SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------
FORM 6-K
Report of Foreign Private Issuer
Pursuant to Rule 13a-16 or 15d-16 of
the Securities Exchange Act of 1934
January 18, 2005
Avecia Group plc
---------------
(Translation of registrant's name into English)
P.O. Box 42
Hexagon House
Blackley, Manchester
M9 8ZS
England
---------------
(Address of Principal Executive Offices)
(Indicate by check mark whether the registrant files or will file annual
reports under cover of Form 20-F or Form 40-F)
Form 20-F [ X ] Form 40-F [ ]
(Indicate by check mark if the registrant is submitting the Form 6-K in paper
as permitted by Regulation S-T Rule 101(b)(1): ____)
(Indicate by check mark if the registrant is submitting the Form 6-K in paper
as permitted by Regulation S-T Rule 101(b)(7): ____)
(Indicate by check mark whether by furnishing the information contained
in this Form, the registrant is also thereby furnishing the
information to the Commission pursuant to Rule 12g3-2(b) under
the Securities Exchange Act of 1934.)
Yes [ ] No [ X ]
(If "Yes" is marked, indicate below the file number assigned to the
registrant in connection with Rule 12g3-2(b): 82- ________)
Enclosure: Amended And Restated Offer To Purchase And Consent Solicitation
Statement (To Offer To Purchase Dated January 4, 2005, As
Supplemented By A Supplemental Offer To Purchase Dated January
12, 2005) - Dated January 18, 2005
================================================================================
THIS AMENDED AND RESTATED OFFER DOCUMENT IS IMPORTANT AND REQUIRES YOUR
IMMEDIATE ATTENTION. If you are in any doubt as to the contents of this amended
and restated offer document or the action you should take, you are recommended
to seek your own financial advice immediately from your stockbroker, bank
manager, solicitor, accountant or other independent financial advisor authorized
under the Financial Services and Markets Act 2000, or from another appropriately
authorized independent financial advisor.
AMENDED AND RESTATED OFFER TO PURCHASE AND CONSENT SOLICITATION STATEMENT
(TO OFFER TO PURCHASE DATED JANUARY 4, 2005, AS SUPPLEMENTED BY A
SUPPLEMENTAL OFFER TO PURCHASE DATED JANUARY 12, 2005)
AVECIA GROUP plc
Amended and Restated Offer to Purchase for Cash
Up to 79% (US$426,900,000) of the Aggregate Principal Amount of its Outstanding
11% Senior Notes Due 2009
and
Solicitation of Consents for Amendments to the Related Indenture
This amended and restated offer to purchase (the "Amended and Restated
Offer to Purchase") amends and restates the offer to purchase dated January 4,
2005 (as supplemented by a supplemental offer to purchase dated January 12,
2005, the "Initial Offer to Purchase"), issued by Avecia Group plc (the
"Company") in relation to its offer to purchase for cash (the "Tender Offer")
outstanding 11% Senior Notes due July 1, 2009 of the Company (the "Securities")
and the related consent solicitation, as described below. In light of this
amendment and restatement, the Company has extended the Consent Payment Deadline
and the Withdrawal Deadline (each as defined below) to 5:00 p.m., New York City
time, on January 24, 2005.
Under this Amended and Restated Offer to Purchase, the Company hereby
offers to purchase for cash up to 79% ($426,900,000) of the aggregate principal
amount of its $540,000,000 outstanding Securities upon the terms and subject to
the conditions set forth in this Amended and Restated Offer to Purchase. Holders
that tender and do not validly withdraw their Securities prior to the Expiration
Time (as defined below) will be entitled to receive the consideration set forth
under the heading "Tender Offer Consideration" in the table below.
In conjunction with the Tender Offer, and on the terms and conditions
set forth in this Amended and Restated Offer to Purchase, the Company is also
soliciting (the "Solicitation") consents (the "Consents") to the adoption of
proposed amendments (the "Amendments") to the indenture, dated June 30, 1999,
governing the Securities (as amended, the "Indenture") and to the execution by
the Company, the Guarantor (as defined in the Indenture) and The Bank of New
York, the trustee under the Indenture (the "Trustee"), of a supplemental
indenture effecting the Amendments (the "Supplemental Indenture"). A Holder
validly tendering Securities pursuant to the Tender Offer will, by tendering
such Securities, be deemed to have delivered its Consent to the Amendments with
respect to those Securities. A Holder may not consent to the Amendments with
respect to any Securities without tendering such Securities pursuant to the
Tender Offer and may not revoke Consents with respect to any Securities without
withdrawing from the Tender Offer the previously tendered Securities to which
such Consents relate.
Holders that validly tender and do not validly withdraw their
Securities prior to the Consent Payment Deadline, and whose Securities are
accepted for payment by the Company, will, upon the terms and subject to the
conditions set forth in this Amended and Restated Offer to Purchase, including
the provisions with respect to proration, receive total consideration per
US$1,000.00 principal amount of Securities equal to the amount under the heading
"Total Consideration" in the table below (the "Total Consideration"), which
amount includes the Tender Offer Consideration for such Securities equal to the
amount set forth under the heading "Tender Offer Consideration" in the table
below (the "Tender Offer Consideration") and a consent payment for such
Securities equal to the amount set forth under the heading "Consent Payment" in
the table below (the "Consent Payment"). The Consent Payment will be paid as
part of the Total Consideration for Securities validly tendered and not validly
withdrawn prior to the Consent Payment Deadline whether or not such Securities
are purchased by the Company pursuant to the Offer. Holders that validly tender
their Securities after the Consent Payment Deadline and prior to the Expiration
Time (as defined below), and whose, Securities are accepted for payment by the
Company, will receive the Tender Offer Consideration, but will not receive the
Consent Payment. In addition, Holders whose Securities are accepted for payment
will receive accrued and unpaid interest on such purchased Securities to, but
not including, the Settlement Date (as defined herein). No tenders will be valid
if submitted after the Expiration Time. The Tender Offer and the related
Solicitation, as they may be amended from time to time, are referred to herein
collectively as the "Offer."
Principal
Title of Amount CUSIP ISIN Tender Offer Consent Total
Security Outstanding Number Number Consideration* Payment Consideration* Common Code
- ------------ -------------- --------- ------------ -------------- -------- -------------- -----------
11% Senior US$540,000,000 G9894BAA6 USG9894BAA64 US$1,062.50 US$10.00 US$1,072.50 -
Notes due (Reg S
July 1, 2009 Notes)
- 9875069
988788AA3
(144A Notes) US05354RAA95 010588502
05354RAA9
(Registered
Notes)
* Per US$1,000.00 principal amount of Securities accepted for purchase.
- --------------------------------------------------------------------------------
THE OFFER WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY TIME, ON FEBRUARY 2, 2005
UNLESS EXTENDED OR EARLIER TERMINATED (SUCH DATE AND TIME, AS THE SAME MAY BE
EXTENDED, THE "EXPIRATION TIME"). HOLDERS MUST TENDER THE SECURITIES (AS DEFINED
HEREIN) PRIOR TO THE EXPIRATION TIME TO BE ELIGIBLE TO RECEIVE THE TENDER OFFER
CONSIDERATION.
THE CONSENT PAYMENT DEADLINE (I.E., THE TIME BY WHICH HOLDERS MUST TENDER THE
SECURITIES IN ORDER TO BE ELIGIBLE TO RECEIVE THE TOTAL CONSIDERATION, A PORTION
OF WHICH WILL CONSTITUTE THE CONSENT PAYMENT (EACH AS DEFINED HEREIN)) HAS BEEN
EXTENDED BY THE COMPANY AS A CONSEQUENCE OF AMENDING AND RESTATING THIS OFFER
AND WILL BE 5:00 P.M., NEW YORK CITY TIME, ON JANUARY 24, 2005, UNLESS FURTHER
EXTENDED OR EARLIER TERMINATED.
- --------------------------------------------------------------------------------
THIS AMENDED AND RESTATED OFFER TO PURCHASE AND THE RELATED DOCUMENTS
CONTAIN IMPORTANT INFORMATION WHICH SHOULD BE READ BEFORE A DECISION IS MADE
WITH RESPECT TO THE OFFER. THE OFFER IS SUBJECT TO A NUMBER OF IMPORTANT
CONDITIONS DESCRIBED HEREIN.
IF YOU HAVE RECENTLY SOLD OR OTHERWISE TRANSFERRED YOUR ENTIRE
HOLDING(S) OF SECURITIES, YOU SHOULD IMMEDIATELY FORWARD THIS DOCUMENT TO THE
PURCHASER OR TRANSFEREE, OR TO THE BROKER, BANK OR OTHER AGENT THROUGH WHOM THE
SALE OR TRANSFER WAS EFFECTED, FOR TRANSMISSION TO THE PURCHASER OR TRANSFEREE.
THIS AMENDED AND RESTATED OFFER TO PURCHASE HAS NOT BEEN FILED WITH OR
REVIEWED BY ANY FEDERAL OR STATE SECURITIES COMMISSION OR REGULATORY AUTHORITY
OF ANY COUNTRY, NOR HAS ANY SUCH COMMISSION OR AUTHORITY PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS AMENDED AND RESTATED OFFER TO PURCHASE. ANY
REPRESENTATION TO THE CONTRARY IS UNLAWFUL AND MAY BE A CRIMINAL OFFENSE.
The Dealer Manager for the Offer and the Solicitation Agent for the
Solicitation is:
Goldman, Sachs & Co.
------------
The date of this Amended and Restated Offer to Purchase is January 18, 2005
TABLE OF CONTENTS
Page
IMPORTANT NOTICE TO HOLDERS................................................. i
KEY DATES................................................................... ii
SUMMARY OF THE OFFER........................................................ 1
DESCRIPTION OF THE SECURITIES............................................... 5
THE COMPANY................................................................. 5
PURPOSE OF THE OFFER; THE TRANSACTION....................................... 5
UNAUDITED PRO FORMA CONSOLIDATED FINANCIAL STATEMENTS....................... 8
PROCEDURE FOR TENDERING SECURITIES AND DELIVERING CONSENTS.................. 13
WITHDRAWAL OF TENDERS AND REVOCATION OF RELATED CONSENTS.................... 14
RISKS....................................................................... 14
RISKS TO TENDERING HOLDERS.................................................. 15
CONDITIONS TO THE OFFER..................................................... 16
ACCEPTANCE FOR PAYMENT AND PAYMENT.......................................... 17
EXTENSION, AMENDMENT AND TERMINATION........................................ 17
THE AMENDMENTS.............................................................. 18
AVAILABLE INFORMATION....................................................... 18
INCORPORATION BY REFERENCE.................................................. 18
FORWARD-LOOKING STATEMENTS.................................................. 20
CERTAIN U.S. FEDERAL INCOME TAX CONSEQUENCES................................ 20
CERTAIN U.K. AND E.U. TAX CONSEQUENCES...................................... 22
DEALER MANAGER, SOLICITATION AGENT, INFORMATION AGENT AND TENDER AGENT...... 24
MISCELLANEOUS............................................................... 25
ANNEX A - THE AMENDMENTS.................................................... A-1
IMPORTANT NOTICE TO HOLDERS
Any Holder, as defined in the Indenture, or beneficial owner of
Securities who holds the Securities in book-entry form desiring to tender
Securities must request the Holder's broker, dealer, commercial bank, trust
company or other nominee to effect the transaction or tender through The
Depository Trust Company ("DTC") pursuant to DTC's Automated Tender Offer
Program ("ATOP"). See "Procedures for Tendering Securities and Delivering
Consents".
Any questions or requests for assistance or for additional copies of
this Amended and Restated Offer to Purchase or related documents may be directed
to Global Bondholder Services Corporation, the Information Agent, or Kredietbank
S.A. Luxembourgeoise (the "Luxembourg Agent"), at their respective telephone
numbers set forth on the last page of this Amended and Restated Offer to
Purchase. A Holder may also contact the Dealer Manager, Solicitation Agent and
the Luxembourg Agent at their respective telephone numbers set forth on the last
page of this Amended and Restated Offer to Purchase or such Holder's broker,
dealer, commercial bank, trust company or other nominee for assistance
concerning the Offer.
None of the Company, Goldman, Sachs & Co., as Dealer Manager and
Solicitation Agent, the Trustee, the Information Agent, the Tender Agent, or
their respective directors, employees or affiliates makes any recommendation as
to whether Holders should tender their Securities and deliver Consents. No
person has been authorized to give any information or to make any
representations other than those contained herein and, if given or made, such
information or representations must not be relied upon as having been
authorized. This Amended and Restated Offer to Purchase and related documents do
not constitute an offer to buy or the solicitation of an offer to sell
Securities or a solicitation of Consents in any circumstances in which such
offer or solicitation is unlawful. In those jurisdictions where the securities,
blue sky or other laws require the Offer to be made by a licensed broker or
dealer, the Offer shall be deemed to be made on behalf of the Company by the
Dealer Manager and Solicitation Agent or one or more registered brokers or
dealers licensed under the laws of such jurisdiction. Neither the delivery of
this Amended and Restated Offer to Purchase and related documents nor any
purchase of Securities shall, under any circumstances, create any implication
that the information contained herein or therein is current as of any time
subsequent to the date of such information.
