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![]() Railhub Archive | ![]() ![]() ![]() ![]() ![]() ![]() ![]() ![]() ![]() ![]() Prism Rail PLCNational Express Group plc ('National Express') recommended offer for Prism Rail PLC ('Prism Rail')
Offer for Prism Rail Plc--Pt2 Prism Rail PLC 18 July 2000 PART 2 APPENDIX I CONDITIONS AND CERTAIN FURTHER TERMS OF THE OFFER The Offer (including the Mix and Match Election), which will comply with the City Code and the Listing Rules of the UK Listing Authority, will be subject to the following conditions:- (a) valid acceptances being received (and not, where permitted, withdrawn) by not later than 3.00 p.m. on the first closing date of the Offer (or such later time(s) and/or date(s) as National Express may, subject to the rules of the City Code, decide) in respect of not less than 90 per cent. (or such lesser percentage as National Express may decide) in nominal value of the Prism Rail Shares to which the Offer relates, provided that, unless agreed by the Panel, this condition will not be satisfied unless National Express and/or its wholly-owned subsidiaries have acquired or agreed to acquire (whether pursuant to the Offer or otherwise), directly or indirectly, shares in Prism Rail carrying, in aggregate, over 50 per cent. of the voting rights then normally exercisable at general meetings of Prism Rail 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 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 'Prism Rail Shares to which the Offer relates' shall be construed in accordance with sections 428-430F of the Companies Act 1985; and (ii) shares which have been unconditionally allotted shall be deemed to carry the voting rights which they will carry on issue; (b) the UK Listing Authority agreeing to admit the New National Express Shares to the Official List of the UK Listing Authority and (unless the Panel otherwise agrees) such admission becoming effective in accordance with the Listing Rules of the UK Listing Authority and the London Stock Exchange agreeing to admit the New National Express Shares to trading on its market for listed securities and (unless the Panel otherwise agrees) such admission becoming effective in accordance with its admission and disclosure standards; (c) the Office of Fair Trading indicating, in terms satisfactory to National Express, that it is not the intention of the Secretary of State for Trade and Industry to refer the proposed acquisition of Prism Rail by National Express, or any matters arising therefrom, to the Competition Commission; (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 any thing, and there not being outstanding any statute, legislation or order, that would or might:- (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 Prism Rail Shares by National Express or any matters arising therefrom, in any such case to a material extent; (ii) require, prevent, delay or affect the divestiture by any member of the Wider National Express Group or any member of the Wider Prism Rail Group of all or any material portion of their respective businesses, assets or property or of any Prism Rail Shares or other securities in Prism Rail or impose any material limitation on the ability of any of them to conduct their respective businesses or own their respective assets or properties or any part thereof; (iii) impose any material limitation on the ability of any member of the Wider National Express Group to acquire or hold or exercise effectively, directly or indirectly, all rights of ownership in any of the Prism Rail Shares (whether acquired pursuant to the Offer or otherwise); (iv) require any member of the Wider National Express Group or the Wider Prism Rail Group to offer to acquire any shares or other securities or rights thereover in any member of the Wider Prism Rail Group owned by any third party; (v) make the Offer or its implementation or the proposed acquisition of any Prism Rail Shares or any other shares or securities in, or control of, Prism Rail, illegal, void or unenforceable in or under the laws of any jurisdiction; (vi) impose any material limitation on the ability of any member of the Wider National Express Group or the Wider Prism Rail Group to co- ordinate its business, or any part of it, with the business of any other member of the Wider National Express Group or the Wider Prism Rail Group; or (vii) result in an amendment to or revocation of any licences granted by the Office of the Rail Regulator to Prism Rail or any other member of the Wider Prism Rail Group under the Railways Act 1993; or (viii) otherwise adversely affect any or all of the businesses, assets, prospects or profits of any member of the Wider National Express Group or the Wider Prism Rail Group or the exercise of rights of shares of any company in the Prism Rail Group to an extent which is material in the context of respectively the National Express Group taken as a whole or the Prism Rail 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) the Director of Passenger Rail Franchising consenting under each passenger rail franchise agreement to which Prism Rail is a party to a change in control of Prism Rail (and if any such consent is given conditionally, on conditions satisfactory to National Express), or the Director of Passenger Rail Franchising indicating that such consent is not required; (f) all authorisations, orders, grants, consents, clearances, licences, permissions and approvals, in any jurisdiction, deemed necessary or appropriate in the reasonable opinion of National Express for or in respect of the Offer, the proposed acquisition of any shares or securities in, or control of, Prism Rail or any member of the Wider Prism Rail Group by any member of the Wider National Express