RNS No 0916h
BRENT INTERNATIONAL PLC
8 July 1999
PART 2
APPENDIX I
Conditions and further terms of the Offer
The Offer will be subject to the following conditions:
(a) valid acceptances being received (and not, where
permitted, withdrawn) by not later than 3.00 p.m.
(London time) on the first closing date of the Offer (or
such later time(s) and/or date(s) as Chemetall may,
subject to the rules of the Code, decide) in respect of
not less than 90 per cent. (or such lesser percentage as
Chemetall may decide) of the Brent Ordinary Shares to
which the Offer relates, provided that, unless agreed by
the Panel, this condition will not be satisfied unless
Chemetall and/or its wholly-owned subsidiaries have
acquired or agreed to acquire (pursuant to the Offer or
otherwise), directly or indirectly, Brent Ordinary
Shares carrying, in aggregate, over 50 per cent. of the
voting rights then normally exercisable at general
meetings of Brent on such basis as may be required by
the Panel (including for this purpose, to the extent (if
any) required by the Panel, any voting rights attaching
to any shares which are unconditionally allotted or
issued before the Offer becomes or is declared
unconditional as to acceptances, whether pursuant to the
exercise of conversion or subscription rights or
otherwise); and for this purpose (i) the expression
"Brent Ordinary Shares to which the Offer relates" shall
be construed in accordance with sections 428-430F of the
Companies Act 1985; and (ii) shares which have been
unconditionally allotted shall be deemed to carry the
voting rights which they will carry on issue;
(b) the French Minister of Economy and Finance (DGCCRF)
indicating, in terms satisfactory to Chemetall, that the
proposed acquisition of Brent by Chemetall does not
raise any French merger control issues or issuing in
writing in terms satisfactory to Chemetall an
unconditional and unrestricted approval of the proposed
acquisition of Brent by Chemetall or the applicable
waiting period having lapsed;
(c) all required filings having been made with the German
Federal Cartel Office (the Bundeskartellamt) with
respect to the Offer and the proposed acquisition of any
shares in, or control of, Brent by Chemetall and either
the Bundeskartellamt having issued unconditional and
unrestricted approval of the acquisition of Brent by
Chemetall or any applicable waiting periods having
expired, lapsed or been terminated as appropriate;
(d) notice of the Offer having been duly filed with the
Spanish Competition Service (the Servicio de Defensa de
la Competencia) and either the Spanish Council of
Ministers (Ministro de Economia y Hacienda) issuing the
appropriate resolution not to oppose the acquisition of
Brent by Chemetall or any applicable waiting periods
having expired, lapsed or been terminated as
appropriate;
(e) no central bank, no government or governmental, quasi-
governmental, supranational, statutory or regulatory
body, or any court, institution, investigative body,
association, trade agency or professional or
environmental body or (without prejudice to the
generality of the foregoing) any other person or body in
any jurisdiction (each, a "Relevant Authority") having
decided to take, institute, implement or threaten any
action, proceedings, suit, investigation, enquiry or
reference or having enacted, made or proposed any
statute, regulation or order or otherwise taken any
other step or done anything, and there not being
outstanding any statute, legislation or order, that
would or could reasonably be expected to:
(i) restrict, restrain, prohibit, materially delay,
impose additional conditions or obligations with
respect to, or otherwise interfere with the
implementation of, the Offer or the acquisition of
any Brent Ordinary Shares by Chemetall or any
matters arising therefrom;
(ii) result in a material delay in the ability of
Chemetall, or render Chemetall unable, to acquire
some or all of the Brent Ordinary Shares;
(iii)require, prevent, materially delay or affect the
divestiture by any member of the wider Dynamit
Group or the wider Brent Group of all or any
material portion of their businesses, assets or
property or of any Brent Ordinary Shares or other
securities in Brent or impose any material
limitation on the ability of any of them to
conduct their respective businesses (or any of
them) or own their respective assets or properties
or any part thereof;
(iv) impose any limitation on the ability of any member
of the wider Dynamit Group to acquire or hold or
exercise effectively, directly or indirectly, all
rights of ownership of all or any of the Brent
Ordinary Shares or other securities, or the
equivalent, whether acquired pursuant to the Offer
or otherwise;
(v) require any member of the wider Dynamit Group or
the wider Brent Group to offer to acquire any
shares or other securities (or the equivalent) or