This Amended and Restated Offer of Purchase and related documents are
only for circulation to Holders and other persons to whom such Amended and
Restated Offer to Purchase may lawfully be issued in accordance with the
Financial Services and Markets Act 2000 (Financial Promotion) Order 2001, any
such person being referred to as a "relevant person". This communication may not
be acted upon by anyone who is not a relevant person.
i
KEY DATES
Holders should take note of the following dates in connection with the
Offer. However, the dates below are subject to modification in accordance with
the terms of the Offer:
Date Calendar Date Event
- ------------------------ ------------------------ ----------------------------
Consent Payment Deadline As a consequence of The last day for Holders to
amending and restating validly tender Securities
the Tender Offer, the and provide Consents in to
Company has extended the qualify for the applicable
Consent Payment Deadline Consent Payment.
to 5:00 p.m., New York
City time, on January 24,
2005, unless further
extended or earlier
terminated by the
Company in its sole
discretion.
Withdrawal Deadline As a consequence of The last day for Holders to
amending and restating validly withdraw tendered
the Tender Offer, the Securities and revoke
Company has extended the Consents, except as
Withdrawal Deadline to described under the caption
5:00 p.m., New York City "Withdrawal of Tenders and
time, on January 24, Revocation of Related
2005, unless extended by Consents." A valid
the Company in its sole withdrawal of Securities and
discretion. revocation of Consents will
result in the Holder not
being eligible to receive
either the Total
Consideration or the Tender
Offer Consideration.
Expiration Time 12:00 Midnight, New York The last day for Holders to
City time, on February tender Securities pursuant
2, 2005, unless extended to the Offer.
or earlier terminated by
the Company in its sole
discretion.
Settlement Date A date promptly after The day on which the Company
the Expiration Time, accepts Securities validly
unless the Offer is tendered, upon the terms
extended by the Company and subject to the
in its sole discretion. conditions of this offer,
prior to the Expiration Time
and not validly withdrawn
prior to the Withdrawal
Deadline. The Company
notifies the Tender Agent
that such tendered
Securities are accepted for
payment and deposits with
DTC the amount of cash
necessary to pay each
tendering Holder the Tender
Offer Consideration, or
Total Consideration, as
applicable, plus accrued and
unpaid interest, if any, to,
but not including, the
Settlement Date.
ii
SUMMARY OF THE OFFER
The following is qualified in its entirety by the more detailed information
appearing elsewhere in this Amended and Restated Offer to Purchase.
Company............................... Avecia Group plc, a public limited
company incorporated under the laws of
England and Wales.
Securities............................ 11% Senior Notes due July 1, 2009 of the
Company.
Purpose of Offer...................... The purpose of the Offer is to acquire
the Securities and obtain
Consents from Holders to the adoption of
the Amendments to the Indenture. The
Amendments are being sought in order to
amend the Indenture to allow for the
consummation of the Transaction (as
defined below) and to modify certain
restrictive covenants. See "The
Amendments."
The Transaction....................... A subsidiary of the Company agreed on
December 13, 2004 to sell to
Koninklijke DSM N.V., its NeoResins
business. This agreement to sell the
business is subject to certain
conditions, including receipt of
Requsite Consents (as defined below)
from Holders. See "Purpose of Offer;
The Transaction."
Tender Offer and Consent.............. The Company hereby offers to purchase
Solicitation for cash, up to 79% ($426,900,000)
of the aggregate principal amount of the
outstanding Securities (which may
subject the Securities tendered to
proration as described herein), upon
the terms and subject to the conditions
set forth in this Amended and Restated
Offer to Purchase. The Company is also
soliciting Consents to the Amendments to
the Indenture. A Holder that validly
tenders its Securities pursuant to the
Offer will be deemed to have delivered
its Consent to the Amendments to the
Indenture. A Holder may not consent to
the Amendments to the Indenture without
tendering its Securities pursuant to the
related Offer. The Tender Offer
Consideration, Consent Payment and Total
Consideration for the Offer are set
forth in the table below.
Principal Amount Tender Offer Consent Total
Title of Security Outstanding Consideration* Payment Consideration*
- -------------------- ----------------- -------------- -------------- ----------------
11% Senior Notes due US$540,000,000 US$1,062.50 US$10.00 US$1,072.50
July 1, 2009
* Per US$1,000.00 principal amount of Securities accepted for purchase.
Total Consideration................... Holders that validly tender and do not
validly withdraw their Securities prior
to the Consent Payment Deadline will,
upon the terms and subject to the
conditions set forth in this Amended and
Restated Offer to Purchase, including
the provisions with respect to
proration, receive the Total
Consideration, or US$1,072.50 per
US$1,000.00 principal amount of
Securities accepted by the Company for
purchase (which amount includes the
Tender Offer Consideration and the
Consent Payment), plus accrued and
unpaid interest, if any, to, but not
including, the Settlement Date.
Tender Offer Consideration............ Holders that validly tender their
Securities after the Consent Payment
Deadline and prior to the Expiration
Time will receive only the Tender Offer
Consideration, or US$1,062.50 per
US$1,000.00 principal amount of
Securities accepted by the Company for
purchase, plus accrued and unpaid
interest, if any, to, but not including,
the Settlement Date.
1
Consent Payment....................... The Consent Payment, or US$10.00 per
US$1,000.00 principal amount of
Securities accepted by the Company for
purchase, will be paid as part of the
Total Consideration for Securities
validly tendered and not validly
withdrawn prior to the Consent Payment
Deadline, whether or not such Securities
are accepted by the Company for purchase
pursuant to the Offer.
Withdrawal Deadline................... As a consequence of amending and
restating the Tender Offer, the Company
has extended the Withdrawal Deadline to
5:00 p.m., New York City time, on
January 24, 2005, as extended further by
the Company in its sole discretion.
Consent Payment Deadline.............. As a consequence of amending and
restating the Tender Offer, the Consent
Payment Deadline (i.e., the time by
which Holders must tender their
Securities to be eligible to receive the
Total Consideration) has been extended
by the Company to 5:00 p.m., New York
City time, on January 24, 2005, unless
further extended or earlier terminated
by the Company in its sole discretion.
Expiration Time....................... The Offer will expire at 12:00 Midnight,
New York City time, on February 2, 2005,
unless extended or earlier terminated by
the Company in its sole discretion. If
the Consent Payment Deadline or
Expiration Time are further extended,
the Company will issue a public
announcement no later than 9:00 a.m.,
New York City time, on the first
business day after the previously
scheduled Consent Payment Deadline or
Expiration Time, as the case may be,
setting forth a new time and date for
the Consent Payment Deadline or
Expiration Time, as the case may be.
Proration............................. If more than 79% (US$426,900,000) of the
aggregate principal amount of the
Securities are validly tendered by the
Holders pursuant to the terms of the
Offer, then all of such tendered
Securities will be accepted on a pro
rata basis in accordance with the
following procedures. The Company will
reduce, on a pro rata basis, in
proportion to the aggregate amount of
Securities tendered by each Holder the
principal amounts to be accepted from
the Holders of the Securities to the
extent necessary so that after giving
effect to such proration, the aggregate
principal amount of all tendered
Securities does not exceed 79%
(US$426,900,000) of the aggregate
principal amount of Securities.
In the event that the proration of
Securities validly tendered by any
Holder would result in the purchase of
Securities in a principal amount other
than an integral multiple of
US$1,000.00, the Company (through the
Tender Agent) will increase or decrease,
in its discretion, the principal amount
of the Securities to be purchased from
such Holder to the next higher or lower
integral multiple of US$1,000.00.
The Amendments........................ If the Amendments become operative,
certain of the restrictive covenants
will be modified in the Indenture and
certain provisions will be added to the
Indenture in order to waive the
applicability of certain restrictive
covenants to the extent required to
effect the Transaction. The Amendments
would, among other things: (a) modify
certain covenants contained in the
Indenture on reports to Holders; (b)
modify covenants contained in the
Indenture relating to (i) change of
control and (ii) mergers, consolidations
or sale of all or substantially all
assets to permit certain transactions so
long as sufficient funds are irrevocably
deposited and subsequently used to
redeem (or make a tender offer) for the
then outstanding Securities at the
current redemption price (plus accrued
interest) set forth in the Indenture;
and (c) add provisions to the Indenture
that would effectively waive the
application of the following sections of
the Indenture with respect to the
Transaction: (i) asset sales, (ii)
change of control, (iii) merger,
consolidation or sale of all or
substantially all assets and (iv) any
other provision of the Indenture that,
as a result of the consummation of the
Transaction, would require a payment to
Holders or the making of an offer to
purchase or redeem the Securities, or
whose contravention would result in a
default under the Indenture. See "The
Amendments." Except as otherwise
described in the Amended and
2
Restated Offer to Purchase, the terms of
the Indenture will continue to apply to
the Securities.
The Amendments will be set forth in the
Supplemental Indenture and the
Amendments will become operative
immediately upon the execution of the
Supplemental Indenture, which is
expected to be executed promptly
following the Withdrawal Deadline,
provided the Company has received
Consents from Holders of a majority in
principal amount of the outstanding
Securities (excluding for such purposes
any Securities owned by the Company, or
by any person directly or indirectly
controlling or controlled by or under
direct or indirect common control with
the Company) (the "Requisite Consents").
However, if, after execution of the
Supplemental Indenture, the Offer is
terminated or withdrawn by the Company,
the Securities are not accepted for
payment or the conditions to the Offer
(see "Conditions to the Offer") are not
satisfied or waived, the original terms
of the Indenture will be reinstated.
Withdrawal Rights and Revocation ..... Tenders of Securities may be withdrawn
of Consents and the related Consents may be revoked
at any time before the Withdrawal
Deadline by following the procedures
described in this Amended and Restated
Offer to Purchase. A valid withdrawal of
tendered Securities before the
Withdrawal Deadline shall be deemed a
valid revocation of the related Consent.
Securities tendered and Consents
delivered prior to or after the
Withdrawal Deadline may not be withdrawn
after the Withdrawal Deadline, except in
limited circumstances. See "Withdrawal
of Tenders and Revocation of Related
Consents."
Source of Funds....................... The Company does not, as of the date of
this Amended and Restated Offer to
Purchase, have the financial resources
to pay for the Securities tendered in
the Offer. The Company's ability to
purchase the Securities pursuant to this
Offer is dependent on the Company
receiving the proceeds from the
consummation of the Transaction. The
receipt of such proceeds is conditional,
inter alia, upon receipt by the Company
of the Requisite Consents. See
"Conditions to the Offer". The
consummation of the Transaction will be
dependent on receiving certain approvals
and other closing conditions. See
"Purpose of the Offer; The Transaction."
Conditions to the Offer............... The Offer is conditioned upon, among
other things:
o satisfaction of the Transaction
Condition;
o satisfaction of the Consent
Condition; and
o satisfaction of the General
Conditions.
If the above conditions to the Offer are
not satisfied, the Company may delay the
acceptance for payment of any tendered
Securities, and may terminate, extend or
amend the Offer, in each event subject
to Rules 14e-1(b) and (c) under the
Securities Exchange Act of 1934, as
amended (the "Exchange Act"). See
"Conditions to the Offer."
Settlement............................ The Settlement Date will be the date of,
or a date promptly following, the
Expiration Time, which currently is
scheduled to be 12:00 Midnight, New York
City time, on February 2, 2005.
Certain U.S. Federal Income Tax ...... For U.S. federal income tax purposes,
Consequences the sale of Securities pursuant to the
Offer generally will be a taxable
transaction that will result in the
recognition of a taxable gain or loss by
a U.S. Holder. See "Certain U.S. Federal
Income Tax Consequences."
Certain U.K. and E.U. Tax ............ For U.K. tax purposes, the sale of
Consequences Securities pursuant to the Offer may
result in the recognition
of a taxable gain or loss by a tendering
U.K. Holder. See "Certain U.K. And E.U.
Tax Consequences."
3
Dealer Manager and Solicitation....... Goldman, Sachs & Co.
Agent
Information Agent and Tender Agent.... Global Bondholder Services Corporation
Luxembourg Agent...................... Kredietbank S.A. Luxembourgeoise
Further Information................... Additional copies of this Amended and
Restated Offer to Purchase and any other
documents related to the Offer may be
obtained by contacting the Information
Agent or the Luxembourg Agent at their
respective telephone numbers and
addresses set forth on the last page of
this Amended and Restated Offer to
Purchase.
4
DESCRIPTION OF THE SECURITIES
The following description sets forth certain terms of the Securities and
the Indenture. This description is not complete and is qualified in its entirety
by the Indenture described below. Copies of the Indenture are available for
inspection at the principal offices of the Trustee and are on file with the U.S.
Securities and Exchange Commission.
The Securities were issued pursuant to the Indenture, dated as of June 30,
1999, among Avecia Group plc (formerly known as ZSC Specialty Chemicals plc)
(the "Company"), the Guarantor (as defined in the Indenture, as amended) and The
Bank of New York, as trustee. The maturity date of the Securities is July 1,
2009. The Securities are listed on the Luxembourg Stock Exchange.
The Indenture permits the Company, the Guarantor and the Trustee, with the
consent of Holders of at least a majority in principal amount of the outstanding
Securities, to enter into a supplemental indenture for the purpose of changing
in any manner or eliminating any of the provisions of the Indenture, except for
certain changes that require the consent of each Holder affected thereby.
