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EXHIBIT 2.2
CONDITIONS TO THE IMPLEMENTATION OF THE SCHEME OF ARRANGEMENT AND THE MERGER
1. The Merger is conditional upon the Scheme becoming effective by not
later than 31 December, 1999 or such later date as Offeree and Offeror
may agree and the Court shall approve.
2. The Scheme will become effective and binding following:
(a) approval by a majority in number representing three-fourths in
value of the holders of the Offeree Shares, present and
voting, either in person or by proxy, at the Court Meeting (or
any adjournment thereof);
(b) the passing of any resolutions required to implement the
Scheme and to amend the articles of association of Offeree in
the manner indicated in the paragraph headed "Structure of the
transaction" in the Announcement at the Extraordinary General
Meeting (or any adjournment thereof);
(c) the approval by the requisite majorities of votes of the
holders of Offeror Shares at the Special Meeting called for
the purpose of an amendment of Offeror's amended and restated
certificate of incorporation for the purpose of increasing the
authorised share capital of Offeror and the issuance of the
Offeror Shares pursuant to the Scheme; and
(d) sanction of the Scheme and confirmation of the reduction of
capital involved therein by the Court (in both cases, with or
without modification agreed by Offeror and Offeree), an office
copy of the Final Court Order being delivered for registration
to the Registrar of Companies in England and Wales and, in the
case of reduction of capital, registered by him.
3. Offeree and Offeror have agreed, subject as stated in paragraph 4 of
this Appendix, that the Merger will also be conditional upon the
following matters, and, accordingly, an office copy of the Final Court
Order will only be delivered for registration to the Registrar of
Companies in England and Wales if:
(a) Offeror and Offeree have received a letter from KPMG Peat
Marwick dated within two New York Business Days prior to the
date of the Final Court Order (with KPMG Peat Marwick first
having received a supporting letter from Deloitte & Touche,
auditors to Offeree in terms reasonably satisfactory to KPMG
Peat Marwick) confirming that the Merger should be treated as
a pooling of interests under U.S.
GAAP if the Scheme is consummated;
(b) except as disclosed in the Offeree annual report and accounts
for the year ended 28 August, 1998, or as disclosed in the
interim report of Offeree for the 26 weeks ended 26 February,
1999 or as otherwise publicly announced by delivery of an
announcement to the Company Announcements Office of the London
Stock
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Exchange prior to the date of this Announcement ("publicly
disclosed"), or as fairly disclosed in writing to Offeror
prior to the date of this Announcement (each and collectively
"Offeree Disclosed Matters"), since 28 August, 1998:
(i) no investigation or enquiry by any Third Party (as
defined in paragraph (c) below) having statutory or
regulatory competence (other than the Court) and no
litigation, arbitration proceedings, prosecution or
other legal proceedings to which any member of the
Offeree Group is or may become a party (whether as
plaintiff or defendant or otherwise) has been
threatened in writing, announced or instituted by or
remains outstanding against or in respect of any
member of the Offeree Group which, in any such case,
is material and adverse in the context of the Offeree
Group taken as a whole;
(ii) there has been no material adverse change in the
business, financial position, trading position or
profits or prospects of the Offeree Group taken as a
whole;
(iii) no contingent or other liability of any member of the
Offeree Group has arisen or has become apparent or
has increased which would or could reasonably be
expected materially and adversely to affect the
Offeree Group taken as a whole;
(iv) Offeror has not discovered regarding the Offeree
Group that:
(1) any written financial, business or other
information which has been publicly
disclosed at any time by any member of the
Offeree Group is misleading or contains
misrepresentations of fact or omits to state
a fact necessary to make the information
contained therein not misleading in any case
which has not subsequently and prior to the
date of this Announcement been corrected by
such disclosure, and, in any event, which is
material in the context of the Offeree Group
taken as a whole; or
(2) any written financial, business or other
information (except for forecasts,
statements of opinion, projections, budgets
or estimates) disclosed by or on behalf of
any member of the Offeree Group privately to