rights thereover in any member of the wider Brent
Group owned by any third party;
(vi) make the Offer or its implementation or the
proposed acquisition of Brent or any member of the
wider Brent Group or of any Brent Ordinary Shares
or any other shares or securities in, or control
of, Brent, illegal, void or unenforceable in or
under the laws of any jurisdiction or otherwise,
directly or indirectly, restrain, prohibit,
restrict or materially delay the same or impose
additional conditions or obligations with respect
thereto, or otherwise challenge or interfere
therewith;
(vii)impose any material limitation on the ability of
any member of the wider Dynamit Group or the wider
Brent Group to co-ordinate its business, or any
part of it, with the business of any other member
of the wider Dynamit Group or the wider Brent
Group;
(viii)result in any member of the wider Dynamit
Group or the wider Brent Group ceasing to be able
to carry on business under any name which it
presently does so; or
(ix) otherwise materially adversely affect any or all
of the businesses, assets, financial or trading
positions, or profits of any member of the wider
Dynamit Group or the wider Brent Group or the
exercise of rights of shares of any company in the
Brent Group,
and all applicable waiting periods during which such
Relevant Authority could institute, implement or
threaten any such action, proceeding, suit,
investigation, enquiry or reference or otherwise
intervene under the laws of any jurisdiction having
expired, lapsed or been terminated;
(f) all material authorisations, orders, grants, consents,
clearances, licences, permissions and approvals, in any
jurisdiction, necessary for or in respect of the Offer,
the proposed acquisition of any shares or securities in,
or control of, Brent or any member of the wider Brent
Group by any member of the wider Dynamit Group or the
carrying on of the business of any member of the wider
Brent Group or the wider Dynamit Group or any matters
arising therefrom being obtained in terms satisfactory
to Chemetall (acting reasonably) from all appropriate
Relevant Authorities or (without prejudice to the
generality of the foregoing) from any persons or bodies
with whom any members of the wider Brent Group or the
wider Dynamit Group has entered into contractual
arrangements and all such material authorisations,
orders, grants, consents, clearances, licences,
permissions and approvals remaining in full force and
effect and there being no intimation of any intention to
revoke or not to renew the same and all necessary
filings having been made, all appropriate waiting and
other time periods (including extensions thereto) under
any applicable legislation and regulations in any
jurisdiction having expired, lapsed or been terminated
and all necessary statutory or regulatory obligations in
any jurisdiction in respect of the Offer or the proposed
acquisition of Brent by Chemetall or of any Brent shares
or any matters arising therefrom having been complied
with;
(g) appropriate assurances being received, in terms
satisfactory to Chemetall (acting reasonably), from the
relevant authorities or any party with whom any member
of the wider Brent Group has any material contractual or
other relationship that the interests held by any member
of the wider Brent Group under licences, leases,
consents, permits and other rights will not be
materially adversely amended or otherwise materially
adversely affected by the Offer or the proposed
acquisition of Brent or any matters arising therefrom,
that such licences, leases, consents, permits and other
rights are in full force and effect and that there is no
intention to revoke or amend any of the same;
(h) save as fairly disclosed in writing by Brent to
Chemetall prior to the date of this announcement, there
being no provision of any agreement, instrument, permit,
licence or other arrangement to which any member of the
wider Brent Group is a party or by or to which it or any
of its assets may be bound or subject which, as a
consequence of the Offer or the acquisition of Brent or
because of a change in the control or management of
Brent or any member of the Brent Group or any matters
arising therefrom or otherwise, would or could
reasonably be expected to have the result that to an
extent which is material:
(i) any moneys borrowed by, or other indebtedness,
actual or contingent, of, or grant available to,
any member of the wider Brent Group becomes or is
capable of being declared repayable immediately or
earlier than the repayment date stated in such
agreement, instrument or other arrangement or the
ability of any member of the wider Brent Group to
borrow moneys or incur indebtedness is withdrawn,
inhibited or adversely affected;
(ii) any mortgage, charge or other security interest is
created over the whole or any part of the
business, property or assets of any member of the