THE COMPANY
Avecia Group plc is a global group of specialty chemicals businesses
providing a range of process development and manufacturing services to a high
standard of quality assurance and developing, manufacturing and selling high
quality, technologically advanced, value-added chemical products to customers
across a range of industries. The Company possesses capabilities in organic
chemistry, biological and polymer sciences and in process technology.
The Company is currently divided into four business segments: Electronic
Materials, Biotechnology, Chemicals and NeoResins. These businesses are
supported by 11 manufacturing facilities located in 6 countries. The Electronic
Materials business segment consists of four business units - Ink Jet Printing
Materials, Electrophotography, Displays and Image Polymers - and develops,
manufactures and sells dyes, pigment based inks, toners, infrared absorbers and
organic light emitting materials to customers in a wide range of industries. The
Biotechnology business segment consists of two business units - DNA Medicines
and Biologics - and manufactures complex biotechnology products, including
manufacture to cGMP requirements, and undertakes related process development for
customers. The Chemicals business segment comprises two business units -
Pharmaceutical Intermediates and Fine Chemicals - and undertakes the custom
manufacture of complex chemical intermediates and active ingredients for the
pharmaceutical, agrochemical and other industries.
The Company's NeoResins business segment is a global supplier of
performance polymers, primarily water-based or acrylic resins and water-borne
urethanes, used as additives and binders in the paints, coatings, adhesives and
graphic arts fields. It provides application expertise in the Americas, Europe
and Asia and works closely with customers to make product modifications, as well
as starting point formulations, which conform to their specific requirements.
The Company has, since January 1, 2003, disposed of its interests in its
former Specialty Chemicals business segment (comprising Pool & Spa, Protection &
Hygiene, Pigments & Additives and Metal Extraction Products), as well as its
former Intermediates & Stabilizers and Special Drug Products business units.
PURPOSE OF THE OFFER; THE TRANSACTION
The purpose of the Offer is to (a) acquire the Securities, (b) obtain
Consents from Holders to the adoption of the Amendments to the Indenture
necessary to consummate the Transaction and (c) amend the Indenture to modify
certain restrictive covenants.
The Transaction
On December 13, 2004, Avecia Investments Limited ("AIL"), a subsidiary of
the Company and certain other subsidiaries of the Company, entered into an
agreement with Koninklijke DSM N.V. ("DSM") for the sale of the Company's
NeoResins business (the transaction as contemplated therein, the "Transaction").
The agreement commits AIL, certain other subsidiaries of the Company and DSM to
execute the definitive sale and purchase agreement for the NeoResins business as
soon as certain advisory and consultation processes related to the relevant
works council and trade unions in the Netherlands have been undertaken. The
terms of the sale and purchase agreement contemplate, among other things, the
sale to DSM of the Company's entire interest in its NeoResins business,
including: (a) Avecia BV, Avecia Spain SL, NeoResins Inc. and Avecia Asia
Pacific Pte Ltd. and their corresponding manufacturing and laboratory sites, (b)
certain intellectual property interests held by Avecia Limited and Avecia Inc.
relating to the NeoResins Business and (c) all other corporate entities and
assets of the Company relating to the NeoResins business, including certain
local sales activities.
5
The purchase price for the shares of Avecia Holdings BV and its
subsidiaries, intellectual property and all other assets of the NeoResins
business is (euro)515 million, on a net debt free basis. The purchase price at
the consummation of the Transaction is subject to adjustments based on changes
to working capital, the 2004 actual EBITDA of the NeoResins business and for
certain taxes for the period prior to the date of sale. The purchase price will
be payable in full upon completion of the Transaction. After taking into account
the anticipated outcome from the post-closing adjustments referred to above, a
small amount of proceeds to be placed in escrow under the agreement reached with
DSM and certain expenses associated with the Transaction, the Company expects
the cash proceeds from the sale of the NeoResins business to net approximately
(euro)495 million. See "Proceeds Available for the Offer" below.
AIL has given certain warranties, including environmental and tax
warranties, to DSM and, with certain qualifications, has agreed to indemnify DSM
with respect to certain matters, including taxes relating to the period prior to
completion of the Transaction. Furthermore, the terms of the non-competition
clause of the sale and purchase agreement restrict the Company and its
affiliates from engaging in certain activities related to the Polymer Business
(as defined therein) for a period of three years after the completion of the
Transaction. This prohibition does not impact the Company's ability to continue
operating its remaining businesses separate from the NeoResins business.
DSM has the option to terminate the agreement if, by March 1, 2005, (a) the
works council and trade union processes referred to above have not been
concluded or (b) the Requisite Consents of the Holders to waive the
applicability of certain restrictive covenants to the extent required to effect
the Transaction have not been obtained. AIL has the option to terminate if such
conditions have not been fulfilled by June 30, 2005. Completion of the
Transaction is also subject to the fulfillment of certain other conditions,
including obtaining competition law clearance for the Transaction in certain
jurisdictions. If the conditions to completion have not been fulfilled by June
30, 2005, the sale and purchase agreement will lapse.
Proceeds Available for the Offer
The Company currently has a term loan facility of (pound)100 million and a
revolving credit facility of (pound)50 million in respect of which (pound)75
million of the term loan and no amount of the revolving credit facility was
outstanding as at December 31, 2004. Under the terms of the facilities described
above, the Company is required to repay these facilities in full with proceeds
from the Transaction. Furthermore, the Company will retain approximately
(euro)48 million from the proceeds of the Transaction in order to fund the
working capital requirements of the Company and interest payable on the
Securities up to the Settlement Date.
The Company has entered into preliminary discussions with one of its senior
lenders regarding the provision of an ongoing term loan facility and revolving
credit facility following completion of the Transaction to meet the essential
liquidity requirements of the remaining businesses. The size of any such
facility is expected to be significantly smaller than the Company's existing
facility. The Company's businesses that remain after the consummation of the
Transaction have had, on a historical pro forma basis, a negative cash flow and
in the future may not be able to support any significant level of debt. As of
the date hereof, it is unlikely that such discussions will be concluded prior to
the Settlement Date. Therefore, the Offer will be consummated without ongoing or
future senior debt facilities having been agreed or committed by the Company's
senior lenders and there can be no assurance that any such facility will be
obtained, or if obtained, what the size or terms will be. Furthermore, if the
facilities are obtained, it may be the case that the Company is required to
retain all of the proceeds from such facilities to fund its ongoing working
capital needs.
The proceeds of the Transaction will be received by the Company in Euros,
while the Offer consideration will be paid in U.S. Dollars. In order to purchase
the Securities tendered in the Offer, the Company will be required to convert
the proceeds of the Transaction from Euros to U.S. Dollars. In addition, the
existing term loan facility and revolving credit facility of the Company are
maintained in pounds sterling and the repayment thereof will also require
conversion of the proceeds of the Transaction. The Company has not hedged, nor
does it intend to hedge, the currency exchange risks it faces with regard to the
repayment of its credit facilities or the Offer. The Company may therefore be
required to amend the Offer as a result of changes in exchange rates and their
impact on the funds of the Company required to repay the credit facilities and
available to consummate the Offer.
6
The following table presents the estimated amount of proceeds from the
Transaction available to fund the Offer:
(euro) million US $ million
Purchase price for NeoResins business 515 -
Less: Anticipated closing adjustments, escrow amount and expenses (see (20) -
"The Transaction" above)
--------------------
Cash proceeds from the sale of NeoResins business 495 -
Less: Amount required to repay the Company's outstanding credit (106)(2)(3) -
facilities (see above)
Less: Proceeds retained to fund working capital requirements of the (48) -
Company and interest payable up to the Settlement Date (see above)
--------------------
Proceeds available for the Offer to Purchase (see above) 341 459(1)(3)
- ------------------------------------------------------------------------
1 Translated from Euros to U.S. Dollars using a January 3, 2005 exchange rate
of 1.3476.
2 In calculating the Euro proceeds available for the Offer, the amount of
Euro proceeds available from the Transaction to repay the (pound)75 million
drawn on the current term loan is translated into pounds sterling using a
January 3, 2005 exchange rate of 1.4142.
3 For further information on the currency exchange risks please see the
discussion on currency exchange risks in this section.
Upon the terms and subject to the condition set forth in this Amended and
Restated Offer to Purchase, the Company will make available the full amount of
U.S.$459,000,000, the estimated amount of proceeds from the Transaction
available to fund the Tender Offer, provided, however, that such amount may be
subject to adjustment for U.S. dollar/Euro or Pounds Sterling/Euro exchange rate
fluctuations as described herein.
The Company After the Transaction
After the disposal of the NeoResins business segment, the Company will
continue to operate the remaining three business segments - Electronic
Materials, Biotechnology and Chemicals - and the corresponding business units
described above. The businesses will be supported by 7 manufacturing facilities
located in 4 countries (UK, USA, Canada and Germany). For a further analysis of
the effects of the disposition of the NeoResins business on the Company, see
"Unaudited Pro Forma Consolidated Financial Statements".
The Company is actively pursuing the sale of its Displays business unit
from the Company's Electronic Materials business segment, and in the future may
consider further divestments of businesses or assets that its board of directors
deems to be in the best interests of the Company. The Displays business unit
comprises Covion Organic Semi-Conductors GmbH ("Covion") and the Company's
organic semi-conductors business ("OSCs"). Covion develops organic
light-emitting materials (OLEDs) for flat panel displays and is engaged in
developing and seeking the commercialization of this technology in collaboration
with potential customers. OSCs is also a new technology business focusing on
applications in the emerging market of organic semi-conductors. The historical
results of the Displays business have not been material to the financial
condition or operations of the Company. Whether any such divestments, including
in respect of the Displays business, will occur and the timing thereof is
uncertain. The proceeds of sale from further divestments will be used to reduce
indebtedness of the Company or for other uses permitted under the Indenture.
7
UNAUDITED PRO FORMA CONSOLIDATED FINANCIAL STATEMENTS
The accompanying unaudited pro forma consolidated balance sheet of the
Company gives effect to the Transaction and the repayment of the term loan
facility and the revolving credit facility from the proceeds of the Transaction,
the disposal of the Company's interests in its former Additives business
(disposed of on January 31, 2004), Biocides business (disposed of on April 2,
2004) and Special Drug Mixtures business (disposed of on November 22, 2004), and
the consummation of the Offer (on the terms described below) in each case, as if
they had been consummated on September 30, 2004. The accompanying unaudited pro
forma consolidated profit and loss accounts and statement of cash flows of the
Company gives effect to the Transaction and the repayment of the term loan
facility and the revolving credit facility from the proceeds of the Transaction,
the disposal of the Company's interests in its former Additives business,
Biocides business and Special Drug Mixtures business and the consummation of the
Offer (on the terms described below) in each case, as if they had been
consummated on October 1, 2003. The accompanying unaudited pro forma
consolidated financial statements assume the Consent Payment is made with
respect to the outstanding Securities and that the Securities are acquired at a
price of US$1,062.50 per US$1,000.00 principal amount of Securities, leaving
approximately US$113,100,000 aggregate principal amount of Securities
outstanding after the consummation of the Offer. The pro forma financial
statements have been prepared in accordance with generally accepted accounting
standards in the United Kingdom. These accounting standards differ in certain
significant aspects from generally accepted accounting principles in the United
States.
The pro forma information is presented for illustrative purposes only and
it is not necessarily indicative of the operating results or financial position
that would have occurred if the Transaction and the Tender Offer had been
consummated as presented in the accompanying unaudited pro forma consolidated
financial statements, nor is it necessarily indicative of future results of
operations or the actual results of the Offer. The pro forma adjustments and the
assumptions on which they are based are described in the accompanying notes to
the Unaudited Pro Forma Consolidated Financial Statements.
These pro forma consolidated financial statements should be read in
conjunction with the Company's historical financial statements and the related
notes thereto that have been incorporated herein by reference.
