves the right to waive all or any of conditions
(iii) to (ix) above inclusive, in whole or in part.
If Ashtenne is required by the Panel to make an offer for
Cleveland Shares under the provisions of Rule 9 of the City
Code, Ashtenne may make such alterations to the conditions,
including that in condition (i) above, as may be necessary to
comply with the provisions of that Rule.
The Offer will lapse unless the conditions set out above are
fulfilled or (if capable of waiver) waived or, where
appropriate, have been determined by Ashtenne in its
reasonable opinion to be or to remain satisfied no later than
21 days after the later of the first closing date of the Offer
and the date on which the Offer becomes or is declared
unconditional as to acceptances, or such later date as
Ashtenne may, with the consent of the Panel, decide. Ashtenne
shall be under no obligation to waive or treat as satisfied
any of conditions (iii) to (ix) inclusive by a date earlier
than the latest date specified above for the satisfaction
thereof notwithstanding that the other conditions of the Offer
may at such earlier date have been waived or fulfilled and
notwithstanding that on such earlier date there are no
circumstances indicating that any of such conditions may not
be capable of fulfilment.
The Offer will lapse if the acquisition of Cleveland by
Ashtenne is referred to the Monopolies and Mergers Commission
before whichever is the later of 3.00 p.m. on first closing
date of the Offer and the time and date at which the Offer
becomes or is declared unconditional as to acceptances, or
such later date as the Panel may agree.
If the Offer so lapses, it will cease to be capable of further
acceptances and persons accepting the Offer and Ashtenne will
cease to be bound by acceptances delivered on or before the
date on which the Offer so lapses.
APPENDIX II
Definitions
The following definitions apply throughout this announcement,
unless the context otherwise requires:
"Ashtenne" or "Offeror" Ashtenne Holdings PLC
"Ashtenne Group" Ashtenne Holdings PLC and
its subsidiary and
associated undertakings
and, where the context
permits, each of them
"Ashtenne Shareholders" holders of Ashtenne Shares
"Board" the directors of Ashtenne
Holdings PLC
"Cazenove" Cazenove & Co. who are
acting as financial adviser
to Ashtenne
"Cleveland" The Cleveland Trust Plc
"Cleveland Group" The Cleveland Trust Plc and
its subsidiary and
associated undertakings
and, where the context
permits, each of them
"Cleveland Shares" existing unconditionally
allotted or issued fully
paid ordinary shares of 25p
each in Cleveland, and any
further such shares which
are unconditionally
allotted or issued after
the date hereof and before
the date on which the Offer
closes (or such earlier
date, subject to the City
Code, as Ashtenne may
decide) including Cleveland
Shares unconditionally
allotted or issued pursuant
to the exercise of any
options under the Cleveland
Share Option Schemes
"Cleveland Shareholders" holders of Cleveland Shares
"Cleveland Share Option Scheme" the Cleveland Senior
Executive Share Option
Scheme
"Code" or "City Code" the City Code on Takeovers
and Mergers
"Companies Act" the Companies Act 1985 (as
amended)
"Enlarged Group" the Ashtenne Group enlarged
by the Acquisition
"Extraordinary General Meeting" or "EGM" means the
extraordinary general
meeting of Ashtenne to be
held, inter alia, to
approve and exercise the
Option and to approve and
accept the Offer
"Form of Acceptance" the form of acceptance
relating to the Offer
"Hawkpoint" Hawkpoint Partners Limited,
which is acting as
financial adviser to
Cleveland
"London Stock Exchange" London Stock Exchange
Limited
"Offer" the recommended cash offer
made by Cazenove, on behalf
of Ashtenne, to acquire all
of the Cleveland Shares to
which the offer relates on
the terms and subject to
the conditions set out in
the Offer Document
including, where the
context so requires, any
subsequent revision,
variation, extension, or
renewal of such offer
"Offer Document" the offer document to be
addressed to Cleveland
Shareholders in connection
with the Offer
"Offer Period" the period commencing on 29
March, the date on which
Cleveland announced it was
in discussions which might
lead to an Offer, and
ending on which ever is the
later of (i) 3.00 p.m. on
the first closing date of
the Offer; (ii) the date of
which the Offer lapses; and
(iii) the date on which the
Offer becomes unconditional
as to acceptances
"Official List" the Official List of the
London Stock Exchange
"Option" the agreement made on the
25 February 1999 between
Ashtenne and Trefick
Limited to enter into
unconditional put and call
options over 8,480,514
Cleveland Shares at an
exercise price of 105 pence
per share
"Panel" the Panel of Takeovers and
Mergers
"Trefick" Trefick Limited and its
subsidiary and associated
undertakings and, where the
context permits, each of
them
"UK" or "United Kingdom" the United Kingdom of Great
Britain and Northern
Ireland
"Wider Ashtenne Group" any member of the Ashtenne
Group or any company,
partnership, joint venture,
firm or any other body
corporate in which any
member of the Ashtenne
Group has a substantial
interest
"Wider Cleveland Group" any member of the Cleveland
Group or any company,
partnership, joint venture,
firm or any other body
corporate in which any
member of the Cleveland
Group has a substantial
interest
For the purposes of the above definitions "subsidiary
undertaking", "associated undertaking" and "undertaking" have
the meanings given by the Companies Act 1985 (but, for these
purposes, ignoring paragraph 20(1)(b) of Schedule 4A to the
Companies Act 1985) and "substantial interest" means a direct
or indirect interest in 20 per cent. or more of the equity
capital of an undertaking.
END
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