RNS Number:6922O
TC Group
14 December 2001
PART 2
APPENDIX I
Conditions of the Offer
The Offer, which will be made by Hoare Govett on behalf of TC Group, will
comply with the rules and regulations of the London Stock Exchange, the UK
Listing Authority and the provisions of the Code. 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withdrawn) by not later than 3.00 pm on 4 January 2002 (or such later
time(s) and/or date(s) as TC Group may, subject to the rules of the
Code, decide) in respect of not less than 90 per cent (or such lesser
percentage as TC Group may decide) of the TGI Shares to which the
Offer relates, provided that, unless agreed by the Panel, this
condition will not be satisfied unless TC Group and/or its
wholly-owned subsidiaries have acquired or agreed to acquire (pursuant
to the Offer or otherwise), directly or indirectly, TGI Shares
carrying, in aggregate, over 50 per cent of the voting rights then
normally exercisable at general meetings of TGI on such basis as may
be required by the Panel (including for this purpose, to the extent
(if any) required by the Panel, any voting rights attaching to any TGI
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 (i) the expression "TGI Shares to
which the Offer relates'' shall be construed in accordance with
sections 428-430F of the Companies Act; and (ii) TGI Shares which have
been unconditionally allotted but not issued shall be deemed to carry
the voting rights which they will carry on issue;
(b) it being established, in terms satisfactory to TC Group, that it
is not the intention of the Secretary of State for Trade and Industry
to refer the proposed acquisition of TGI by TC Group, or any matters
arising therefrom, to the Competition Commission;
(c) it being established, in terms satisfactory to TC Group, that it
is not the intention of the European Commission, pursuant to Council
Regulation (EEC) 4064/89, either to initiate proceedings under article
6(1)(c) or to make a referral to a competent authority of the United
Kingdom under article 9(1) in respect of the Offer and/or the proposed
acquisition of TGI by TC Group or any matters arising therefrom;
(d) no government or governmental, quasi-governmental, supranational,
statutory or regulatory body, or any court, institution, investigative
body, association, trade agency or professional or environmental body
or (without prejudice to the generality of the foregoing) any other
person or body in any jurisdiction (each, a "Relevant Authority")
having decided to take, instituted, implemented or threatened any
action, proceedings, suit, investigation or enquiry or enacted, made
or proposed any statute, regulation or order or otherwise taken any
other step or done anything, and there not being outstanding any
statute, legislation or order, that would or could reasonably be
expected to:
i. restrict, restrain, prohibit, delay, impose additional
conditions or obligations with respect to, or otherwise
interfere with the implementation of, the Offer or the
acquisition of any TGI Shares by TC Group or any matters arising
therefrom;
ii. result in a material delay in the ability of TC Group, or render
TC Group unable, to acquire some or all of the TGI Shares;
iii. require, prevent, materially delay or materially affect the
divestiture by TC Group or any of its subsidiaries, subsidiary
undertakings or associated undertakings (including any company
of which 20 per cent or more of the voting capital is held by
the TC Group or any partnership, joint venture, firm or company
in which any of them may be interested)(together the "wider TC
Group") or TGI or any of its subsidiaries, subsidiary
undertakings or associated undertakings (including any company
of which 20 per cent or more of the voting capital is held by
the TGI Group or any partnership, joint venture, firm or company
in which any of them may be interested) (together the "wider TGI
Group") of all or any material portion of their respective
businesses, assets or property or of any TGI Shares or other
securities in TGI or impose any limitation on the ability of
any of them to conduct their respective businesses or own their
respective assets or properties or any material part thereof to
an extent which is material in the context of the wider TC Group
or the TGI Group, respectively, in each case taken as a whole;
iv. impose any material limitation on the ability of any member of
the wider TC Group to acquire or hold or exercise effectively,
directly or indirectly, all rights of all or any of the TGI
Shares (whether acquired pursuant to the Offer or otherwise);
v. require any member of the wider TC Group or the wider TGI Group
to offer to acquire any shares or other securities or rights
thereover in any member of the wider TGI Group owned by any
third party;
vi. make the Offer or its implementation or the proposed acquisition
of TGI or any member of the wider TGI Group or of any TGI Shares
