RNS Number:9389Y
Respironics, Inc.
21 May 2004
Not for release, publication or distribution, in whole or in part, in, into or
from the United States, Canada, Australia or Japan.
Embargoed until 7:00 a.m. on 21 May 2004
Recommended Cash Offer
by
Bridgewell Limited
on behalf of Respironics UK Holding Company Limited
a wholly owned subsidiary of
Respironics, Inc.
for Profile Therapeutics plc
Summary
* The boards of Respironics and Profile announce that they have reached
agreement on the terms of a recommended cash offer, to be made by Bridgewell on
behalf of Respironics UK, a wholly owned subsidiary of Respironics, for the
entire issued and to be issued share capital of Profile.
* The Offer will be 50.9 pence in cash for each Profile Share, which
values the entire existing issued share capital of Profile at approximately
#25.0 million.
* The Offer represents a premium of 48.0 per cent. to the average
Closing Price of 34.4 pence per Profile Share for the year ended 17 March 2004,
the last dealing day prior to the announcement by Profile that it was in
discussions that may or may not lead to a recommended cash offer being made for
Profile, and a premium of 13.1 per cent. to the Closing Price of 45 pence per
Profile Share on that date.
* Respironics UK has received irrevocable undertakings from all the
Profile Directors who hold Profile Shares and/or options under the Profile
Option Schemes and from certain institutional shareholders of Profile in respect
of, in aggregate, 30,587,783 Profile Shares, representing approximately 62.2 per
cent. of the existing issued share capital of Profile and a non-binding letter
of intent to accept the offer from an additional institutional shareholder in
respect of 2,191,876 Profile Shares, representing approximately 4.5 per cent. of
the existing issued share capital of Profile.
* The Offer will be unanimously recommended by the Directors of
Profile.
Commenting on the Offer, John Miclot, President and CEO of Respironics, said:
"We are very pleased to be able to announce today the recommended cash offer for
Profile. The acquisition of Profile is consistent with our strategic plan,
which calls for expanding our presence in the international sleep and
respiratory markets, and enhances the breadth of our products and services.
Profile has been a long-standing customer in the UK and has also developed
innovative technologies that are complementary to our existing portfolio."
Commenting on the Offer, Mark Kirby, Chairman of Profile, said: "The Offer
builds on the relationship between Respironics and Profile which has run for
over 15 years. It provides the business with a strong long-term partner for the
future to develop further the commercial opportunities for Profile's current
product ranges and the Adaptive Aerosol Delivery technology, whilst realising a
fair value for existing shareholders."
This summary should be read in conjunction with the full text of the following
announcement relating to the Offer.
Certain terms used in this summary and the following announcement are defined in
Appendix II to this announcement.
Parker/Hunter Incorporated and Bridgewell Limited are acting as financial
advisers to Respironics and PricewaterhouseCoopers LLP is acting as financial
adviser to Profile in connection with this transaction.
Enquiries:
Respironics, Inc.
Dan Bevevino (Vice President and CFO) +1 724 387 5235
Maryellen Bizzack (Director, Marketing & Communications) +1 724 387 5006
Bridgewell Limited
John Craven (Director) 020 7003 3108
Profile Therapeutics plc
John Lisle (Chief Executive Officer) 020 7466 5000 (Friday 21 May)
0870 770 2004 (thereafter)
PricewaterhouseCoopers LLP
Darren Bryant (Director) 020 7466 5000 (Friday 21 May)
020 7804 4089 (thereafter)
Bridgewell, which is regulated in the United Kingdom by the Financial Services
Authority, is acting exclusively for Respironics and Respironics UK and no one
else in connection with the Offer and will not be responsible to anyone other
than Respironics and Respironics UK for providing the protections afforded to
its customers or for providing advice in relation to the Offer or in relation to
the contents of this announcement or any transaction or arrangement referred to
herein.
PricewaterhouseCoopers LLP, which is authorised and regulated in the United
Kingdom by the Financial Services Authority for designated investment business,
is acting exclusively for Profile and for no one else in relation to the Offer
and will not be responsible to anyone other than Profile for providing the
protections afforded to clients of PricewaterhouseCoopers LLP or for giving
advice in relation to the Offer or any other matter referred to in this
announcement.
This announcement does not constitute an offer to sell or an invitation to
purchase or subscribe for any securities or the solicitation of an offer to buy
or subscribe for any securities pursuant to the Offer or otherwise. The Offer
will be made solely by the Offer Document and the Form of Acceptance
accompanying the Offer Document, which will contain the full terms and
conditions of the Offer, including details of how the Offer may be accepted. The
laws of relevant jurisdictions may affect the availability of the Offer to
persons not resident in the United Kingdom. Persons who are not resident in the
United Kingdom, or who are subject to the laws of any jurisdiction other than
the United Kingdom, should inform themselves about, and observe, any applicable
legal and regulatory requirements.
The Offer will not be made, directly or indirectly, in or into the United States
or by use of the mails of, or by any means or instrumentality (including,
without limitation, facsimile or other electronic transmission, telex or
telephone) of inter-state or foreign commerce of, or any facility of, a
national, state or other securities exchange of, the United States, nor will it
be made directly or indirectly in or into Canada, Australia or Japan and the
Offer cannot be accepted by any such use, means, instrumentality or facility or
from within the United States, Canada, Australia or Japan or any other such
jurisdiction if to do so would constitute a violation of the relevant laws of
such jurisdiction. Accordingly, copies of this press announcement, the Offer
Document and the Form of Acceptance are not being, will not be and must not be
mailed or otherwise forwarded, distributed or sent in, into or from the United
States, Canada, Australia or Japan or any other such jurisdiction if to do so
would constitute a violation of the relevant laws of such jurisdiction and
persons receiving this press announcement, the Offer Document and Form of
Acceptance (including without limitation custodians, nominees and trustees) must
not mail, forward, distribute or send them in, into or from the United States,
Canada, Australia or Japan or any other such jurisdiction if to do so would
constitute a violation of the relevant laws of such jurisdiction.