Group or the carrying on of the business of any member of the Wider Prism Rail Group or the Wider National Express Group, the issue of the New National Express Shares or any matters arising therefrom being obtained in terms satisfactory to National Express from all appropriate Relevant Authorities or (without prejudice to the generality of the foregoing) from any persons or bodies with whom any members of the Wider Prism Rail Group or the Wider National Express 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 Prism Rail by National Express or of any Prism Rail Shares or any matters arising therefrom having been complied with; (g) appropriate assurances being received, in terms satisfactory to National Express, from the Relevant Authorities or any party with whom any member of the Wider Prism Rail Group has any contractual or other relationship that the interests held by any member of the Wider Prism Rail 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 Prism Rail 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; (h) save as disclosed in the Disclosure Letter, there being no provision of any agreement, instrument, permit, licence or other arrangement to which any member of the Wider Prism Rail 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 Prism Rail or because of a change in the control or management of Prism Rail or any member of the Prism Rail Group or any matters arising therefrom or otherwise, could or might have the result (to an extent which would have a material adverse effect on the Prism Rail 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 Prism Rail 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 Prism Rail 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 Prism Rail 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 Prism Rail Group therein, is terminated or adversely modified or affected or any action is taken or onerous obligation arises thereunder; (iv) the value of any member of the Wider Prism Rail 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 Prism Rail 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 Prism Rail 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 Prism Rail Group ceases to be able to carry on business under any name under which it currently does so; (i) since 31 March 2000 (being the date to which the latest published audited report and accounts of Prism Rail were made up), no member of the Prism Rail 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 (save for options granted and for any Prism Rail Shares allotted upon exercise of options granted under the Prism Rail Share Option Scheme) or redeemed, purchased or reduced or announced any intention to do so or made any other change to any part of its share capital or (where such change is material in the control of the Prism Rail Group as a whole) loan capital, save as disclosed in the Disclosure Letter; (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 Prism Rail or wholly-owned subsidiaries of Prism Rail or disclosed in the Disclosure Letter; (iii) authorised or proposed or announced its intention to propose any merger or acquisition or disposal or transfer of material assets or shares; (iv) issued or authorised or proposed the issue of any debentures or incurred or increased any indebtedness or contingent liability which in either case is material in the context of the Prism Rail 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 case which is material in the context of the Prism Rail Group taken as a whole; (vi) 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) entered into, or varied the terms of, any contract or agreement with any of the directors or senior executives of Prism Rail or any member of the Wider Prism Rail Group except as disclosed in the Disclosure Letter; (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 Prism Rail Group or the Wider National Express Group; (xii) entered into any contract, commitment or agreement with respect to any of the transactions or events referred to in this condition (i); 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; (j) since 31 March 2000 (being the date to which the latest published audited report and accounts of Prism Rail were made up) and save as publicly announced prior to 18 July 2000: - (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 Prism Rail Group or to which any member of the Wider Prism Rail Group is or may become a party (whether as plaintiff, defendant or otherwise) which in any case is material in the context of the Prism Rail Group, taken as a whole; (ii) no adverse change having occurred in the business, assets, financial or trading position, profits or prospects of any member of the Wider Prism Rail Group which might be material to the Prism Rail Group taken as a whole and save as disclosed in the Disclosure Letter; and (iii) no investigation by any Relevant Authority having been threatened, announced, implemented or instituted or remaining outstanding; (k) National Express not having discovered that:- (i) any business, financial or other information concerning any member of the Prism Rail Group disclosed, publicly or otherwise at any time to National Express, by or on behalf of any member of the Prism Rail Group, either contains a material misrepresentation of fact or omits to state a fact necessary to make the information contained therein not materially misleading; or (ii) any member of the Wider Prism Rail Group is subject to any material liability, actual or contingent, which is not disclosed in the annual report and accounts of Prism Rail for the financial year ended 31 March 2000; or (iii) any past or present member of the Wider Prism Rail 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 Prism Rail 