Vertex will be holding a conference call for analysts and investors at 9.15 a.m. today to discuss the recommended proposal to acquire Marlborough Stirling. The dial in number is + 44 (0)20 7162 0181.
A replay of the call will be available for the following 7 days, by dialling +44 (0)20 7031 4064, access number: 650186.
Lehman Brothers is acting for Vertex and United Utilities and no one else in connection with the Proposal and will not be responsible to anyone other than Vertex and United Utilities for providing the protections afforded to clients of Lehman Brothers or for providing advice in connection with the Proposal.
UBS Investment Bank is acting for Marlborough Stirling and no one else in connection with the Proposal and will not be responsible to anyone other than Marlborough Stirling for providing the protections afforded to clients of UBS Investment Bank or for providing advice in connection with the Proposal.
This announcement does not constitute an offer to sell or an invitation to purchase any securities or the solicitation of any vote for approval in any jurisdiction, nor shall there be any sale, issue or transfer of the securities referred to in this announcement in any jurisdiction in contravention of applicable law.
The Scheme Document setting out the details of the Proposal, and the Forms of Proxy, will be posted to Marlborough Stirling Shareholders as soon as reasonably practicable. In deciding whether or not to approve the Scheme, Marlborough Stirling Shareholders should rely only on the information contained, and procedures described, and the terms and conditions set out, in the Scheme Document.
MARLBOROUGH STIRLING SHAREHOLDERS ARE STRONGLY ADVISED TO READ THE SCHEME DOCUMENT WHEN IT IS AVAILABLE BECAUSE IT WILL CONTAIN IMPORTANT INFORMATION.
This announcement has been prepared for the purpose of complying with the laws of England and Wales and the City Code and the information disclosed may not be the same as that which would have been disclosed if this announcement had been prepared in accordance with the laws of a jurisdiction outside England or Wales.
The availability of the Proposal to Marlborough Stirling Shareholders who are not resident in the United Kingdom may be affected by the laws of the relevant jurisdictions. Marlborough Stirling Shareholders who are not so resident should inform themselves about, and observe, such applicable requirements. Furthermore, the release, publication or distribution of this announcement in certain jurisdictions may be restricted by law and therefore persons in any such jurisdictions into which this announcement is released, published or distributed should inform themselves about, and observe, such restrictions.
Your attention is drawn to certain UK dealing disclosure requirements in relation to the Proposal. These disclosure requirements are set out in Rule 8 of the City Code. In particular, Rule 8.3 requires public disclosure of dealings during the offer period by persons who own or control, or who would as a result of any transaction own or control, one per cent. or more of any class of relevant securities of Marlborough Stirling. Relevant securities include Marlborough Stirling Shares, securities of Marlborough Stirling carrying conversion or subscription rights into Marlborough Stirling Shares, options in respect of and derivatives referenced to Marlborough Stirling Shares. In the case of the Proposal, this requirement will apply until the approval of the relevant resolutions at the Court Meeting and EGM.
Disclosure should be made on an appropriate form by not later than 12 noon (London time) on the Business Day following the date of the relevant dealing transaction. These disclosures should be sent to the Company Announcements Office of the London Stock Exchange (fax number: +44 (0)20 7638 1554). Disclosure Forms and further advice can be obtained from the Panel (tel.: + 44 (0)20 7638 0129).
APPENDIX I
Conditions to the Scheme
The Proposal will be conditional upon the Scheme becoming unconditional and becoming effective by no later than 31 July, 2005 or such later date (if any) as Vertex and Marlborough Stirling may agree and the Court may allow.