Not for release, publication or distribution, in whole or in part, in, into or
from the United States, Canada, Australia or Japan
Embargoed until 7:00 a.m. on 21 May 2004
Recommended Cash Offer
by
Bridgewell Limited
on behalf of Respironics UK Holding Company Limited
a wholly owned subsidiary of
Respironics, Inc.
for Profile Therapeutics plc
1. Introduction
On 18 March 2004, Profile announced that it was in discussions that may or may
not lead to a recommended cash offer being made for the company. The boards of
Profile and Respironics have reached agreement on the terms of a recommended
cash offer to be made by Bridgewell on behalf of Respironics UK, a wholly owned
subsidiary of Respironics, for all of the issued and to be issued share capital
of Profile.
The Profile Directors, who have been so advised by PricewaterhouseCoopers,
consider the terms of the Offer to be fair and reasonable so far as Profile
Shareholders are concerned. In providing advice to the Profile Directors,
PricewaterhouseCoopers has taken into account the commercial assessments of the
Profile Directors. Accordingly, the Profile Directors unanimously recommend that
all Profile Shareholders accept the Offer, as those Profile Directors who hold
Profile Shares have irrevocably undertaken to do in respect of their entire
holdings of Profile Shares, amounting in aggregate to 11,554,532 Profile Shares,
representing approximately 23.5 per cent. of the existing issued share capital
of Profile.
2. The Offer
On behalf of Respironics UK, a wholly owned subsidiary of Respironics,
Bridgewell will offer to acquire, on the terms and subject to the conditions set
out below and in Appendix I of this announcement, and to the further terms to be
set out in the Offer Document and the Form of Acceptance, all of the issued and
to be issued share capital of Profile on the following basis:
for each Profile Share 50.9 pence in cash
The Offer values the entire existing issued share capital of Profile at
approximately #25.0 million. On this basis, the Offer represents a premium of
48.0 per cent. to the average Closing Price of 34.4 pence per Profile Share for
the year ended 17 March 2004, the last dealing day prior to the Announcement,
and a premium of 13.1 per cent. to the Closing Price of 45 pence per Profile
Share on that date.
The cash consideration payable under the Offer is to be funded from Respironics'
existing cash resources.
3. Irrevocable undertakings
Respironics UK has received irrevocable undertakings to accept the Offer from
all the Profile Directors who hold Profile Shares and/or options under the
Profile Options Schemes in respect of their entire existing holdings of Profile
Shares, amounting in aggregate to 11,554,532 Profile Shares, representing
approximately 23.5 per cent. of Profile's existing issued share capital. Such
undertakings will cease to be binding only if the Offer lapses or is withdrawn.
In addition, Respironics UK has received irrevocable undertakings from
institutions to accept the Offer in respect of approximately 38.7 per cent. of
Profile's existing issued share capital, amounting in aggregate to 19,033,251
Profile Shares as set out below. These undertakings will cease to be binding if
the Offer lapses or is withdrawn or in the event that a third party makes a
competing offer under which the amount or value of the consideration offered for
each Profile Share represents a premium of at least 10 per cent. to the Offer
price of 50.9 pence per Profile Share. The undertakings from 3i Group plc and
3i Bioscience Investment Trust plc will also cease to be binding in the event
that the board of Profile withdraws its recommendation of the Offer.
Profile Shares
Number %
Profile Directors
Mark Kirby 9,007,900 18.3
Jonathan Denyer 1,450,000 3.0
John Burke 990,750 2.0
Simon Constantine 100,000 0.2
John Ward 5,882 0.0
11,554,532 23.5
Other Profile Shareholders
3i Group plc 8,072,267 16.4
Deutsche Asset Management 6,095,815 12.4
Scottish Widows Investment Partnership 3,421,052 7.0
3i Bioscience Investment Trust plc 1,444,117 2.9
19,033,251 38.7
Total irrevocable commitments 30,587,783 62.2
In addition, Respironics UK has received a non-binding letter of intent to
accept the Offer in respect of approximately 4.5 per cent. of Profile's existing
issued share capital, amounting in aggregate to 2,191,876 Profile Shares as set
out below:
Profile Shares
Number %
NatWest Ventures Limited 1,739,976 3.5
Bridgepoint Capital (Nominees) Limited 451,900 0.9
In aggregate, therefore, Respironics has received irrevocable undertakings and
non-binding letters of intent to accept the Offer in respect of 32,779,659
Profile Shares representing approximately 66.7 per cent. of Profile's existing
issued share capital.
4. Background to and reasons for the Offer
Following its flotation in 2000, Profile has focused on the continued
development of its inhaled therapies to improve the treatment of respiratory
patients. During this period Profile has made significant progress, both in its
conventional respiratory equipment sales and services and in development and
partnerships with its innovative AAD drug delivery systems.
Notwithstanding this progress, the board of Profile has been alert to the fact
that while Profile operates in a global market, like many smaller UK companies
in the pharmaceuticals and healthcare sector, it has finite resources and
limited reach on a standalone basis. The Directors of Profile believe that
Profile's ability to maximise its underlying potential is, in large part, driven
by the need to secure partners for its different products in the various
geographical markets on which it focuses and to provide sufficient overall
resources to meet the needs of these partners. The Directors of Profile believe
that the risks inherent in the development and expansion of the drug delivery
business, principally regulatory, partner and reimbursement risks, have
increased since the time of flotation.
During the course of 2003, the board of Profile commenced a review of the
various strategic options available to the company. The options considered by
the board of Profile included, inter alia, continuing to operate as an
independent entity, a disposal of all or part of the business, a strategic
acquisition or a merger. The board appointed PricewaterhouseCoopers to assist
in evaluating the strategic options and available partners and as part of this
process, a number of parties were approached to assess their interest in making
an offer for Profile.
As this process was being initiated, Respironics approached Profile to discuss
possible ways in which the two companies could work together more closely.