any member of the Offeror Group or its
advisers is misleading or contains a
misrepresentation of fact or omits to state
a fact necessary to make the information
contained therein not misleading in any case
which has not subsequently and prior to the
date of this Announcement been corrected by
such disclosure and, in any event, which is
material in the context of the Offeree Group
taken as a whole; or
(3) any member of the Offeree Group is subject
to any liability
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(contingent or otherwise) which has not been
disclosed in the Offeree Disclosed Matters
and which is materially adverse in the
context of the Offeree Group taken as a
whole;
(c) no government or governmental, quasi-governmental,
supranational, statutory or regulatory body, or court, or
trade agency, or association, or institutional or professional
body (or other person or body having statutory or regulatory
competence) in any jurisdiction (each and collectively a
"Third Party") has instituted, implemented or threatened to
take any action, proceeding, suit, investigation or inquiry,
or has made, proposed or enacted any statute, regulation or
order, or taken any other steps, which would or might
reasonably be expected to:
(i) make the Merger or Scheme or their respective
implementation or the acquisition of any shares in,
or control of, Offeree by Offeror or any member(s) of
the Offeror Group void, illegal or unenforceable
under the laws of any jurisdiction or otherwise
directly or indirectly restrain, prohibit, restrict,
delay or interfere with the implementation or
performance thereof or impose additional conditions
or obligations with respect thereto, or otherwise
challenge or interfere therewith, in each case in a
manner or to an extent that is material in the
context of the Merger; or
(ii) require, prevent or delay the divestiture or alter
the terms of any proposed divestiture by any member
of the Offeree Group or (in connection with the
Scheme) any member of the Offeror Group of all or any
portion of their respective businesses, assets or
property, or impose any limitation on the ability of
any of them to conduct their respective businesses or
own their assets or property or any part thereof and
which in any such case is material in the context of
the Offeree Group or the Offeror Group (in each case
taken as a whole), being the group on which such
requirement or imposition is made, as the case may
be; or
(iii) impose any limitation on, or result in any delay in
the ability of any member of the Offeror Group to
acquire, directly or indirectly, or to hold or
exercise effectively all or any rights of ownership
of any Offeree Shares held by any member of the
Offeror Group or on the ability of any member of the
Offeror Group to exercise management control over
Offeree or any member of the Offeree Group or on the
ability of Offeree or any member of the Offeree Group
or Offeror to hold or exercise effectively any rights
of ownership of shares or other securities (or the
equivalent) in any member of the Offeree Group held
or owned by it, in each case, in a manner or to an
extent which would be material in the context of the
Merger, the Offeror Group or the Offeree Group, as
the case may be; or
(iv) require any member of the Offeror Group or the
Offeree Group to offer to
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acquire any shares or other securities (or the
equivalent) owned by any third party in the capital
of any member of the Offeree Group or the Offeror
Group, in each case, in a manner or to an extent
which would be material in the context of the Offeror
Group or the Offeree Group taken as a whole, as the
case may be; or
(v) impose any limitation on the ability of any member of
the Offeror Group or any member of the Offeree Group
to integrate or co-ordinate its business, or any part
of it, with the businesses of any other member of the
wider Offeror Group or the wider Offeree Group in
each case in a manner or to an extent which would be
material in the context of the Offeror Group or the
Offeree Group, as the case may be; or
(vi) otherwise affect the business, financial position,
trading position or profits or prospects or value of
the Offeror Group or the Offeree Group, in each case
taken as a whole, in a manner which is material and
adverse;
and all applicable waiting and other periods during which any
relevant authority could have intervened, in respect of the
Merger or the implementation of the Scheme or the acquisition
or proposed acquisition of any shares or other securities (or
the equivalent) in, or control of, Offeree by Offeror, have
expired, lapsed or terminated;
(d) all necessary notifications and filings in any jurisdiction
