EXHIBIT 10.6
THIS DOCUMENT IS IMPORTANT AND REQUIRES YOUR IMMEDIATE ATTENTION. If you are in
any doubt about the action you should take, you are recommended immediately to
seek your own personal financial advice from a financial adviser authorised
under the Financial Services and Markets Act 2000 if you are in the United
Kingdom or, if not, from another appropriately authorised financial adviser.
--------------------------------------------------
CASH OFFER
BY
AXA INVESTMENT MANAGERS S.A.
for the
ENTIRE ISSUED SHARE CAPITAL
of
FRAMLINGTON GROUP LIMITED
--------------------------------------------------
Acceptances should be returned as soon as possible. The procedure for acceptance
of the Offer is set out on pages 5-6 of this document and in the accompanying
Form of Acceptance. If you have any questions as to how to complete or return
the Form of Acceptance, please contact Eleanor Cranmer (the Company Secretary of
Framlington) on telephone number 020-7330-6680.
Contents
PAGE
LETTER FROM THE OFFEROR
1. INTRODUCTION......................................................................................... 3
2. THE OFFER............................................................................................ 3
3. CONDITIONS........................................................................................... 3
4. THE NET ASSET ADJUSTMENT............................................................................. 4
5. TAXATION............................................................................................. 4
6. PROCEDURE FOR ACCEPTANCE OF THE OFFER................................................................ 5
7. SETTLEMENT........................................................................................... 6
8. SPECIAL DIVIDEND..................................................................................... 6
9. COMPULSORY ACQUISITION............................................................................... 7
10. ACTION TO BE TAKEN................................................................................... 7
APPENDIX 1 CONDITIONS AND FURTHER TERMS OF THE OFFER......................................................... 8
APPENDIX 2 NET ASSET ADJUSTMENT.............................................................................. 13
APPENDIX 3 DEFINITIONS....................................................................................... 17
2
AXA INVESTMENT MANAGERS S.A.
27th July 2005
To the holders of Shares and, for information only, to participants in the
Framlington Group Limited Long Term Incentive Plan
Dear Shareholder,
OFFER FOR THE ENTIRE ISSUED SHARE CAPITAL OF FRAMLINGTON
1. INTRODUCTION
AXA Investment Managers S.A. (the "OFFEROR") wishes to acquire the
entire issued share capital of Framlington pursuant to the Offer.
This letter and the other parts of this document and the accompanying
Form of Acceptance contain the formal terms of the Offer and set out
the procedure for acceptance.
2. THE OFFER
The Offeror hereby offers to acquire, on the terms and conditions set
out in this document and in the accompanying Form of Acceptance, all of
the Shares on the following basis:
FOR EACH SHARE 281 PENCE IN CASH, SUBJECT TO THE NET ASSET ADJUSTMENT
The Shares to be acquired pursuant to the Offer are to be acquired:
(A) by the Offeror or the LTIP Trustee, as the Offeror may, having
consulted the LTIP Trustee, direct; and
(B) fully paid, or credited as fully paid up, with full title
guarantee and free from all liens, equities, charges, equitable
interests, encumbrances and other third party rights and
interests and together with all rights attaching thereto at
Completion, including the right to receive and retain all
dividends and other distributions declared, made or paid after
Completion. However, provided you are a Shareholder at the
relevant time, you will retain the right to receive the Special
Dividend referred to in section 8 below.
The conditions and further terms of the Offer are set out in full in
Appendix 1 to this document and in the Form of Acceptance.
3. CONDITIONS
The Offer is conditional upon:
(A) the Offeror acquiring or having contracted to acquire not less
than 90% of the Shares to which the Offer relates;
(B) an agreement between the Offeror, Holdings, CCF and Comerica
(the "IMPLEMENTATION AGREEMENT") having been executed by all of
the parties thereto by 11.00 a.m. on 28th July 2005 (or such
later date as the Offeror may in its sole
3
discretion determine); and
(C) completion of the Implementation Agreement having taken place by
5.30 p.m. on 30th November 2005,
in each case as described in more detail in Part A of Appendix 1.
Holdings has given an irrevocable undertaking to the Offeror to accept
the Offer in respect of Shares representing approximately 90.8% of the
Shares to which the Offer relates.