Profile has enjoyed a relationship with Respironics for over 15 years and has
become Respironics' primary distributor in the UK market. Respironics has had
the scale and resources to ensure a rich pipeline of new products, particularly
in the sleep and ventilation therapy markets, and Profile has grown sales of
these products rapidly and consistently. In the year ended 30 June 2003,
products distributed for the Respironics Group accounted for approximately 42%
of Profile's total turnover and in the first ten months of the current financial
year, Profile has increased its sales of Respironics Group products in the UK by
a further 28%.
During these discussions Respironics indicated to the Profile board its intent
to achieve direct distribution in the UK within the short to medium term, and
its desire to accomplish this in the UK either through the purchase of PRS, or
by the establishment of its own commercial function. Respironics has also
recently indicated to the Profile board an intention to terminate the current
distribution arrangements should Profile be acquired by a third party. These
decisions were incorporated into the ongoing strategic review process being
conducted by the board of Profile, who were mindful of the adverse impact to
Profile of losing the highly profitable Respironics distribution business.
The board of Profile believes that the sale of PRS alone would significantly
increase the risk profile of the group and would not be the best strategy to
pursue for the following reasons:
* PRS provides a solid, growing, profitable and cash-generative
backbone to the overall group, without which corporate costs, including those
significant costs related to Profile being a publicly listed company, would be
borne by a much smaller entity, with a materially different cashflow profile, in
particular a significantly increased cash burn.
* Profile is structured as an integrated, single-site company with PRS
providing the logistics, manufacturing and quality assurance support required
for the Profile Drug Delivery and Profile Pharma businesses. The cost of
providing this support if PRS were sold would be high.
* A sale of PRS alone would leave shareholders a much smaller corporate
entity with a higher risk profile and reduced debt capacity and the Directors
believe that this would negatively influence investor appetite for Profile's
shares.
The board of Profile therefore advanced discussions to consider the possibility
of Respironics making an offer for Profile. The basis on which Respironics
would make an offer was assessed against a number of other indications of
interest from third parties with whom discussions were held during this
strategic process. These negotiations ultimately culminated in the Offer, the
terms of which are more favourable than any other indication of value received.
In assessing Respironics' offer, the Profile board has also had regard to the
current position of its US joint venture with Breath. The Directors of Profile
have believed for some time that a significant part of the future potential
value of Profile lies in the success of the joint venture with Breath. Over
recent months, a number of issues have arisen which, whilst not materially
altering the likelihood of the ultimate success of the joint venture, have
deferred the likely timing of receipt of income as first product sales are not
expected before the start of 2007. The reimbursement environment is also
becoming more challenging and this has resulted in the likely additional cost of
the pharmaco-economic study referred to in Profile's recent interim
announcement.
Given that the prospect of significant revenues from the US joint venture is a
number of years away and that Respironics has indicated to the Profile board its
intention to take its products to market direct, the Offer provides certainty
for Profile Shareholders at an attractive price, being a significant premium to
both the recent market price, prior to the share price rise which preceded the
Announcement on 18 March 2004, and the average trading price for the year prior
to the Announcement.
5. Recommendation
The Profile Directors, who have been so advised by PricewaterhouseCoopers,
consider the terms of the Offer to be fair and reasonable. In providing advice
to the Profile Directors, PricewaterhouseCoopers has taken into account the
commercial assessments of the Profile Directors.
Accordingly, the Profile Directors unanimously recommend Profile Shareholders to
accept the Offer, as those Profile Directors who hold Profile Shares have
irrevocably undertaken to do in respect of their entire existing holdings of
11,554,532 Profile Shares, representing, in aggregate, approximately 23.5 per
cent. of the existing issued share capital of Profile.
6. Information on Profile
Profile was originally founded in 1977 as Medic-Aid Limited. The group has grown
as a developer and supplier of inhaled drug delivery systems. In 1994, the
business was acquired by its management in order to progress the development of
its innovative platform "intelligent inhalation" technology known as AAD. In
March 2000, Profile completed its initial public offering on the London Stock
Exchange to exploit the opportunities presented by this technology.
AAD is an innovative step towards meeting individuals' needs for the delivery of
inhaled drugs at home. It is designed to deliver precise and reproducible doses
of inhaled drug to any user regardless of age, size, or how the user breathes.
Unlike other pulmonary drug delivery systems, AAD technology constantly analyses
the user's breathing pattern in order to deliver a pulse of nebulised drug into
the first half of inhalation. AAD is designed to deposit the drug in the
required region of the lungs.
For the year ended 30 June 2003 Profile reported turnover of #13.8 million
(2002: #12.7 million) and a loss before tax of #4.4 million (2002: #5.2
million). The consolidated net assets of Profile as at 30 June 2003 were #7.3
million (2002: #11.3 million).
7. Information on Respironics and Respironics UK
Respironics is a leading developer, manufacturer and marketer of medical devices
used primarily for the treatment of patients suffering from sleep and
respiratory disorders. Respironics' products are designed to reduce costs while
improving the effectiveness of patient care and are used primarily in the home
and in hospitals along with alternative care facilities and in emergency medical
settings. Respironics' primary markets are the homecare market and the hospital
market.
Respironics' products sold into the homecare market include continuous positive
airway pressure devices and bi-level positive airway pressure devices used in
the home for the treatment of obstructive sleep apnoea, a serious disorder
characterised by the repeated cessation of breathing during sleep, respiratory
devices including bi-level non-invasive ventilatory support units, portable
invasive volume ventilator units used in the home, home oxygen devices,
diagnostic and monitoring systems, developmental care products used for
premature infants, and asthma and allergy devices used in the home.
Respironics' products sold into the hospital market include bi-level
non-invasive ventilatory support units, critical care units that can deliver
both non-invasive and invasive ventilation, non-invasive cardio-respiratory
monitors, sensors, and related disposable accessories, and asthma and allergy
products, all of which are used in hospital or institutional settings.
