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Personal
Group Holdings plc:
company announcement 10/12/2004
Part 1 of 2
10 December 2004
Personal Group Holdings
plc
Recommended £12.3 million cash offer for
Berkeley Morgan Group plc to be made by Durlacher
Limited on behalf of Personal Group Holdings plc
Summary
The Offer will be 105 pence in cash for each Berkeley
Morgan Share.
On this basis, the Offer values the issued share
capital of Berkeley Morgan at approximately £12.3
million.
The Offer represents a premium of approximately
30 per cent. over the Closing Price of 81 pence
per Berkeley Morgan Share on 9 December 2004,
the last dealing day prior to the date of this
announcement.
The Offer represents a premium of approximately
51 per cent. over the average Closing Price of
69.4 pence (Source: Bloomberg) per Berkeley Morgan
Share for the 3 month period prior to the date
of this announcement.
Personal Group has received irrevocable undertakings
to accept the Offer from Berkeley Morgan Shareholders
(including all executive members of the Berkeley
Morgan Board and Berkeley Morgan’s principal
institutional shareholder) in respect of, in aggregate,
9,120,681 Berkeley Morgan Shares, representing
approximately 78 per cent. of the issued share
capital of Berkeley Morgan.
The Offer has been unanimously recommended by
the Berkeley Morgan Board.
Following the Offer becoming or being declared
unconditional in all respects, the Personal Group
Directors plan to appoint Jon Pardoe, Chairman
and Chief Executive of Berkeley Morgan, to the
Personal Group Board.
The formal documentation relating to the Offer
(including the Offer Document and Form of Acceptance),
which will contain advice to Berkeley Morgan Shareholders
from the Berkeley Morgan Board, is expected to
be dispatched to Berkeley Morgan Shareholders
(other than certain Overseas Shareholders) shortly.
Christopher Johnston, Chairman of Personal Group
commented "This proposed acquisition is an
excellent opportunity for Personal Group shareholders
to gain exposure to a business with a successful
track record and product strengths that both complement
and augment our existing business, whilst enhancing
earnings."
Jon Pardoe, Chairman and Chief Executive of Berkeley
Morgan, commented "I am delighted that we
have secured what I consider to be a very fair
price for our shareholders. I look forward to
the future of Berkeley Morgan, as part of Personal
Group, with great confidence."
This summary should be read in conjunction with
the full text of the following announcement. Appendix
2 to the following announcement contains definitions
of certain expressions used in this summary and
the following announcement.
Enquiries:
Christopher Johnston,
Chairman of Personal Group
Tel: 020 7444 4153
Grant Harrison
/ Jonathan Retter
/ Marcus Jackson,
Durlacher Limited
Tel: 020 7459 3600
(Financial Adviser to Personal Group)
Simon Rothschild,
Bankside
Tel: 020 7444 4153
(Public Relations Adviser to Personal Group)
Jon Pardoe,
Chairman and Chief Executive of Berkeley Morgan
Tel: 01254 266 257
Michael Cobb
/ Shaun Claydon,
BDO Stoy Hayward Corporate Finance
Tel: 020 7486 5888
(Financial Adviser to Berkeley Morgan)
Isabel Crossley,
St Brides Media & Finance
Tel: 020 7242 4477
(Public Relations Adviser to Berkeley Morgan)
Durlacher, which is authorised and regulated in
the United Kingdom by the Financial Services Authority,
is acting for Personal Group and no-one else in
connection with the Offer and will not be responsible
to anyone other than Personal Group for providing
the protections afforded to clients of Durlacher
nor for providing advice in relation to the Offer
or in relation to the contents of this announcement
or any matter referred to herein.
BDO Stoy Hayward Corporate Finance, a division
of BDO Stoy Hayward LLP, Chartered Accountants,
which is authorised and regulated in the United
Kingdom by the Financial Services Authority, is
acting for Berkeley Morgan and no-one else in
connection with the Offer and will not be responsible
to anyone other than Berkeley Morgan for providing
the protections afforded to clients of BDO Stoy
Hayward Corporate Finance nor for providing advice
in relation to the Offer or in relation to the
contents of this announcement or any matter referred
to herein.
The Offer will not be made, directly or indirectly,
and this announcement should not be sent, in or
into or from the United States, Canada, Australia,
the Republic of Ireland or Japan or by use of
the mails of or by any means or instrumentality
(including, without limitation, facsimile transmission,
telex, telephone or e-mail) of interstate or foreign
commerce of, or any facilities of a national securities
exchange of, any of these jurisdictions and doing
so may render invalid any purported acceptance
of the Offer. Accordingly, copies of this announcement
and any other document relating to the Offer are
not being, and must not be, marked or otherwise
distributed or sent in or into the United States,
Canada, Australia, the Republic of Ireland or
Japan. Any person (including, without limitation,
custodians, nominees and trustees) who may have
contractual or legal obligations, or may otherwise
intend, to forward this announcement to any jurisdiction
outside the United Kingdom should read the relevant
provisions of the Offer Document before taking
any action.
The availability of the Offer to persons not
resident in the United Kingdom may be affected
by the laws of the relevant jurisdictions in which
they are located. Persons who are (or who are
nominees, custodians or trustees for) citizens,
nationals or residents of countries outside the
United Kingdom should inform themselves about
and observe any applicable legal or regulatory
requirements in relation to this announcement
and the Offer.
This announcement is not intended to and does
not constitute, or form part of, an offer or an
invitation to purchase any securities.
Part 2 of 2
Not for release, publication or distribution
in or into or from the United States, Canada,
Australia, Republic of Ireland or Japan or any
other jurisdiction if to do so would constitute
a violation of the relevant laws of such jurisdiction
10 December 2004
Personal Group Holdings
plc
Recommended £12.3 million cash offer for
Berkeley Morgan Group plc to be made by Durlacher
Limited on behalf of Personal Group Holdings plc
Introduction
The boards of Personal Group and Berkeley Morgan
are pleased to announce a recommended cash offer
to be made by Durlacher on behalf of Personal
Group for the issued and to be issued share capital
of Berkeley Morgan. The Offer is 105 pence per
Berkeley Morgan Share and values the issued share
capital of Berkeley Morgan at approximately £12.3
million.