Completion of the Implementation Agreement is subject to certain
conditions, including:
(A) the Financial Services Authority having approved the acquisition
of control of Framlington by the Offeror;
(B) certain amendments being made to the existing terms of the
Articles to (amongst other things) allow holders of vested
Awards to sell Shares which they receive in respect of those
Awards (and in the case of Options, to sell Shares received
following exercise) under the terms of the LTIP Rules without
having held those Shares for at least six months and to
introduce certain new provisions to facilitate the acquisition
by the Offeror of the entire issued share capital of
Framlington. The board of Framlington is to convene an
extraordinary general meeting of Framlington to approve these
changes to the Articles. Notice of the EGM, containing the text
of the proposed amendments to the Articles, will be sent to all
Shareholders in due course; and
(C) certain adverse changes in the value of the Group and/or of the
Group's assets under management not having occurred.
4. THE NET ASSET ADJUSTMENT
There will be a Net Asset Adjustment, under which the consideration of
Pound Sterling 2.81 per Share payable to Shareholders upon the Offer
becoming unconditional in all respects shall be increased pro rata to
the extent that the actual consolidated net asset value of the Group
(including cash held by the LTIP Trustee) at Completion exceeds Pound
Sterling 22,360,000.
The actual consolidated net asset value of the Group on Completion will
be calculated in accordance with the procedure set out in Appendix 2.
The agreement of Holdings and the Offeror to the Net Asset Adjustment
or the determination of the Net Asset Adjustment according to the
procedure described in Appendix 2 shall be final and binding on all
persons whose Shares the Offeror acquires under the Offer or otherwise.
Extracts from the Implementation Agreement relating to the methodology
by which the Net Asset Adjustment is to be calculated will be available
for inspection during normal business hours at Framlington, 155
Bishopsgate, London, EC2M 3XJ from 9.30 a.m. on 29th July 2005 until
Completion.
5. TAXATION
The following section explains the UK taxation position for
participants in the LTIP who accept the Offer for the Shares they
acquire upon the vesting of their Awards or the
4
exercise of their vested Options in connection with the Offer. This
section is intended as a general guide to the UK taxation position in
relation to participants in the LTIP who are UK resident and ordinarily
resident based on current law and practice. If you are in any doubt as
to your tax position, or if you are subject to taxation in any
jurisdiction other than the United Kingdom, you should consult an
appropriate professional adviser.
Participants will pay income tax and employee's national insurance
contributions on the value of the Shares on vesting of any Awards.
Where Options are exercised, then they will pay income tax and
employee's national insurance contributions on the value of the Shares
they receive less the exercise price.
The value should be treated as equal to the price per Share payable
under the Offer. There should be no capital gains tax implications of
the acceptance of the Offer as income tax is expected to apply to the
whole of the gain arising on the vesting or exercise of Awards and
Options respectively as described above.
Any income tax and employee national insurance contributions which are
payable will be deducted from the consideration that would otherwise be
payable to participants under the Offer and remitted to the appropriate
authorities.
6. PROCEDURE FOR ACCEPTANCE OF THE OFFER
SHAREHOLDERS
(a) COMPLETING AND RETURNING THE FORM OF ACCEPTANCE
To accept the Offer, the Form of Acceptance must be completed and then
signed in the presence of a witness who should also sign, in accordance
with the instructions printed on the Form of Acceptance.
The completed and signed Form of Acceptance should then be returned by
post or (during normal business hours) by hand to the Company Secretary
of Framlington, with the relevant share certificate(s), as soon as
possible. No acknowledgement of receipt of documents will be given.
(b) SHARE CERTIFICATES NOT READILY AVAILABLE OR LOST
If for any reason the relevant share certificate(s) is/are not readily
available or is/are lost, you should nevertheless complete, sign and
return the Form of Acceptance as stated above, and you should arrange
for the relevant share certificates to be forwarded as soon as
possible thereafter. Your completed Form of Acceptance should be
accompanied by a letter stating that the balance will follow or that
you have lost one or more of your share certificates. In the case of
loss, you should then write to Framlington's Company Secretary, Eleanor
Cranmer at Framlington, 155 Bishopsgate, London, EC2M 3XJ for a letter
of indemnity for the lost share certificate(s) which, when completed in
accordance with the instructions given, should be returned to that
person at that address by post or by hand.
(c) VALIDITY OF ACCEPTANCES
Without prejudice to Appendix 1 of this document, the Offeror reserves
the right to treat as valid in whole or in part any acceptance of the
Offer which is not entirely in order or is not accompanied by the
relevant share certificate(s). In that event, however unless the
5
relevant Shares were acquired upon vesting of Awards or the exercise of
vested Options shortly before Completion and no share certificates have
been issued, the consideration payable under such acceptances will not
be despatched until after the relevant share certificate(s) and/or
indemnities satisfactory to the Offeror have been received.