8
Unaudited Pro Forma Consolidated Balance Sheet
Pro Forma
Historical Pro Forma September 30,
September 30, 2004 Adjustments 2004 Footnotes
------------------- ------------------ ------------------ -----------
(pound) million (pound) million (pound) million
Fixed assets
Tangible fixed assets 225.1 (54.1) 171.0 (1)
Intangible assets 220.4 (161.7) 58.7 (2)
Investments in joint ventures:
Goodwill on joint ventures 8.3 - 8.3
Share of gross assets 11.1 - 11.1
Share of gross liabilities (1.5) - (1.5)
------------------- ------------------ ------------------
17.9 - 17.9
------------------- ------------------ ------------------
Total fixed assets 463.4 (215.8) 247.6
Current assets
Stocks 54.6 (14.5) 40.1 (1)
Debtors 93.7 (42.1) 51.6 (1)
Investments 8.3 - 8.3
Cash at bank and in hand 3.6 - 3.6
------------------- ------------------ ------------------
Total current assets 160.2 (56.6) 103.6
------------------- ------------------ ------------------
------------------- ------------------ ------------------
Total assets 623.6 (272.4) 351.2
------------------- ------------------ ------------------
Current liabilities
External loans due within less - - -
than one year
Other creditors (73.5) 31.1 (42.4) (1)
------------------- ------------------ ------------------
Total current liabilities (73.5) 31.1 (42.4)
------------------- ------------------ ------------------
------------------- ------------------ ------------------
Net current assets 86.7 (25.5) 61.2
------------------- ------------------ ------------------
External loans due within more (362.0) 301.3 (60.7) (3)
than one year
Provisions for liabilities and (21.2) 4.2 (17.0) (1)
charges
Other creditors due within more (8.3) 0.3 (8.0)
than one year
------------------- ------------------ ------------------
Net assets excluding pension 158.6 64.5 223.1
liability
------------------- ------------------ ------------------
Pension liability (96.2) 17.2 (79.0) (1)
------------------- ------------------ ------------------
Net assets including pension 62.4 81.7 144.1
liability
------------------- ------------------ ------------------
Shareholders equity 22.3 86.3 108.6
Pay-in-kind 16% cumulative 40.1 - 40.1
redeemable preference shares
------------------- ------------------ ------------------
Total 62.4 81.7 144.1
=================== ================== ==================
9
Unaudited Pro Forma Consolidated Profit and Loss Accounts
Pro Forma
Historical 12 months ended
12 months ended Pro Forma September 30,
September 30, 2004 Adjustments 2004 Footnotes
------------------- ----------------- ------------------ -----------
(pound) million (pound) million (pound) million
Turnover, including share of joint 419.1 (234.4) 184.7 (4)
ventures
Less: share of joint ventures' (9.5) - (9.5)
turnover
------------------- ----------------- ------------------
Group turnover 409.6 (234.4) 175.2
Operating costs (429.4) 198.7 (230.7) (4)
Exceptional operating costs (60.3) - (60.3) (5)
Other operating income 5.5 (1.3) 4.2 (6)
------------------- ----------------- ------------------
Group operating (loss)/profit (74.6) (37.0) (111.6)
Share of operating profit of joint 0.9 - 0.9
ventures
Exceptional items 89.5 (89.5) - (7)
------------------- ----------------- ------------------
Profit/(loss) on ordinary
activities before interest and 15.8 (126.5) (110.7)
taxation ------------------- ----------------- ------------------
Interest received 34.3 (34.3) -
Interest paid (55.9) 48.7 (7.2) (8)
Other finance costs (2.1) - (2.1)
------------------- ----------------- ------------------
Profit/(loss) on ordinary (7.9) (112.1) (120.0)
activities after taxation
Taxation on profit/(loss) on (0.7) 0.7 - (9)
ordinary activities
------------------- ----------------- ------------------
Profit/(loss) on ordinary (8.6) (111.4) (120.0)
activities after taxation
Attributable to minority interests (6.5) - (6.5)
------------------- ----------------- ------------------
Net profit/(loss) for the period (15.1) (111.4) (126.5)
=================== ================= ==================
10
Unaudited Pro Forma Consolidated Statement of Cash Flows
Historical
12 months Pro Forma
ended 12 months ended
September 30, Pro Forma September 30,
2004 Adjustments 2004 Footnotes
------------------- ---------------- ------------------ -------------
(pound) million (pound) million (pound) million
Operating (deficit)/profit before interest (74.6) (35.6) (110.2) (4)
Depreciation and amortization 87.5 (8.0) 79.5 (4)(10)
Decrease/(increase) in inventories (0.8) 0.5 (0.3) (4)
Decrease/(increase) in trade receivables and (13.5) 7.0 (6.5) (4)
other assets
(Decrease)/increase in accounts payable, (4)
accrued expenses and 11.1 (6.1) 5.0
trade provisions
Other cash and non-cash movements 1.3 1.3 2.6 (4)
------------------- ---------------- ------------------
Net cash inflow from operating activities 11.0 (40.9) (29.9)
------------------- ---------------- ------------------
Returns on investment and servicing of
finance
Dividends received from associates 3.1 - 3.1
Interest received 1.3 (1.3) -
Interest paid (41.0) 34.0 (7.0) (8)
------------------- ---------------- ------------------
Net cash (outflow) from returns on
investment and servicing of finance (36.6) 32.7 (3.9)
------------------- ---------------- ------------------
Taxation 0.3 - 0.3
Capital expenditure and financial investments
Cash expenditure on fixed assets (26.5) 8.1 (18.4) (4)
Disposals of fixed assets 5.1 (5.0) 0.1 (11)
------------------- ---------------- ------------------
Net cash (outflow) from capital expenditure
and financial investments (21.4) 3.1 (18.3)
------------------- ---------------- ------------------
Acquisitions and disposals
Payments in respect of acquisitions - - -
Disposals of other investments 171.8 (171.8) - (12)
Net cash disposed of (0.2) 0.2 -
------------------- ---------------- ------------------
Net cash inflow from acquisitions and 171.6 (171.6) -
disposals ------------------- ---------------- ------------------
Financing
Repayment of finance lease capital (0.9) - (0.9)
External loans repaid (126.2) 126.2 - (12)
------------------- ---------------- ------------------
Net cash (outflow) from financing (127.1) 126.2 (0.9)
------------------- ---------------- ------------------
------------------- ---------------- ------------------
Net increase/(decrease) in cash (2.2) (50.5) (52.7)
=================== ================ ==================
11
FOOTNOTES
- ---------
(1) The pro forma adjustments eliminate balances relating to those
businesses which have been disposed of during the 12-months ended
September 30, 2004, namely the Additives business (disposed of on
January 31, 2004), the Biocides business (disposed of on April 2,
2004), Special Drug Mixtures (disposed of on November 22, 2004)
and the NeoResins business (to be disposed of pursuant to the
Transaction).
(2) The pro forma adjustment eliminates goodwill attributable to the
NeoResins and Special Drug Mixtures businesses.
(3) The pro forma adjustment reflects the repayment of the existing
term loan facility and revolving credit facility from the
proceeds of the Transaction and the purchase of approximately
$426,900,000 of Securities (representing approximately 79.1% of
the outstanding Securities) in connection with the Offer. The
repayment amounts have been calculated using a September 30, 2004
exchange rate of 1.81 for the purchase of the Securities pursuant
to the Offer.
(4) The pro forma adjustment eliminates trading results relating to
those businesses which have been disposed of during the 12-months
ended September 30, 2004, namely the Additives business (disposed
of on January 31, 2004), the Biocides business (disposed of on
April 2, 2004), Special Drug Mixtures (disposed of on November
22, 2004) and the NeoResins business (to be disposed of pursuant
to the Transaction).
(5) Exceptional operating costs include a charge of (pound)42.3
million for the impairment of goodwill, intangible assets and
tangible assets and (pound)18.0 million for restructuring costs
related to reductions in headcount.
(6) The pro forma adjustment eliminates the profit arising from the
disposition of the Analytical Research Group on May 15, 2004 to
Intertek Caleb Brett.
(7) The pro forma adjustment eliminates the profit on disposal of the
Additives business (disposed of on January 31, 2004) and the
Biocides businesses (disposed of on April 2, 2004).
(8) The pro forma adjustment adjusts interest expense to reflect the
amount of interest that would have been charged to operations
during the 12-months ended September 30, 2004, assuming that the
term loan facility and revolving credit facility were repaid in
full at the beginning of such period and assuming approximately
US$113,100,000 of the Securities were outstanding for such
period.
(9) The pro forma adjustment eliminates income tax expense for the
12-months ended September 30, 2004 related to the operations of
the NeoResins business.
(10) Historical and pro forma depreciation and amortization for the
12-months ended September 30, 2004 include a (pound)42.3 million
charge for the impairment of goodwill, intangible assets and
tangible assets.
(11) Disposal of fixed assets primarily represents proceeds from the
disposition of the Analytical Research Group on May 15, 2004 to
Intertek Caleb Brett during the 12-months ended September 30,
2004.
(12) The pro forma adjustment eliminates the proceeds from the
disposal of the Additives business (disposed of on January 31,
2004) and the Biocides businesses (disposed of on April 2, 2004),
and the repayment of senior debt out of the proceeds of those
dispositions.
12
PROCEDURE FOR TENDERING SECURITIES AND DELIVERING CONSENTS
How to Tender Securities and Deliver Consents. Any Holder whose Securities
are held in book-entry form through a broker, dealer, commercial bank, trust
company or other nominee and who wishes to tender Securities and deliver a
Consent to the Amendments should contact such broker, bank, dealer or other
nominee promptly and instruct such nominee to submit instructions on such
Holder's behalf. Please check with your nominee to determine its procedure. A
Holder may also contact the Luxembourg Agent at the telephone number set forth
on the last page of this Amended and Restated Offer to Purchase in order to
obtain information on how to tender Securities and deliver a Consent to the
Amendments.
Procedures to be Followed by Brokers, Dealers, Banks and Other Nominees;
Tender Through ATOP. The Tender Agent and DTC have confirmed that the amended
and restated Offer is also eligible for ATOP. Pursuant to the terms of the
Initial Offer to Purchase, the Tender Agent established one or more accounts on
behalf of the Company with respect to the Securities at DTC. ATOP allows a
financial institution that is a participant in DTC's system to tender Securities
and deliver Consents by causing DTC to make an electronic book-entry transfer of
Securities into the account established by the Tender Agent and electronically
deliver the Consents with respect to such Securities. Securities may be tendered
and Consents may be delivered by (1) effecting a book-entry transfer of all
Securities to be tendered in the Offer into the account of the Tender Agent, at
DTC, in accordance with DTC's procedures for such transfer and (2) effecting an
Agent's Message.
"Agent's Message" means a message, transmitted by DTC to and received by
the Tender Agent and forming a part of a book-entry confirmation, which states
that DTC has received an express acknowledgment from the tendering participant,
which acknowledgment states that such participant (i) has received and agrees to
be bound by this Amended and Restated Offer to Purchase and that the Company may
enforce such agreement against such participant and (ii) consents to the
Amendments and to the execution and delivery of the Supplemental Indenture as
described in this Amended and Restated Offer to Purchase.
DTC will authorize DTC participants for whom DTC or its nominee holds
Securities (as set forth in a securities position listing of DTC) to execute
Consents with respect to such Securities as if such participants were the
Holders of record of such Securities; accordingly, such participants shall be
deemed for purposes hereof to be Holders of record of such Securities and
Agent's Messages transmitted by DTC shall be deemed to be valid Consents with
respect to such Securities. Securities tendered and Consents delivered pursuant
to the terms of the Initial Offer to Purchase will remain valid for the purposes
of this Amended and Restated Offer to Purchase, unless withdrawn in accordance
with the terms hereof.
Timely book-entry delivery requires receipt of a confirmation of a
book-entry transfer into the Tender Agent's account at DTC (a "Book-Entry
Confirmation") by the Tender Agent prior to the Consent Payment Deadline (in
order to receive the Consent Payment) or the Expiration Time (in order to
receive the Tender Offer Consideration). Although delivery of Securities may be
effected through book-entry transfer into the Tender Agent's account at DTC, an
Agent's Message in connection with a book-entry transfer, together with any
other required documents, must, in any case, be delivered or transmitted to and
received by the Tender Agent at the address set forth on the last page of this
Amended and Restated Offer to Purchase (1) prior to the Consent Payment Deadline
to receive the Consent Payment and (2) prior to the Expiration Time to receive
the Tender Offer Consideration for tendered Securities. Delivery will be deemed
made only when actually received by the Tender Agent. Holders desiring to tender
their Securities on the date of the Consent Payment Deadline or the date of the
Expiration Time must allow sufficient time for completion of the ATOP procedures
during normal business hours of DTC on such date. Delivery of such documents to
DTC does not constitute delivery to the Tender Agent.
Interpretation. All questions as to the form of documents and validity,
eligibility (including time of receipt), acceptance for payment and withdrawal
of tendered Securities and revocation of corresponding Consents will be
determined by the Company in its sole discretion, and its determination will be
final and binding. The Company reserves the absolute right to reject any and all
tenders and withdrawals of the Securities that it determines are not in proper
form or for which the acceptance for payment or payment may, in the opinion of
its counsel, be unlawful. The Company also reserves the absolute right in its
sole discretion to waive any of the conditions of the Offer or any defect or
irregularity in the tender or withdrawal of the Securities of any particular
Holder, whether or not similar conditions, defects or irregularities are waived
in the case of other Holders. Tenders or withdrawals of Securities will not be
deemed to have been made until such defects or irregularities have been cured or
waived. The Company's interpretation of the terms and conditions of the Offer
will be final and binding. None of the Company, the Dealer Manager and
Solicitation Agent, the Information Agent, the Tender Agent, the Trustee or any
other person will be under any duty to give notice of any defects or
irregularities in tenders or consents or any notices of withdrawal or will incur
any liability for failure to give any such notice.
No Guaranteed Delivery. There are no guaranteed delivery provisions
provided for by the Company in connection with the Offer under the terms of this
Amended and Restated Offer to Purchase or any other related documents. Holders
must tender their Securities in accordance with the procedures set forth above.