Personal Group has received from Berkeley Morgan
Shareholders irrevocable undertakings to accept
the Offer in respect of 9,120,681 Berkeley Morgan
Shares, representing approximately 78 per cent.
of the issued share capital of Berkeley Morgan.
Terms of the Offer
The Offer, which will be made on the terms and
subject to the conditions set out in Appendix
1 to this announcement and the further terms which
will be set out in the Offer Document and in the
Form of Acceptance, will be made on the following
basis:
for each Berkeley Morgan Share 105 pence in cash
On this basis, the Offer values the issued share
capital of Berkeley Morgan at approximately £12.3
million.
The Offer represents a premium of approximately
30 per cent. over the Closing Price of 81 pence
per Berkeley Morgan Share on 9 December 2004,
being the last dealing day prior to the release
of this announcement. The Berkeley Morgan Shares
are to be acquired, pursuant to the Offer, fully
paid and free from all liens, charges, equitable
interests, encumbrances, rights of pre-emption
and other third party rights or interests of any
nature whatsoever and together with all rights
now or hereafter attaching to them including the
right to receive and retain all dividends and
other distributions.
The Offer will extend to any Berkeley Morgan
Shares which are unconditionally allotted or issued
fully paid (or credited as fully paid) prior to
the date on which the Offer closes (or such earlier
date as Personal Group may, subject to the City
Code, determine being not earlier than the date
on which the Offer becomes or is declared unconditional
as to acceptances or, if later, the First Closing
Date) pursuant to the exercise of options under
the Berkeley Morgan Share Option Scheme or otherwise.
If the Offer becomes or is declared unconditional
in all respects, to the extent that options remain
unexercised, Personal Group intends to make appropriate
proposals to all Berkeley Morgan Option Holders
in due course.
Irrevocable undertakings
Personal Group has received from Berkeley Morgan
Shareholders irrevocable undertakings to accept
the Offer in respect of 9,120,681 Berkeley Morgan
Shares, representing 78 per cent. of the issued
share capital of Berkeley Morgan. These comprise:
an irrevocable undertaking from Jon Pardoe, Berkeley
Morgan’s chairman and chief executive, to
accept the Offer in respect of his personal beneficial
shareholding in Berkeley Morgan, amounting to
4,631,055 Berkeley Morgan Shares, representing
39.6 per cent. of the issued share capital of
Berkeley Morgan;
an irrevocable undertaking from Simon Ingman,
Berkeley Morgan’s finance director, to accept
the Offer in respect of his personal beneficial
shareholding in Berkeley Morgan, amounting to
116,809 Berkeley Morgan Shares, representing approximately
1.0 per cent. of the issued share capital of Berkeley
Morgan;
an irrevocable undertaking from Electra to accept
the Offer in respect of 2,067,708 Berkeley Morgan
Shares, representing approximately 17.7 per cent.
of the issued share capital of Berkeley Morgan;
and
irrevocable undertakings from certain other individuals
and employees of Berkeley Morgan to accept the
Offer in respect of 2,305,109 Berkeley Morgan
Shares, representing approximately 19.7 per cent.
of the issued share capital of Berkeley Morgan.
In aggregate, therefore, Personal Group has received
irrevocable undertakings to accept the Offer in
respect of 9,120,681 Berkeley Morgan Shares, representing
approximately 78 per cent. of the issued share
capital of Berkeley Morgan.
The irrevocable undertakings given by Jon Pardoe
and Simon Ingman in respect of their personal
beneficial shareholdings will only cease to be
binding if the Offer lapses or is withdrawn.
The irrevocable undertaking to accept the Offer
given by Electra will cease to be binding if the
Offer lapses or is withdrawn or if at any time
before the Offer becomes or is declared unconditional
in all respects, an improved offer is announced
in accordance with Rule 2.5 of the Code at a price
per Berkeley Morgan Share of not less than 115.5
pence.
All other irrevocable undertakings will cease
to be binding if the Offer lapses or is withdrawn
or if at any time before the Offer becomes or
is declared unconditional in all respects, any
improved offer is announced.
Recommendation
The Berkeley Morgan Directors, who have been so
advised by BDO Stoy Hayward Corporate Finance,
consider the terms of the Offer to be fair and
reasonable. In providing its advice, BDO Stoy
Hayward Corporate Finance has taken into account
the commercial assessments of the Berkeley Morgan
Directors.
Accordingly the Berkeley Morgan Directors will
unanimously recommend that Berkeley Morgan Shareholders
accept the Offer, as Jon Pardoe (chairman and
chief executive) and Simon Ingman (finance director)
have irrevocably undertaken to do in respect of
their own beneficial holdings of, in aggregate,
4,747,864 Berkeley Morgan Shares, representing
40.6 per cent. of the issued share capital of
Berkeley Morgan.
Background to and reasons
for the Offer
Personal Group has maintained steady growth since
it was established in 1984 providing employee
benefit programmes to employers.
The Personal Group Board believes that the Acquisition
will allow Personal Group to extend the range
of insurance-related products it can offer, which
can be made available to employee group members
being serviced by its all employee benefit programmes
and further enhance the options available via
the internet/intranet using Personal Group’s
Perflex flexible benefit software.
The Personal Group Board believes Berkeley Morgan
will add a business with its own markets, insurance
products and sales team to Personal Group.
Reasons for the Recommendation
by Berkeley Morgan
As is evident from the interim results announced
today, Berkeley Morgan has continued its recovery
from a period of poor performance.
Although it is possible that this improvement
in performance would be reflected in due course
by the market in terms of an increased share price,
the proposal from Personal Group is at a level
that the shares have not reached for over two
years. Moreover the Offer represents an approximate
30 per cent. premium to yesterday’s Closing
Price and provides Berkeley Morgan Shareholders
with cash and the opportunity to sell their shares
free of any dealing costs.
The Berkeley Morgan Board considers that the
Offer provides certainty now at an attractive
price in cash which should be extended to all
shareholders. In addition, in view of the fact
that, in aggregate, shareholders representing
approximately 78 per cent. of Berkeley Morgan’s
issued share capital have irrevocably undertaken
to accept the Offer, the Berkeley Morgan Board
considers that it is in the best interests of
all other Berkeley Morgan Shareholders to accept
the Offer.
