RNS No 7884a
LOPEX PLC
2 July 1999
PART 2
APPENDIX I
CONDITIONS OF THE OFFER
The Offer is 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withdrawn) by not later than 3.00 p.m. on the twenty first
day following the despatch of the formal offer document (or
such later time(s) and/or date(s) as Incepta may, subject to
the rules of the City Code, decide) in respect of not less
than 90 per cent. (or such lesser percentage as Incepta may
decide) in nominal value of the Lopex Shares to which the
Offer relates, provided that this condition will not be
satisfied unless Incepta and/or its wholly-owned subsidiaries
shall have acquired or agreed to acquire (whether pursuant to
the Offer or otherwise) directly or indirectly, Lopex Shares
carrying in aggregate more than 50 per cent. of the voting
rights then normally exercisable at a general meeting of
Lopex, including for this purpose (to the extent, if any,
required by the Panel) any such voting rights attaching to
any Lopex 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 subscription or conversion rights or otherwise
and, for this purpose: (i) the expression "Lopex Shares to
which the Offer relates" shall be construed in accordance
with sections 428 to 430F of the Act; and (ii) Lopex Shares
which have been unconditionally allotted shall be deemed to
carry the voting rights which they will carry upon issue;
(b) the passing at an extraordinary general meeting (or at any
adjournment thereof) of Incepta of such resolution or
resolutions as may be necessary or incidental to approve,
implement and effect the Offer, the acquisition of any Lopex
Shares pursuant to the Offer or otherwise and the allotment
of New Incepta Shares;
(c) the London Stock Exchange announcing its decision to admit to
the Official List the New Incepta Shares to be issued
pursuant to the Offer, and such admission becoming effective
in accordance with the Listing Rules of the London Stock
Exchange, or (if determined by Incepta and subject to the
consent of the Panel) agreeing to admit such shares to the
Official List subject only to (i) the allotment of such
shares and/or (ii) the Offer becoming or being declared
unconditional in all respects;
(d) Incepta not having discovered or otherwise become aware prior
to the date when the Offer would otherwise have become
unconditional that the Secretary of State for Trade and
Industry has referred or intends to refer the proposed
acquisition of Lopex by Incepta or any matters arising
therefrom to the Competition Commission;
(e) no government or governmental, quasi governmental,
supranational, statutory, regulatory or investigative body,
court, trade agency, association, institution or professional
or environmental body or any other person or body whatsoever
in any relevant jurisdiction (each a "Third Party") having
decided to take, institute, implement or threaten any action,
proceeding, suit, investigation, enquiry or reference or
made, proposed or enacted any statute, regulation, decision
or order or required any action to be taken or information to
be provided or otherwise having done anything and there not
continuing to be outstanding any statute, regulation or order
thereof which would or might:
(i) make the Offer or its implementation, or the acquisition
or the proposed acquisition of Lopex by Incepta or any
member of the Wider Incepta Group of any shares or other
securities (or the equivalent) in, or control of, Lopex
or any member of the Wider Lopex Group, void, illegal or
unenforceable, or otherwise directly or indirectly
restrain, prohibit, restrict or delay the same or impose
additional conditions or obligations with respect
thereto, or otherwise impede, challenge or interfere
therewith, or require amendment to the terms of the
Offer or the acquisition or proposed acquisition of any
Lopex Shares or the acquisition or control of Lopex or
any member of the Wider Lopex Group by Incepta;
(ii) require, prevent or delay the divestiture or alter the
terms envisaged for any proposed divestiture by any
member of the Wider Incepta Group of any of its shares
or other securities in Lopex or in any member of the
Wider Lopex Group;
(iii)require, prevent or delay the divestiture or alter
the terms envisaged for any proposed divestiture by any
member of the Wider Incepta Group or by Lopex or any
member of the Wider Lopex Group, in any such case, of
all or any portion of their respective businesses,
assets or property or impose any limitation on the
ability of any of them to conduct their respective
businesses (or any of them) or own their respective
assets or properties or any part thereof;
(iv) impose any limitation on, or result in a delay in, the
ability of any member of the Wider Incepta Group or any
member of the Wider Lopex Group to acquire, or to hold
or to exercise effectively, directly or indirectly, all
or any rights of ownership of shares or other securities
(or the equivalent) in, or to exercise voting or
management control over, Lopex or any member of the
Wider Lopex Group or on the ability of Lopex or any
other member of the Wider Lopex Group to hold or to