HOLDERS OF AWARDS AND OPTIONS UNDER THE FRAMLINGTON GROUP LIMITED LONG
TERM INCENTIVE PLAN
HOLDINGS HAS AGREED TO PROCURE THAT ALL AWARDS AND OPTIONS WILL VEST
BEFORE COMPLETION AND THAT HOLDERS OF AWARDS RECEIVE THE SHARES TO
WHICH THEY ARE ENTITLED UNDER THE LTIP RULES. HOLDERS OF VESTED OPTIONS
WILL BE GIVEN AN OPPORTUNITY TO EXERCISE THOSE OPTIONS EARLY AND TO
RECEIVE THE SHARES TO WHICH THOSE OPTIONS RELATE. HOLDERS OF SHARES
RESULTING FROM THE VESTING OF AWARDS AND EXERCISE OF VESTED OPTIONS
BEFORE COMPLETION MAY THEN ACCEPT THE OFFER BY COMPLETING A FORM OF
ACCEPTANCE.
FURTHER DETAILS OF THE VESTING OF AWARDS WILL BE PROVIDED TO HOLDERS OF
AWARDS IN DUE COURSE.
THE HOLDERS OF AWARDS AND OPTIONS WILL BE GIVEN AN OPPORTUNITY TO
DIRECT IN ADVANCE THAT THE OFFER BE ACCEPTED ON THEIR BEHALF IN RESPECT
OF THE SHARES TO WHICH THEIR AWARDS AND OPTIONS RELATE. FURTHER DETAILS
OF THESE ARRANGEMENTS WILL BE PROVIDED TO HOLDERS OF AWARDS AND OPTIONS
IN DUE COURSE.
7. SETTLEMENT
Subject to the Offer becoming or being declared unconditional, the cash
consideration in respect of cash due will be despatched (together with
interest at LIBOR on the amount of the Net Asset Adjustment from the
Completion Date until the Business Day prior to the date of despatch)
to the holders of the Shares who have accepted the Offer (i) in the
case of acceptances received, complete in all respects, by the date on
which the Offer becomes unconditional, on the date on which Completion
takes place, or (ii) in the case of acceptances of the Offer received,
complete in all respects, after such date but while it remains open for
acceptance, within 14 days of such receipt. All such cash payments will
be made in pounds sterling by cheque drawn on a branch of a UK clearing
bank or by electronic transfer to Shareholders' nominated bank
accounts, as Shareholders may elect by completing Box 4 of the Form of
Acceptance.
If the Offer does not become or is not declared unconditional, share
certificates(s) will be returned by post to the person whose name and
address is set out in Box 3 of the Form of Acceptance or, if none is
set out, to the Shareholder at that address.
All documents and remittances sent by, to or from holders of the Shares
or Awards will be sent at their own risk.
8. SPECIAL DIVIDEND
IT IS ANTICIPATED THAT ALL HOLDERS OF SHARES, INCLUDING SUCH HOLDERS
WHO HAVE BECOME SO BY VIRTUE OF THE VESTING OF AWARDS OR THE EXERCISE
OF VESTED OPTIONS, WILL, AT THE DISCRETION OF THE BOARD OF DIRECTORS OF
FRAMLINGTON, HAVE AN OPPORTUNITY TO PARTICIPATE IN A PRE-COMPLETION
SPECIAL DIVIDEND. FURTHER DETAILS OF THE SPECIAL DIVIDEND WILL BE
6
PROVIDED IN DUE COURSE.
9. COMPULSORY ACQUISITION
If sufficient acceptances of the Offer are received the Offeror intends
to apply the provisions of sections 428 to 430F (inclusive) of the
Companies Act to compulsorily acquire, or to direct that the LTIP
Trustee acquires, any outstanding Shares. The Offeror will have the
ability to do this once Holdings has accepted the Offer in accordance
with the terms of its irrevocable undertaking to do so and the Offer
has become unconditional in all respects.
10. ACTION TO BE TAKEN
FOR SHAREHOLDERS TO ACCEPT THE OFFER, THE FORM OF ACCEPTANCE MUST BE
COMPLETED, SIGNED AND RETURNED TO THE COMPANY SECRETARY OF FRAMLINGTON
WITH THE RELEVANT SHARE CERTIFICATES AS SOON AS POSSIBLE, AS DESCRIBED
IN MORE DETAIL IN PARAGRAPH 6 ABOVE.
HOLDERS OF AWARDS AND OPTIONS WILL RECEIVE FURTHER INFORMATION IN DUE
COURSE.