Financing of the Offer
Full acceptance of the Offer, assuming all existing
share options are exercised in full under the
terms of the Berkeley Morgan Share Option Scheme,
would result in a maximum cash consideration of
approximately £12.4 million being payable
to Berkeley Morgan Shareholders.
The consideration payable under the Offer is
being financed by a combination of Personal Group’s
existing cash resources and an acquisition facility
being made available by the Royal Bank of Scotland
pursuant to the Facility Agreement.
Durlacher is satisfied that the necessary financial
resources are available to Personal Group for
it to implement the Offer in full.
Information on Personal
Group
Personal Group was founded in 1984 by Christopher
Johnston and John Ormond. In November 2000 Personal
Group was admitted to trading on AIM.
The range of services
offered by Personal Group and its subsidiaries
include:
employee benefit solutions;
accident and health insurance;
general insurance and reinsurance broking;
independent financial advice; and
mortgage advice service.
Personal Group has made a profit every year since
1986. In the year to 31 December 2003, Personal
Group had trading income of £12.9 million.
Information on Berkeley
Morgan
Berkeley Morgan’s principal activity is
the provision of financial planning advice and
the supply and packaging of medical and general
insurance services.
Berkeley Morgan has also announced today its
interim results for the six months to 31 October
2004. The interim results reported turnover of
£7.8 million (2003: £8.2 million),
profit before tax of £1.5 million (2003:
£0.7 million ) and net assets of £3.5
million.
In the financial year ended 30 April 2004, Berkeley
Morgan reported a turnover from continuing activities
of £16.5 million and achieved profit before
tax from continuing activities of £1.3 million.
As at that date Berkeley Morgan had net assets
of £2.4 million.
Personal Group Shareholder
Approval
Due to its size the Acquisition will not be classed
as a reverse takeover pursuant to Rule 13 of the
AIM Rules. As a result, the Acquisition will not
be subject to approval by Personal Group’s
shareholders.
Directors, management
and employees
Personal Group has given assurances to the Berkeley
Morgan Directors that, following the Offer becoming
or being declared unconditional in all respects,
the existing employment rights, including pension
rights, of the directors and employees of Berkeley
Morgan will be fully safeguarded.
The Personal Group Directors have invited Jon
Pardoe, chairman and chief executive of Berkeley
Morgan, to join the board of the enlarged group
once the Offer has become, or been declared, unconditional
in all respects.
New bonus arrangements for Jon Pardoe and key
Berkeley Morgan employees and consultants
Personal Group is keen to ensure that the results
achieved by Berkeley Morgan can be built on going
forward. Given the fact that Berkeley Morgan is
a people business, Personal Group recognises the
importance of retaining and incentivising the
key personnel in the Berkeley Morgan Group who
are primarily responsible for generating business
and for maintaining relationships with suppliers,
clients, potential clients and key intermediaries.
Proposed bonus arrangements for Jon Pardoe, certain
other current employees and the current self-employed
sales consultants have been agreed with Personal
Group and will come into effect (in the case of
consultants in place of the existing share option
scheme) once the Offer becomes, or is declared,
unconditional in all respects. Full details of
these bonus arrangements will be included in the
Offer Document to be dispatched shortly to Berkeley
Morgan Shareholders.
Berkeley Morgan Share
Option Scheme
The Offer will extend to any Berkeley Morgan Shares
which are unconditionally allotted or issued fully
paid (or credited as fully paid) prior to the
date on which the Offer closes (or such earlier
date as Personal Group may, subject to the City
Code, determine being not earlier than the date
on which the Offer becomes or is declared unconditional
as to acceptances or, if later, the First Closing
Date) pursuant to the exercise of options under
the Berkeley Morgan Share Option Scheme or otherwise.
If the Offer becomes or is declared unconditional
in all respects, to the extent that options remain
unexercised, Personal Group intends to make appropriate
proposals to all Berkeley Morgan Option Holders
in due course.
Compulsory acquisition
and dealings
Berkeley Morgan Shareholders should note that
if Personal Group receives acceptances under the
Offer in respect of, and/or otherwise acquires
90 per cent. or more of the Berkeley Morgan Shares
to which the Offer relates, Personal Group intends
to exercise its rights under sections 428 to 430F
of the Act to compulsorily acquire the remaining
Berkeley Morgan Shares.
Berkeley Morgan Shareholders should also note
that Personal Group intends to procure that Berkeley
Morgan applies to OFEX for the cancellation of
the admission of Berkeley Morgan Shares to trading
on OFEX not less than 15 business days following
the date on which the Offer becomes or is declared
unconditional in all respects. Berkeley Morgan
Shareholders should note that cancellation of
such admission would significantly reduce the
liquidity and marketability of any Berkeley Morgan
Shares in respect of which acceptances of the
Offer are not validly made. Personal Group also
intends to procure the re-registration of Berkeley
Morgan as a private company under the relevant
provisions of the Act.
General
The Offer will be open for at least 21 days from
the date of the Offer Document. Personal Group
intends to dispatch the Offer Document, setting
out full details of the Offer, and the Form of
Acceptance to Berkeley Morgan Shareholders as
soon as reasonably practicable.
Appendix 2 contains definitions
of the terms used in this announcement.
Enquiries:
Christopher Johnston,
Chairman of Personal Group
Tel: 020 7444 4153
Grant Harrison
/ Jonathan Retter
/ Marcus Jackson,
Durlacher Limited
Tel: 020 7459 3600
(Financial Adviser to Personal Group)
Simon Rothschild,
Bankside
Tel: 020 7444 4153
(Public Relations Adviser to Personal Group)
Jon Pardoe,
Chairman and Chief Executive of Berkeley Morgan
Tel: 01254 266 257
Michael Cobb /
Shaun Claydon,
BDO Stoy Hayward Corporate Finance
Tel: 020 7486 5888
(Financial Adviser to Berkeley Morgan)
Isabel Crossley,
St Brides Media & Finance
Tel: 020 7242 4477
(Public Relations Adviser to Berkeley Morgan)
Durlacher, which is authorised and regulated
in the United Kingdom by the Financial Services
Authority, is acting for Personal Group and no-one
else in connection with the Offer and will not
be responsible to anyone other than Personal Group
for providing the protections afforded to clients
of Durlacher nor for providing advice in relation
to the Offer or in relation to the contents of
this announcement or any matter referred to herein.