exercise effectively, directly or indirectly, any rights
of ownership of shares or other securities (or the
equivalent) in, or manage or control, any member of the
Wider Lopex Group;
(v) require any member of the Wider Incepta Group or the
Wider Lopex Group to acquire, or to offer to acquire,
any shares or other securities (or the equivalent) in
any member of the Wider Lopex Group or any asset owned
by any third party or to sell, or to offer to sell, any
shares or other securities (or the equivalent) in or any
asset owned by any member of the Wider Incepta Group or
the Wider Lopex Group;
(vi) impose any limitation on the ability of any member of
the Wider Incepta Group or the Wider Lopex Group to
integrate or co-ordinate its business, or any part of
it, with the businesses of any other member of the Wider
Incepta Group and/or the Wider Lopex Group;
(vii)result in any member of the Wider Lopex Group or
the Wider Incepta Group ceasing to be able to carry on
business under any name which it presently does so; or
otherwise adversely affect the business or profits or
prospects of any member of the Wider Lopex Group or any
member of the Wider Incepta Group;
and all applicable waiting and other time periods during
which any such Third Party could take, institute or threaten
any such action, proceeding, suit, investigation, enquiry or
reference under the laws of any jurisdiction, having expired,
lapsed or been terminated;
(f) all necessary notifications and filings having been made and
all applicable waiting and other time periods under any
applicable legislation and regulations in any jurisdiction
having expired, lapsed or been terminated and all statutory
or regulatory obligations in any jurisdiction having been
complied with in each case in connection with the Offer or
the acquisition by any member of the Wider Incepta Group of
any shares or other securities (or the equivalent) in, or
control management of, Lopex or any member of the Wider Lopex
Group and all authorisations, orders, recognitions, grants,
determinations, certificates, consents, clearances,
confirmations, licences, permissions, exemptions and
approvals deemed necessary or appropriate in any jurisdiction
for, or in respect of, the Offer or the proposed acquisition
of any shares or other securities (or the equivalent) in, or
control of, Lopex or any member of the Wider Lopex Group by
any member of the Wider Incepta Group or the issue or
offering of any New Incepta Shares or the carrying on by any
member of the Wider Lopex Group of its business having been
obtained in terms and in a form satisfactory to Incepta, from
all appropriate Third Parties or from any persons or bodies
with whom any member of the Wider Lopex Group has entered
into contractual arrangements and all such authorisations,
orders, recognitions, grants, determinations, certificates,
consents, clearances, confirmations, licences, permissions,
exemptions and approvals remaining in full force and effect
and there being no intimation of an intention to revoke,
suspend, restrict, modify or not to renew the same;
(g) there being no provision of any arrangement, agreement,
licence, permit, franchise or any other instrument to which
any member of the Wider Lopex Group is a party to or by or to
which any such member or any of its respective assets is or
may be bound, entitled or subject and which, in consequence
of the Offer or because of a change in the control or
management of Lopex or any member of the Wider Lopex Group or
otherwise, could or might result in:
(i) any monies borrowed by or any other indebtedness or
liability, actual or contingent, of any member of the
Wider Lopex Group being or becoming payable or capable
of being declared repayable immediately or prior to
their or its stated maturity, or the ability of any
member of the Wider Lopex Group to borrow monies or
incur any indebtedness being withdrawn or inhibited;
(ii) the creation or enforcement of any mortgage, charge or
other security interest over the whole or any part of
the business, property or assets of any member of the
Wider Lopex Group or any such mortgage, charge or other
security interest becoming enforceable;
(iii)any such arrangement, agreement, licence, permit,
franchise or instrument or the rights, liabilities,
obligations or interests of any member of the Wider
Lopex Group under any such arrangement, agreement,
licence, permit, franchise or instrument being, or
becoming capable of being, terminated or modified or
affected or any action being taken or any onerous
obligation or liability arising thereunder;
(iv) any assets or interests of any member of the Wider Lopex
Group being liable to be disposed of or charged or
ceasing to be available to any member of the Wider Lopex
Group or any right arising under which any such asset or
interest would be required to be disposed of or charged
or could cease to be available to any member of the
Wider Lopex Group;
(v) without limitation of the foregoing, any member of the
Wider Incepta Group or the Wider Lopex Group being
required to acquire, or to offer to acquire, any shares
or other securities (or the equivalent) in any member of