Yours faithfully,
for and on behalf of
AXA INVESTMENT MANAGERS S.A.
[SIG]
7
APPENDIX 1
CONDITIONS AND FURTHER TERMS OF THE OFFER
PART A: CONDITIONS OF THE OFFER
The Offer is subject to the following conditions:
(A) valid irrevocable acceptances having been received by not later than
11:00 a.m on 28th July 2005 (or such later time(s) and/or date(s) as
the Offeror may in its sole discretion decide) in respect of not less
than 90 per cent. (or such lower percentage as the Offeror may in its
sole discretion decide) in nominal value of the Shares to which the
Offer relates. For the purposes of this condition, the expression "the
Shares to which the Offer relates" shall be construed in accordance
with sections 428 to 430F of the Companies Act;
(B) the Implementation Agreement having been executed by all of the parties
thereto by 11.00 a.m on 28th July 2005 (or such later time(s) and/or
date(s) as the Offeror may at its sole discretion decide); and
(C) Completion having occurred by 5.30 p.m. on 30th November 2005.
PART B: FURTHER TERMS OF THE OFFER
The Offer is governed by English law and is subject to the jurisdiction of the
English courts, and to the further terms set out or referred to below and in the
Form of Acceptance.
The following further terms apply to the Offer. Except where the context
otherwise requires, any reference in Parts B or C of this Appendix 1 and in the
Form of Acceptance: (i) to "the Offer", shall include any renewal thereof or
extension to the Offer; (ii) to the "acceptance condition", means the condition
set out in paragraph (A) of Part A of this Appendix 1; (iii) to "acceptances of
the Offer", shall include deemed acceptances of the Offer and any acceptances of
the Offer made pursuant to any authority granted under the terms of the Offer or
the Form of Acceptance; (iv) to execution of a Form of Acceptance, shall include
execution by an "attorney" acting as such, as described in Part C of this
Appendix 1; and (v) to the "vesting" of an Award or an Option, means vesting
under the LTIP Rules.
1. ACCEPTANCE PERIOD
(a) The Offer will initially be open for acceptance until the earlier of
5.30 p.m. on the last Business Day before the Completion Date and 5.30
p.m. on 30th November 2005. The Offeror may in its absolute discretion
extend the period for which the Offer is open for acceptance. No
revision to the Offer is envisaged.
(b) If the Offer has become unconditional and it is stated that the Offer
will remain open until further notice, then not less than 14 days'
notice in writing will be given prior to the closing of the Offer to
those holders of Shares who have not accepted the Offer.
8
2. NOTIFICATION OF ACCEPTANCES
(a) On the Business Day next following the day on which the Offer is due to
expire or becomes unconditional or is extended, as the case may be, the
Offeror will notify Framlington, holders of Shares and holders of
Awards and Options of the total number (as nearly as practicable) of
Shares for which acceptances of the Offer have been received.
(b) In computing the number of the Shares represented by acceptances, there
may be included or excluded for notification purposes acceptances not
in all respects in order or subject to verification.
3. GENERAL
(a) The Offer will lapse if:
(i) the conditions set out in paragraphs (A) and (B) of Part A of
this Appendix 1 have not both been fulfilled by 11.00 a.m. on
28th July 2005 or such later time(s) and date(s) as the Offeror
may in its sole discretion decide; and/or
(ii) the condition set out in paragraph (C) of Part A of this
Appendix 1 has not been fulfilled by 5.30 p.m. on 30th November
2005; and/or
(ii) the Implementation Agreement terminates or is terminated.
In such case, the Offer will cease to be capable of further acceptance
and the Offeror and the holders of the Shares shall cease to be bound
by prior acceptances. The Offeror shall not revoke or amend the Offer
prior to Completion.
(b) The terms, provisions, instructions and authorities contained in or
deemed to be incorporated in the Form of Acceptance constitute part of
the terms of the Offer. Words and expressions defined in this document
have the same meanings when used in the Form of Acceptance, unless the
context otherwise requires.
(c) The Offer and all acceptances thereof and the relevant Form of
Acceptance and all contracts made pursuant to any of the foregoing and
action taken or made or deemed to be taken or made under any of the
foregoing shall be governed by and construed in accordance with English
law. Execution by or on behalf of a holder of the Shares of a Form of
Acceptance will constitute his submission, in relation to all matters
arising out of or in connection with the Offer and the Form of
Acceptance, to the jurisdiction of the courts of England and his
agreement that nothing shall limit the right of the Offeror to bring
any action, suit or proceeding arising out of or in connection with the
Offer and the Form of Acceptance in any other manner permitted by law
or in the courts of England.