wider Brent Group or any such security (whenever
arising) becomes enforceable;
(iii) any such agreement, instrument, permit, licence or
other arrangement, or any right, interest,
liability or obligation of any member of the wider
Brent Group therein, is terminated or adversely
modified or affected or any action is taken or
onerous obligation or liability arises thereunder;
(iv) the value of any member of the wider Brent Group
or its financial or trading position is prejudiced
or adversely affected;
(v) any asset or interest or, other than in the
ordinary course of business, any asset of the
wider Brent Group being or falling to be charged
or disposed of or any right arising under which
any such asset or interest could be requested to
be disposed of or charged otherwise than in the
ordinary course of business;
(vi) the rights, liabilities, obligations or interests
or business of any member of the wider Brent Group
in or with any other person, firm or company (or
any arrangement relating to such interest or
business) is terminated, modified or adversely
affected; or
(vii) any member of the wider Brent Group ceases to be
able to carry on business under any name under
which it currently does so;
(i) since 31 December 1998 (being the date to which the
latest published audited report and accounts of Brent
were made up) or save as announced publicly and, in each
case, delivered to the London Stock Exchange or
otherwise fairly disclosed in writing to Chemetall prior
to the date of this announcement, no member of the wider
Brent Group having:
(i) issued or agreed to issue or authorised or
proposed the issue of additional shares of any
class or issued or authorised or proposed the
issue of or granted securities convertible into or
rights, warrants or options to subscribe for or
acquire such shares or convertible securities or
redeemed, purchased or reduced or announced any
intention to do so or made any other change to any
part of its share capital (save in each such case,
for the issue of Brent Ordinary Shares or the
grant of options over such shares pursuant to the
Brent Share Option Schemes);
(ii) recommended, declared, paid or made or proposed to
recommend, declare, pay or make any dividend,
bonus or other distribution other than dividends
lawfully paid to Brent or wholly-owned
subsidiaries of Brent;
(iii) authorised or proposed or announced its intention
to propose any merger or acquisition or disposal
or transfer of any material assets or shares or
any change in its share or loan capital;
(iv) issued or authorised or proposed the issue of any
debentures (other than in the ordinary course of
business) or incurred or increased any
indebtedness or contingent liability;
(v) other than in the ordinary course of business
disposed of or transferred, mortgaged or
encumbered any asset or any right, title or
interest in any asset or entered into or varied
any contract, commitment or arrangement (whether
in respect of capital expenditure or otherwise)
which is of a long term or unusual nature or which
involves or could reasonably be expected to
involve an obligation of a nature or magnitude
which is material;
(vi) entered into or varied in any material respect or
proposed to enter into or vary in any material
respect any contract, reconstruction,
amalgamation, arrangement or other transaction
(whether in respect of capital expenditure or
otherwise) which is of a long term or unusual or
onerous nature or is otherwise than in the
ordinary course of business;
(vii) entered into, or varied the terms of, any contract
or agreement with any of the directors or senior
executives of Brent;
(viii)taken or proposed any corporate action or had any
legal proceedings started or threatened against it
for its winding-up, dissolution or reorganisation
or for the appointment of a receiver,
administrator, administrative receiver, trustee or
similar officer of all or any of its assets and
revenues;
(ix) waived or compromised any claim other than in the
ordinary course of business;
(x) made any amendment to its memorandum or articles of
association;
(xi) entered into or materially varied or authorised,
proposed or announced its intention to enter into
or vary any contract, transaction, arrangement or
commitment (whether in respect of capital
expenditure or otherwise) which is or could
reasonably expected to be restrictive on the
business of any member of the wider Brent Group or
the wider Dynamit Group;
(xii) entered into any contract, transaction, commitment
or agreement or made any proposal or announcement
with respect to any of the transactions or events
referred to in this condition (i); or
(xiii)been unable or admitted that it is unable to pay
its debts 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;
(j) since 31 December 1998 (being the date to which the
latest published audited report and accounts of Brent