Respironics markets its products through homecare, hospital, asthma and allergy,
and international sales organizations, which consist of approximately 440 direct
and independent sales representatives and sales management personnel who sell to
a network of over 5,000 medical product service providers and dealers (commonly
referred to as "dealers") and, in some cases, directly to hospitals and other
institutions. Respironics also rents certain of its products to dealers and, in
limited cases, directly to end-users.
For the year ended 30 June 2003 Respironics reported net sales of $629.8 million
and net income of $46.6 million. As at 30 June 2003, Respironics had
consolidated shareholders' equity of approximately $426.9 million.
Respironics UK is a wholly owned subsidiary of Respironics and is newly
incorporated for the purpose of making the Offer. Respironics UK has not traded
prior to making the Offer and it has not yet produced any financial statements.
8. Management and employees
The board of Respironics UK confirms that, upon the Offer becoming or being
declared unconditional in all respects, the existing employment rights,
including pension rights, of all employees of Profile will be fully safeguarded.
It is proposed that the Directors of Profile will resign from the board of
Profile upon the Offer becoming or being declared unconditional in all respects.
9. Profile Option Schemes
The Offer extends to all Profile Shares which are unconditionally allotted or
issued (including any which are so allotted or issued pursuant to the exercise
of existing options granted under the Profile Option Schemes) whilst the Offer
remains open for acceptance (or by such earlier date as Respironics may, subject
to the City Code, determine, such earlier date not being earlier than the date
on which the Offer becomes or is declared unconditional as to acceptances or,
such later date as Respironics may, subject to the City Code and with the
consent of the Panel, determine).
Respironics has confirmed that, subject to the Offer becoming or being declared
unconditional in all respects, Respironics UK will make appropriate proposals to
the participants in the Profile Option Schemes to the extent that their options
have not been exercised or lapsed and their exercise price is below the Offer
price of 50.9 pence.
10. Inducement fee agreement
As an inducement to Respironics to cause Respironics UK to make the Offer,
Profile and Respironics have entered into an inducement fee arrangement. The
fee is one per cent. of the value of the Offer. Such a fee will be payable by
Profile to Respironics if: (i) the Offer is withdrawn or lapses following (a) a
higher competing offer and such higher competing offer becomes or is declared
unconditional in all respects or (b) a disposal by Profile of substantially its
entire assets and undertaking; or (ii) the board of directors of Profile, or any
independent committee of the board, or PricewaterhouseCoopers, withdraws its
recommendation to Profile's shareholders in respect of the Offer and the Offer
is subsequently withdrawn or lapses.
11. Delisting
If the Offer becomes, or is declared, unconditional in all respects and
sufficient acceptances are received and/or sufficient Profile Shares are
otherwise acquired, Respironics UK intends to apply the provisions of Sections
428 to 430F (inclusive) of the Act to acquire compulsorily any outstanding
Profile Shares to which the Offer relates that have not been acquired or agreed
to be acquired pursuant to the Offer or otherwise.
It is also intended that, following the Offer becoming or being declared wholly
unconditional and subject to any applicable requirements of the UK Listing
Authority, Respironics UK will procure that Profile applies to the London Stock
Exchange for the cancellation of the admission to trading of the Profile Shares.
It is anticipated that such cancellations will take effect no earlier than 20
business days after the Offer becomes or is declared unconditional in all
respects.
Delisting would significantly reduce the liquidity and marketability of any
Profile Shares in respect of which acceptances of the Offer are not submitted.
12. Further details of the Offer
The Profile Shares will be acquired by Respironics UK fully paid and free from
all liens, charges, equitable interests, encumbrances and other third party
rights and/or interests of any nature whatsoever and together with all rights
now or hereafter attaching thereto, including the right to receive and retain
all dividends, interest and other distributions declared, made or paid
hereafter.
The conditions and principal further terms of the Offer are set out in Appendix
I to this announcement.
13. General
The Offer will be made on the terms and subject to the conditions set out herein
and in Appendix I, and to be set out in the Offer Document and the accompanying
Form of Acceptance. These will be despatched to Profile Shareholders by
Bridgewell as soon as reasonably practicable and in any event within 28 days of
the date of this announcement. The Offer and acceptances thereof will be
governed by English law.
The Offer will be subject to the applicable requirements of the City Code, the
Panel, the London Stock Exchange and the UK Listing Authority.
Certain terms used in this announcement are defined in Appendix II to this
announcement.
This announcement does not constitute, or form any part of, any offer for, or
solicitation of, any offer for securities. Any acceptance or other response to
the Offer should be made only on the basis of the information contained in the
Offer Document.
Enquiries:
Respironics, Inc.
Dan Bevevino (Vice President and CFO) +1 724 387 5235
Maryellen Bizzack (Director, Marketing & Communications) +1 724 387 5006
Bridgewell Limited
John Craven (Director) 020 7003 3108
Profile Therapeutics plc
John Lisle (Chief Executive Officer) 020 7466 5000 (Friday 21 May)
0870 770 2004 (thereafter)
PricewaterhouseCoopers LLP
Darren Bryant (Director) 020 7466 5000 (Friday 21 May)
020 7804 4089 (thereafter)
Bridgewell, which is regulated in the United Kingdom by the Financial Services
Authority, is acting exclusively for Respironics and Respironics UK and no one
else in connection with the Offer and will not be responsible to anyone other
than Respironics and Respironics UK for providing the protections afforded to
its customers or for providing advice in relation to the Offer or in relation to
the contents of this announcement or any transaction or arrangement referred to
herein.
PricewaterhouseCoopers LLP, which is authorised and regulated in the United
Kingdom by the Financial Services Authority for designated investment business,
is acting exclusively for Profile and for no one else in relation to the Offer
and will not be responsible to anyone other than Profile for providing the
protections afforded to clients of PricewaterhouseCoopers LLP or for giving
advice in relation to the Offer or any other matter referred to in this
announcement.