13
WITHDRAWAL OF TENDERS AND REVOCATION OF RELATED CONSENTS
Securities tendered pursuant to the Offer may be withdrawn at any time
prior to the Withdrawal Deadline, but no consideration will be payable in
respect of Securities so withdrawn and not validly retendered. A valid
withdrawal of tendered Securities prior to the Withdrawal Deadline will
constitute the concurrent valid revocation of (and will be the only means of
validly revoking) the related Consent. The Withdrawal Deadline, which has been
extended by the Company as a result of this amended and restated Offer, shall be
5:00 p.m., New York City time, on January 24, 2005, unless further extended by
the Company in its sole discretion. The Company will issue a public announcement
promptly after obtaining the Requisite Consents. The Supplemental Indenture will
be executed and become effective promptly after the Withdrawal Deadline,
provided the Company has received the Requisite Consents. If, however, after the
execution of the Supplemental Indenture, the Offer is terminated or withdrawn by
the Company, the Securities are not accepted for payment or the conditions to
the Offer are not satisfied or waived, the original terms of the Indenture will
be reinstated. (See "The Amendments" below.)
Securities tendered may not be withdrawn and Consents delivered may not be
revoked after the Withdrawal Deadline, unless the Company reduces the amount of
the Tender Offer Consideration or the Consent Payment or the Company reduces the
principal amount of Securities subject to the Offer other than pursuant to
fluctuations in the U.S. dollar/Euro or Pounds Sterling/Euro exchange rates or
is otherwise required by law to permit withdrawal. In such situations,
previously tendered Securities may validly be withdrawn until the expiration of
ten business days after the date that notice of any such reduction or change is
first published, sent or given to the Holders by the Company. If the Offer is
terminated without any Securities being purchased, the Securities tendered
pursuant thereto will be promptly returned to the tendering Holders.
For a withdrawal of Securities to be effective, the notice of withdrawal
must be timely received by the Tender Agent at its address set forth on the last
page of this Amended and Restated Offer to Purchase. The withdrawal notice must:
o specify the DTC Voluntary Offer Instruction (V.O.I.) Number, the name
of the participant for whose account such Securities were tendered and
such participant's account number at DTC to be credited with the
withdrawn Securities;
o contain a description of Securities to be withdrawn (including the
principal amount to be withdrawn); and
o be submitted through ATOP by such participant in the same manner as
the Agent's Message, or be accompanied by evidence satisfactory to the
Company, that the person withdrawing the tender has succeeded to the
beneficial ownership of such Securities.
Withdrawal of tenders of Securities may not be rescinded, and any
Securities properly withdrawn will thereafter be deemed not validly tendered for
purposes of the Offer. Properly withdrawn Securities may, however, be retendered
by again following one of the procedures described in "Procedure for Tendering
Securities And Delivering Consents" above at any time prior to the Withdrawal
Deadline or the Expiration Time, as the case may be.
Withdrawals of Securities and revocation of Consents can only be
accomplished in accordance with the foregoing procedures. See "Procedure for
Tendering Securities And Delivering Consents--Interpretation" for additional
information regarding the validity and eligibility of a withdrawal of Securities
and a revocation of Consents.
RISKS TO NON-TENDERING HOLDERS
Neither the Company, the Dealer Manager, the Solicitation Agent, the
Information Agent, the Tender Agent, the Trustee or their respective directors,
employees or affiliates make any recommendation as to whether a Holder should
tender or refrain from tendering any or all of its Securities and neither the
Company, the Dealer Manager, the Solicitation Agent, the Information Agent, the
Tender Agent, the Trustee or their respective directors, employees or affiliates
have authorized any person to make any such recommendation. Holders are urged to
evaluate carefully all information included or incorporated by reference in this
Amended and Restated Offer to Purchase, consult with their own investment and
tax advisors and make their own decision whether to tender Securities. In
deciding whether to participate in the Offer, you should carefully consider the
following, in addition to the other information contained in this Amended and
Restated Offer to Purchase.
The Company is not Tendering for all Outstanding Securities
The Company is tendering for up to 79% ($426,900,000) of the Securities.
Not all Securities outstanding, or possibly even tendered, will be accepted by
the Company. Any Securities not purchased by the Company will be the obligation
solely of the Company's remaining businesses following the Transaction.
14
Adverse Effect of the Proposed Amendments on Holders of the Securities
If the Amendments are adopted and the Offer is consummated, Securities that
are not tendered or purchased pursuant to the Offer will be subject to the terms
of the Indenture, as modified by the Supplemental Indenture, as described under
"The Amendments." As a result of the adoption of the Amendments, the
modifications of the Indenture that will be effected by the adoption of the
Amendments will permit the Company to take actions with respect to the sale of
all or substantially all of its assets; provided that the requirements of the
covenants as amended by the Amendments are complied with. See "The Amendments."
Adverse Effect on the Trading Market, the Market Price and Price Volatility of
the Securities
The Securities are listed on the Luxembourg Stock Exchange. The Securities
are traded infrequently in transactions arranged through brokers, and no
reliable pricing information for the Securities is available. Holders of
Securities are urged to contact their brokers to obtain the best available
information as to current market prices.
To the extent that Securities are tendered and accepted in the Offer, the
outstanding principal amount of Securities will be reduced. Any debt security
with a smaller outstanding principal amount available for trading, commonly
referred to as the "float," may experience less liquidity, more price volatility
and generally lower prices than would a comparable debt security with a greater
float. Therefore, the market price for Securities not tendered or purchased may
be affected adversely to the extent the amount of Securities tendered and
purchased pursuant to the Offer reduces the float of the Securities. In
addition, upon the operativeness of the Amendments, specific covenants will be
eliminated, which may adversely affect the market price for the Securities.
The Company cannot assure you that an active market, or that any trading
market, in the Securities will exist, or give you any assurance as to the price
or prices at which the Securities may trade after the consummation of the Offer.
The extent of the market for outstanding Securities following consummation of
the Offer will depend, among other factors, upon the number of Holders that
remain at such time and the interest in maintaining a market in the Securities
on the part of securities firms.
Subsequent Repurchases of Securities
The Company expressly reserves the absolute right, in its sole discretion,
from time to time to purchase any Securities that remain outstanding after the
Expiration Time through open market or privately negotiated transactions, one or
more additional tender or exchange offers or otherwise, upon such terms and at
such prices as it may determine which may be more or less than the price paid
pursuant to this Offer and Solicitation and may involve cash or non-cash
consideration, or to exercise any of its rights under the Indenture, including
the right to optionally redeem the remaining Securities after the consummation
of the Offer.
No Ongoing Credit Facility
The Company currently has a term loan Facility of (pound)100 million and a
revolving credit Facility of (pound)50 million. Under the terms of the
facilities, the Company is required to repay these facilities in full with the
proceeds of the Transaction. The Company has entered into preliminary
discussions with one of its senior lenders regarding the provision of an ongoing
term loan facility and revolving credit facility following completion of the
Transaction to meet the liquidity requirements of the remaining businesses. As
of the date hereof, it is unlikely that such discussions will be concluded prior
to the Settlement Date. Therefore, the Offer will be consummated without ongoing
or future senior debt facilities having been agreed or committed by the
Company's senior lenders and there can be no assurance that any such facility
will be obtained or, if obtained, what the size and terms will be.
Tax Considerations
See "Certain U.S. Federal Income Tax Consequences" and "Certain U.K. And
E.U. Tax Considerations" for a discussion of certain tax matters that should be
considered in evaluating the Offer.
RISKS TO TENDERING HOLDERS
Because the purpose of the Transaction and the Offer is to improve the
Company's financial position, the prices at which the Securities trade after
consummation of the Transaction may be higher than current trading prices and/or
higher than the Total Consideration. In addition, if the Company is successful
in completing the Transaction, and over time for any other reason its financial
results could improve which could, in turn, result in an increase in the trading
price of the Securities that are not tendered in the Offer. See "Unaudited Pro
Forma Consolidated Financial Statements".
15
CONDITIONS TO THE OFFER
Notwithstanding any other provision of the Offer, the Company will not be
required to accept any Securities tendered pursuant to the Offer and may
terminate, extend or amend the Offer, and the Company may, subject to Rule 14e-1
under the Exchange Act, postpone the acceptance of Securities so tendered if:
o the Transaction Condition shall not have been satisfied;
o the Consent Condition shall not have been satisfied; or
o any of the General Conditions (as defined below) shall not have been
satisfied.
The "Transaction Condition" shall mean the consummation of the Transaction,
which is subject to certain transaction specific and customary closing
conditions.
The "Consent Condition" shall mean receipt of the Requisite Consents with
respect to the proposed Amendments and execution of the Supplemental Indenture
providing for the proposed Amendments. See cover page, "The Offer" and "The
Amendments."
For purposes of the foregoing provisions, all of the "General Conditions"
shall be deemed to have been satisfied unless any of the following conditions
shall occur on or prior to the execution and effectiveness of the Supplemental
Indenture and the consummation of the Transaction:
(i) there shall have been instituted or threatened or be pending any action
or proceeding before or by any court or governmental regulatory or
administrative agency or instrumentality, or by any other person, in connection
with the Offer or the purchase of the Securities pursuant to the Offer, or
otherwise relating to the Offer, that is, or is reasonably likely to be, in the
sole judgment of the Company, materially adverse to the business, operations,
properties, condition (financial or otherwise), assets, liabilities or prospects
of the Company or its subsidiaries;
(ii) there shall have occurred or be likely to occur any event affecting
the business or financial affairs of the Company that, in the sole judgment of
the Company, would or might prohibit, prevent, restrict or delay consummation of
the Offer, or that will, or is reasonably likely to, materially impair the
contemplated benefits of the Offer to the Company, or otherwise result in the
consummation of the Offer not being or reasonably likely not to be in the best
interests of the Company;
(iii) any order, statute, rule, regulation, executive order, stay, decree,
judgment or injunction shall have been proposed, enacted, entered, issued,
promulgated, enforced or deemed applicable by any court or governmental,
regulatory or administrative agency or instrumentality that, in the sole
judgment of the Company, would or might prohibit, prevent, restrict or delay the
consummation of the Offer or that is, or is reasonably likely to be, materially
adverse to the business, operations, properties, condition (financial or
otherwise), assets, liabilities or prospects of the Company or its subsidiaries;
(iv) the Company shall not have obtained all consents, approvals, waivers
or amendments from third parties necessary to permit the consummation of the
Offer;
(v) the Trustee shall have objected in any respect to, or taken any action
that, in the sole judgment of the Company, could adversely affect the
consummation of the Offer or the Company's ability to cause the proposed
Amendments to become operative, or shall have taken any action that challenges
the validity or effectiveness of the Supplemental Indenture or the procedures
used by the Company, in soliciting the Consents to the proposed Amendments
(including the form thereof) or in making the Offer or the acceptance of, or
payment for, any of the Securities or the Consents; or
(vi) there shall have occurred (a) any general dispensation of or
limitation on prices for trading in securities in the capital or financial
markets, (b) any significant adverse change in the price of the Securities, (c)
a material impairment of the trading market for debt securities, (d) a
declaration of a banking moratorium or any suspension of payments in respect to
banks in Europe or other major financial markets or (e) any act of war or armed
hostilities or other national or international calamity directly or indirectly
involving Europe or the United States.
The conditions to the Offer are for the sole benefit of the Company and may
be asserted by the Company in its sole discretion regardless of the
circumstances giving rise to such conditions or may be waived by the Company, in
whole or in part, at any time and from time to time, in its sole discretion,
whether or not any other condition of the Offer is also waived. Any
determination by the Company concerning the events described in this section
shall be final and binding upon all persons. The failure by the Company at any
time to exercise
16
any of the foregoing rights will not be deemed a waiver of any right and each
right will be deemed an ongoing right which may be asserted at any time and from
time to time.
ACCEPTANCE FOR PAYMENT AND PAYMENT
Upon the terms and subject to the conditions of the Offer, the Company will
accept for payment all Securities that are validly tendered pursuant to the
terms and subject to the conditions of the Offer, up to 79% ($426,900,000) of
the aggregate principal amount, subject to proration as described herein. The
Company will be deemed to have accepted for payment tendered Securities if, as
and when the Company gives written notice to the Tender Agent of its acceptance
for payment of such Securities.
Payment for Securities will be made by the Company in immediately available
funds by deposit with DTC on the Settlement Date of the aggregate purchase price
of such Securities accepted for purchase. It is expected that, in accordance
with DTC's standard procedures, DTC will transmit the aggregate purchase price
in immediately available funds to each of its participant financial institutions
holding the Securities accepted for purchase on behalf of the Holders for
delivery to the Holders. Under no circumstances will any additional interest be
payable by the Company due to any delay in the transmission of funds from DTC to
the tendering Holders. The Company expressly reserves the right, in its sole
discretion and subject to Rule 14e-1(c) under the Exchange Act, to delay
acceptance for payment of or payment for the Securities in order to comply, in
whole or in part, with any applicable law.
Securities tendered and Consents delivered pursuant to the Offer will be
accepted only in principal amounts equal to US$1,000.00 or any integral multiple
thereof. If, for any reason, acceptance for purchase of, or payment for, validly
tendered Securities and validly delivered Consents pursuant to the Offer is
delayed or the Company is unable to accept for purchase, or to pay for, validly
tendered Securities or validly delivered Consents pursuant to the Offer, then
the Tender Agent may, nevertheless, on behalf of the Company, retain tendered
Securities and delivered Consents, without prejudice to the rights of the
Company described under "Extension; Amendment and Termination," "Conditions to
the Offer" and "Withdrawal of Tenders And Revocation of Related Consents"
(subject to Rule 14e-1(c) under the Exchange Act).