BDO Stoy Hayward Corporate Finance, a division
of BDO Stoy Hayward LLP, Chartered Accountants,
which is authorised and regulated in the United
Kingdom by the Financial Services Authority, is
acting for Berkeley Morgan and no-one else in
connection with the Offer and will not be responsible
to anyone other than Berkeley Morgan for providing
the protections afforded to clients of BDO Stoy
Hayward Corporate Finance nor for providing advice
in relation to the Offer or in relation to the
contents of this announcement or any matter referred
to herein.
The Offer will not be made, directly or indirectly,
and this announcement should not be sent, in or
into or from the United States, Canada, Australia,
the Republic of Ireland or Japan or by use of
the mails of or by any means or instrumentality
(including, without limitation, facsimile transmission,
telex, telephone or e-mail) of interstate or foreign
commerce of, or any facilities of a national securities
exchange of, any of these jurisdictions and doing
so may render invalid any purported acceptance
of the Offer. Accordingly, copies of this announcement
and any other document relating to the Offer are
not being, and must not be, marked or otherwise
distributed or sent in or into the United States,
Canada, Australia, the Republic of Ireland or
Japan. Any person (including, without limitation,
custodians, nominees and trustees) who may have
contractual or legal obligations, or may otherwise
intend, to forward this announcement to any jurisdiction
outside the United Kingdom should read the relevant
provisions of the Offer Document before taking
any action.
The availability of the Offer to persons not
resident in the United Kingdom may be affected
by the laws of the relevant jurisdictions in which
they are located. Persons who are not resident
in the United Kingdom should inform themselves
about and observe any applicable requirements.
This announcement is not intended to and does
not constitute, or form part of, an offer or an
invitation to purchase any securities.
The directors of Personal Group accept responsibility
for the information relating to Personal Group
contained in this announcement. To the best of
the knowledge and belief of such persons (who
have taken all reasonable care to ensure that
such is the case) such information is in accordance
with the facts and does not omit anything likely
to affect the import of such information.
The directors of Berkeley Morgan accept responsibility
for the information relating to Berkeley Morgan
contained in this announcement. To the best of
the knowledge and belief of such persons (who
have taken all reasonable care to ensure that
such is the case) such information is in accordance
with the facts and does not omit anything likely
to affect the import of such information.
The Offer will be subject to the terms and conditions
set out in Appendix 1 to this announcement and
to the further terms which will be set out in
the Offer Document.
Appendix 1
1. Conditions and certain terms
of the Offer
The Offer will comply with the applicable rules
and regulations of the Code, will be governed
by English law and will be subject to the jurisdiction
of the Courts of England and Wales. The Offer
will be subject to the terms and conditions set
out in this announcement and to be set out in
the Offer Document and the Form of Acceptance
and will be subject to the following conditions:
a)
valid acceptances being received (and not, where
permitted, withdrawn) by no later than 3.00 p.m.
on the First Closing Date (or such later time(s)
and/or date(s) as Personal Group may, subject
to the rules of the Code, decide) in respect of
not less than 90 per cent. in nominal value (or
such lesser percentage as Personal Group may decide)
of the Berkeley Morgan Shares to which the Offer
relates, provided that this condition shall not
be satisfied unless Personal Group and/or its
wholly owned subsidiaries shall have acquired
or agreed to acquire, whether pursuant to the
Offer or otherwise, Berkeley Morgan Shares carrying,
in aggregate, more than 50 per cent. of the voting
rights normally exercisable at general meetings
of Berkeley Morgan, including for this purpose
(to the extent, if any, required by the Panel)
any such voting rights attaching to any Berkeley
Morgan Shares which are unconditionally allotted
or issued fully paid (or credited as fully paid)
before the Offer becomes or is declared unconditional
as to acceptances, whether pursuant to the exercise
of any subscription or conversion rights or otherwise.
For the purposes of this condition:
(i) the expression ‘‘Berkeley
Morgan Shares to which the Offer relates’’
shall be construed in accordance with sections
428-430F (inclusive) of the Act; and
(ii) Berkeley Morgan Shares
which have been unconditionally allotted but not
issued shall be deemed to carry the voting rights
which they will carry on issue;
b)
without limitation to condition (d) below, Personal
Group not having discovered or otherwise become
aware prior to the date when the Offer would otherwise
have become or been declared unconditional that
the Office of Fair Trading intends, or is reasonably
likely, to refer the proposed acquisition of Berkeley
Morgan by Personal Group, or any matters arising
therefrom, to the Competition Commission pursuant
to section 33 of the Enterprise Act 2002;
c)
save as disclosed in Berkeley Morgan’s annual
report and accounts for the year ended 30 April
2004, the unaudited interim results of Berkeley
Morgan for the period ending 31 October 2004 announced
today, or as publicly announced by Berkeley Morgan
by the delivery of an announcement to a Regulatory
Information Service prior to today, or as fairly
disclosed in writing to Personal Group or its
financial or professional advisers prior to today
(such public announcements, disclosures or information
being referred to in these terms and conditions
as being ‘‘revealed’’),
there being no provision of any agreement, authorisation,
arrangement, franchise, consent, lease, licence,
permit or other instrument to which any member
of the Wider Berkeley Morgan Group is a party
or by or to which any such member or any of its
assets may be bound, entitled or subject, which
as a result of the Offer or the proposed acquisition
by Personal Group of any shares in, or control
of, Berkeley Morgan or otherwise, is reasonably
likely to result (in each case to an extent which
is material in the context of the Wider Berkeley
Morgan Group taken as a whole) in:
(i) any monies borrowed
by, or any other indebtedness, actual or contingent,
of or any grant available to, any such member
being or becoming repayable or capable of being
declared repayable immediately or earlier than
its stated maturity date, or the ability of any
such member to borrow monies or incur any indebtedness
being withdrawn, prohibited or inhibited or becoming
capable of being withdrawn, prohibited or inhibited;
(ii) any such agreement, authorisation,
arrangement, franchise, consent, licence, permit
or instrument or the rights, liabilities, obligations
or interests of any such member thereunder being
or becoming capable of being terminated or adversely
modified or affected;
(iii) the business of any
such member in or with any other person, firm,
company or body (or any arrangements relating
to such business) being terminated, modified or
adversely affected;
(iv) any material assets or
material interests of any such member being or
falling to be disposed of or charged or ceasing
to be available to any such member or any right
arising under which any such asset or interest
could be required to be disposed of or charged
or could cease to be available to any such member
otherwise than in the ordinary course of business;
(v) the creation of any mortgage,
charge or other security interest over the whole
or any part of the business, property or assets
of any such member or any such security (whenever
created, arising or having arisen) becoming enforceable
or being enforced;
(vi) the financial or trading