This announcement does not constitute an offer to sell or invitation to purchase
or subscribe for any securities or the solicitation of an offer to buy or
subscribe for any securities pursuant to the Offer or otherwise. The Offer will
be made solely by the Offer Document and the Form of Acceptance accompanying the
Offer Document, which will contain the full terms and conditions of the Offer,
including details of how the Offer may be accepted. The laws of relevant
jurisdictions may affect the availability of the Offer to persons not resident
in the United Kingdom. Persons who are not resident in the United Kingdom, or
who are subject to the laws of any jurisdiction other than the United Kingdom,
should inform themselves about, and observe, any applicable legal and regulatory
requirements.
The Offer will not be made, directly or indirectly, in or into the United States
or by use of the mails of, or by any means or instrumentality (including,
without limitation, facsimile or other electronic transmission, telex or
telephone) of inter-state or foreign commerce of, or any facility of, a
national, state or other securities exchange of, the United States, nor will it
be made directly or indirectly in or into Canada, Australia or Japan and the
Offer cannot be accepted by any such use, means, instrumentality or facility or
from within the United States, Canada, Australia or Japan or any other such
jurisdiction if to do so would constitute a violation of the relevant laws of
such jurisdiction. Accordingly, copies of this press announcement, the Offer
Document and the Form of Acceptance are not being, will not be and must not be
mailed or otherwise forwarded, distributed or sent in, into or from the United
States, Canada, Australia or Japan or any other such jurisdiction if to do so
would constitute a violation of the relevant laws of such jurisdiction and
persons receiving this press announcement, the Offer Document and Form of
Acceptance (including without limitation custodians, nominees and trustees) must
not mail, forward, distribute or send them in, into or from the United States,
Canada, Australia or Japan or any other such jurisdiction if to do so would
constitute a violation of the relevant laws of such jurisdiction.
APPENDIX I
Conditions and principal further terms of the Offer
1. The Offer, which will be made by Bridgewell on behalf of Respironics
UK, 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 twenty first day
following posting of the Offer Document (or such later time(s) and/or date(s) as
the Offeror may, subject to the rules of the City Code, decide) in respect of
not less than 90 per cent. (or such lower percentage as the Offeror may decide)
in nominal value of the Profile Shares to which the Offer relates, provided that
this condition will not be satisfied unless the Offeror shall have acquired or
agreed to acquire (whether pursuant to the Offer or otherwise) Profile Shares
carrying in aggregate more than 50 per cent. of the voting rights then normally
exercisable at a general meeting of Profile, including for this purpose (to the
extent, if any, required by the Panel) any such voting rights attaching to any
Profile Shares that are unconditionally allotted or issued before the Offer
becomes or is declared unconditional as to acceptances, whether pursuant to the
exercise of any outstanding subscription or conversion rights or otherwise; and
for this purpose:
(i) the expression "Profile Shares to which the Offer relates" shall be
construed in accordance with sections 428 to 430F of the Act;
(ii) Profile Shares which have been unconditionally allotted shall be
deemed to carry the voting rights which they will carry upon issue; and
(iii) valid acceptances shall be treated as having been received in
respect of any Profile Shares that the Wider Offeror Group shall, pursuant to
section 429(8) and, if applicable, section 430E of the Companies Act, be treated
as having acquired or contracted to acquire by virtue of acceptances to the
Offer;
(b) it being established in terms reasonably satisfactory to the Offeror
that the proposed acquisition of Profile by the Offeror (or any matter arising
from it) will not be referred to the Competition Commission for investigation,
provided that, if a request to the European Commission is made by the competent
authorities of one or more Member States under Article 22(3) of Council
Regulation (EC) 139/2004 (the "Regulation") and is accepted by the European
Commission, then this paragraph shall be satisfied if:
(i) it is established in terms reasonably satisfactory to the Offeror
that it is not the intention of the European Commission to initiate proceedings
under Article 6(1)(c) of the Regulation; and
(ii) to the extent that the competent authorities of the United Kingdom
retain jurisdiction over any aspect of the proposed acquisition of Profile by
the Offeror, it is established in terms reasonably satisfactory to the Offeror
that the proposed acquisition of Profile by the Offeror (or any matter arising
from it) will not be referred to the Competition Commission for investigation;
(c) no Third Party having intervened and there not continuing to be
outstanding any statute, regulation or order of any Third Party in each case
which would or might reasonably be expected (in any case, except with respect to
clauses (iii) and (iv) below, to an extent which is material and adverse in the
context of the Wider Offeror Group or the Wider Profile Group, as the case may
be, in each case taken as a whole) to:
(i) make the Offer, its implementation or the acquisition or proposed
acquisition by the Offeror or any member of the Wider Offeror Group of any
shares or other securities in, or control or management of, Profile or any
member of the Wider Profile Group void, illegal and/or unenforceable in any
relevant jurisdiction, or otherwise directly or indirectly restrain, prevent,
prohibit, restrict or delay the same or impose additional conditions or
obligations with respect to the Offer or such acquisition, or otherwise impede,
challenge or interfere with the Offer or such acquisition, or require amendment
to the terms of the Offer or the acquisition or proposed acquisition of any
Profile Shares or the acquisition of control of Profile or the Wider Profile
Group by the Offeror;
(ii) limit or delay the ability of any member of the Wider Offeror Group
or any member of the Wider Profile Group to acquire or to hold or to exercise
effectively, directly or indirectly, all or any rights of ownership in respect
of shares or other securities (or the equivalent) in, or to exercise voting or
management control over, any member of the Wider Profile Group or any member of
the Wider Offeror Group;
(iii) require, prevent or delay the divestiture or alter the terms
envisaged for any proposed divestiture by any member of the Wider Offeror Group
of any shares or other securities in Profile;
(iv) require, prevent or delay the divestiture or alter the terms
envisaged for any proposed divestiture by any member of the Wider Offeror Group
or by any member of the Wider Profile Group of all or any portion of their
respective businesses, assets or properties or limit the ability of any of them
to conduct any of their respective businesses or to own or control any of their
respective assets (including shares or other securities (or the equivalent) in
Profile, any other member of the Wider Profile Group or any member of the Wider
Offeror Group) or properties or any part thereof;
(v) require any member of the Wider Offeror Group or of the Wider Profile
Group to acquire, or to offer to acquire, any shares or other securities (or the