the Wider Incepta Group or the Wider Lopex Group or any
asset owned by any third party or to sell, or to offer
to sell, any shares or other securities (or the
equivalent) in or any asset owned by any member of the
Wider Incepta Group or the Wider Lopex Group;
(vi) any member of the Wider Lopex Group ceasing to be able
to carry on business under any name under which it
presently does so;
(vii)the rights, liabilities, obligations or interest or
business of any member of the Wider Lopex Group in or
with any other person, firm or body (or any arrangement
or arrangements relating to any such interest or
business) being terminated, modified or affected; or
(viii)the financial or trading position or prospects of
any member of the Wider Lopex Group being prejudiced or
adversely affected;
(h) except as disclosed in the Lopex annual report and accounts
for the year ended 31st December 1998 or as otherwise
publicly announced by delivery of an announcement to the
Company Announcements Office of the London Stock Exchange
prior to the date of this announcement, no member of the
Wider Lopex Group having (save as between members of the
Wider Lopex Group):
(i) issued or agreed to or authorised or proposed the issue
of additional shares of any class, or securities
convertible into or exchangeable for, or rights,
warrants or options to subscribe for or acquire, any
such shares or convertible securities;
(ii) recommended, declared, paid or made or proposed to
recommend, declare, pay or make any bonus, dividend or
other distribution whether payable in cash or otherwise;
(iii)made or authorised or proposed or announced its
intention to propose any change in its loan capital;
(iv) merged with or demerged or acquired any body corporate,
partnership or business or acquired or disposed of or
transferred, mortgaged or charged or created any
security interest over any assets or (save in the
ordinary course of business) any right, title or
interest in any assets (including shares and trade
investments) or authorised, proposed or announced its
intention to propose any merger, acquisition or
disposal;
(v) issued, authorised or proposed the issue of any
debentures or (save in the ordinary course of business)
incurred any indebtedness or contingent liability;
(vi) purchased, redeemed or repaid or announced any proposal
to purchase, redeem or repay any of its own shares or
other securities or reduced or made or proposed any
other change to any part of its share capital;
(vii)entered into or varied, or authorised, proposed or
announced its intention to enter into or vary or
terminate any contract, transaction or commitment
(whether in respect of capital expenditure or otherwise)
which is of a long term, onerous, or unusual nature or
magnitude or which would be restrictive on the business
of any member of the Wider Lopex Group or the Wider
Incepta Group, or which involves or could involve an
obligation of such a nature or magnitude or which could
be so restrictive or which is other than in the ordinary
course of business;
(viii)implemented or effected, or authorised, proposed or
announced its intention to implement, effect, authorise
or propose any reconstruction, amalgamation, scheme,
commitment or other transaction or arrangement;
(ix) entered into or changed the terms of any contract
agreement or arrangement with any of the directors of
Lopex or senior executives of any member of the Wider
Lopex Group;
(x) taken or proposed any corporate action or had any legal
proceedings instituted or threatened against it for its
winding-up (voluntarily or otherwise), dissolution or
reorganisation, or for the appointment of a receiver,
administrator, administrative receiver, trustee or
similar officer of all or any of its assets and
revenues;
(xi) 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;
(xii) waived or compromised any claim;
(xiii) made any alteration to its memorandum or articles
of association, or any other incorporation document; or
(xiv) entered into any agreement, commitment or
arrangement or passed any resolution or made any offer
(which remains open for acceptance) with respect to any
of the transactions, matters or events referred to in
this condition (h);
(i) except as disclosed in the Lopex annual report and accounts
for the year ended 31st December 1998, or as otherwise
publicly announced by delivery of an announcement to the
Company Announcements Office of the London Stock Exchange
prior to the date of this announcement:
(i) there having been no adverse change in the business,
assets, financial or trading position or profits or
assets or prospects of any member of the Wider Lopex
Group;
(ii) there having been no litigation, arbitration
proceedings, prosecution or other legal proceedings to
which any member of the Wider Lopex Group is or may
become a party (whether as plaintiff or defendant or
otherwise) or an investigation by any Third Party or
other investigative body having been threatened,
announced or instituted by or remaining outstanding, by
against or in respect of any member of the Wider Lopex
Group; and
(iii)no contingent or other liability having arisen or