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 Prism Rail Group; or (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 Prism Rail Group or any controlled waters under any environmental legislation, regulation, notice, circular or order of any Relevant Authority or third party or otherwise; or (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 Prism Rail Group or the Wider National Express 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 material 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 Prism Rail Group; or (vi) circumstances exist whereby a person or class of persons might have any claim or claims in respect of any product or process of manufacture or materials used therein now or previously manufactured, sold or carried out by any past or present member of the Wider Prism Rail Group. National Express reserves the right to waive all or any of conditions (c) to (k) (inclusive) above, in whole or in part. Condition (b) must be fulfilled within 21 days after the later of the first closing date of the Offer and the date on which condition (a) is fulfilled and conditions (c) to (k) (inclusive) must be satisfied as at, or waived on or before, 21 days after the later of the first closing date of the Offer and the date on which condition (a) is fulfilled (or in each case such later date as the Panel may agree) provided that National Express shall be under no obligation to waive or treat as satisfied any of conditions or (c) 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. If National Express is required by the Panel to make an offer for Prism Rail Shares under the provisions of Rule 9 of the City Code, National Express 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 the first closing date of the Offer and the date when the Offer become or is declared unconditional as to acceptances. APPENDIX II FINANCIAL EFFECTS OF ACCEPTANCE The following tables show, for illustrative purposes only and on the bases and assumptions set out in the notes below, the financial effects of acceptance of the Offer, (ignoring the Mix and Match Election and including the Special Dividend) on capital value and income for an accepting holder of one Prism Rail Share, if the Offer becomes or is declared wholly unconditional. In assessing the financial effects of acceptance, no account has been taken of fractional entitlements or the impact of any liability to taxation. Increase in capital value Offer (pence) Notes Market value of a Prism Rail (i) 500.6 Share Consideration (ii) - Cash 282.5 - 0.375 of a New National 292.5 Express Share - Special Dividend 40.0 Total consideration 615.0 Increase in capital value 114.4 Representing an increase of: % 22.9 Increase in income Notes Dividend income on a Prism Rail (iii) 16.5 Share Income from re-investment of cash (iv) 16.4 consideration Income from re-investment of (iv) 2.3 Special Dividend Dividend income on 0.375 of a (v) 6.8 National Express Share Total income 25.5 Increase in income 9.0 Representing an increase of: % 54.5 Notes (i) The market value of a Prism Rail Share is calculated on the basis of the Closing Price of a Prism Rail Share of 512.5 pence as derived from the Official List of the UK Listing Authority on 17 July 2000 (the last dealing day prior to this announcement) adjusted to exclude the Final Dividend of 11.9 pence to show the pro-forma ex dividend position. (ii) In calculating the value of the consideration, each New National Express Share has been valued at 780.0 pence as derived from the Official List of the UK Listing Authority on 17 July 2000 (the last dealing day prior to this announcement) and the Special Dividend consideration has been valued at 40.0 pence per share. (iii) The income of a Prism Rail Share is based on the total dividend of 16.5 pence per Prism Rail Share paid in respect of the year ended 31 March 2000 before deduction of any withholding taxes. (iv) The gross income from the cash consideration and Special Dividend has been calculated on the assumption that the cash is re-invested so as to yield 5.82 per cent. per annum, being the FTSE Actuaries Government Securities Index average gross redemption yield for UK gilts with a maturity of up to five years as obtained from the Financial Times on 17 July 2000 (reflecting trading on 14 July 2000), the latest practicable date prior to the publication of this announcement. (v) The income on a National Express Share is based on the total dividend of 18.2 pence per National Express Share paid in respect of the year ended 31 December 1999 before deduction of any withholding taxes. APPENDIX III BASES AND SOURCES OF INFORMATION (i) Unless otherwise stated, financial information concerning National Express and Prism Rail has been extracted without material adjustment from the published annual report and accounts, interim results or other public announcements for the relevant company. (ii) The value of the fully diluted share capital of Prism Rail is based on a fully diluted share capital of 26,964,818 shares (consisting of 25,796,797 issued Prism Rail Shares, 1,090,785 options held over Prism Rail Shares and 77,236 Prism Shares to be allocated for the Prism Rail Profit Sharing Scheme) as at 17 July 2000 (the last practicable date prior to this announcement) and as notified by Prism Rail to National Express. (iii) The premium of 22.9per cent. over the Closing Price of a Prism Rail Share on 17 July 2000, the last dealing day prior to this announcement, is calculated on the following basis: Pence Value of Offer (together with Special 615.0 Dividend) per Prism Rail Share Closing Price of a Prism Rail Share 512.5 Less: Final Dividend (11.9) Closing Price of a Prism Rail Share (ex 500.6 dividend) Premium 22.9% (iv) Passenger volume growth of 30 per cent. in the