| 1. | The Scheme will be subject to the following conditions: |
| | | | |
| | (a) | the approval by a majority in number representing not less than three-fourths in value of the holders of Marlborough Stirling Shares present and voting, whether in person or by proxy, at the Court Meeting; |
| | | | |
| | (b) | the special resolution required to approve and implement the Scheme being passed at the EGM; and |
| | | | |
| | (c) | the sanction (with or without modification (but subject to such modification being acceptable to Vertex and Marlborough Stirling)) of the Scheme and the confirmation of the reduction of capital by the Court, an office copy of the Order being delivered for registration to the Registrar of Companies and registration of the Order confirming the reduction of capital involved in the Scheme with the Registrar of Companies; |
| | | | |
| 2. | Marlborough Stirling and Vertex have agreed that, subject to the provisions of paragraph 3 below, the Proposal is also conditional upon, and accordingly the necessary action to make the Scheme effective will only be taken on, the satisfaction or waiver as referred to below of the following conditions prior to the Scheme being sanctioned by the Court: |
| | | | |
| | (a) | it being established in terms reasonably satisfactory to Vertex that the Office of Fair Trading in the United Kingdom does not intend to refer the proposed acquisition of Marlborough Stirling by Vertex or any matter arising therefrom to the Competition Commission for investigation and the deadline for appealing such a decision to the Competition Appeals Tribunal having expired or lapsed (as appropriate); |
| | | | |
| | (b) | the Financial Services Authority giving notice in writing under section 184(1) of FSMA, in terms reasonably satisfactory to Vertex, of its approval in respect of any acquisition of control over (as defined in section 179 of FSMA) any member of the Marlborough Stirling Group which is a UK authorised person (as defined in section 178(4) of FSMA) which would result from the Scheme becoming effective, or being treated as having given its approval by virtue of section 184(2) of FSMA; |
| | | | |
| | (c) | no government, governmental, quasi-governmental, supranational, statutory or regulatory body, trade agency, association, institution or professional body having responsibility for the regulation or supervision of banking, consumer credit or financial services having: |
| | | | |
| | | (i) | withdrawn or refused to renew, or threatened to withdraw or to refuse to renew, any licence or permission; or |
| | | (ii) | instituted, implemented, taken or omitted, or threatened to take or to omit, any other action; |
| | | | |
| | | the effect of which would be materially and adversely to affect the businesses, assets, prospects or profits of the wider Marlborough Stirling Group, and upon no such licences or permissions terminating or otherwise becoming invalid as a result of the Proposal or its implementation the effect of which would be materially and adversely to affect the businesses, assets, prospects or profits of the wider Marlborough Stirling Group; |
| | | | |
| | (d) | no order or judgment of any court or governmental, statutory or regulatory body having been issued or made prior to the Effective Date occurring, and no legal or regulatory requirements remaining to be satisfied, other than the obtaining of any non-mandatory or post-Effective Date merger control consent, which has the effect of making unlawful or otherwise prohibiting the purchase of Marlborough Stirling by Vertex; |
| | | | |
| | (e) | save as Disclosed, there being no provision of any agreement, arrangement, licence, permit or other instrument to which any member of the wider Marlborough Stirling Group is a party or by or to which any such member or any of its assets may be bound, entitled or subject, which in consequence of the Proposal would or might reasonably be expected to result in: |
| | | | |
| | | (i) | any material moneys borrowed by or any other material indebtedness (actual or contingent) of any such member, being or becoming repayable or capable of being declared repayable immediately or earlier than their or its stated maturity date or repayment date or the ability of any such member to borrow moneys or incur any indebtedness being withdrawn or materially inhibited or being capable of becoming or being withdrawn or materially inhibited; |
| | | | |
| | | (ii) | any such agreement, arrangement, licence, permit or instrument which is material or the rights, liabilities, obligations or interests of any such member thereunder being terminated or adversely modified or affected or any material obligation or liability arising or any action being taken thereunder; |
| | | | |
| | | (iii) | any material assets or interests of any such member being or falling to be disposed of or charged or any right arising under which any such asset or interest could be required to be disposed of or charged; |
| | | | |
| | | (iv) | the creation or enforcement of any mortgage, charge or other security interest over the whole or any material part of the business, property or assets of any such member; |
| | | | |
| | | (v) | the material rights, liabilities, obligations or interests of any such member in, or the business of any such member with, any person, firm or body (or any arrangement or arrangements relating to any such interest or business) being terminated, adversely modified or affected; |
| | | | |
| | | (vi) | the value of any such member or its financial or trading position or prospects being prejudiced or adversely affected to a material extent; |
| | | (vii) | any such member ceasing to be able to carry on business under any name under which it presently does so; or |