or any other shares or securities in, or control of, TGI,
illegal, void or unenforceable in or under the laws of any
jurisdiction;
vii. impose any limitation on the ability of any member of the wider
TC Group or the wider TGI Group to co-ordinate its business, or
any part of it, with the business of any other member of the
wider TC Group or the wider TGI Group in each case to an extent
which is material in the context of the relevant group taken as
a whole; or
viii. otherwise adversely affect any or all of the businesses, assets,
prospects or profits of any member of the wider TC Group or the
wider TGI Group or the exercise of rights of shares of any
company in the TGI Group to an extent which is material in the
context of respectively the TC Group taken as a whole and the
TGI Group taken as a whole, and all applicable waiting periods
during which such Relevant Authority could institute, implement
or threaten any such action, proceeding, suit, investigation,
enquiry or reference or otherwise intervene having expired,
lapsed or been terminated;
(e) all authorisations, orders, grants, consents, clearances,
licences, permissions and approvals, in any jurisdiction, deemed
necessary or appropriate by TC Group for or in respect of the Offer,
the proposed acquisition of any shares or securities in, or control
of, TGI or any member of the wider TGI Group by any member of the
wider TC Group or the carrying on of the business of any member of the
wider TGI Group or the wider TC Group or any matters arising therefrom
being obtained in terms satisfactory to TC Group from all appropriate
Relevant Authorities or (without prejudice to the generality of the
foregoing) from any persons or bodies with whom any member of the
wider TGI Group or the wider TC Group has entered into contractual
arrangements and such authorisations, orders, grants, consents,
clearances, licences, permissions and approvals remaining in full
force and effect and there being no intimation of any intention to
revoke or not to renew the same and all necessary filings having been
made, all appropriate waiting and other time periods (including
extensions thereto) under any applicable legislation and regulations
in any jurisdiction having expired, lapsed or been terminated and all
necessary statutory or regulatory obligations in any jurisdiction in
respect of the Offer or the proposed acquisition of TGI by TC Group or
of any TGI Shares or any matters arising therefrom having been
complied with;
(f) appropriate assurances being received, in terms satisfactory
to TC Group, from the relevant authorities or any party with whom any
member of the wider TGI Group has any contractual or other
relationship that the interests held by any member of the wider TGI
Group under licences, leases, consents, permits and other rights will
not be adversely amended or otherwise affected by the Offer or the
proposed acquisition of TGI or any matters arising therefrom, that
such licences, leases, consents, permits and other rights are in full
force and effect and that there is no intention to revoke or amend any
of the same;
(g) there being no provision of any agreement, instrument, permit,
licence or other arrangement to which any member of the wider TGI
Group is a party or by or to which it or any of its assets may be
bound or subject, which, as a consequence of the Offer or the
acquisition of TGI or because of a change in the control or management
of TGI or any member of the TGI Group or any matters arising therefrom
or otherwise, could or might have the result (to an extent which could
have a material adverse effect on the TGI Group taken as a whole)
that:
i. any moneys borrowed by, or other indebtedness, actual or
contingent, of, or grant available to, any member of the wider TGI
Group becomes or is capable of being declared repayable
immediately or earlier than the repayment date stated in such
agreement, instrument or other arrangement or the ability of any
member of the wider TGI Group to borrow moneys or incur
indebtedness is withdrawn, inhibited or adversely affected;
ii. any mortgage, charge or other security interest is created over the
whole or any part of the business, property or assets of any member
of the wider TGI Group or any such security (whenever arising)
becomes enforceable;
iii. any such agreement, instrument, permit, licence or other
arrangement, or any right, interest, liability or obligation of any
member of the wider TGI Group therein, is terminated or materially
adversely modified or affected or any material action is taken or
onerous obligation arises thereunder;
iv. the value of any member of the wider TGI Group or its financial or
trading position is prejudiced or adversely affected;
v. any material asset or, other than in the ordinary course of
business, any asset of the wider TGI Group being or falling to be
charged or disposed of;
vi. the rights, liabilities, obligations or interests or business of