equivalent) in any member of the Wider Offeror Group or the Wider Profile Group
(other than Profile) owned by any third party;
(vi) limit the ability of any member of the Wider Offeror Group or of the
Wider Profile Group to conduct or integrate or co-ordinate its business, or any
part of it, with the businesses or any part of the businesses of any other
member of the Wider Offeror Group or of the Wider Profile Group;
(vii) result in any member of the Wider Profile Group or the Wider Offeror
Group ceasing to be able to carry on business under any name under which it
presently does so; or (viii) otherwise materially and adversely affect the
business, assets, profits, financial or trading position or prospects of any
member of the Wider Profile Group or of the Wider Offeror Group, and all
applicable waiting and other time periods during which any Third Party could
intervene under the laws of any relevant jurisdiction having expired, lapsed or
been terminated;
(d) 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 statutory or regulatory obligations in any relevant
jurisdiction having been complied with in each case in connection with the Offer
or the acquisition or proposed acquisition of any shares or other securities in,
or control of, Profile or any other member of the Wider Profile Group by any
member of the Wider Offeror Group;
(e) all Authorisations which are necessary in any relevant jurisdiction
for or in respect of the Offer or the acquisition or proposed acquisition of any
shares or other securities in, or control of, Profile or any other member of the
Wider Profile Group by any member of the Wider Offeror Group or the carrying on
by any member of the Wider Profile Group of its business having been obtained,
in terms and in a form reasonably satisfactory to the Offeror, from all
appropriate Third Parties or from any persons or bodies with whom any member of
the Wider Profile Group has entered into contractual arrangements in each case
where the absence of such Authorisation would have a material adverse effect on
the Wider Profile 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, suspend, restrict, modify or not to renew any of the same;
(f) except as publicly announced by Profile (by the delivery of an
announcement to a Regulatory Information Service) prior to 20 May 2004 or as
fairly disclosed in writing to the Offeror or its professional advisers by or on
behalf of Profile prior to 20 May 2004, there being no provision of any
arrangement, agreement, licence, permit, franchise or other instrument to which
any member of the Wider Profile Group is a party, or by or to which any such
member or any of its assets is or are or may be bound, entitled or subject or
any circumstance, which, in each case as a consequence of the Offer or the
acquisition or proposed acquisition of any shares or other securities in, or
control of, Profile or any other member of the Wider Profile Group by any member
of the Wider Offeror Group or otherwise, could or might reasonably be expected
to result in, (in any case to an extent which is or would be material in the
context of the Wider Profile Group taken as a whole):
(i) any amount of monies borrowed by or any other indebtedness or
liabilities (actual or contingent) of, or any grant available to, any member of
the Wider Profile Group being or becoming repayable or capable of being declared
repayable immediately or prior to its stated repayment date or the ability of
any member of the Wider Profile Group to borrow monies or incur any indebtedness
being withdrawn or inhibited or becoming capable of being withdrawn;
(ii) the creation or enforcement of any mortgage, charge or other
security interest over the whole or any part of the business, property, assets
or interests of any member of the Wider Profile Group or any such mortgage,
charge or other security interest (wherever created, arising or having arisen)
becoming enforceable;
(iii) any such arrangement, agreement, licence, permit, franchise or
instrument, or the rights, liabilities, obligations or interests of any member
of the Wider Profile Group thereunder, being, or becoming capable of being,
terminated or materially and adversely modified or materially and adversely
affected or any material adverse action being taken or any obligation or
liability arising thereunder;
(iv) any asset or interest of any member of the Wider Profile Group being
or proposed to be disposed of or ceasing to be available to any member of the
Wider Profile Group or any right arising under which any such asset or interest
could be required to be disposed of or could cease to he available to any member
of the Wider Profile Group otherwise than in the ordinary course of business;
(v) any member of the Wider Profile Group ceasing to be able to carry on
business under any name under which it presently does so or, so far as the
Profile Directors are aware having made reasonable enquiry, any person presently
not able to carry on business under any name under which any member of the Wider
Profile Group presently does business becoming able to do so;
(vi) the creation of any liabilities (actual or contingent) by any member
of the Wider Profile Group; or
(vii) the financial or trading position or the prospects or the value of
any member of the Wider Profile Group being prejudiced or materially and
adversely affected; and
(viii) no event having occurred which, under any provision of any such
arrangement, agreement, licence, permit or other instrument, could result in any
of the events or circumstances which are referred to in paragraphs (i) to (vii)
of this condition (f) in any case to an extent which is or could be material in
the context of the Wider Profile Group taken as a whole;
(g) since 30 June 2003 and except as disclosed in Profile's annual report
and accounts for the year then ended, or as otherwise publicly announced by
Profile (by the delivery of an announcement to a Regulatory Information Service)
prior to 20 May 2004 or as otherwise fairly disclosed in writing to the Offeror
by or on behalf of Profile prior to 20 May 2004 no member of the Wider Profile
Group having:
(i) issued or agreed to issue, or authorised the issue of, additional
shares of any class, or securities convertible into or exchangeable for, or
rights, warrants or options to subscribe for or acquire, any such shares or
convertible securities other than as between Profile and wholly-owned
subsidiaries of Profile and other than any options granted as disclosed to the
Offeror prior to 20 May 2004 and any shares issued upon the exercise of any
options granted under any of the Profile Option Schemes;
(ii) purchased or redeemed or repaid any of its own shares or other
securities or reduced or made any other change to any part of its share capital;
(iii) recommended, declared, paid or made any bonus (not, for the
avoidance of doubt, including bonuses to employees in the ordinary course of
business), dividend or other distribution whether payable in cash or otherwise
(other than to Profile or a wholly owned subsidiary of Profile);
(iv) made or authorised any change in its loan capital which is or would
be material in the context of the Wider Profile Group taken as a whole;
(v) (other than any acquisition or disposal in the ordinary course of
business or a transaction between Profile and a wholly-owned subsidiary of
Profile) merged with, demerged or acquired any body corporate, partnership or
business 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 (including shares in any undertaking and trade investments) or