position or profits of any member of the Wider
Berkeley Morgan Group being prejudiced or adversely
affected;
(vii) the creation of any
material liabilities (actual or contingent) (other
than in the ordinary course of business) by any
member of the Wider Berkeley Morgan Group;
(viii) any such member ceasing
to be able to carry on business under any name
under which it presently does;
and no event having occurred
which, under any provisions of any such arrangement,
authorisation agreement, licence, consent, lease,
permit, franchise or other instrument, would result
in any of the events or circumstances which are
referred to in paragraph (i) to (viii) of this
condition (c) in any case to an extent which is
or would be material in the context of the Wider
Berkeley Morgan Group taken as a whole;
d)
no government, government department or governmental,
quasi-governmental, supranational, statutory,
regulatory, environmental or investigative body
or authority (including, without limitation, any
national anti-trust or merger control authority),
court, trade agency, institution or any other
similar body or person whatsoever in any jurisdiction
(each a ‘‘Third Party’’
and all collectively ‘‘Third Parties’’)
having instituted or implemented or threatened,
or having decided to institute or implement or
threaten, any action, proceeding, suit, investigation,
enquiry or reference or having made, proposed
or enacted any statute, regulation, order or decision
or taken any other steps which is reasonably likely
to (in each case to an extent which is material
in the context of the Wider Berkeley Morgan Group
or the Wider Personal Group, as the case may be,
in each case taken as a whole):
(i) make the Offer or its
implementation or the Acquisition or the proposed
acquisition by Personal Group of all or any Berkeley
Morgan Shares, or the acquisition or proposed
acquisition of other securities in, or control
of, Berkeley Morgan by Personal Group, void, illegal
and/or unenforceable under the laws of any relevant
jurisdiction, or otherwise, directly or indirectly,
restrain, restrict, prohibit, challenge, frustrate,
delay or interfere with the same, or impose additional
material conditions or obligations with respect
thereto, or otherwise require material amendment
to the terms of the Offer or any such acquisition
(including, without limitation, taking any steps
which would entitle the Berkeley Morgan Board
to require Personal Group to dispose of all or
some of its Berkeley Morgan Shares or restrict
the ability of Personal Group to exercise voting
rights in respect of some or all of such Berkeley
Morgan Shares);
(ii) require, prevent or delay
the divestiture, or alter the terms envisaged
for any proposed divestiture, by any member of
the Wider Personal Group or any member of the
Wider Berkeley Morgan Group of all or any material
portion of their respective businesses, assets
or properties or impose any limitation on the
ability of any of them to conduct their respective
businesses or to own any of their respective assets
or property to an extent which is material in
the context of the Wider Personal Group or the
Wider Berkeley Morgan Group taken as a whole,
respectively;
(iii) impose any material
limitation on, or result in a delay in, the ability
of any member of the Wider Personal Group to acquire
or hold or exercise effectively, directly or indirectly,
all or any rights of ownership in respect of shares
or other securities (or the equivalent) in any
member of the Wider Berkeley Morgan Group or to
exercise management control over any such member;
(iv) otherwise materially
and adversely affect in any respect any or all
of the businesses, assets or profits of any member
of the Wider Personal Group or any member of the
Wider Berkeley Morgan Group respectively;
(v) result in any member of
the Wider Berkeley Morgan Group ceasing to be
able to carry on business or impose any limitation
on the ability of any member of the Wider Personal
Group or any member of the Wider Berkeley Morgan
Group to integrate or co-ordinate its business,
or any part of it, with the business of any member
of the Wider Berkeley Morgan Group or the Wider
Personal Group to an extent that is material in
the context of the Wider Personal Group or the
Wider Berkeley Morgan Group;
(vi) save pursuant to the
Offer or Part XIIIA of the Act, require any member
of the Wider Personal Group or of the Wider Berkeley
Morgan Group to offer to acquire any shares or
other securities) in any member of the Wider Berkeley
Morgan Group owned by any third party;
and all applicable waiting
and other time periods during which any such Third
Party could take, institute, implement or threaten
any action, proceeding, suit, investigation, enquiry
or reference under the laws of any relevant jurisdiction
or enact any such statute, regulation, order or
decision or take any steps having expired, lapsed
or been terminated;
e)
all authorisations, orders, recognitions, grants,
determinations, consents, licences, confirmations,
clearances, certificates, permissions and approvals
(each an ‘‘Authorisation’’)
which are necessary in any relevant jurisdiction
for or in respect of the Offer or the proposed
acquisition of any shares or other securities
in, or control of, Berkeley Morgan or any other
member of the Wider Berkeley Morgan Group by any
member of the Wider Personal Group or the carrying
on by any member of the Wider Berkeley Morgan
Group of its business having been obtained, in
terms and in a form reasonably satisfactory to
Personal Group from all appropriate Third Parties
or from any persons or bodies with whom any member
of the Wider Berkeley Morgan Group has entered
into contractual arrangements, in each case where
the absence of such Authorisation from such a
person might have a material adverse effect on
the Wider Berkeley Morgan Group (taken as a whole)
and all such Authorisations remaining in full
force and effect and there being no notice or
intimation of any intention to revoke, withdraw,
withhold, suspend, restrict, modify, amend or
not to renew any of the same;
f)
all notifications and filings which are necessary
having been made, all appropriate waiting and
other time periods (including any extensions of
such waiting and other time periods) under any
applicable legislation or regulation of any relevant
jurisdiction having expired, lapsed or been terminated
(as appropriate) and all necessary statutory or
regulatory obligations in any relevant jurisdiction
having been complied with in each case in connection
with the Offer or the Acquisition or the proposed
acquisition of any shares or other securities
in, or control of, Berkeley Morgan or any other
member of the Wider Berkeley Morgan Group by any
member of the Wider Personal Group where, in each
case, the absence of such compliance might have
a material and adverse affect on the business
of any member of the Wider Berkeley Morgan Group;
g)
save as revealed, no member of the Wider Berkeley
Morgan Group having:
(i) (save as between Berkeley
Morgan and wholly-owned subsidiaries of Berkeley
Morgan, or for options granted or on the exercise
of rights to subscribe for Berkeley Morgan Shares
pursuant to the exercise of options granted or
the exercise of rights under the Berkeley Morgan
Share Option Scheme prior to the date hereof)
issued, agreed to issue, authorised or proposed
the issue or grant 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 or redeemed,
purchased or reduced or announced any proposal
to redeem, purchase or reduce any part of its
share capital;
(ii) recommended, declared,
paid or made or proposed to declare, pay or make
any bonus, dividend or other distribution whether
payable in cash or otherwise, other than to Berkeley
Morgan or wholly-owned subsidiaries of Berkeley
Morgan;
(iii) (save as between Berkeley
Morgan and wholly-owned subsidiaries of Berkeley
Morgan) merged with or demerged any body corporate
or acquired or disposed of or transferred, mortgaged
or charged or created any security interest over
any assets or any rights, title or interest in