were made up) or save as announced publicly and, in each
case, delivered to the London Stock Exchange or
otherwise fairly disclosed in writing to Chemetall prior
to the date of this announcement:
(i) no litigation, arbitration, prosecution or other
legal proceedings having been instituted,
announced or threatened or become pending or
remained outstanding by or against any member of
the wider Brent Group or to which any member of
the wider Brent Group is or may become a party
(whether as plaintiff, defendant or otherwise),
which in any such case is material;
(ii) no material adverse change having occurred in the
business, assets, financial or trading position or
profits of any member of the wider Brent Group;
and
(iii) no contingent or other liability having arisen or
become apparent to Chemetall which might
reasonably be expected to adversely and materially
affect the wider Brent Group;
(k) Chemetall not having discovered, after the date of this
announcement, that:
(i) any material business, financial or other
information concerning any member of the wider
Brent Group disclosed, publicly or otherwise at
any time to Chemetall, by or on behalf of any
member of the wider Brent Group, either contains a
material misrepresentation of fact or omits to
state a fact necessary to make the information
contained therein not materially misleading; or
(ii) any member of the wider Brent Group is subject to
any material liability, actual or contingent,
which is not disclosed or provided for in the
annual report and accounts of Brent for the
financial year ended 31 December 1998; and
(l) Chemetall not having discovered, after the date of this
announcement, that:
(i) any past or present member of the wider Brent
Group has not complied in all material respects
with all applicable legislation or regulations of
any jurisdiction with regard to the storage,
disposal, discharge, spillage, leak or emission of
any waste or hazardous substance or any substance
likely to impair the environment or to harm human
health or otherwise relating to environmental
matters (which non-compliance might give rise to
any material liability (whether actual or
contingent) on the part of any member of the wider
Brent Group) or that there has otherwise been any
such disposal, discharge, spillage, leak or
emission (whether or not the same constituted a
non-compliance by any person with any such
legislation or regulations and wherever the same
may have taken place) which in any such case might
reasonably be expected to give rise to any
material liability (whether actual or contingent)
on the part of any member of the wider Brent
Group;
(ii) there is or is likely to be any material liability
(whether actual or contingent) on the part of any
member of the wider Brent Group 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 wider Brent Group or
any controlled waters under any environmental
legislation, regulation, notice, circular or order
of any Relevant Authority or third party or
otherwise;
(iii) that circumstances exist (whether as a result of
the making of the Offer or otherwise) which might
reasonably be expected to lead to any Relevant
Authority instituting or any member of the wider
Brent Group or the wider Dynamit Group being
required to institute, an environmental audit or
take any other steps which in any such case might
result in any material actual or contingent
liability on the part of any member of the wider
Brent Group to improve or install new plant or
equipment or make good, repair, re-instate or
clean up any land or other asset now or previously
owned, occupied or made use of by any member of
the wider Brent Group; or
(iv) circumstances exist whereby a person or class of
persons might reasonably be expected to have any
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 wider
Brent Group which in any such case could
reasonably be expected to result in a material
liability for any member of the wider Brent Group.
Chemetall reserves the right to waive all or any of
conditions (b) to (l) (inclusive) above, in whole or in part.
Conditions (b) to (l) (inclusive) must be satisfied as at, or
waived on or before, 21 days after the later of the first
closing date of the Offer and the date on which condition (a)
is fulfilled (or in each case such later date as the Panel
may agree) provided that Chemetall shall be under no
obligation to waive or treat as satisfied any of conditions
(b) to (l) (inclusive) 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 there are at such
earlier date no circumstances indicating that any of such
conditions may not be capable of fulfilment.
If Chemetall is required by the Panel to make an offer for
Brent Ordinary Shares under the provisions of Rule 9 of the
Code, Chemetall may make such alterations to the conditions
as are necessary to comply with the provisions of that Rule.