authorised or proposed the same (which in any case is material in the context of
the Wider Profile Group taken as a whole);
(vi) issued or authorised the issue of, or made any change in or to, any
debentures or (except in the ordinary course of business) incurred or increased
any indebtedness or liability (actual or contingent) which in any case is
material in the context of the Wider Profile Group taken as a whole;
(vii) entered into, varied, or authorised any agreement, transaction,
arrangement or commitment (whether in respect of any 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) could restrict the business of any member of the Wider Profile Group;
or
(C) is other than in the ordinary course of business
and which in any such case is material in the context of the Wider Profile Group
taken as a whole;
(viii) entered into, implemented, effected or authorised any merger,
demerger, reconstruction, amalgamation, scheme, commitment or other transaction
or arrangement in respect of itself or another member of the Wider Profile Group
otherwise than in the ordinary course of business which in any case is material
in the context of the Wider Profile Group taken as a whole;
(ix) entered into or varied the terms of, any contract, agreement or
arrangement with any of the directors of Profile or (to the extent it is
material in the context of the Wider Profile Group taken as a whole) senior
executives of any member of the Wider Profile Group;
(x) 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, administrator, administrative receiver, trustee or similar
officer of all or any material part of its assets and revenues or any analogous
proceedings in any jurisdiction or appointed any analogous person in any
jurisdiction which in any case is material in the context of the Wider Profile
Group taken as a whole;
(xi) been unable, or admitted in writing 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 in any case which is or would be material in
the context of the Wider Profile Group taken as a whole;
(xii) waived or compromised any claim which is material in the context of
the Wider Profile Group taken as a whole;
(xiii) made any alteration to its memorandum or articles of association;
(xiv) entered into any agreement, commitment or arrangement or passed any
resolution or made any offer (which remains open for acceptance) or proposed or
announced any intention with respect to any of the transactions, matters or
events referred to in this condition (g);
(h) since 30 June 2003 and except as disclosed in Profile's annual report
and accounts for the year then ended, or as otherwise publicly announced by
Profile (by the delivery of an announcement to a Regulatory Information Service)
prior to 20 May 2004, or as otherwise fairly disclosed in writing to the Offeror
by or on behalf of Profile prior to 20 May 2004:
(i) there having been no adverse change in the business, assets,
financial or trading positions or profit or prospects of any member of the Wider
Profile Group which in any such case is material in the context of the Wider
Profile Group taken as a whole;
(ii) no contingent or other liability of any member of the Wider Profile
Group having arisen or become apparent or increased which in any such case is
material and adverse in the context of the Wider Profile Group taken as a whole;
(iii) no litigation, arbitration proceedings, prosecution or other legal
proceedings to which any member of the Wider Profile Group is or may become a
party (whether as plaintiff, defendant or otherwise) having been threatened,
announced, implemented or instituted by or against or remaining outstanding
against or in respect of any member of the Wider Profile Group which in any such
case is material and adverse in the context of the Wider Profile Group taken as
a whole; and
(iv) (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 Profile Group which
in any such case is material and adverse in the context of the Wider Profile
Group taken as a whole;
(i) the Offeror not having discovered:
(i) that any financial or business or other information concerning the
Wider Profile Group disclosed at any time by or on behalf of any member of the
Wider Profile Group, whether publicly, to any member of the Wider Offeror Group
or otherwise, is misleading or contains any misrepresentation of fact or omits
to state a fact necessary to make any information contained therein not
misleading and which was not subsequently corrected before 20 May 2004 by
disclosure either publicly or otherwise to the Offeror to an extent which in any
such case is material and adverse in the context of the Wider Profile Group
taken as a whole;
(ii) that any member of the Wider Profile Group is subject to any
liability (actual or contingent) which is not disclosed in Profile's annual
report and accounts for the financial year ended 30 June 2003 and which in any
such case is material and adverse in the context of the Wider Profile Group
taken as a whole; or
(iii) any information which affects the import of any information
disclosed at any time by or on behalf of any member of the Wider Profile Group
to an extent which is material and adverse in the context of the Wider Profile
Group taken as a whole;
(j) the Offeror not having discovered:
(i) that save as fairly disclosed either publicly or to the Offeror by
or on behalf of Profile prior to 20 May 2004 any past or present member of the
Wider Profile Group has not complied with any applicable legislation or
regulations of any relevant jurisdiction with regard to the use, treatment,
handling, storage, transport, release, disposal, discharge, spillage, leak or
emission of any waste or hazardous substance or any substance likely to impair
the environment or harm human health, or otherwise relating to environmental
matters or the health and safety of any person, animal or creature, or that
there has otherwise been any such use, treatment, handling, storage, transport,
release, disposal, discharge, spillage, leak or emission (whether or not this
constituted a noncompliance by any person with any legislation or regulations
and wherever the same may have taken place) which, in any case, would be likely
to give rise to any liability (whether actual or contingent, civil or criminal)
or cost on the part of any member of the Wider Profile Group which in any case
is material in the context of the Wider Profile Group taken as a whole;
(ii) that save as fairly disclosed either publicly or to the Offeror by
or on behalf of Profile prior to 20 May 2004 there is, or is likely to be, any
liability, whether actual or contingent, to make good, alter, improve, repair,
reinstate, clean up or otherwise assume responsibility for any property now or
previously owned, occupied, made use of or in respect of which a guarantee or
other similar obligation has been assumed by any past or present member of the
Wider Profile Group or any other property or clean up any controlled waters or
other pollution caused by its occupation or control of any such property under
any environmental legislation, regulation, notice, circular, order or other
lawful requirement of any relevant authority or third party or otherwise which
in any such case is material in the context of the Wider Profile Group taken as
a whole; or
(iii) save as fairly disclosed either publicly or to the Offeror by or on
behalf of Profile prior to 20 May 2004 that circumstances exist whereby a person
or class of persons would be likely to have a claim 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 Profile Group
which is or would be material in the context of the Wider Profile Group taken as
a whole.