have been made, all regulatory and statutory obligations in
any jurisdiction have been complied with, all necessary
waiting and other time periods (including any extension(s)
thereof) under any applicable legislation or regulations in
any jurisdiction have expired, lapsed or terminated, in each
case in respect of the Merger and the implementation of the
Scheme and the acquisition or proposed acquisition of any
shares or other securities (or the equivalent) in, or control
of, Offeree by Offeror or any member(s) of the Offeror Group
or in relation to the affairs of any member of the Offeree
Group and all authorisations, orders, recognitions, grants,
consents, licences, confirmations, clearances, permissions and
approvals necessary or appropriate in any jurisdiction
(collectively "Consents") (in terms and a form satisfactory to
Offeror, acting reasonably) in respect of the Merger and the
implementation of the Scheme or the acquisition or proposed
acquisition of any shares or other securities (or the
equivalent) in, or control of, Offeree by Offeror or any
member(s) of the Offeror Group or in relation to the affairs
of any member of the Offeree Group, have been obtained from
appropriate Third Parties together with those (without
prejudice to the generality of the foregoing) from any persons
or bodies with whom any member of the Offeror Group or any
member of the Offeree Group has entered into contractual
arrangements (and which are in any event material in the
context of the Offeror Group or the Offeree Group taken as a
whole (as the case maybe)) and all such Consents, together
with all Consents necessary for Offeree to carry on its
business, remain in full force and effect and all filings
necessary for such purpose have been
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made or received and there has not been received any notice or
indication of any intention to revoke, suspend, restrict,
modify or not to renew the same;
(e) save as disclosed in Offeree Disclosed Materials, there is no
provision of any arrangement, agreement, licence, permit,
franchise or other binding instrument to which any member of
the Offeree Group is a party or by or to which any member of
the Offeree Group or any part of its assets may be bound,
entitled or subject (which is material in the context of the
Offeree Group taken as a whole) (collectively, "Offeree
Material Agreements") and which, in consequence of the Merger
or the Scheme or the acquisition or proposed acquisition of
any shares or other securities (or the equivalent) in or
control or management of Offeree or any member of the Offeree
Group by Offeror or any member(s) of the Offeror Group, could
or might reasonably be expected to (to an extent which is
material in the context of the Offeree Group taken as a whole)
result in:
(i) any monies borrowed by or other indebtedness or
liability, actual or contingent, of or grant
available to, any member of the Offeree Group being
or becoming repayable or being capable of being
declared repayable immediately or prior to its stated
maturity, or the ability of any such member of the
Offeree Group to borrow monies or incur any
indebtedness being withdrawn or materially inhibited;
or
(ii) the creation or enforcement of any liabilities or any
mortgage, charge or other security interest over the
whole or any part of the business, property or assets
of any member of the Offeree Group or any such
security interest (whenever and wherever arising or
having arisen) becoming enforceable; or
(iii) any such Offeree Material Agreement being terminated
or adversely modified or any unduly onerous
obligation or liability arising under or any action
being taken pursuant to such Offeree Material
Agreement; or
(iv) any assets or interests of any member of the Offeree
Group being or falling to be disposed of or charged
or any right arising under which any such asset or
interest could be required to be disposed of or
charged otherwise than in the ordinary course of
business; or
(v) Offeree or any member of the Offeree Group ceasing to
be able to carry on its business under any name which
it at present uses; or
(vi) the business, financial position, trading position or
profits or prospects or value of the Offeree Group
being adversely affected;
and no event has occurred which, under any such Offeree
Material Agreement, could reasonably be expected to result in
any event or circumstance referred to in
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paragraphs 3(e)(i) to (vi);
(f) since 28 August, 1998 and except as disclosed pursuant to
Offeree Disclosed Matters or as would be disclosed by a search
at the Companies Registry for England and Wales against