any asset (including shares and trade investments),
or authorised or proposed or announced any intention
to propose any merger, demerger, acquisition,
disposal, transfer, mortgage, charge or the creation
of any security interest over the same (other
than in the ordinary course of business and being
material in the context of the Wider Berkeley
Morgan Group taken as a whole);
(iv) (save as between Berkeley
Morgan and wholly-owned subsidiaries of Berkeley
Morgan or for options granted or on the exercise
of rights to subscribe for Berkeley Morgan Shares
pursuant to the exercise of options granted or
the exercise of rights under the Berkeley Morgan
Share Option Schemes prior to the date hereof)
authorised or proposed, or announced an intention
to propose, any change in its share or loan capital
including the purchase of any of its own shares;
(v) issued, authorised or
proposed the issue of or made any change in or
to any debentures or incurred or increased any
indebtedness or become subject to a liability
(actual or contingent) which in any case is outside
the ordinary course of business and material in
the context of the Wider Berkeley Morgan Group
taken as a whole;
(vi) entered into, implemented,
effected, varied, authorised or proposed any contract,
reconstruction, amalgamation, scheme, commitment,
merger, demerger or other transaction or arrangement
or waived or compromised any claim in respect
of itself or another member of the Wider Berkeley
Morgan Group, in each case otherwise than in the
ordinary course of business, which in any case
is material in the context of the Wider Berkeley
Morgan Group taken as whole;
(vii) proposed any voluntary
winding up;
(viii) terminated or varied
the terms of any agreement or arrangement between
any member of the Wider Berkeley Morgan Group
and any other person in a manner which is likely
to have a material adverse effect on the position
of the Wider Berkeley Morgan Group;
(ix) proposed, agreed to provide
or modified the terms of any share option scheme,
incentive scheme or other benefit relating to
the employment or termination of employment of
any person employed by the Wider Berkeley Morgan
Group which, taken as a whole, are material in
the context of the Wider Berkeley Morgan Group
taken as a whole;
(x) entered into, varied,
or authorised any agreement, transaction, arrangement
or commitment (whether in respect of capital expenditure
or otherwise) which:
A. is
of a long term, onerous or unusual nature or magnitude
or which is or could involve an obligation of
such nature or magnitude; or
B. is
other than in the ordinary course of business;
and which in any such case
is material in the context of the Wider Berkeley
Morgan Group taken as a whole;
(xi) entered into or
changed the terms of any contract, agreement or
arrangement with any director or senior executive
of any member of the Wider Berkeley Morgan Group
in any material respect;
(xii) taken any corporate
action or had any legal proceedings instituted
or threatened against it or petition presented
or order made for its winding-up (voluntarily
or otherwise), dissolution or reorganisation or
for the appointment of a receiver, trustee, administrator,
administrative receiver or similar officer of
all or any material part of its assets and revenues
or any analogous or equivalent steps or proceedings
in or under the laws of any jurisdiction having
occurred or there having been appointed any analogous
person in any jurisdiction which in any case is
material in the context of the Wider Berkeley
Morgan Group taken as a whole;
(xiii) been unable, or admitted
in writing that it is unable, to pay its debts
generally or having stopped or suspended (or threatened
to stop or suspend) payment of its debts generally
or ceased or threatened to cease carrying on all
or a substantial part of its business in any case
which is or would be material in the context of
the Wider Berkeley Morgan Group taken as a whole;
(xiv) made any alteration
to its memorandum and articles of association
which is material in the context of the Offer;
(xv) entered into any agreement,
contract, commitment or arrangement which consents
to or results in the restriction of the scope
of the business of any member of the Wider Berkeley
Morgan Group or any member of the Wider Personal
Group which, in any such case, is material in
the context of the Wider Berkeley Morgan Group
or the Wider Personal Group taken as a whole,
respectively;
(xvi) entered into any agreement,
commitment or arrangement or passed any resolution
or made any offer (which remains open for acceptance)
to enter into any agreement, commitment or arrangement
or proposed or announced any intention to effect
any of the transactions, matters or events referred
to in this condition (g) which is material in
the context of the Wider Berkeley Morgan Group
taken as a whole;
(xvii) (other than in the
ordinary course of business) waived or compromised
any claim which is material in the context of
the Wider Berkeley Morgan Group taken as a whole;
h) save
as revealed and only to the extent material in
any case in the context of the Wider Berkeley
Morgan Group taken as a whole:
(i) no material adverse change
or deterioration having occurred in the business,
assets, financial or trading position or profits
of any member of the Wider Berkeley Morgan Group;
(ii) no claim being made,
and no circumstances having arisen which might
lend to a claim being made, under the insurance
of any member of the Wider Berkeley Morgan Group
which might have a material adverse effect on
the Wider Berkeley Morgan Group;
(iii) no litigation, arbitration
proceedings, prosecution or other legal proceedings
or investigation having been instituted, announced,
implemented or threatened by or against or remaining
outstanding against any member of the Wider Berkeley
Morgan Group or to which any member of the Wider
Berkeley Morgan Group is or may become a party
(whether as plaintiff, defendant or otherwise);
(iv) no contingent or other
liability of any member of the Wider Berkeley
Morgan Group having arisen or become apparent
or increased which in any such case might reasonably
be expected materially and adversely to affect
any member of the Wider Berkeley Morgan Group;
(v) (other than as a result
of the Offer) no enquiry or investigation by,
or complaint or reference to, any Third Party
having been threatened, announced, implemented,
instituted by or against or remaining outstanding
against or in respect of any member of the Wider
Berkeley Morgan Group which in any such case is
material and adverse in the context of the Wider
Berkeley Morgan Group taken as a whole;
i)
save as revealed, Personal Group not having discovered:
(i) that any financial or
business or other information publicly announced
at any time by or on behalf of any member of the
Wider Berkeley Morgan Group is misleading or contains
a misrepresentation of any fact or omits to state
a fact necessary to make the information contained
therein not misleading (and which is not subsequently
corrected before the date of publication of the
Offer Document by disclosure either publicly or
otherwise fairly in writing to Personal Group)
in each case to an extent that the effect of the
inaccuracy or misrepresentation of fact or omission
is to overstate the assets or understate the liabilities
of the Berkeley Morgan Group to an extent which
is material in the context of the Wider Berkeley
Morgan Group taken as a whole;
(ii) that any member of the
Wider Berkeley Morgan Group and any partnership,
company or other entity in which any member of
the Wider Berkeley Morgan Group has a significant
interest is subject to any liability (contingent
or otherwise) which has not been publicly announced
and which is material in the context of the Wider
Berkeley Morgan Group taken as a whole; and
any information which affects
the import of any information which has been revealed
to an extent which is material and adverse in
the context of the Wider Berkeley Morgan Group
taken as a whole.