any member of the wider TGI Group in or with any other person,
firm or company (or any arrangement relating to such interest or
business) is terminated, modified or adversely affected; or
vii. any member of the wider TGI Group ceases to be able to carry on
business under any name under which it currently does so;
(h) since 31 March 2001 (being the date to which the latest
published audited report and accounts of TGI were made up) and save as
expressly referred to in the interim results announcement for the six
months to 30 September 2001 or as announced publicly and delivered to
the Company Announcements Office of the London Stock Exchange prior to
14 December 2001, no member of the TGI Group having:
i. issued or agreed to issue or authorised or proposed the issue of
additional shares of any class or issued or authorised or proposed
the issue of or granted securities convertible into or rights,
warrants or options to subscribe for or acquire such shares or
convertible securities or redeemed, purchased or reduced or
announced any intention to do so or made any other change to any
part of its share capital;
ii. recommended, declared, paid or made or proposed to recommend,
declare, pay or make any dividend, bonus or other distribution
other than dividends lawfully paid to TGI or wholly-owned
subsidiaries of TGI;
iii. authorised or proposed or announced its intention to propose any
merger or acquisition or disposal or transfer of assets or shares
or any change in its share or loan capital;
iv. issued or authorised or proposed the issue of any debentures or
incurred or save in the ordinary course of business increased any
indebtedness or contingent liability which in any such case is
material in the context of the wider TGI Group taken as a whole;
v. disposed of or transferred, mortgaged or encumbered any asset or
any right, title or interest in any asset or entered into or
varied any contract, commitment or arrangement (whether in respect
of capital expenditure or otherwise) which is of a long term or
unusual nature or which involves or could involve an obligation of
a nature or magnitude which is material or authorised, proposed or
announced any intention to do so in any such case which is
material in the context of the TGI Group taken as a whole;
vi. save as disclosed in writing to TC Group and Hoare Govett on 13
December 2001, entered into or varied or proposed to enter into or
vary any contract, reconstruction, amalgamation, arrangement or
other transaction which is of a long term or unusual or onerous
nature or is otherwise than in the ordinary course of business or
announced any intention to do so;
vii. save as disclosed in writing to TC Group and Hoare Govett on 13
December 2001, entered into, or varied the terms of, any contract
or agreement with any of the directors or senior executives of
TGI;
viii. taken or proposed any corporate action or had any legal
proceedings started or threatened against it for its winding-up,
dissolution or reorganisation or for the appointment of a
receiver, administrator, administrative receiver, trustee or
similar officer of all or any of its assets and revenues;
ix. waived or compromised any claim other than in the ordinary course
of business;
x. made any amendment to its memorandum or articles of association;
xi. entered into any contract, transaction or arrangement which is or
may be restrictive on the business of any member of the wider TGI
Group or the wider TC Group;
xii. entered into any contract, commitment or agreement with respect
to any of the transactions or events referred to in this
condition (h); and
xiii. been unable or admitted 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;
(i) since 31 March 2001 (being the date to which the latest
published audited report and accounts of TGI were made up) save as
disclosed in the interim results of TGI for the six months to 30
September 2001:
i. no litigation, arbitration, prosecution or other legal
proceedings having been instituted, announced or threatened or
become pending or remained outstanding by or against any member
of the wider TGI Group or to which any member of the wider TGI
Group is or may become a party (whether as plaintiff, defendant
or otherwise) (which in any case is or might be material in the
context of the TGI Group taken as a whole);
ii. no material adverse change having occurred in the business,
assets, financial or trading position, profits or prospects of
any member of the wider TGI Group (which in any case is or might
be material in the context of the wider TGI Group taken as a
whole);
iii. no investigation by any Relevant Authority against or in respect
of any member of the wider TGI Group having been threatened,
announced, implemented or instituted or remaining outstanding by,
against or in respect of any member of the wider TGI Group which,
in any case, could have a material adverse effect on the wider
TGI Group taken as a whole; and