EXTENSION, AMENDMENT AND TERMINATION
The Company expressly reserves the right, at any time or from time to time,
regardless of whether or not the conditions set forth in "Conditions to the
Offer" shall have been satisfied, subject to applicable law:
o to further extend the Consent Payment Deadline or Expiration Time and
retain any Securities that have been tendered pursuant to the Offer;
o to waive any Condition to the Offer and accept all Securities
previously tendered for purchase pursuant to the Offer;
o to amend the Offer in any respect; or
o to terminate the Offer prior to the execution and effectiveness of the
Supplemental Indenture and consummation of the Transaction and return
the Securities tendered pursuant thereto;
in each case, by giving written notice of such extension, amendment or
termination to DTC. If the Tender Offer Consideration is modified, the Offer
will be extended to the extent necessary to permit it to remain open for at
least 10 business days from the date that notice of such modification is first
published or sent or given to Holders. Any waiver, amendment or modification of
the Offer will apply to all Securities tendered pursuant to the Offer or
Consents delivered pursuant to the Offer. If the Company makes a material change
in the terms of the Offer or the information concerning the Offer in a manner
determined by the Company in its sole discretion, to constitute a material
adverse change to the Holders, the Company will disseminate additional material
in respect of the Offer and will extend the Offer, in each case, to the extent
required by law.
There can be no assurance that the Company will exercise its right to
extend the Consent Payment Deadline or Expiration Time. Any extension, amendment
or termination will be followed as promptly as practicable by public
announcement thereof, with the announcement in the case of an extension to be
issued no later than 9:00 a.m., New York City time, on the first business day
after the previously scheduled Consent Payment Deadline or Expiration Time, as
the case may be. Without limiting the manner in which the Company may choose to
make any public announcement, the Company shall have no obligation to publish,
advertise or otherwise communicate any such public announcement other than by
issuing a release to DTC, the Wall Street Journal and as soon as practicable,
the Luxembourger Wort.
17
THE AMENDMENTS
A Holder validly tendering Securities will, by tendering such Securities,
be consenting to the proposed Amendments described below to the Indenture under
which the Securities were issued.
The Amendments will, among other things, modify the Company's obligation to
comply with certain of the "restrictive covenants" in the Indenture and add
certain provisions to the Indenture which, with respect to the Transaction,
would waive the applicability of: (a) Section 5.06 (Asset Sales), (b) Section
5.08 (Change of Control), (c) Section 6.01 (Merger, Consolidation or Sale of All
or Substantially All Assets) and (d) any other provision of the Indenture that
as a result of the consummation of the Transaction would require the making of
an offer to purchase or redeem the Securities, or whose contravention would
result in a default under the Indenture, with respect to the Transaction.
The Amendments will, in substance, add the following provisions to the
Indenture:
o Section 5.17 (Waiver of Applicability of Covenants); and
o The definition of the term "Transaction" to Section 1.01.
The Amendments will, in substance, modify the following sections of the
Indenture with respect to the Securities:
o Section 5.02(b), (c) (Reports to Holders);
o Section 5.08 (Change of Control); and
o Section 6.01 (Merger, Consolidation or Sale of All or Substantially
All Assets).
The Amendments to the Indenture constitute a single proposal and a
consenting Holder must consent to the Amendments to the Indenture as an entirety
and may not consent electively with respect to certain of such Amendments. The
Amendments to the Indenture are more fully described in Annex A.
The Amendments to the Indenture will be set forth in the Supplemental
Indenture that will be executed and will become operative promptly following the
Withdrawal Deadline, provided the Company has received the Requisite Consents.
If the Amendments to the Indenture become operative, the Holders will be bound
thereby. However, if after the execution of the Supplemental Indenture pursuant
to this Amended and Restated Offer to Purchase, the Offer is terminated or
withdrawn by the Company, the Securities are not accepted for payment or the
conditions to the Offer (see "Conditions to the Offer") are not satisfied or
waived, then the Supplemental Indenture will become inoperative and the original
terms of the Indenture will be reinstated.
The foregoing is qualified in its entirety by reference to the Indenture
and the form of Supplemental Indenture, copies of which can be obtained without
charge from the Information Agent.
AVAILABLE INFORMATION
The Company currently is either subject to the reporting requirements under
the Exchange Act or is required to file with the U.S. Securities and Exchange
Commission (the "Commission") pursuant to the Indenture and, in accordance
therewith, annual, quarterly and other reports are furnished to the Commission.
Such reports and other information (including the documents incorporated by
reference into this Amended and Restated Offer to Purchase) may be inspected and
copied at the Commission's public reference room at Room 1024, 450 Fifth Street,
N.W., Washington, D.C. 20549 and on the Commission's Internet website at
http://www.sec.gov. Copies of such materials can also be obtained at prescribed
rates from the Public Reference Section of the Commission at its Washington
address. The Company's filings are also available to the public at the
Commission's website at http://www.sec.gov.
In addition, the Company currently files annual and periodic reports and
furnishes other information with the Luxembourg Stock Exchange in accordance
with the listing requirements of such exchange. These reports and other
information are available upon request from Kredietbank S.A. Luxembourgeoise, 43
Boluevard Royal, L-2955, Luxembourg.
INCORPORATION BY REFERENCE
The Company "incorporates by reference" into this Amended and Restated
Offer to Purchase certain information it files with the Securities and Exchange
Commission (the "Commission"), which means that the
18
Company can disclose important information to you by referring you to those
documents. Any information that the Company files with the Commission after the
date of this Amended and Restated Offer to Purchase and prior to the Expiration
Time will automatically update this Amended and Restated Offer to Purchase. Any
information included directly in this Amended and Restated Offer to Purchase
updates and supersedes any information previously filed with the Commission. The
information incorporated by reference, as updated, is an important part of this
Amended and Restated Offer to Purchase.
The Company incorporates by reference the following information it files
with the Commission:
o Annual Report on Form 20-F for the fiscal year ended December 31,
2003, filed on May 20, 2004;
o Report on Form 6-K filed on May 21, 2004;
o Report on Form 6-K filed on August 11, 2004;
o Report on Form 6-K filed on November 4, 2004;
o Report on Form 6-K filed on December 15, 2004;
o Report on Form 6-K filed on December 27, 2004; and
o Report on Form 6-K filed on January 18, 2005.
The Company also incorporates by reference all documents filed by the
Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act after the date of this Amended and Restated Offer to Purchase and
prior to the Expiration Time.
You may request a copy of any of the filings listed above (other than
exhibits, unless that exhibit is specifically incorporated by reference into
that filing) at no cost, by writing to or telephoning the Company at the
following address and telephone number:
Avecia Group plc
P.O. Box 42
Hexagon House
Blackley, Manchester
M9 8ZS
England
Attention: Public Affairs Group Manager
+44 161 721 2890
19
FORWARD-LOOKING STATEMENTS
Certain statements included in this document which are not statements of
historical fact, including but not limited to those identified with the words
"expect," "will" or "look" are intended to be identified as "forward-looking
statements," as defined in the Exchange Act and involve known and unknown risks,
uncertainties and other factors that may cause the actual results, performance
or achievements of the Company to be materially different from any future
result, performance or achievement expressed or implied by such forward-looking
statement. Such factors include, among others, changes in general economic
conditions in the United States and Europe; the failure of market conditions in
the major industry sectors and regions we operate in; the failure of our
products to perform as anticipated, including the continued development of an
outsourcing market in pharmaceutical intermediaries; the highly competitive
nature of diverse specialty chemical markets and competition from generic
manufacturers; our technological and manufacturing assets and our ability to
utilize them to further increase sales and the profitability of our businesses;
our ability to retain existing and obtain new customers; risks related to
environmental costs, liabilities and claims; and other factors mentioned in
other documents filed by the Company with the Commission. The Company does not
undertake any obligation to publicly update or revise any forward-looking
statements because of new information, future events or otherwise.
CERTAIN U.S. FEDERAL INCOME TAX CONSEQUENCES
The following discussion summarizes certain U.S. federal income tax
consequences to U.S. Holders (as defined below) of a sale of Securities pursuant
to the Amended and Restated Offer to Purchase and the consequences of the
receipt of the Consent Payment and the adoption of the Amendments. This summary
is based upon the Internal Revenue Code of 1986, as amended (the "Code"),
existing and proposed Treasury regulations, judicial decisions, administrative
rulings and U.S. Internal Revenue Service ("IRS") practice, all as in effect as
of the date hereof and all of which are subject to change or differing
interpretations, possibly with retroactive effect. The Company has not sought
any ruling from the IRS or an opinion of counsel with respect to the statements
made and the conclusions reached in the following summary, and there can be no
assurance that the IRS will agree with such statements and conclusions.
This discussion is intended for general information only and, as such, does
not address all of the tax considerations that may be important to particular
Holders in light of their particular circumstances. This summary discusses only
Securities held as capital assets within the meaning of Section 1221 of the
Code. This summary does not apply to Holders that may be subject to special tax
rules, including, without limitation, persons subject to the alternative minimum
tax, U.S. expatriates, banks, insurance companies, financial institutions,
tax-exempt organizations, persons owning (directly, indirectly or by
attribution) 10% or more of the outstanding share capital or voting stock of the
Company, persons who use the mark-to-market method of accounting, securities
broker-dealers, persons holding the Securities as a position in a hedging
transaction, straddle, or conversion transaction, or persons having a functional
currency other than the U.S. dollar. Such Holders may be subject to U.S. federal
income tax consequences different from those set forth below.
If a partnership holds Securities, the tax treatment of a partner generally
will depend upon the status of the partners and the activities of the
partnership. A partner in a partnership that holds the Securities is urged to
consult its own tax advisor regarding the specific tax consequences of the
Offer.
For purposes of this section, a "U.S. Holder" is a beneficial owner of a
Security that for U.S. federal income tax purposes is (i) a citizen or resident
of the United States, (ii) a corporation (including any entity treated as a
corporation for U.S. federal income tax purposes) created or organized under the
laws of the United States or any state thereof, (iii) an estate the income of
which is subject to U.S. federal income taxation regardless of its source, or
(iv) a trust if a court within the United States is able to exercise primary
supervision over its administration and one or more U.S. persons have the
authority to control all of its substantial decisions.
HOLDERS OF SECURITIES ARE URGED TO CONSULT THEIR OWN TAX ADVISORS WITH RESPECT
TO THE APPLICATION OF U.S. FEDERAL INCOME TAX LAWS TO THEIR PARTICULAR
SITUATIONS AS WELL AS ANY TAX CONSEQUENCES ARISING UNDER THE LAWS OF ANY STATE,
LOCAL, FOREIGN OR OTHER TAXING JURISDICTION.
Sale of Securities
The sale of a Security by a U.S. Holder pursuant to the Amended and
Restated Offer to Purchase generally will be a taxable transaction for U.S.
federal income tax purposes. Subject to the discussion of the market discount
rules set forth below, a U.S. Holder selling Securities pursuant to the Amended
and Restated Offer to Purchase generally will recognize capital gain or loss in
an amount equal to the difference between the total amount of cash received as
consideration (other than amounts received attributable to accrued interest not
yet included in income, which will be taxable as foreign source ordinary
interest income in accordance with a Holder's regular method of tax accounting)
and the U.S. Holder's adjusted tax basis in the sold Securities at the
20
time of sale. A U.S. Holder's adjusted tax basis in the sold Securities
generally will equal the cost of the sold Securities to such U.S. Holder,
increased by the amount of any market discount previously taken into income by
the U.S. Holder, and reduced by the amount of any amortizable bond premium
previously amortized by the U.S. Holder with respect to the sold Securities. The
gain or loss generally will be U.S. source capital gain or loss, and generally
will be treated as long-term capital gain or loss if the sold Securities have
been held for more than one year at the time of the sale. The deductibility of
capital losses is subject to significant limitations.
U.S. Holders that have purchased Securities at different times for
different prices should consult their tax advisors with respect to the
procedures for determining gain or loss.
Market Discount
An exception to the capital gain treatment described above may apply to a
U.S. Holder who purchased the Securities at a "market discount." In general, a
U.S. Holder is considered to have acquired a debt instrument with "market
discount" if the Holder's tax basis in the debt instrument immediately after its
acquisition is less than the stated redemption price of the Security at maturity
(unless the amount of market discount is less than a specified de minimis
amount, in which case the market discount is considered to be zero). In general,
unless the U.S. Holder has elected to include market discount in income
currently as it accrues, any gain recognized by a U.S. Holder on the sale of
debt instruments having market discount will be treated as ordinary income to
the extent of the lesser of (i) the gain recognized or (ii) the portion of the
market discount that has accrued (on a straight-line basis or, at the election
of the U.S. Holder, on a constant-yield basis) but has not yet been taken into
income while those debt instruments were held by the U.S. Holder. Gain in excess
of such accrued market discount will be subject to the capital gains rules
described above.
Consent Payment
The U.S. federal income tax treatment of the Consent Payment is not
entirely clear. The receipt of a Consent Payment by a U.S. Holder should be
treated for U.S. federal income tax purposes as either (i) additional
consideration received upon the sale of a Security, in which case such amount
would be taken into account in determining the amount of gain or loss on the
sale, or (ii) separate consideration for consenting to the Amendments, in which
case such amount would constitute ordinary income to the U.S. Holder. U.S.
Holders should consult their tax advisors regarding the U.S. federal income tax
treatment of a Consent Payment.