last five years and expected passenger volume growth of a further 50 per cent. during the next ten years, referred to in paragraph 5 of this announcement, is based on information published by the Association of Train Operating Companies and Railtrack Group plc. (v) Passenger numbers and growth at Stansted Airport referred to in paragraph 5 of this announcement are based on information published by BAA plc on its corporate website. APPENDIX IV DEFINITIONS 'City Code' The City Code on Takeovers and Mergers 'Closing Price' the closing middle market quotation of a relevant share as derived from the Official List of the UK Listing Authority 'Disclosure the letter, from Prism Rail to National Express referred to Letter' in Appendix I, dated 17 July 2000 'Dresdner Kleinwort Benson Limited Kleinwort Benson' 'Enlarged the National Express Group following the acquisition of Group' Prism Rail pursuant to the Offer 'Final the final dividend of 11.9 pence per Prism Rail Share Dividend' recommended by the directors of Prism Rail 15 June 2000, which is expected to be paid on 25 August 2000 to Prism Rail Shareholders on the register at the close of business on 28 July 2000, subject to approval at the Annual General Meeting of Prism Rail, which has been convened for 19 July 2000 'Form of the form of acceptance, authority and election relating to Acceptance' the Offer which will accompany the Offer Document 'Founder Godfrey Burley, Giles Fearnley, Bob Howells, Len Wright, Shareholders' Stuart Wilde, Peter Shipp, Richard Soper, Philip Race, Graham Willett (and connected persons, where relevant) 'London Stock London Stock Exchange Limited Exchange' 'Merrill Lynch' Merrill Lynch International 'Mix and Match the facility under which Prism Rail Shareholders (other than Election' certain overseas shareholders) who validly accept the Offer may elect, subject to availability, to vary the proportion in which they receive New National Express Shares and cash in respect of their holding of Prism Rail Shares 'National National Express Group PLC Express' 'National National Express and its subsidiary and associated Express Group' undertakings and, where the context permits, each of them 'National holders of National Express Shares Express Shareholders' 'National the existing issued and fully paid ordinary shares of 5p each Express Shares' in National Express 'New National the new National Express Shares to be issued to validly Express Shares' accepting Prism Rail Shareholders pursuant to the Offer 'Offer' the recommended offer to be made by Merrill Lynch on behalf of National Express to acquire the Prism Rail Shares not already owned or agreed to be acquired by National Express on the terms and subject to the conditions to be set out in the Offer Document including, save where the context otherwise requires, any subsequent revision, variation, extension or renewal of such offer 'Offer the offer document which will be posted to Prism Rail and, for Document' information only, to holders of options over Prism Rail Shares as soon as is practicable and which provides full details of the National Express Offer 'Other Founder founder shareholders, who are not also directors of Prism Shareholders' Rail, comprising Len Wright, Stuart Wilde, Peter Shipp, Richard Soper, Philip Race, Graham Willett (and connected persons, where relevant) 'Panel' The Panel on Takeovers and Mergers 'Prism Rail' Prism Rail PLC 'Prism Rail Prism Rail and its subsidiary and associated undertakings Group' and, where the context permits, each of them 'Prism Rail holders of Prism Rail Shares Shareholders' 'Prism Rail the existing issued and fully paid ordinary shares of 5p Shares' each in Prism Rail and any further such shares which are unconditionally allotted or issued before the date on which the Offer closes (or such earlier date, not being 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, as National Express may decide) 'Prism Rail the Prism Rail 1996 Unapproved Share Option Scheme Share Option Scheme' 'Special the special dividend of 40.0 pence per Prism Rail Share Dividend' to be paid: (i) in respect of Prism Rail Shares in issue when the Offer becomes or is declared unconditional in all respects, to Prism Rail Shareholders on the register at the close of business on that date; and (ii) in respect of shares in Prism Rail issued pursuant to the exercise of options under the Prism Rail Share Option Scheme after the Offer is declared unconditional in all respects but before the Offer closes, to persons to whom such shares in Prism Rail are issued; in each case conditional on the Offer becoming or being declared unconditional in all respects 'sSRA' shadow Strategic Rail Authority 'UK' the United Kingdom of Great Britain and Northern Ireland 'United the United States of America, its territories and possessions, States', 'US' any state of the United States of America and the District of or 'USA' Columbia, and all other areas subject to its jurisdiction 'WAGN' 'West Anglia Great Northern Railway Limited' 'Wider National National Express and its subsidiary undertakings, associated Express Group' undertakings and any other undertakings in which National Express and such undertakings (aggregating their interests) have a significant interest 'Wider Prism Prism Rail and its subsidiary undertakings, associated Rail Group' undertakings and any other undertakings in which Prism Rail and such undertakings (aggregating their interests) have a significant interest for the purposes of the two definitions above, '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 'significant interest' means a direct or indirect interest in 10 per cent. or more of the equity capital of an undertaking
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