(j) TC Group not having discovered that:
i. any business, financial or other information concerning any
member of the TGI Group disclosed, publicly or otherwise at any
time to TC Group, by or on behalf of any member of the TGI Group,
either contains a misrepresentation of fact or omits to state a
fact necessary to make the information contained therein not
misleading; or
ii. any member of the wider TGI Group is subject to any liability,
actual or contingent, which is not disclosed in the annual report
and accounts of TGI for the financial year ended 31 March 2001;
iii. any past or present member of the wider TGI Group has not
complied with all applicable legislation or regulations of any
jurisdiction with regard to the storage, disposal, discharge,
spillage, leak or emission of any waste or hazardous substance or
any substance likely to impair the environment or to harm human
health or otherwise relating to environmental matters (which non-
compliance might give rise to any liability (whether actual or
contingent) on the part of any member of the wider TGI Group) or
that there has otherwise been any such 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 might give rise to any material liability
(whether actual or contingent) on the part of any member of the
wider TGI Group;
iv. there is or is likely to be any material 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 TGI Group or any
controlled waters under any environmental legislation,
regulation, notice, circular or order of any Relevant Authority
or third party or otherwise;
v. that circumstances exist (whether as a result of the making of
the Offer or otherwise) which might lead to any Relevant
Authority instituting or any member of the wider TGI Group or the
wider TC Group might be required to institute, an environmental
audit or take any other steps which in any such case might result
in any actual or contingent liability to improve or install new
plant or equipment or make good, repair, re-instate or clean up
any land or other asset now or previously owned, occupied or made
use of by any member of the wider TGI Group; or
vi. circumstances exist whereby a person or class of persons might
have any claim or claims which could have a material adverse
effect on the financial or trading position of the wider TGI
Group taken as a whole in respect of any product or process of
manufacture or materials used therein now or previously
manufactured, sold or carried out by any past or present member
of the wider TGI Group.
TC Group reserves the right to waive all or any of conditions (b) to (j)
(inclusive) above, in whole or in part. Conditions (b) to (j) (inclusive) must
be satisfied as at, or waived on or before, 21 days after the later of 4
January 2002 and the date on which condition (a) is fulfilled (or in each case
such later date as the Panel may agree) provided that TC Group shall be under
no obligation to waive or treat as satisfied any of conditions (b) to (j)
(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.
The Loan Note Alternative will be conditional on the Offer becoming or being
declared unconditional in all respects. Save as set out below, it will remain
open until 3.00 pm on the day following 14 days after 4 January 2002 and, if
the Offer is, or has become, unconditional as to acceptances, it will remain
open for a further 14 days from that date following which TC Group reserves
the right either to close the Loan Note Alternative or to extend it. If, on
any closing date of the Offer, the Offer is not then unconditional as to
acceptances and is extended, the right is reserved to close or extend the Loan
Note Alternative at that date. If, however, on the first closing date on which
the Offer is capable of being declared unconditional as to acceptances, it is
not so declared and is extended, the Loan Note Alternative will remain open
for at least 14 days thereafter but may then be closed without prior notice.
The right is also reserved to re-introduce a loan note alternative as long as
the Offer is still then not unconditional as to acceptances.
If TC Group is required by the Panel to make an offer for TGI Shares under the
provisions of Rule 9 of the Code, TC Group may make such alterations to the
conditions as are necessary to comply with the provisions of that Rule.
The Offer will lapse if the Offer is referred to the Competition Commission or
if the European Commission in respect thereof either initiates proceedings
under article 6(1)(c) of Council Regulation (EEC) 4064/89 or makes a referral
to a competent authority of the United Kingdom under article 9(1) of that
Regulation, before (in any such case) the later of 4 January 2002 and the date
when 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 TGI
Shareholders accepting the Offer shall, upon the Offer lapsing, cease to be
bound by acceptances delivered on or before the date on which the Offer
lapses.