Offeree made as at the business day immediately preceding the
date of this Announcement:
(i) (save as between a wholly owned Subsidiary of Offeree
and Offeree or another wholly owned Subsidiary of
Offeree) no member of the Offeree Group has issued or
agreed to issue or authorised or proposed the issue
of additional shares of any class, or securities
convertible into, or rights, warrants or options to
subscribe for or acquire, any such shares or
convertible securities (save for any options granted,
and Offeree Shares unconditionally issued upon or
pursuant to the exercise of options granted, prior to
the date of this Announcement under the Action Share
Option Schemes and disclosed in writing to Offeror
prior to such date);
(ii) no member of the Offeree Group has recommended,
declared, paid, made or proposed to recommend,
declare, pay or make any bonus, dividend or other
distribution (save as between a wholly-owned
Subsidiary of Offeree and Offeree or another
wholly-owned Subsidiary of Offeree) other than the
interim dividend of 1.35p net per Action Share
announced on 14 April, 1999 and payable on 9 June,
1999 to Action Shareholders on the register on 10
May, 1999;
(iii) no member of the Offeree Group has made or authorised
or proposed or announced any material change in its
share or loan capital, outside the ordinary course of
business;
(iv) (save for transactions between a wholly-owed
Subsidiary of Offeree and Offeree or another
wholly-owned Subsidiary of Offeree) no member of the
Offeree Group has merged with or demerged or acquired
any body corporate or acquired or disposed of or
transferred, mortgaged or charged or created any
security interest over any assets or any right, title
or interest in any assets (other than in the ordinary
course of business) which is material to the Offeree
Group taken as a whole or authorised or proposed or
announced any intention to propose any acquisition,
demerger, disposal, or transfer as aforesaid;
(v) no member of the Offeree Group has authorised, issued
or proposed the issue of any debentures, or (save in
the ordinary course of business) incurred or
increased any indebtedness or contingent liability of
an aggregate amount which is material in the context
of the Offeree Group taken as a whole;
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(vi) no member of the Offeree Group has purchased,
redeemed or repaid or announced any proposal to
purchase, redeem or repay any of its own shares or
other securities or reduced or made any other change
to any part of its share capital;
(vii) no member of the Offeree Group has entered into or
varied any contract (including any guarantee),
arrangement, transaction or binding commitment
(whether in respect of capital expenditure or
otherwise), which is of a long-term, unduly onerous
or unusual nature or magnitude or which is or would
be restrictive of the business of any member of the
Offeree Group or which involves or would involve an
obligation of such a nature or magnitude and which is
other than in the ordinary course of business and
which in each case is material in the context of the
Offeree Group taken as a whole;
(viii) except as referred to in this Announcement, neither
Offeree nor any of its Subsidiaries has entered into
or changed or made any offer (which remains open for
acceptance) to enter into or change the terms of any
contract (including any service contract) with any of
the directors of Offeree which is material in the
context of the Offeree Group taken as a whole;
(ix) no member of the Offeree Group has taken any
corporate action or had any legal proceedings
instituted against it for its winding-up (voluntarily
or otherwise), dissolution or reorganisation or for
the appointment of a receiver, administrator,
administrative receiver, trustee or similar officer
of all or any of its assets or revenues or any
analogous proceedings in any jurisdiction or
appointed any analogous person in any jurisdiction
(in each case in a manner which could reasonably be
expected to have a material adverse effect on the
Offeree Group taken as a whole);
(x) no member of the Offeree Group has been unable or has
admitted in writing that it is unable to pay its
debts or has stopped or suspended (or threatened to
stop or suspend) payment of its debts generally or
ceased or threatened to cease carrying on all or a
substantial part of its business;
(xi) no member of the Offeree Group has waived or
compromised any claim which is material in the
context of the Offeree Group, taken as a whole;
(xii) Offeree has not made any alteration to its Memorandum
or Articles of Association (other than the
alterations agreed with Offeror to be proposed at the