Continued Ownership of Securities
Under U.S. Treasury Regulation Section 1.1001-3 (the "Regulation"), the
modification of a debt instrument will result in a deemed exchange of the
original instrument for a modified instrument (upon which deemed exchange gain
or loss may be recognized) if the modification constitutes a "significant
modification" for U.S. federal income tax purposes. The Regulation provides, in
pertinent part, that modifications that alter customary accounting or financial
covenants are not significant modifications. As a result, although the matter is
not free from doubt, the Company believes that the adoption of the Amendments
should not constitute a "significant" modification of the Securities and
therefore should not result in a deemed exchange. The Regulation also states
that the receipt of a payment in connection with the consent to the modification
of an instrument itself can result in a significant modification to the debt
instrument if the yield on the modified instrument (taking into account the
receipt of the payment) varies from the yield on the original instrument by more
than a stated amount. In this regard, the receipt of the Consent Payment in
connection with the tender of Securities that ultimately are not sold (because
of the proration mechanism or otherwise) should not result in a significant
modification of the retained Securities under the terms of the Regulation. Thus,
U.S. Holders that do not sell all of their Securities pursuant to the Amended
and Restated Offer to Purchase should have the same adjusted tax basis and
holding period in their retained Securities following the adoption of the
Amendments as the U.S. Holders had in such retained Securities immediately prior
to the adoption of the Amendments.
Information Reporting and Backup Withholding
Payments of interest on and proceeds from the sale of the Securities
(including the Consent Payment) may be subject to information reporting to the
IRS and backup withholding at a current rate of 28%. Backup withholding will not
apply to a Holder who furnishes a correct taxpayer identification number and
makes any other required certification, or who is otherwise exempt from backup
withholding. U.S. persons who are required to establish their exempt status
generally must provide a duly completed IRS Form W-9 (Request for Taxpayer
Identification Number and Certification). Holders, who are not otherwise exempt
from backup withholding, that receive payment through a brokerage account or
other intermediary are advised to ensure that they provide (or have previously
provided) to such broker or intermediary a duly completed and valid IRS Form W-9
prior to payment. Persons in doubt as to the necessity of furnishing this form
should consult their own tax advisors.
21
Backup withholding is not an additional tax. Amounts withheld under the
backup withholding tax rules may be credited against that Holder's U.S. federal
income tax liability. A Holder may obtain a refund of any excess amounts
withheld by filing the appropriate claim for refund with the IRS and furnishing
any required information.
CERTAIN U.K. AND E.U. TAX CONSEQUENCES
Certain U.K. Tax Consequences
The following is a summary of the Company's understanding of current law
and practice in the United Kingdom relating to certain U.K. tax consequences for
Holders of Securities who sell Securities pursuant to the Tender Offer and
Consent Solicitation. It applies only to Holders who are the absolute beneficial
owners of those Securities. It does not apply to certain classes of person (such
as dealers and persons connected with the Company) to whom special rules may
apply. Holders (particularly those that may be subject to tax in a jurisdiction
other than the United Kingdom) should in any event consult their own
professional advisers with regard to their tax position.
The U.K. tax consequences under current law and practice for Holders who do
not sell Securities pursuant to the Tender Offer and Consent Solicitation are
considered briefly below. However all such Holders should consult their own
professional advisers with regard to any effect that the Amendments (if they are
adopted), and/or any action undertaken by the Company after consummation of the
Tender Offer and Consent Solicitation, may have on their tax position.
Consequences to Holders Selling Securities
Interest on the Securities (including Accrued Interest)
Payment of Interest on the Securities. Payment of interest on the
Securities may be made without withholding or deduction for or on account of
U.K. tax while the Securities remain listed on a "recognised stock exchange" as
defined in section 841 of the Income and Corporation Taxes Act 1988. The
Luxembourg Stock Exchange is a "recognised stock exchange" for these purposes.
The Securities will satisfy the requirement of being listed on a "recognised
stock exchange" if and so long as they are listed by a competent authority in
Luxembourg and admitted to trading on the Luxembourg Stock Exchange.
Interest on the Securities may also be paid without withholding or
deduction for or on account of U.K. tax where the Company reasonably believes
(and any person by or through whom interest on the Securities is paid reasonably
believes) that the beneficial owner is a company within the charge to U.K.
corporation tax as regards the payment of interest at the time the payment is
made, provided that the Inland Revenue has not given a direction, the effect of
which is that such payment may not be made without such withholding or
deduction.
In all other cases, an amount must be withheld from payments of interest on
the Securities on account of U.K. income tax at the lower rate (currently 20%),
subject to the availability of relief under an applicable double tax treaty or
other relief.
Holders of Securities who are individuals may wish to note that the Inland
Revenue has power to obtain information (including the name and address of the
beneficial owner of the interest) from any person in the United Kingdom who
either pays interest to or receives interest for the benefit of an individual.
Such information may, in certain circumstances, be exchanged by the Inland
Revenue with the tax authorities of other jurisdictions.
Further United Kingdom Tax Issues. Interest on the Securities constitutes
U.K. source income for tax purposes and, as such, may be subject to income tax
direct assessment even where paid without withholding.
However, interest with a U.K. source received without deduction or
withholding on account of U.K. tax will not be chargeable to U.K. tax in the
hands of a Holder of Securities (other than certain trustees) who is not
resident for tax purposes in the United Kingdom unless the Holder of the
Securities is (a) a company which carries on a trade in the United Kingdom
through a permanent establishment in the United Kingdom or, (b) if not such a
company, carries on a trade, profession or vocation in the United Kingdom
through a branch or agency in the United Kingdom, and in either case the
interest is received in connection with, or the Securities are attributable to,
that permanent establishment, branch or agency. There are exemptions for
interest received by certain categories of agent (such as some brokers and
investment managers). The provisions of an applicable double taxation treaty may
also be relevant for such Holders of Securities.
The Consent Payment - Withholding Tax
22
The applicable Consent Payment will be payable without withholding or
deduction on account of U.K. tax.
U.K. Corporation Tax Payers
The acceptance of the Tender Offer will constitute a disposal of
Securities. In general, Holders of Securities that are within the charge to U.K.
corporation tax will recognize for the purposes of U.K. corporation tax on
income all returns, profits, gains or losses arising from, and fluctuations in
value arising in connection with, their tendered Securities including their
disposal (whether attributable to currency fluctuations or otherwise) broadly in
accordance with their statutory accounting treatment.
Other U.K. Tax Payers
Taxation of chargeable gains. The acceptance of the Tender Offer will
constitute a disposal of Securities. A disposal of Securities by a Holder who is
not within the charge to U.K. corporation tax but who is resident or ordinarily
resident in the United Kingdom or who carries on a trade, profession or vocation
in the United Kingdom through a branch or agency in the United Kingdom to which
the Securities are attributable may give rise to a chargeable gain or an
allowable loss for the purposes of the U.K. taxation of chargeable gains. It
should be noted that, in calculating any chargeable gain or allowable loss
arising on a disposal of Securities, the Consent Payment should be treated as
part of the disposal proceeds received for the Securities. It should also be
noted that, in calculating any such gain or loss arising on such a disposal,
sterling values are compared at acquisition and disposal. Accordingly, a
chargeable gain may arise on disposal even where the U.S. dollar proceeds are
less than, or equal to, the amount in U.S. dollars paid to acquire the
Securities.
Taxation as income. The acceptance of the Tender Offer will constitute a
disposal of Securities. On a disposal of Securities by a Holder who is not
within the charge to U.K. corporation tax, but who is resident or ordinarily
resident in the United Kingdom or who carries on a trade, profession or vocation
in the United Kingdom through a branch or agency in the United Kingdom to which
the Securities are attributable, any interest which has accrued since the last
interest payment date should not be chargeable to tax as income under the rules
of the accrued income scheme as set out in Chapter II of Part XVII of the Income
and Corporation Taxes Act 1988. Holders are in any event advised to consult
their own professional advisers with regard to the potential consequences of the
application of the accrued income scheme.
Stamp Duty and Stamp Duty Reserve Tax. The acceptance of the Tender Offer
will constitute a disposal of the tendered Securities. No U.K. stamp duty or
stamp duty reserve tax will be payable by Holders of Securities on the disposal
of their Securities pursuant to the Tender Offer.
Consequences to Holders Retaining Securities
For Holders of Securities who retain Securities there may be adverse U.K.
tax consequences arising if the Amendments outlined herein are adopted and/or
the Company undertakes certain actions after the consummation of the Tender
Offer and Consent Solicitation.
Interest on the Securities
Payment of Interest on the Securities. Payment of interest on the
Securities may be made without withholding or deduction for or on account of
U.K. tax while the Securities remain listed on a "recognised stock exchange" as
defined in section 841 of the Income and Corporation Taxes Act 1988. The
Luxembourg Stock Exchange is a "recognised stock exchange" for these purposes.
The Securities will satisfy the requirement of being listed on a "recognised
stock exchange" if and so long as they are listed by a competent authority in
Luxembourg and admitted to trading on the Luxembourg Stock Exchange.
Interest on the Securities may also be paid without withholding or
deduction for or on account of U.K. tax where the Company reasonably believes
(and any person by or through whom interest on the Securities is paid reasonably
believes) that the beneficial owner is a company within the charge to U.K.
corporation tax as regards the payment of interest at the time the payment is
made, provided that the Inland Revenue has not given a direction, the effect of
which is that such payment may not be made without such withholding or
deduction.
In all other cases (and in particular if at any time the Company de-lists
the Securities from the Luxembourg Stock Exchange without listing them on
another "recognised stock exchange"), an amount must be withheld from payments
of interest on the Securities on account of U.K. income tax at the lower rate
(currently 20%), subject to the availability of relief under an applicable
double tax treaty or other relief.
Holders of Securities who are individuals may wish to note that the Inland
Revenue has power to obtain information (including the name and address of the
beneficial owner of the interest) from any person in the United
23
Kingdom who either pays interest to or receives interest for the benefit of an
individual. Such information may, in certain circumstances, be exchanged by the
Inland Revenue with the tax authorities of other jurisdictions.
U.K. Corporation Tax Payers
Holders of Securities within the charge to U.K. corporation tax in respect
of the Securities should recognize as income any return, profit, gain or loss
arising from, or fluctuation in value arising in connection with, their retained
Securities (whether attributable to currency fluctuations or otherwise) as a
result of the variation in the terms of the Securities pursuant to the
Amendments outlined herein broadly in accordance with their statutory accounting
treatment.
Other U.K. Tax Payers
Taxation of chargeable gains. The variation in the terms of the Securities
pursuant to the Amendments outlined herein should not give rise to a disposal of
retained Securities by a Holder who is resident or ordinarily resident in the
United Kingdom or who carries on a trade, profession or vocation in the United
Kingdom through a branch or agency in the United Kingdom to which the Securities
are attributable for the purposes of U.K. taxation of chargeable gains.
Taxation as income. The variation in the terms of the Securities pursuant
to the Amendments outlined herein may constitute a transfer of the retained
Securities by a Holder who is not within the charge to U.K. corporation tax but
who is resident or ordinarily resident in the United Kingdom, or who carries on
a trade, profession or vocation in the United Kingdom through a branch or agency
in the United Kingdom to which the retained Securities are attributable, for the
purposes of the accrued income scheme as set out in Chapter II of Part XVII of
the Income and Corporation Taxes Act 1988 with the result that any interest
which has accrued since the last interest payment date may be chargeable to tax
as income under the rules of that scheme. Holders are in any event advised to
consult their own professional advisers with regard to the potential
consequences of the application of the accrued income scheme.
Stamp Duty and Stamp Duty Reserve Tax
No U.K. stamp duty or stamp duty reserve tax should be payable by Holders
of Securities solely as a result of the adoption of the Amendments outlined
herein.
EU DIRECTIVE ON THE TAXATION OF SAVINGS INCOME
The European Union has adopted a Directive regarding the taxation of
savings income. Subject to a number of important conditions being met, it is
proposed that Member States will be required from 1 July 2005 to provide to the
tax authorities of other Member States details of payments of interest and other
similar income paid by a person to an individual in another Member State, except
that Austria, Belgium and Luxembourg will instead impose a withholding system
for a transitional period unless during such period they elect otherwise.
DEALER MANAGER, SOLICITATION AGENT, INFORMATION AGENT AND TENDER AGENT
The Company has retained Goldman, Sachs & Co. to act as Dealer Manager (the
"Dealer Manager") and Solicitation Agent (the "Solicitation Agent") and Global
Bondholder Services Corporation to act as Information Agent (the "Information
Agent") and Tender Agent (the "Tender Agent"). The Company has agreed to pay the
Information Agent and the Tender Agent customary fees for their services in
connection with the Amended and Restated Offer to Purchase. The Company has also
agreed to pay the Dealer Manager reasonable customary fees for its services as
Dealer Manager in connection with the Offer and to reimburse the Dealer Manager,
Information Agent and Tender Agent for their reasonable out-of-pocket expenses
(including, with respect to the Dealer Manager, the reasonable fees and expenses
of its counsel) and to indemnify the Dealer Manager against certain liabilities,
including liabilities under U.S. federal securities laws.
Tendering Holders will not be obligated to pay brokerage fees or expenses
of the Dealer Manager, the Solicitation Agent, the Information Agent, the Tender
Agent or DTC.