become apparent which might be likely to adversely
affect any member of the Wider Lopex Group;
(j) Incepta not having discovered that:
(i) any financial or business or other information
concerning any member of the Wider Lopex Group publicly
disclosed at any time by or on behalf of any member of
the Wider Lopex Group, to or on behalf of any member of
the Wider Incepta Group is misleading, contains a
misrepresentation of fact or omits to state a fact
necessary to make the information contained therein not
misleading;
(ii) any member of the Wider Lopex Group or any partnership
company or entity in which any member of the Wider Lopex
Group has an interest and which is not a subsidiary
undertaking of Lopex is subject to any liability,
contingent or otherwise, which is not fairly disclosed
in Lopex's annual report and accounts for the year ended
31st December 1998; or
(iii)any information which affects the import of any
information disclosed by or on behalf of any member of
the Wider Lopex Group to or on behalf of any member of
the Wider Lopex Group;
(k) Incepta not having discovered that (except as publicly
announced by Lopex to the London Stock Exchange) prior to the
date of this announcement:
(i) any past or present member of the Wider Lopex Group has
not complied with all applicable legislation or
regulations of any jurisdiction with regard to the use,
treatment, handling, storage, transport, disposal,
discharge, spillage, leak or emission of any waste or
hazardous substance or any substance likely to impair
the environment or harm human health, or otherwise
relating to environmental matters or the health and
safety of any person, or that there has otherwise been
any such use, treatment, handling, storage, transport,
disposal, discharge, spillage, leak or emission (whether
or not the same constituted a non-compliance by any
person with any such legislation or regulations and
wherever the same may have taken place) which, in any
such case, would be likely to give rise to any liability
(whether actual or contingent) or cost on the part of
any member or former member of the Wider Lopex Group;
(ii) 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 Lopex Group which would
be likely to give rise to any liability (whether actual
or contingent) or cost on the part of any member of the
Wider Lopex Group;
(iii)there is, or is likely to be, any liability,
whether actual or contingent, to make good, repair,
reinstate or clean up any property now or previously
owned, occupied or made use of by any past or present
member of the Wider Lopex Group or any controlled waters
under any environmental legislation, regulation, notice,
circular or order of any relevant authority or Third
Party or otherwise;
(iv) circumstances exist whereby a person or class of persons
would be likely to have any claim or claims in respect
of any service provided by or any product or process of
manufacture or materials used therein now or previously
provided, manufactured, sold or carried out by any past
or present member of the Wider Lopex Group; or
(v) any circumstances which indicate that any of sub-
paragraphs (i) to (iv) above may not be satisfied.
Incepta reserves the right to waive all or any of the above
conditions, in whole or in part, except conditions (a),(b)and (c).
Conditions (b) and (c) must be fulfilled and conditions (b) to (k)
(inclusive) must be fulfilled or waived by midnight on the 21st
day after the later of the date of despatch of the formal offer
document and the date on which condition (a) is fulfilled (or in
each case such later date as the Panel may agree), failing which
the Offer will lapse.
Incepta shall be under no obligation to waive or treat as
satisfied any of conditions (b) to (k) (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 that there
are at such earlier date no circumstances indicating that any of
such conditions may not be capable of fulfilment.
For the purpose of these conditions: (a) "Wider Lopex Group" means
Lopex, its subsidiaries, subsidiary undertakings and associated
undertakings and any other body corporate, partnership, joint
venture or person in which Lopex and such undertakings
(aggregating their interests) have an interest of more than 20 per
cent. in the voting or equity capital (or the equivalent); (b)
"Wider Incepta Group" means Incepta and its subsidiaries,
subsidiary undertakings and associated undertakings and any other
body corporate, partnership, joint venture or person in which
Incepta and such undertakings (aggregating their interests) have
an interest of more than 20 per cent. in the voting or equity
capital (or the equivalent); and (c) "subsidiary", "subsidiary
undertaking", "associated undertaking" and "undertaking" shall be
construed in accordance with the Act (but for this purpose
ignoring paragraph 20(1)(b) of Schedule 4A of the Act).
If Incepta is required by the Panel to make an offer for Lopex
Shares under the provision of Rule 9 of the City Code, Incepta may
make such alterations to the conditions of the Offer, including to
condition (a) above, as are necessary to comply with the
provisions of that Rule.