Personal Group reserves the
right to waive, in whole or in part, all or any
of the above conditions apart from conditions
(a) and (b). If Personal Group is required by
the Panel to make an offer for Berkeley Morgan
Shares under the provisions of Rule 9 of the Code,
Personal Group may make such alterations to the
above conditions, including condition (a), as
are necessary to comply with the provisions of
that Rule.
The Offer will lapse unless
the conditions set out above (other than condition
(a)) are fulfilled or (if capable of waiver) waived
by Personal Group no later than 21 days after
whichever is the later of the First Closing Date
or the date on which the Offer becomes or is declared
unconditional as to acceptances, or such later
date as the Panel may agree. Personal Group shall
be under no obligation to waive or treat as satisfied
any of the conditions (c) to (i) by a date earlier
than the latest date specified above for the satisfaction
thereof notwithstanding that the other conditions
of the Offer may at such earlier date have been
waived or fulfilled and that on such earlier date
there are no circumstances indicating that any
of such conditions may not be capable of fulfilment.
The Offer will lapse if the
Acquisition is referred to the Competition Commission
before 3.00 p.m. on whichever is the later of
the First Closing Date or the date on which the
Offer becomes or is declared unconditional as
to acceptances. In such circumstances, the Offer
will cease to be capable of further acceptance
and persons accepting the Offer and Personal Group
shall thereupon cease to be bound by acceptances
delivered on or before the date on which the Offer
so lapses.
2. Certain further terms of
the Offer
Personal Group will reserve the right to waive,
in whole or in part, all or any of the above conditions
except condition (a). The Offer will lapse unless
the conditions set out above are fulfilled or
satisfied or (if capable of waiver) waived by
Personal Group or, where appropriate, have been
determined by Personal Group in its reasonable
opinion to be or to remain satisfied no later
than midnight on the twenty first day after the
later of the First Closing Date and the date on
which the Offer becomes or is declared unconditional
as to acceptances, or such later date as Personal
Group may, with the consent of the Panel, decide.
Each of conditions (a) to (i) shall be regarded
as a separate condition and shall not be limited
by reference to any other condition.
Personal Group shall be under no obligation to
waive or treat as fulfilled any of conditions
(b) to (i) (inclusive) by a date earlier than
the date specified above for the fulfilment thereof
notwithstanding that the other conditions of the
Offer may at such earlier date have been fulfilled
and that there are at such earlier date no circumstances
indicating that any of such conditions may not
be capable of fulfilment.
The Offer will lapse if there is a reference
to the Competition Commission before the later
of 3.00 p.m. on the First Closing Date and the
time and date at which the Offer becomes or is
declared unconditional as to acceptances.
In circumstances where the Offer lapses, the
Offer will cease to be capable of further acceptances
and persons accepting the Offer and Personal Group
will cease to be bound by acceptances delivered
on or before the date on which the Offer so lapses.
The Berkeley Morgan Shares which are the subject
of the Offer will be acquired under the Offer
fully paid and free from all liens, equities,
charges, encumbrances, rights of pre-emption and
any other third party rights or interests of any
nature whatsoever and together with all rights
now or hereafter attaching thereto, including
the right to receive and retain in full all dividends
and other distributions declared, made or paid
after the date of this announcement but not including
the interim dividend announced by Berkeley Morgan
on the date of this announcement.
If Personal Group is required by the Panel to
make an offer for Berkeley Morgan Shares under
the provisions of Rule 9 of the Code, Personal
Group may make such alterations to the conditions,
including to condition (a), as may be necessary
to comply with the provisions of that Rule.
For the purposes of these conditions: the “Wider
Berkeley Morgan Group” means Berkeley Morgan
and its subsidiaries, subsidiary undertakings,
associated undertakings and any other undertakings,
in which Berkeley Morgan and/or such undertakings
(aggregating their interests) have a significant
interest and the “Wider Personal Group”
means Personal Group and its subsidiaries, subsidiary
undertakings, associated undertakings and any
other undertakings in which Personal Group and/or
such undertakings (aggregating their interests)
have a significant interest, and, for these purposes,
“subsidiary”, “subsidiary undertaking”,
“associated undertaking” and “undertaking”
have the meanings given by the Act, other than
paragraph 20(l)(b) of Schedule 4A to the Act which
shall be ignored for this purpose, and “significant
interest” means a direct or indirect interest
in 20 per cent. or more of the total voting rights
conferred by the equity capital of an undertaking.