| | | | |
| | | (viii) | the creation of any material liability, actual or contingent, by any such member, |
| | | | |
| | | and no event having occurred which, under any provision of any material agreement, arrangement, licence, permit or other instrument to which any member of the wider Marlborough Stirling Group is a party or by or to which any such member or any of its material assets may be bound, entitled or subject, would be reasonably likely to result in any of the events or circumstances as are referred to in sub-paragraphs (i) to (viii) of this paragraph (e); |
| | | | |
| | (f) | no government or governmental, quasi-governmental, supranational, statutory, regulatory, environmental or investigative body, court, trade agency, association, institution or any other body or person whatsoever in any jurisdiction (each a “Third Party”) having decided to take, institute, implement or threaten any action, proceeding, suit, investigation, enquiry or reference, or enacted, made or proposed any statute, regulation, decision or order, or having taken any other steps which would or might reasonably be expected to: |
| | | | |
| | | (i) | require, prevent or delay the divestiture, or materially alter the terms envisaged for any proposed divestiture by any member of the wider Vertex Group or any member of the wider Marlborough Stirling Group of all or a substantial part 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 to own their respective assets or properties or any material part thereof; |
| | | | |
| | | (ii) | require, prevent or materially delay the divestiture by any member of the wider Vertex Group of any shares or other securities in Marlborough Stirling; |
| | | | |
| | | (iii) | impose any limitation on, or result in a material delay in, the ability of any member of the wider Vertex Group, directly or indirectly, to acquire or to hold or to exercise effectively any rights of ownership in respect of shares or loans or securities convertible into shares or any other securities (or the equivalent) in any member of the wider Marlborough Stirling Group or the wider Vertex Group or to exercise management control over any such member; |
| | | | |
| | | (iv) | otherwise adversely affect the business, assets, profits or prospects of any member of the wider Marlborough Stirling Group to a material extent; |
| | | | |
| | | (v) | make the Proposal or its implementation or the acquisition or proposed acquisition by Vertex or any member of the wider Vertex Group of any shares or other securities in, or control of Marlborough Stirling void, illegal, and/or unenforceable under the laws of any jurisdiction, or otherwise, directly or indirectly, restrain, restrict, prohibit, delay or otherwise materially interfere with the same, or impose additional conditions or obligations with respect thereto, or otherwise challenge or materially interfere therewith; |
| | | (vi) | require any member of the wider Vertex Group or the wider Marlborough Stirling Group to offer to acquire any shares or other securities (or the equivalent) or interest in any member of the wider Marlborough Stirling Group (other than as a result of or in connection with the Proposal) or (as a result of or in connection with the Proposal) the wider Vertex Group owned by any third party; |
| | | | |
| | | (vi) | impose any material limitation on the ability of any member of the wider Marlborough Stirling Group to co-ordinate its business, or any part of it, with the businesses of any other members; or |
| | | | |
| | | (vii) | result in any member of the wider Marlborough Stirling Group ceasing to be able to carry on business under any name under which it presently does so the effect of which is materially detrimental to such member, |
| | | | |
| | | and all applicable waiting and other time periods during which any such Third Party could institute, implement or threaten any action, proceeding, suit, investigation, enquiry or reference or any other step under the laws of any jurisdiction in respect of the Proposal or the acquisition or proposed acquisition of any Marlborough Stirling Shares having expired, lapsed or been terminated; |
| | | | |
| | (g) | all necessary filings or applications having been made in connection with the Proposal and all statutory or regulatory obligations in any jurisdiction having been complied with in connection with the Proposal or the acquisition by any member of the wider Vertex Group of any shares or other securities in, or control of, any member of the wider Marlborough Stirling Group and all authorisations, orders, recognitions, grants, consents, licences, confirmations, clearances, permissions and approvals deemed necessary or appropriate by Vertex or any member of the wider Vertex Group (in each case, acting reasonably) but including (without limitation to the foregoing) from the Isle of Man Government Insurance and Pensions Authority for or in respect of the Proposal or the proposed acquisition of any shares or other securities in, or control of, any member of the wider Marlborough Stirling Group by any member of the wider Vertex Group having been obtained in terms and in a form reasonably satisfactory to Vertex from all appropriate Third Parties or persons with whom any member of the wider Marlborough Stirling Group has entered into contractual arrangements and all such authorisations, orders, recognitions, grants, consents, licences, confirmations, clearances, permissions and approvals together with all material authorisations orders, recognitions, grants, licences, confirmations, clearances, permissions and approvals reasonably necessary or appropriate to carry on the business of any member of the wider Marlborough Stirling Group remaining in full force and effect and there being no notice or intimation of any intention to revoke or not to renew any of the same at the time at which the Scheme becomes otherwise effective and all necessary statutory or regulatory obligations in any jurisdiction having been complied with; |