APPENDIX II
DEFINITIONS
The following definitions apply throughout this document, unless
the context otherwise requires:
"Acquisition" the proposed acquisition by Incepta of Lopex
pursuant to acceptances of the Offer or
otherwise
"Act" the Companies Act 1985, as amended
"Beeson Gregory" Beeson Gregory Limited
"Board" or the board of directors of Incepta
"Directors"
"Circular" the circular to be sent to Incepta
Shareholders, containing details of the
Offer and the New Incepta Shares and
convening an Extraordinary General Meeting
of Incepta
"Closing Price" the closing middle market price of an
Incepta Share or Lopex Share, as the case
may be, as derived from the Daily Official
List or Reuters
"Code" or "City The City Code on Takeovers and Mergers
Code"
"CREST" the relevant system (as defined in the
Regulations) in respect of which CRESTCo is
the operator (as defined in the Regulations)
"CRESTCo" CRESTCo Limited
"Enlarged Group" the Incepta Group as enlarged by the
Acquisition
"Form of the form of acceptance (and election) for
Acceptance" use in connection with the Offer
"Harford Harford Registrars Limited of Harford House,
Registrars" 101-103 Great Portland Street, London W1N
6BH
"Incepta" or the Incepta Group plc
"Company"
"Incepta Group" the Company and its subsidiary undertakings
or "Group" as at the date of this announcement
"Incepta holders of Incepta Shares
Shareholders"
"Incepta Share means the Incepta Share Option Scheme, the
Option Schemes" Incepta Group Executive Share Option Scheme,
the Incepta Group Savings Related Share
Option Scheme, the Incepta Group
International Share Save Scheme, the
Citigate Approved Executive Share Option
Scheme, the Citigate Unapproved Executive
Share Option Scheme and the Dewe Rogerson
Share Option Scheme
"Incepta Shares" ordinary shares of 1 penny each in the share
capital of Incepta
"Lopex" Lopex plc
"Lopex Group" Lopex and its subsidiary and associated
undertakings and where the context permits,
each of them
"Lopex holders of Lopex Shares
Shareholders"
"Lopex Shares" the existing unconditionally allotted or
issued and fully paid ordinary shares of 5
pence each in Lopex and any further such
ordinary shares of Lopex which are
unconditionally allotted or issued before
the date on which the Offer closes (or such
earlier time and date as Incepta may,
subject to the Code or with the consent of
the Panel, decide) as a result of the
exercise of options granted under the Lopex
Share Option Schemes or otherwise
"Lopex Share the Lopex Approved Share Option Scheme 1997
Option Schemes" and the Lopex Unapproved Share Option Scheme
1997
"Listing" or the admission to the Official List of the
"Admission" New Incepta Shares
"Listing the listing particulars, relating to Incepta
Particulars" and the New Incepta Shares prepared in
accordance with the Listing Rules
"Listing Rules" the listing rules of the London Stock
Exchange made under section 142 of the
Financial Services Act 1986
"London Stock London Stock Exchange Limited
Exchange"
"New Incepta the Incepta shares to be issued, fully paid
Shares" or credited as fully paid, pursuant to the
Offer
"Offer" the Offer to be made by Beeson Gregory on
behalf of Incepta to acquire all the Lopex
Shares not already owned by Incepta, subject
to the terms and conditions set out in this
announcement and to the further terms to be
set out in the Form of Acceptance, and where
the context so requires, any subsequent
extension, revision, variation or renewal
thereof
"Offer Document" the document to be sent to Lopex
Shareholders containing and setting out the
terms and conditions of the Offer
"Official List" the Official List of the London Stock
Exchange
"Overseas Lopex Shareholders who are resident in, or
Shareholders" citizens of, countries other than the UK and
who have not given the Company an address in
the UK for service of notices
"Panel" the Panel on Takeovers and Mergers
"Regulations" the Uncertificated Securities Regulations
1995 (SI 1995 No. 95/3272)
"TFE a Transfer from Escrow instruction (as
instruction" defined by the CREST Manual issued by
CRESTCo)
"TTE a Transfer to Escrow instruction (as defined
instruction" by the CREST Manual issued by CRESTCo)
"uncertificated recorded on the relevant register of the
form" share or security concerned as being held in
uncertificated form in CREST, and title to
which, by virtue of the Regulations, may be
transferred by means of CREST
"UK" or "United the United Kingdom of Great Britain and
Kingdom" Northern Ireland
"US" or "United the United States of America (including the
States" District of Columbia), its territories and
possessions, any state of the United States
and all other areas subject to its
jurisdiction
END
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