Save with the consent of the Panel, the Offer will lapse if
it is referred to the Competition Commission or if the
European Commission in respect thereof either initiates
proceedings under article 6(1)(c) of Council Regulation (EEC)
4064/89 or makes a referral to a competent authority of the
United Kingdom or any other European Union or EFTA state
under article 9(3) of that Regulation, before (in any such
case) the later of the first closing date of the Offer and
the date when the Offer becomes or is declared unconditional
as to acceptances.
For the purposes of these conditions:
(A) "subsidiary undertaking", "associated undertaking" and
"undertaking" have the meaning given by the Companies Act
1985, as amended (the "Act") but for this purpose
ignoring paragraph 20(1)(b) of Schedule 4A to the Act;
(B) "wider Brent Group" means Brent and its subsidiaries,
subsidiary undertakings and associated undertakings and
any other undertaking in which any member of the Brent
Group has a substantial interest;
(C) "wider Dynamit Group" means Chemetall, Dynamit,
Metallgesellschaft and Metallgesellschaft's subsidiaries,
subsidiary undertakings and associated undertakings and
any other undertaking in which any member of the
Metallgesellschaft Group has a substantial interest; and
(D) "substantial interest" means a direct or indirect
interest in 20 per cent. or more of the voting equity
capital of an undertaking.
The availability of the Offer outside the United Kingdom may
be affected by the laws of other jurisdictions. Persons in
such jurisdictions should inform themselves about and observe
any applicable regulations and laws.
The Offer will not be made, directly or indirectly, in or into
or by use of the mails of, or by any means or instrumentality
(including, without limitation, fax, telex or telephone) of
interstate or foreign commerce, or of any facility of a
national securities exchange, of the United States of America
or Canada and the Offer will not be capable of acceptance by
any such use, means, instrumentality or facility or from
within the United States of America or Canada. Accordingly,
copies of this announcement are not being, and must not be,
mailed or otherwise distributed or sent in or into or from the
United States of America or Canada.
The Offer and all contracts arising under it will be governed
by English law.
APPENDIX II
DEFINITIONS
"Brent" or the means Brent International PLC;
"Company"
means Brent and its subsidiary
"Brent Group" undertakings;
"Brent Ordinary means the holders of Brent Ordinary
Shareholders" Shares;
"Brent Ordinary means the existing unconditionally
Shares" allotted or issued and fully paid
ordinary shares of 10 pence each in
the capital of Brent and any further
such shares which are unconditionally
allotted or issued on or before the
time and date at which the Offer
ceases to be open for acceptance (or
such earlier time and/or date as, with
the Panel's consent or in accordance
with the Code, Chemetall may decide),
including shares unconditionally
allotted or issued pursuant to the
exercise of any options under the
Brent Share Option Schemes;
"Brent Preference means the 9 per cent. cumulative
Shares" redeemable preference shares of #1.00
each in the capital of Brent;
"Brent Share Option means The Brent 1984 Executive Share
Schemes" Option Scheme and The Brent 1992
Savings Related Share Option Scheme;
"Brent Shares" means the Brent Ordinary Shares and
the Brent Preference Shares;
"Code" means The City Code on Takeovers and
Mergers;
"Chemetall" means Chemetall GmbH;
"Dynamit" means Dynamit Nobel AG;
"Dynamit Group" means Dynamit and its subsidiary
undertakings;
"Lazards" means Lazard Brothers & Co., Limited;
"Metallgesellschaft" means Metallgesellschaft AG;
"Metallgesellschaft means Metallgesellschaft and its
Group" subsidiary undertakings;
"Metallgesellschaft means the existing bearer shares of
Shares" DM5 in the share capital of
Metallgesellschaft;
"Offer" means the recommended offer to be made
by Warburg Dillon Read on behalf of
Chemetall to purchase all of the Brent
Ordinary Shares on the terms and
subject to the conditions set out in
the formal offer document and form of
acceptance including, where the
context so requires, any subsequent
revision, variation, extension or
renewal of such offer;
"Panel" means The Panel on Takeovers and
Mergers;
"Warburg Dillon Read" means Warburg Dillon Read, the
investment banking division of UBS AG.
Exchange ratios of DM2.99/#1.00 and Euro 1.95583/DM1.00 have
been used throughout this announcement.
END
OFFUBUGGMBGBUBR
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