| | | | |
| | (h) | save as Disclosed, no member of the wider Marlborough Stirling Group having, since 31 December, 2004: |
| | | | |
| | | (i) | save as between Marlborough Stirling and wholly-owned subsidiaries of Marlborough Stirling or for Marlborough Stirling Shares issued pursuant to the exercise of options granted under the Marlborough Stirling Share Schemes, issued, authorised or resolved (by way of |
| | | | board or shareholder resolution) to issue any additional shares of any class; |
| | | | |
| | | (ii) | save as between Marlborough Stirling and wholly-owned subsidiaries of Marlborough Stirling or for the grant of options under the Marlborough Stirling Share Schemes, issued or agreed to issue or authorised or resolved (by way of board or shareholder resolution) the issue of securities convertible into shares of any class or rights, warrants or options to subscribe for, or acquire, any such shares or convertible securities; |
| | | | |
| | | (iii) | other than to another member of the Marlborough Stirling Group, recommended, declared, paid or made or resolved (by way of board or shareholder resolution) to recommend, declare, pay or make any bonus, dividend or other distribution whether payable in cash or otherwise; |
| | | | |
| | | (iv) | save for intra-Marlborough Stirling Group transactions, merged or demerged with any body corporate or acquired or disposed of or transferred, mortgaged or charged or created any security interest over any material assets or any right, title or interest in any material asset (including shares, trade investments and intellectual property) or authorised or resolved (by way of board or shareholder resolution) or announced any intention to propose any such merger, demerger, acquisition or disposal, transfer, mortgage, charge or security interest, in each case, other than in the ordinary course of business; |
| | | | |
| | | (v) | save for intra-Marlborough Stirling Group transactions, made or authorised or resolved (by way of board or shareholder resolution) or announced an intention to propose any material change in its loan capital; |
| | | | |
| | | (vi) | issued, authorised or resolved (by way of board or shareholder resolution) the issue of any debentures or (save for intra-Marlborough Stirling Group transactions or in the ordinary course of business), incurred or increased any material indebtedness or become subject to any material contingent liability; |
| | | | |
| | | (vii) | other than in the implementation of the Scheme, purchased, redeemed or repaid or announced any proposal to purchase, redeem or repay any of its own shares or other securities or reduced or, save in respect to the matters mentioned in sub-paragraph (i) above, made any other change to any part of its share capital; |
| | | | |
| | | (viii) | implemented or authorised or resolved (by way of board or shareholder resolution) or announced its intention to implement, any reconstruction, amalgamation, scheme, commitment or other transaction or arrangement which is material in the context of that member's business otherwise than in the ordinary course of business or, save in respect of normal salary increases in accordance with past remuneration policy, entered into or changed the terms of any contract with any director or senior executive; |
| | | | |
| | | (ix) | entered into or varied or authorised or resolved (by way of board or shareholder resolution) or announced its intention to enter into or vary |
| | | | any material 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 is or is reasonably likely to be materially restrictive on the businesses of any member of the wider Marlborough Stirling Group or the wider Vertex Group or which involves or could involve an obligation of such a nature or magnitude or which is other than in the ordinary course of business; |
| | | | |
| | | (x) | (other than in respect of a member which is dormant and was solvent at the relevant time) taken 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, administrative receiver, administrator, trustee or similar officer of all or any of its assets or revenues or any analogous proceedings in any jurisdiction or had any such person appointed; |
| | | | |
| | | (xi) | waived or compromised any claim material in the context of the wider Marlborough Stirling Group or any material member of the wider Marlborough Stirling Group; or |
| | | | |
| | | (xii) | entered into any material contract, commitment, arrangement or agreement other than in the ordinary course of business or passed any resolution or made any proposal (which remains open for acceptance) with respect to or announced any intention to, or to propose to, effect any of the transactions, matters or events referred to in this condition, |
| | | | |
| | | and, for the purposes of paragraphs (iii),(iv), (v) and (vi) of this condition only, the term “Marlborough Stirling Group” shall mean Marlborough Stirling and its wholly-owned subsidiaries; |
| | | | |
| | (i) | since 31 December, 2004 and save as Disclosed: |
| | | | |
| | | (i) | no material adverse change or deterioration having occurred in the business, assets, financial or trading position or profits or prospects of any member of the wider Marlborough Stirling Group; |
| | | | |