(d) Any omission or failure to despatch this document, the Form of
Acceptance or any notice required to be despatched under the terms of
the Offer to, or any failure to receive the same by, any person to whom
the Offer is made, or should be made, shall not invalidate the Offer in
any way or create any implication that the Offer has not been made to
any such person. The Offer extends to all holders of the Shares to whom
this document, the Form of Acceptance and any related documents may not
be despatched, or who may not receive such documents, including persons
who become Shareholders by virtue of the vesting of Awards or the
exercise of vested Options.
9
(e) Without prejudice to any other provision in this document, the Offeror
reserves the right to treat acceptances of the Offer as valid if
received by or on behalf of the Offeror at any place or places
determined by the Offeror otherwise than as set out herein or in the
Form of Acceptance.
(f) All powers of attorney, appointments as agents and authorities on the
terms conferred by or referred to in this Appendix 1 or in the Form of
Acceptance are given irrevocably by way of security for the performance
of the obligations of the holder of the Shares (as the case may be)
concerned and are irrevocable (in respect of powers of attorney, in
accordance with section 4 of the Powers of Attorney Act 1971).
(g) No acknowledgement of receipt of any Form of Acceptance, communication,
notice or share certificate will be given by or on behalf of the
Offeror. All communications, notices, certificates, documents of title
and remittances to be delivered by or sent to or from any holder of the
Shares or Awards will be delivered by or sent to or from such holder of
the Shares or Awards at his own risk.
(h) The consideration payable pursuant to the terms of the Offer to any
Shareholder who has accepted the Offer shall be decreased to the extent
of any successful claim by the Offeror or any company in the Group
under any warranty, indemnity or other commitment that such Shareholder
has given, whether in the Implementation Agreement or otherwise.
(i) The Offer is made on 27th July 2005 and is capable of acceptance from
and after that time. Copies of this document and the Form of
Acceptance are available from Framlington from that time. The Offer is
made by means of this document.
(j) If sufficient acceptances of the Offer are received, the Offeror
intends to apply the provisions of sections 428-430F of the Companies
Act to acquire compulsorily any outstanding Shares. The Offeror may
also invoke certain provisions of the Articles (as amended) to
compulsorily acquire certain Shares after Completion.
(k) All references in this document to any statute or statutory provision
shall include a statute or statutory provision which amends,
consolidates or replaces the same (whether before or after the date
hereof).
(l) All references in this document to times are to London time.
PART C: FORM OF ACCEPTANCE
Each holder of Shares by whom, or on whose behalf, a Form of Acceptance is
executed irrevocably undertakes, represents, warrants and agrees to and with the
Offeror (so as to bind him, his personal representatives, heirs, successors and
assigns) to the following effect:
(a) that the execution of the Form of Acceptance, whether or not any other
Boxes are completed, shall constitute:
(i) an irrevocable acceptance of the Offer in respect of the
relevant Shareholder's entire holding of the Shares (or such
lesser number as may have been inserted in Box 1 of the Form of
Acceptance), provided that, if a number is inserted in Box 1
which exceeds such Shareholder's holding of Shares, the
acceptance will be deemed to have been made in respect of that
Shareholder's entire holding of the Shares; and
10
(ii) an irrevocable undertaking to execute any further documents and
give any further assurances which may be required to
enable the Offeror to obtain the full benefit of this Part C
and/or to perfect any of the authorities expressed to be given
hereunder,
in each case on and subject to the terms and conditions set out or
referred to in this document and the Form of Acceptance and that each
such acceptance shall be irrevocable;
(b) that the execution of the Form of Acceptance constitutes, subject to
the Offer becoming unconditional in all respects, the irrevocable
appointment of the Offeror and its directors as such Shareholder's
attorney and/or agent within the terms of paragraph 3(f) of Part B of
this Appendix 1 (the "attorney") and an irrevocable instruction and
authorisation to the attorney: (i) to complete and execute all or any
form(s) of transfer and/or other document(s) at the discretion of the
attorney in relation to the Shares in respect of which the Offer has
been accepted or deemed to have been accepted in favour of the Offeror,
the LTIP Trustee or such other person or persons as the Offeror or its
agents may direct; (ii) to deliver such form(s) of transfer and/or
other document(s) at the discretion of the attorney with the share
certificate(s) relating to such the Shares for registration; and (iii)
to do all such other acts and things as may in the opinion of the
attorney be necessary or expedient for the purposes of, or in
connection with, the acceptance of the Offer, and to vest absolutely in
the Offeror, the LTIP Trustee or their respective nominees the Shares
as aforesaid;
(c) that the execution of the Form of Acceptance and its delivery to the
Company Secretary of Framlington constitutes, subject to the Offer
becoming unconditional, an irrevocable authority and request:
(i) to Framlington or its agents to procure the registration of the
transfer of the Shares pursuant to the Offer and the delivery of
the share certificate(s) in respect thereof to the Offeror, to
the LTIP Trustee or as the Offeror may otherwise direct; and
(ii) to the Offeror or its agents to procure the despatch of the cash
consideration to which an accepting holder of the Shares is
entitled at the risk of such holder of the Shares, either by
cheque to the person whose name and address is set out in Box 3
of the Form of Acceptance or, if details of a valid bank account
are included in Box 4 of the Form of Acceptance, to that bank
account;
(d) that, subject to the Offer becoming unconditional and pending
registration:
(i) the Offeror shall be entitled to direct the exercise of any
votes and any or all other rights and privileges (including the
right to requisition the convening of a general or separate
class meeting of Framlington) attaching to any Shares in respect
of which the Offer has been accepted or is deemed to have been
accepted; and
(ii) the execution of the Form of Acceptance constitutes, with regard
to the Shares comprised in such acceptance:
(A) an authority to Framlington and/or its agents from the
holder of such Shares to send any notice, circular,
document or other communication which may be required to
be sent to him as a member of Framlington in respect of
such Shares to the Offeror at its registered office or
such other place as the Offeror may direct;
11
(B) the irrevocable appointment of the Offeror or any of its
directors or agents to sign on such Shareholder's behalf
such documents and do such things as may in the opinion of
such person seem necessary or desirable in connection with
the exercise of any votes or other rights or privileges
attaching to such Shares (including, without limitation,
an authority to sign any consent to short notice of a
general or separate class meeting) as his attorney and/or
agent and on his behalf and/or to execute a form of proxy
in respect of such Shares appointing any person nominated
by the Offeror to attend general and separate class
meetings of Framlington and to exercise the votes
attaching to such Shares on such Shareholder's behalf,
such votes (where relevant) to be cast so far as possible
to satisfy any outstanding conditions of the Offer; and
(C) will also constitute the agreement of such Shareholder not
to exercise any such rights without the prior written
consent of the Offeror and the irrevocable undertaking of
such Shareholder not to appoint a proxy for or to attend
such general or separate class meeting;
(e) that he agrees to ratify each and every act or thing which may be done
or effected by the Offeror, Framlington or any of their respective
directors or agents in the proper exercise of any of their respective
powers and/or authorities hereunder;
(f) that he shall do all such acts and things as shall be necessary or
expedient to vest in the Offeror or its nominee(s) or the LTIP Trustee
the Shares aforesaid;
(g) that if any provision of Part B of this Appendix 1 or this Part C shall
be unenforceable or invalid or shall not operate so as to afford the
Offeror or any of its directors or agents the benefit of any authority
expressed to be given therein, he shall with all practicable speed do
all such acts and things and execute all such documents that may be
required to enable the Offeror and/or its directors or agents to
secure the full benefits of Part B of this Appendix 1 and this Part C;
and
(h) that the terms and conditions of the Offer contained in this document
shall be deemed to be incorporated in, and form part of, the Form of
Acceptance which shall be construed accordingly.
Forms of Acceptance executed by corporate Shareholders shall be valid and shall,
for all purposes of the Offer and its terms be "Forms of Acceptance"
notwithstanding that their execution provisions have been adapted accordingly.
References in this Part C to a holder of the Shares shall include references to
the person executing a Form of Acceptance.
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APPENDIX 2
NET ASSET ADJUSTMENT
PART A
For the purposes of this Appendix:
"ACCOUNTS" means the consolidated accounts of Framlington, including the balance
sheet, profit and loss statement, cash flow statement, notes to those accounts
and the associated directors' and auditors' reports for the year ended on 31st
December 2004;
"ACCOUNTING STANDARDS" means the Financial Reporting Standards and Statements
of Standard Accounting Practice issued and/or adopted by the Accounting
Standards Board and Abstracts issued by the Urgent Issues Task Force of the
Accounting Standards Board;
"ACTUAL NET ASSET VALUE" means the amount shown opposite the heading "Nat Assets
excluding pension deficit" as shown in the Completion Accounts as agreed or
determined;
"COMPLETION ACCOUNTS" means the consolidated pro forma net asset statement of
Framlington as at the Completion Date;
"HOLDINGS' ACCOUNTANTS" means KPMG, Chartered Accountants;
"OFFEROR'S ACCOUNTANTS" means Deloitte, Chartered Accountants;
1. The Offeror shall procure that as soon as practicable following the
Completion Date, and in any event not later than 30 Business Days
after the Completion Date, a draft of the Completion Accounts ("DRAFT
COMPLETION ACCOUNTS") shall be prepared by Framlington in accordance
with paragraph 2 of this Appendix 2 and delivered simultaneously to the
Offeror's Accountants and Holdings' Accountants (together, the
"ACCOUNTANTS").