APPENDIX II - DEFINITIONS
The following definitions apply throughout this announcement, unless the
context otherwise requires:
"Board" or the directors of either TC Group or TGI, as the context requires
"Directors"
"Bridgewell" Bridgewell Corporate Finance Limited
"Closing the closing middle market quotation of a share as derived from
Price" the Daily Official List
"Code" or the City Code on Takeovers and Mergers as amended or interpreted
"City Code" from time to time by the Panel
"Companies Companies Act 1985 as amended
Act"
"Daily the Daily Official List of the London Stock Exchange
Official List"
"Hoare Govett" Hoare Govett Limited
"LIBOR" the rate at which the reference banks selected by TC Group are
prepared to offer six months sterling deposits of an amount
equal to the amount of Loan Notes outstanding for lending banks
in the London interbank market for sterling
"Loan Note the alternative whereby TGI Shareholders (other than certain
Alternative" overseas TGI Shareholders) validly accepting the Offer may elect
to receive Loan Notes instead of some or all of the cash
consideration to which they would otherwise be entitled under
the Offer
"Loan Note the instrument constituting the Loan Notes to be executed by TC
Instrument" Group
"Loan Notes" the floating rate guaranteed unsecured loan notes due 30 April
2005 to be issued by TC Group pursuant to the Loan Note
Alternative, having the rights and being subject to the
restrictions set out in the Loan Note Instrument
"London Stock London Stock Exchange plc
Exchange"
"Offer" the recommended cash offer to be made by Hoare Govett on behalf
of TC Group to acquire all of the TGI Shares on the terms and
subject to the conditions to be set out in the Offer Document
and the form of acceptance, election and authority for use in
connection with the Offer
(including, where the context so requires, any subsequent
waiver, revision, variation, extension or renewal thereof)
"Offer the document to be addressed to TGI Shareholders on behalf of TC
Document" Group, containing and setting out the terms and conditions of the
Offer
"Offer Period" the period commencing on 14 December 2001 (the date of
announcement of the Offer) until whichever of the following
shall be the latest: (i) 3.00 pm on 4 January 2002, (ii) the
date on which the Offer lapses, and (iii) the date on which the
Offer becomes or is declared unconditional as to acceptances
"Official the official list maintained by the UK Listing Authority
List"
"Panel" the Panel on Takeovers and Mergers
"Securities the US Securities Act of 1933, as amended from time to time
Act"
"TC Group" TC Group A/S, a company incorporated in Denmark, together, where
the context so requires, with its existing subsidiary
undertakings
"TGI" TGI plc
"TGI Group" TGI, together with its subsidiary undertakings
"TGI a holder of options under the TGI Share Option Schemes
Optionholder"
or "Optionholder"
"TGI Share the TGI plc Executive Share Option Scheme 1987, the TGI
Option Executive Share Option Scheme 1997, the TGI Unapproved Executive
Schemes" Share Option Scheme and the TGI Savings-Related Share Option
Scheme 1997
"TGI a holder of TGI Shares
Shareholder"
or "Shareholder"
"TGI Shares" the existing unconditionally allotted or issued and fully paid
or "Shares" (or credited as fully paid) ordinary shares of 1p each in the
capital of TGI and any further such shares which are
unconditionally allotted or issued fully paid or credited as
fully paid after the date hereof and before the date on which
the Offer ceases to be open for acceptance (or such earlier date
as TC Group may, subject to the Code, decide) including any such
shares which are so allotted or issued pursuant to the exercise
of options granted under the TGI Share Option Schemes or
otherwise
"UK" or United Kingdom of Great Britain and Northern Ireland
"United
Kingdom"
"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
"US Person" (i) any individual who is resident or citizen of the United
States and (ii) a corporation, partnership or other entity
created or organised in or under the laws of the United States
or an estate or trust, the income of which is subject to United
States federal income taxation regardless of the source,
provided however that the term " US person" shall not include a
branch or agency of a United States bank or insurance company
that is operating outside the United States for valid business
reasons as a locally registered branch or agency engaged in the
banking or insurance business and not solely for the purposes of
investing in securities not registered under the Securities Act.
For the purpose of this announcement, "subsidiary", "subsidiary undertaking"
and "associate" have the respective meanings given to them by the Companies
Act.
Foreign currency amounts
In this announcement, unless otherwise stated, Danish Kroner amounts have been
converted into Sterling at DKr12.0258= #1.00 (being the closing mid-point spot
exchange rate set out in the Financial Times on 13 December 2001, the latest
practicable date prior to the publication of this announcement).
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