The Dealer Manager and Solicitation Agent, in the ordinary course of its
business, makes markets in securities of the Company, including the Securities.
As a result, from time to time, the Dealer Manager and Solicitation Agent may
own certain of the Company's securities, including the Securities. In addition,
the Dealer Manager and Solicitation Agent and its affiliates have performed or
may perform various investment banking, commercial lending and financial
advisory services for the Company, including in connection with the
Transactions, for which they receive customary compensation.
24
None of the Dealer Manager, the Solicitation Agent, the Information Agent,
the Tender Agent, the Trustee or their respective directors, employees or
affiliates assume any responsibility for the accuracy or completeness of the
information concerning the Company or its affiliates or the Securities contained
in this Amended and Restated Offer to Purchase or for any failure by the Company
to disclose events that may have occurred and may affect the significance or
accuracy of such information.
Any questions or requests for assistance or for additional copies of this
Amended and Restated Offer to Purchase or related documents may be directed to
the Information Agent or the Luxembourg Agent at their respective telephone
numbers on the last page of this Amended and Restated Offer to Purchase. A
Holder may also contact the Dealer Manager and Solicitation Agent at the
telephone number set forth on the last page of this Amended and Restated Offer
to Purchase or such Holder's broker, dealer, commercial bank, trust company or
other nominee for assistance concerning the Amended and Restated Offer to
Purchase.
MISCELLANEOUS
We are not aware of any jurisdiction where the making of the Tender Offer
or the Consent Solicitation is not in compliance with the laws of such
jurisdiction. If we become aware of any jurisdiction where the making of the
Tender Offer or the Consent Solicitation would not be in compliance with such
laws, we will make a good faith effort to comply with any such laws or may seek
to have such laws declared inapplicable to the Tender Offer and the Consent
Solicitation. If, after such good faith effort, we cannot comply with any such
applicable laws, the Tender Offer or the Consent Solicitation will not be made
to (nor will tenders or Consents be accepted from or on behalf of) the Holders
residing in each such jurisdiction.
25
ANNEX A
THE AMENDMENTS
The following definition is proposed to be added to Section 1.01 of the
Indenture:
""Transaction" means the sale of the Company's NeoResins business to
Koninklijke DSM N.V. as announced by the Company on December 14, 2004."
The following section is proposed to be added to the Indenture:
"Section 5.17 Waiver of Application of Covenants
Application of any and all of the following sections of the Indenture is
waived with respect to the Transaction: (a) Section 5.06, (b) Section 5.08, (c)
Section 6.01 and (d) any other provision of the Indenture that as a result of
the consummation of the Transaction would require a payment or the making of an
offer to purchase or redeem the Notes, or whose contravention would result in a
Default or Event of Default under the Indenture."
The following sections are proposed to be modified as set forth below:
Section 5.02. Maintenance of Office or Agency; Report to Holders.
(b) The Company will (i) make available to the investor website service
maintained by Bloomberg L.P. (or if such service website is no longer maintained
or accessible for these purposes, a similar service), (ii) post on its website
or (iii) file with the SEC, and in any case provide the Trustee upon its
request, the following reports, whether or not required by the rules and
regulations of the SEC: (x) within 120 days following the end of each fiscal
year of the Company, all annual financial information that would be required to
be contained in a filing with the SEC on Form 20-F (or any successor form) if
the Company were required to file such Form, prepared in accordance with GAAP
consistently applied, including a "Management's Discussion and Analysis of
Financial Condition and Results of Operations" and, with respect to the annual
financial information, a report thereon by the Company's certified public
accountants, provided, that the Company shall not be required to include (1) any
reconciliation of any line item to US GAAP nor any other US GAAP disclosures nor
any audit under US generally accepted auditing standards, (2) the disclosures
required by item 15 (Controls and Procedures), Item 16A (Audit Committee
Financial Expert), and Item 16B (Code of Ethics), (3) the disclosure required by
Section 404 of the Sarbanes-Oxley Act 2002, (4) the exhibits required by a Form
20-F (including for the avoidance of doubt, certificates of relevant officers of
the Company required by Sections 302 and 906 of the Sarbanes-Oxley Act of 2002),
or (5) separate financial statements for any of its Affiliates, even if such
statement would be required to be included on Form 20-F pursuant to a rule or
rules under Regulation S-X as promulgated by the Commission and (y) within 60
days following the end of the first three fiscal quarters in each fiscal year of
the Company, unaudited consolidated financial statements for the Company for the
quarterly period then ended prepared in accordance with GAAP (which need not
contain any reconciliation to U.S. GAAP) consistently applied, together with
footnote disclosures and a "Management's Discussion and Analysis of Financial
Condition and Results of Operations" substantially as would be required to be
contained in a filing with the Commission on Form 10-Q (or any successor form)
for such period if the Company were required to file such form, provided, that,
for the avoidance of doubt, the Company shall not be required to include (1) any
reconciliation of any line item to US GAAP or the disclosures required by Item 4
(Controls and Procedures), (2) the exhibits required by such form (including,
for the avoidance of doubt, certificates of relevant officers of the Company
required by Sections 302 and 906 of the Sarbanes-Oxley Act of 2002), or (3) any
review of its quarterly financial statements by the Company's certified public
accountant's.
(c) In addition, the Company shall furnish to the Holders of
the Notes and to prospective investors, upon the requests of such Holders, any
information required to be delivered pursuant to Rule 144A(d)(4) under the
Securities Act so long as the Notes are not freely transferable under the Act by
Persons not "affiliates" under the Securities Act.
Section 1.01. Definitions.
"Change of Control" means the occurrence of any of the following:
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... (4) the sale, lease, transfer, conveyance or other disposition
(other than by way of merger or consolidation), in one or a series of related
transactions, of all or substantially all of the assets of the Company and its
Restricted Subsidiaries taken as a whole to any "person" (as such term is used
in Sections 13(d) and 14(d) of the Exchange Act) other than a person (the
"Transferee") with respect to which:
(a) at any time prior to the occurrence of the first public
offering of Voting Stock of the Transferee, the Initial Control Group is the
"beneficial owner" (as defined in clause (1) above), directly or indirectly, of
more than 50% of the total voting power of the Voting Stock of the Transferee or
(b) (i) at any time following the first public offering of Voting
Stock of the Transferee, any "person" (as such term is used in Sections 13(d)
and 14(d) of the Exchange Act), other than one or more members of the Initial
Control Group, is or becomes the "beneficial owner" (as defined in clause (1)
above), directly or indirectly, of more than 35% of the total voting power of
the Voting Stock of the Transferee and (ii) the Initial Control Group
"beneficially owns" (as defined in clause (1) above), directly or indirectly, in
the aggregate a lesser percentage of the total voting power of the Transferee
than such other person and does not have the right or ability by voting power,
contract or otherwise to elect or designate for election a majority of the Board
of Directors of the Transferee (for purposes of this clause (ii), such other
person shall be deemed to beneficially own all Voting Stock of a specified
entity directly held by a parent entity, if such other person "beneficially
owns" (as defined in clause (1) above), directly or indirectly, in the aggregate
more than 35% of the voting power of the Voting Stock of such parent entity and
the Initial Control Group "beneficially owns" (as defined in clause (1) above),
directly or indirectly, in the aggregate a lesser percentage of the voting power
of the Voting Stock of such parent entity and does not have the right or ability
by voting power, contract or otherwise to elect or designate for election a
majority of the board of directors of such parent entity);
provided, however, that this clause (4) will not apply with respect to such
sale, lease, transfer, conveyance or other disposition if (i) as soon as
practicable, and in any event within 30 days after consummation of the relevant
transaction, the Company commences a tender offer for, or a redemption of, all
of the then outstanding Notes at the then current redemption price (plus accrued
interest) set forth in Section 4.07 of the Indenture, (ii) the cash required by
the Company to make such tender offer or redemption is irrevocably deposited as
soon as practicable after consummation of the relevant transaction in an escrow
account for the benefit of the Holders and (iii) prompt notice of the relevant
transaction shall be given by the Company as provided in Section 12.02; provided
further that after consummation of the redemption or tender offer (as the case
may be), any surplus funds still held in the escrow account (referred to in (ii)
above) will be released from the escrow account to the Company.
For the purposes of determining whether clause (i) or clause (ii) of
paragraph 3(a) of this definition is applicable, a public offering by any
Holding Company will be disregarded if such Person no longer is a Holding
Company.
ARTICLE 6
Successor Entity
Section 6.01. Merger, Consolidation or Sale of All or Substantially All Assets.
(a) The Company may not, directly or indirectly, (1) consolidate or merge
with or into (whether or not the Company is the surviving corporation), or (2)
sell, assign, transfer, lease, convey or otherwise dispose of all or
substantially all of its properties or assets in one or more related
transactions to, another Person unless:
(1) the Company is (a) the surviving corporation or (b) the Person
formed by or surviving any such consolidation or merger (if other than the
Company) or to which such sale, assignment, transfer, lease, conveyance or
other disposition shall have been made (the "Successor Entity") is a
corporation organized or existing under the laws of the United Kingdom, any
country that is a member of the European Union at the time or the United
States of America, any state thereof or the District of Columbia (each, an
"Eligible Jurisdiction");
(2) the Person formed by or surviving any such consolidation or merger
(if other than the Company) or the Person to which such sale, assignment,
transfer, lease, conveyance or other disposition shall have been made
assumes all the obligations of the Company under the Notes and this
Indenture (including the due and punctual payment of all Additional
Amounts), as the case may be, pursuant to a supplemental indenture in a
form reasonably satisfactory to the Trustee;
(3) immediately after such transaction no Default or Event of Default
exists;
(4) the Company or the Person formed by or surviving any such
consolidation or merger (if other than the Company), or to which such sale,
assignment, transfer, lease, conveyance or other
A-2
disposition shall have been made shall, at the time of such transaction and
after giving pro forma effect thereto as if such transaction had occurred
at the beginning of the applicable four-quarter period, either (a) be
permitted to incur at least (pound)1.00 of additional Debt pursuant to
Section 5.03(a) or (b) have a Fixed Charge Coverage Ratio at least equal to
the Fixed Charge Coverage Ratio of the Company for such four-quarter
reference period; and
(5) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or transfer and such supplemental indenture (if any)
comply with this Indenture.
(b) Notwithstanding the foregoing, (1) any Restricted Subsidiary may
consolidate with, merge into or transfer all or part of its properties and
assets to the Company, and (2) the Company may merge with an Affiliate
incorporated solely for the purpose of reincorporating the Company in another
Eligible Jurisdiction.
(c) Notwithstanding anything to the contrary contained herein, this
Section 6.01 will not apply with respect to the sale, assignment, transfer,
lease, conveyance or other disposition of all or substantially all of the assets
in one or more related transactions if (i) as soon as practicable, and in any
event within 30 days after consummation of the relevant transaction, the Company
commences a tender offer for, or a redemption of, all of the then outstanding
Notes at the then current redemption price (plus accrued interest) set forth in
Section 4.07 of the Indenture, (ii) the cash required by the Company to make
such tender offer or redemption is irrevocably deposited as soon as practicable
after consummation of the relevant transaction in an escrow account for the
benefit of the Holders and (iii) prompt notice of the relevant transaction shall
be given by the Company as provided in Section 12.02; provided further that
after consummation of the redemption or tender offer (as the case may be), any
surplus funds still held in the escrow account (referred to in (ii) above) will
be released from the escrow account to the Company.
A-3
The Information Agent and Tender Agent for the Offer and the Solicitation is:
Global Bondholder Services Corporation
65 Broadway - Suite 704
New York, NY 10006
USA
Attention: Corporate Actions
Banks and Brokers call: +1 (212) 430 3774
Toll Free: +1 (866) 294 2200
By Facsimile
(for Eligible Institutions only):
(212) 430-3775
Confirmation:
(212) 430-3774
By Mail: By Overnight Courier: By Hand:
65 Broadway - Suite 704 65 Broadway - Suite 704 65 Broadway - Suite 704
New York, NY 10006 New York, NY 10006 New York, NY 10006
USA USA USA
The Luxembourg Agent for the Offer and the Solicitation is:
Kredietbank S.A. Luxembourgeoise
43 Boulevard Royal
L-2955
Luxembourg
Attention: Corporate Trust and Agencies
Telephone: +352 47 97 3935
By Facsimile: +352 4797 73951
Any questions or requests for assistance or for additional copies of this
Amended and Restated Offer to Purchase or related documents may be directed to
the Information Agent or the Luxembourg Agent at their respective telephone
numbers set forth above. A Holder may also contact the Dealer Manager,
Solicitation Agent and the Luxembourg Agent at their respective telephone
numbers set forth below or such Holder's broker, dealer, commercial bank, trust
company or other nominee for assistance concerning the Offer.
The Dealer Manager for the Offer and Solicitation Agent
for the Solicitation is:
Goldman, Sachs & Co.
Liability Management Group
29th Floor, 85 Broad Street
New York, NY 10004
USA
Toll Free: +1 (800) 828 3128
Collect: +1 (212) 357 3019
Attention: Credit Liability Management
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
Avecia Group plc
Date: January 18, 2005 By: /s/ Derrick Nicholson
---------------------
Name: Derrick Nicholson
Title: Chief Financial Officer