Extraordinary General Meeting); and
(xiii) no member of the Offeree Group has entered into any
contract, commitment, agreement or arrangement or
passed any resolution with respect to, or announced
an intention to, or to propose to effect any of the
transactions,
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matters or events referred to in this paragraph 3(f);
(g) the Offeror Shares to be issued pursuant to the Scheme have
been approved for trading upon notice of issuance on NASDAQ;
(h) Offeror has not discovered that, save for Offeree Disclosed
Matters:
(i) any past or present member of the Offeree Group has
not complied with all applicable legislation or
regulations of any jurisdiction with regard to the
storage, carriage, disposal, discharge, spillage,
leak or emission of any waste or hazardous substance
or any substance likely to impair the environment or
harm human health, which non-compliance or any other
disposal, discharge, spillage, leak or emission which
has occurred would be likely to give rise to any
liability (whether actual or contingent) on the part
of any member of the Offeree Group and which is
material in the context of the Offeree Group taken as
a whole; or
(ii) there is or is likely to be any liability (whether
contingent or otherwise) to make good, repair,
reinstate or clean up any property now or previously
owned, occupied or made use of by any past or present
member of the Offeree Group, or in which any such
member may now or previously have had or be deemed to
have or have had an interest, under any environmental
legislation, notice, circular or order of any
relevant authority or to contribute to the cost
thereof or associated therewith or indemnify any
person in relation thereto, in any such case to an
extent which is material in the context of the
Offeree Group taken as a whole; or
(iii) circumstances exist whereby a person or class of
persons would be likely to have a claim or claims in
respect of any product or process of manufacture or
materials used therein now or previously
manufactured, sold or carried out by any past or
present member of the Offeree Group which, in any
such case, would be material in the context of the
Offeree Group taken as a whole;
(i) each Affiliate of Offeree has properly executed and delivered
to Offeror an Affiliate Agreement;
(j) each of the executive Directors of Offeree has properly
executed and delivered to Offeror on the day before the
Effective Date deeds of variation of their respective service
agreements in the terms from time to time agreed between such
executive Directors, Offeror and Offeree, subject only to the
Scheme becoming effective; and
(k) Offeree has performed its obligations pursuant to the Merger
Agreement in all material respects.
4. Offeror reserves the right, in its absolute discretion, to waive all or
any of conditions set out
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in paragraph 3 apart from paragraph 3(a), paragraph (b)(i) as read in
conjunction with paragraph 3(c)(i) and paragraph 3(g) which may only be
waived jointly by Offeree and Offeror.
5. Offeree and Offeror have agreed, subject as stated in paragraph 6 of
this Appendix, that the Merger will also be conditional upon the
following matters, and accordingly, an office copy of the Final Court
Order will only be delivered for registration to the Registrar of
Companies in England and Wales if:
(a) clearances have been received, in a form reasonably acceptable
to the Directors of Offeree, from the Inland Revenue under
section 138 of the Taxation of Chargeable Gains Act 1992 and
under section 707 of the Income and Corporation Taxes Act 1988
for transactions involved in the Scheme; and
(b) Offeree has not discovered regarding the Offeror Group that
any written, financial, business or other information (except
for forecasts, statements of opinion, projections, budgets or
estimates) disclosed by or on behalf of any member of the
Offeror Group privately to any member of the Offeree Group or
its advisers contains a misstatement of fact or omits to state
a fact necessary to make the information contained therein not
misleading in any case which has not subsequently and prior to
the date of this Announcement been corrected by such
disclosure, and, in any event, which is material in the
context of the Offeror Group taken as a whole.
6. Offeree reserves the right, in its absolute discretion, to waive either
or both of the conditions set out in paragraph 5.
7. The Scheme will not proceed if the proposed Merger is referred to the
Competition Commission before the date of the Court Meeting. In such
event, neither Offeror nor any holder of Offeree Shares will be bound
by any term of the Scheme.