2. The draft Completion Accounts shall be prepared by Framlington:
2.1 in the form set out in Part B of this Appendix 2:
2.2 in accordance with certain specific accounting treatments to be agreed
by Holdings and the Offeror and set out in the Implementation
Agreement; and, subject thereto
2.3 adopting the same accounting principles, policies, treatments and
categorisations as were used in the preparation of the Accounts, as
there applied, including in relation to the exercise of accounting
discretion and judgement; and, subject thereto
2.4 in accordance with Accounting Standards relevant at the Completion
Date.
For the avoidance of doubt, paragraph 2.2 shall take precedence over
paragraphs 2.3 and 2.4, and paragraph 2.3 shall take precedence over
paragraph 2.4.
2.5 As soon as practicable after delivery of the draft Completion Accounts
to the Accountants in accordance with paragraph 1, and in any event
within 20 Business Days after such delivery (the "REVIEW PERIOD"),
the Accountants shall review the draft Completion Accounts and
endeavour to agree what adjustments (if any) need to be made to them in
order for them to
13
comply with paragraphs 2.1 to 2.4 (inclusive).
2.6 If the Accountants agree upon all such adjustments as are referred to
in paragraph 2.5 within the Review Period, they shall jointly
incorporate them into the draft Completion Accounts and the draft
Completion Accounts as so adjusted shall be the "Completion Accounts"
for all purposes of the Offer and shall, save in the case of manifest
error, be final and binding on all persons.
2.7 If the Accountants are unable to agree within the Review Period on any
aspect of the Completion Accounts (including as to:
2.7.1 whether adjustments need to be made to the draft Completion Accounts;
2.7.2 the adjustments to be made thereto; or
2.7.3 the amount of the Actual Net Asset Value),
Holdings and the Offeror shall endeavour in good faith to agree such
matter or matters and to incorporate them as so agreed into the draft
Completion Accounts by making appropriate adjustments thereto. The
draft Completion Accounts as so adjusted shall be the "Completion
Accounts" for all purposes of the offer and shall, save in the case of
manifest error, be final and binding on all persons.
2.8 If Holdings and the Offeror have not resolved any such matter in
dispute referred to in paragraph 2.7 within 10 Business Days after the
end of the Review Period, then such matter or matters (but no other
matters) shall thereupon be referred to such firm of independent
chartered accountants as Holdings and the Offeror may agree within 14
days of a request by either of them to the other or, failing such
agreement within such time, as the President for the time being of the
Institute of Chartered Accountants in England and Wales may nominate on
the application of Holdings or the Offeror (the "INDEPENDENT
ACCOUNTANTS") for determination on the following basis:
2.8.1 the Independent Accountants shall be instructed to notify Holdings and
the Offeror of their determination of any such matter within 30
Business Days of such referral
2.8.2 Holdings and the Offeror shall be entitled to make written submissions
to the Independent Accountants and copied to the other party's
Accountants at the same time but subject thereto the Independent
Accountants shall have power to determine the procedure to be followed
in relation to their determination;
2.8.3 any submissions to and the determination of the Independent Accountants
shall be in the English language and any oral hearings shall be
conducted in English in London;
2.8.4 in making such submissions Holdings and the Offeror shall state their
respective best estimates of monetary amounts of the matters referred
for determination;
2.8.5 in making their determination the Independent Accountants shall act as
experts and not as arbitrators, and their decision as to any matter
referred to them for determination shall, save in the case of manifest
error, be final and binding in all respects on all persons and shall
not be subject to question on any ground whatsoever; and
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2.8.6 the fees and expenses of the Independent Accountants shall be borne
and paid as the Independent Accountants shall determine.
2.9 Following any agreement between Holdings and the Offeror or any
determination by the Independent Accountants, the Accountants shall
jointly incorporate into and reflect in the draft Completion Accounts
the matters resolved between Holdings and the Offeror and/or determined
by the Independent Accountants, together with any adjustments which may
have been agreed between the Accountants and the draft Completion
Accounts and the amount of the Actual Net Asset Value stated in such
report shall be the "Completion Accounts" and the "Actual Net Asset
Value" respectively for all purposes of the Offer, and shall, save in
the case of manifest error, be final and binding on all persons and
shall, save as aforesaid, not be subject to question on any ground
whatsoever.