| | | (ii) | no litigation, arbitration proceedings, prosecution or other legal proceedings to which any member of the wider Marlborough Stirling Group is a party (whether as a plaintiff, defendant or otherwise) and (other than as a result of the Proposal) no investigation by any Third Party against or in respect of any member of the wider Marlborough Stirling Group having been instituted, announced or threatened by or against or remaining outstanding in respect of any member of the wider Marlborough Stirling Group which in any such case might reasonably be expected to materially and adversely affect any member of the wider Marlborough Stirling Group; |
| | | | |
| | | (iii) | no contingent or other liability having arisen which might be reasonably expected to have a material adverse effect on any member of the wider Marlborough Stirling Group; and |
| | | | |
| | | (iv) | no steps having been taken which are likely to result in the withdrawal, cancellation, termination or modification of any material licence held |
| | | | by any member of the wider Marlborough Stirling Group which is necessary for the proper carrying on of its business; |
| | | | |
| | (j) | save as Disclosed, Vertex not having discovered: |
| | | | |
| | | (i) | that any financial, business or other information concerning the wider Marlborough Stirling Group as contained in the information publicly disclosed at any time by or on behalf of any member of the wider Marlborough Stirling Group is misleading in a material respect, contains a material misrepresentation of fact or omits to state a fact necessary to make that information not misleading in a material respect; |
| | | | |
| | | (ii) | that any member of the wider Marlborough Stirling Group is subject to any material liability (contingent or otherwise) which is not disclosed in the annual report and accounts of Marlborough Stirling for the year ended 31 December, 2003; or |
| | | | |
| | | (iii) | any information which materially affects the import of any information disclosed at any time by or on behalf of any member of the wider Marlborough Stirling Group; |
| | | | |
| | (k) | save as Disclosed, Vertex not having discovered that: |
| | | | |
| | | (i) | any past or present member of the wider Marlborough Stirling Group has failed to comply with any and/or all applicable legislation or regulation, of any jurisdiction, with regard to the disposal, spillage, release, discharge, leak or emission of any waste or hazardous substance or any substance likely to impair the environment or harm human health or animal health or otherwise relating to environmental matters, or that there has otherwise been any such disposal, spillage, release, discharge, 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) any of which disposal, spillage, release, discharge, leak or emission would be likely to give rise to any material liability (actual or contingent) on the part of any member of the wider Marlborough Stirling Group; or |
| | | | |
| | | (ii) | there is, or is reasonably likely to be, for that or any other reason whatsoever, any liability (actual or contingent) of any past or present member of the wider Marlborough Stirling Group to make good, repair, reinstate or clean up any property or any controlled waters now or previously owned, occupied, operated or made use of or controlled by any such past or present member of the wider Marlborough Stirling Group, under any environmental legislation, regulation, notice, circular or order of any government, governmental, quasi-governmental, state or local government, supranational, statutory or other regulatory body, agency, court, association or any other person or body in any jurisdiction which is material in terms of cost or management time. |
| | | | |
| | For the purposes of these conditions, the “wider Marlborough Stirling Group” means Marlborough Stirling and its subsidiary undertakings, associated undertakings and any other undertaking in which Marlborough Stirling and/or such undertakings (aggregating their interests) have a significant interest and the “wider Vertex Group” |
| | means Vertex and its subsidiary undertakings, associated undertakings and any other undertaking in which Vertex and/or such undertakings (aggregating their interests) have a significant interest and for these purposes “subsidiary undertaking”, “associated undertaking” and “undertaking” have the meanings given by the Companies Act, other than paragraph 20(1)(b) of Schedule 4A to that Act which shall be excluded for this purpose, and “significant interest” means a direct or indirect interest in ten per cent. or more of the equity share capital (as defined in that Act) of any undertaking. |
| | | |
| 3. | Vertex reserves the right to waive (to the extent that it is possible to do so), in whole or in part, all or any of the conditions contained in paragraph 2(a) to (k) in whole or in part. If Vertex is required by the Panel to make an offer for Marlborough Stirling Shares under the provisions of Rule 9 of the City Code, Vertex may make such alterations to any of the above conditions as are necessary to comply with the provisions of that Rule. |
| | | |
| 4. | Vertex reserves the right to elect to implement the Proposal by way of a takeover offer, provided that where reasonably practicable it will consult with Marlborough Stirling prior to making such election. In such event, the Proposal will be implemented on the same terms (subject to appropriate amendments including (without limitation) an acceptance condition set at ninety per cent. of the shares to which the Proposal relates), so far as applicable, as those which would apply to the implementation of the Proposal by means of the Scheme. |
| | | |
| 5. | The Proposal and the Scheme will be governed by the laws of England and Wales and be subject to the jurisdiction of the courts of England and Wales, to the conditions set out herein and to the provisions of the Scheme Document. |