The Offer will be on the terms and will be subject
to the conditions which are set out in part 1
above and those terms and conditions which will
be set out in the Offer Document and in the Form
of Acceptance and such further terms as may be
required to comply with the AIM Rules and the
applicable rules and regulations of the Financial
Services Authority, the London Stock Exchange
and the provisions of the Code. The Offer and
any acceptances thereunder will be governed by
English law and will be subject to the jurisdiction
of the courts of England and Wales.
The Offer will comply with English law and the
City Code.
The Offer will not be made, directly or indirectly,
in or into or from the United States, Canada,
Australia, the Republic of Ireland or Japan.
Appendix 2
Definitions
The following definitions apply throughout
this announcement, unless the context requires
otherwise:
“Acquisition”
the proposed acquisition of Berkeley Morgan by
Personal Group to be effected by way of the Offer
“Act”
the Companies Act 1985, as amended
“AIM”
the market of that name operated by the London
Stock Exchange
“AIM Rules”
the AIM Rules for Companies published by the London
Stock Exchange as in force at the date of this
announcement or, where the context requires, as
amended or modified after the date of this announcement
“Australia”
the Commonwealth of Australia, its states, territories
and possessions and all areas subject to its jurisdiction
and any political sub-division thereof
“BDO Stoy Hayward
Corporate Finance”
BDO Stoy Hayward Corporate Finance, a division
of BDO Stoy Hayward LLP, Chartered Accountants,
which is authorised and regulated by the Financial
Services Authority to carry on investment business,
financial adviser to Berkeley Morgan
“Berkeley Morgan”
or the “Company”
Berkeley Morgan Group plc (registered in England
and Wales with registered number 3456258)
“Berkeley Morgan
Board”
or the directors of Berkeley Morgan
“Berkeley Morgan Directors”
“Berkeley Morgan
Group”
Berkeley Morgan and its subsidiary undertakings
“Berkeley Morgan
Option Holders”
holders of share options under the Berkeley Morgan
Share Option Scheme
“Berkeley Morgan
Shareholders”
holders of Berkeley Morgan Shares
“Berkeley Morgan
Share Option Scheme”
The Berkeley Morgan Unapproved Share Option Plan
for independent contractors
“Berkeley Morgan
Shares”
the existing unconditionally allotted or issued
fully paid ordinary shares of 10 pence each in
the share capital of Berkeley Morgan and any further
such shares which are unconditionally allotted
or issued fully paid at or before the time at
which the Offer ceases to be open for acceptance
(or such earlier date and/or time, not being earlier
than the date on which the Offer becomes or is
declared unconditional as to acceptances or, if
later, the First Closing Date of the Offer, as
Personal Group may, subject to the City Code,
decide) including any such shares unconditionally
allotted or issued upon the exercise of options
granted under the Berkeley Morgan Share Option
Scheme
“business day”
a day (other than a Saturday or Sunday) on which
banks are generally open for business in the City
of London
“Canada”
Canada, its provinces, possessions and territories
and all areas subject to its jurisdiction and
any political sub-division thereof
“Capita IRG Plc”
Capital IRG Plc (registered in England and Wales
with company number 2605568)
“City Code”
or “Code”
the City Code on Takeovers and Mergers
“Closing Price”
the closing middle market quotation for a Berkeley
Morgan Share as published on the OFEX web-site
at the close of the market on the relevant day
“dealing day”
a day on which dealings in domestic securities
may take place on, and with the authority of,
OFEX
“Durlacher” Durlacher Limited, which
is authorised and regulated by the Financial Services
Authority to carry on investment business, is
financial adviser to Personal Group
“Electra”
Electra Kingsway VCT plc
“Facility Agreement”
the £12,000,000 acquisition finance and
working capital facilities agreement entered into
on 9 December 2004 between (1) Personal Group
and various of its subsidiaries and (2) the Royal
Bank of Scotland plc
“First Closing Date”
the date which is twenty one days after the posting
of the Offer Document
“Form of Acceptance”
the form of acceptance, authority and election
for use in connection with the Offer accompanying
the Offer Document
“Japan”
Japan, its cities, prefectures, territories and
possessions and all other areas subject to its
jurisdiction and any political sub-division thereof
“London Stock Exchange”
London Stock Exchange plc
“OFEX”
the market of that name operated by OFEX plc and
regulated by the Financial Services Authority
“Offer”
the recommended cash offer to be made by Durlacher
on behalf of Personal Group to acquire all of
the Berkeley Morgan Shares on the terms and subject
to conditions to be set out in the Offer Document
and in the Form of Acceptance and, where the context
requires, any subsequent revision, variation,
extension or renewal thereof
“Offer Document”
the document to be dispatched to Berkeley Morgan
Shareholders (other than certain Overseas Shareholders)
setting out the full terms and conditions of the
Offer and, where appropriate, any other document(s)
containing terms and conditions of the Offer constituting
the full terms and conditions of the Offer
“Ordinary Shares”
ordinary shares of 10 pence each in the share
capital of the Company
“Overseas Shareholders”
Berkeley Morgan Shareholders whose registered
addresses are outside the UK or who are citizens,
residents or nationals of countries other than
the UK or who are nominees of, or trustees for,
citizens, residents or nationals in countries
other than the UK
“Panel”
The Panel on Takeovers and Mergers
“Personal Group”
Personal Group Holdings plc (registered in England
and Wales with registration number 3194991)
“Personal Group
Board”
or the directors of Personal Group
“Personal Group Directors”
“Regulatory Information
Service”
Newstrack or any other news service required to
be used by AIM, OFEX, the London Stock Exchange
or the Financial Services Authority
“significant interest”
a direct or indirect interest in 20 per cent.
or more of the total voting rights conferred by
the equity capital of an undertaking
“subsidiary”
or “subsidiary undertaking”
have the meanings given to them by the Act
“United Kingdom”
or “UK”
the United Kingdom of Great Britain and Northern
Ireland
“United States”
or “USA”
the United States of America, its territories
and possessions and all other areas subject to
its jurisdiction or any political subdivision
thereof, any state of the United States of America
and the District of Columbia
“Wider Berkeley
Morgan Group”
as defined in Part 2 of Appendix 1 to this announcement
“Wider Personal
Group”
as defined in Part 2 of Appendix 1 to this announcement
All times referred to in this announcement are
references to London time.
END
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