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PART B
FORM OF COMPLETION ACCOUNTS
As at the
Completion Date
Pound Sterling'000
FIXED ASSETS
Tangible assets
Investments
CURRENT ASSETS
Stock of units
Debtors
Cash at bank and in hand
CREDITORS
Less: amounts falling due within one year
NET CURRENT ASSETS
Total assets less current liabilities
Less: provisions for liabilities and charges
NET ASSETS EXCLUDING PENSION DEFICIT
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APPENDIX 3
DEFINITIONS
The following definitions apply throughout this document and the Form of
Acceptance unless the context otherwise requires:
"ARTICLES" means the articles of association of Framlington;
"AWARD" means an "Award" as defined in the LTIP Rules
(other than an Option), and references to a
"holder" or "holders" of Awards shall be construed
accordingly;
"BUSINESS DAY" means a day other than a Saturday or Sunday or
other public or bank holiday on which banks are
ordinarily open for the transaction of normal
banking business in London, other than solely for
the settlement and clearing of euro;
"CCF" means CCF S.A., a French societe anonyme
incorporated under number 775 670 284, whose
registered office is at 103, avenue des
Champs-Elysees, 75008, Paris, France;
"COMERICA" means Comerica, Inc., a company incorporated in
the State of Michigan, United States of America,
whose principal place of business is at 500
Woodward Avenue, Detroit, Michigan, 48226 United
States of America;
"COMPANIES ACT" means the Companies Act 1985, as amended;
"COMPLETION" means completion under the Implementation
Agreement;
"COMPLETION DATE" means the date on which Completion takes place;
"EGM" means the extraordinary general meeting of
Framlington referred to in section 3 of the letter
from the Offeror contained in this document, or
any adjournment thereof;
"FORM OF ACCEPTANCE" means the form of acceptance and authority
relating to the Offer which
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accompanies this document;
"FRAMLINGTON" means Framlington Group Limited, a company
incorporated in England and Wales (registered
number 01237167, whose registered office is at
155 Bishopsgate, London, EC2M3XJ;
"HOLDINGS" means Framlington Holdings Limited, a company
incorporated in England and Wales (registered
number 02314914), whose registered office is at
155 Bishopsgate, London, EC2M 3XJ;
"IMPLEMENTATION AGREEMENT" means the agreement of that name to be entered
into between the Offeror, Holdings, CCF and
Comerica;
"INTERNAL MARKET" means the internal market established under the
LTIP;
"LIBOR" means the London Inter-Ban < Offering Rate, to be
determined from a source agreed by the Offeror and
Holdings;
"LTIP" means the Framlington Group Limited Long Term
Incentive Plan, as adopted by the board of
Framlington on 20th March 2003;
"LTIP RULES" means the rules of the LTIP;
"LTIP TRUSTEE" means the trustee of the Framlington Employee
Benefit Trust from time to time, being, on the
date of the Offer, Ogier Employee Benefit Trustee
Limited, a company incorporated in Jersey, whose
registered office is at Whiteley Chambers, Don
Street, St. Helier, Jersey, JE4 9WG, Channel
Islands;
"NET ASSET ADJUSTMENT" means the net asset adjustment described in
section 4 of the letter frorm the Offeror
contained in this document;
"OFFER" means the offer being made by the Offeror to
acquire all of the Shares including, where the
context so requires, any subsequent extension or
renewal of such Offer;
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"OFFEROR" means AXA Investment Managers S.A., a French
societe anonyme incorporated under number B 393
051 826, whose registered office is at Coeur La
Defense, 100 Esplanade du Generale de Gaulle,
92932 Paris La Defense Cedex, France;
"OPTION" means an Award which is an "Option" as defined in
the LTIP Rules, and references to a "holder" or
"holders" of Options shall be construed
accordingly;
"SHARES" means ordinary shares of five pence each in the
capital of Framlington;
"SHAREHOLDERS" AND "HOLDERS"
OF SHARES means registered holders of Shares; and
"SPECIAL DIVIDEND" means the pre-completion special dividend referred
to in section 8 of the letter from the Offeror
contained in this document.
All references in this document to "Pound Sterling" or "pence" are to the lawful
currency of the United Kingdom. When used in this document the word "subsidiary"
has the meaning given in sections 736 and 736A of the Companies Act.
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