For the purpose of these conditions:
(a) "Authorisations" means authorisations, orders, grants, recognitions,
determinations, certificates, confirmations, consents, licences, clearances,
provisions and approvals;
(b) "Third Party" means any government, government department or
governmental, quasigovernmental, supranational, statutory, regulatory or
investigative body, authority (including any national anti-trust or merger
control authority), court, trade agency, association, institution or
professional or environmental body or any similar person or body whatsoever in
any relevant jurisdiction;
(c) a Third Party shall be regarded as having "intervened" if it has
decided to take, institute, implement or threaten any action, proceeding, suit,
investigation, enquiry or reference or made, proposed or enacted any statute,
regulation, decision or order or taken any measures or other steps or required
any action to be taken or information to be provided or otherwise having done
anything and "intervene" shall be construed accordingly.
2. Certain further terms of the Offer
Subject to the requirements of the Panel, the Offeror reserves the right to
waive all or any of the above conditions, in whole or in part, except conditions
1(a). If the Panel requires the Offeror to make an offer for Profile Shares
under the provisions of Rule 9 of the City Code, the Offeror may make such
alterations to the conditions of the Offer, including to condition 1(a), as are
necessary to comply with the provisions of that Rule.
Each of conditions 1(a) to 1(j) shall be regarded as a separate condition and
shall not be limited by reference to any other condition.
The Offer will lapse unless conditions 1(b) to 1(j) inclusive have been
fulfilled or (if capable of waiver) waived by midnight on the day which is 21
days after the later of (i) the first closing date of the Offer and (ii) the
date on which condition 1(a) is fulfilled or becomes or is declared fulfilled
(or such later date as the Offeror, with the consent of the Panel, may agree).
The Offeror shall be under no obligation to waive (if so capable of waiver) or
treat as fulfilled any of the conditions 1(b) to 1(j) until the latest date for
the fulfillment of such conditions referred to in the previous sentence
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
fulfillment.
In addition, the Offer will lapse if the acquisition of Profile by the Offeror
is referred to the Competition Commission before the later of 3.00 p.m. (London
time) on 11 June 2004 and the date when the Offer becomes or is declared
unconditional as to acceptances. In such a case, the Offeror shall thereupon
cease to be bound by acceptances delivered on or before the date on which the
Offer lapses.
If the Offer lapses, the Offer will cease to be capable of further acceptance
and the Profile Shareholders accepting the Offer and the Offeror shall thereupon
cease to be bound by acceptances delivered on or before the date on which the
Offer so lapses.
APPENDIX II
Definitions
The following definitions apply throughout this announcement, unless the context
requires otherwise:
"AAD" Adaptive Aerosol Delivery;
"Announcement" the announcement by Profile that it was in
discussions that may or may not lead to a recommended
cash offer being made for Profile dated 18 March
2004;
"Breath" Breath Limited, incorporated in England and Wales
with registered number 03943686 and where the context
requires its subsidiary undertakings;
"Bridgewell" Bridgewell Limited;
"City Code" The City Code on Takeovers and Mergers;
"Closing Price" the closing middle market quotation of the relevant
share as derived from the Daily Official List;
"Companies Act" or "Act" Companies Act 1985 (as amended);
"Daily Official List" the daily official list of the London Stock Exchange;
"Directors of Profile" or the board of directors of Profile;
"Profile
Directors"
"Form of Acceptance" the form of acceptance and authority for use in
connection with the Offer accompanying the Offer
Document;
"FSMA" the Financial Services and Markets Act 2000;
"London Stock Exchange" or London Stock Exchange plc;
"LSE"
"Offer" the recommended cash offer which will be made by
Bridgewell on behalf of Respironics UK, a wholly
owned subsidiary of Respironics, on the terms and
subject to the conditions set out in this
announcement and the Offer Document and the Form of
Acceptance to acquire all of the issued and to be
issued Profile Shares (including where the context
admits, any subsequent revision, variation, extension
or renewal of such offer);
"Offer Document" the formal offer document to be sent to Profile
Shareholders containing the Offer;
"Panel" The Panel on Takeovers and Mergers;
"Profile" Profile Therapeutics plc, incorporated in England and
Wales with registered number 2900082 and where the
context requires its subsidiary undertakings;
"Profile Option Schemes" the Profile Therapeutics Limited Executive Share
Option Scheme (adopted by Profile Therapeutics
Limited on 19 November 1999) and the Profile
Therapeutics plc Discretionary Share Option Scheme
(adopted by Profile Therapeutics plc on 3 March
2000);
"Profile Shareholders" holders of Profile Shares;
"Profile Shares" the existing unconditionally allotted or issued and
fully paid (or credited as a fully paid) ordinary
shares of 2 pence each in the capital of Profile and
any further such shares which are unconditionally
allotted or issued before the Offer closes or before
such earlier date as Respironics (subject to the City
Code) may determine not being earlier than the date
on which the Offer becomes or is declared
unconditional as to acceptances;
"PricewaterhouseCoopers" PricewaterhouseCoopers LLP (a limited liability
partnership registered in England with registered
number OC303525) which is authorised and regulated in
the UK by the Financial Services Authority for
designated investment business;
"PRS" Profile Respiratory Systems Limited;
"Regulatory Information any of the services set out in Schedule 12 to the
Service" Listing Rules;
"Respironics" Respironics, Inc.;
"Respironics Group" Respironics and its subsidiary undertakings;
"Respironics Annual Report the annual report and accounts of Respironics
and
"Accounts" for the two years ended 30 June 2003 and 30 June
2002;
"Respironics UK" or the Respironics UK Holding Company Limited, incorporated
"Offeror" in England and Wales with registered number 5130071
and, where the context requires, its subsidiary
undertakings;
"UK" or "United Kingdom" the United Kingdom of Great Britain and Northern
Ireland;
"UK Listing Authority" the UK Listing Authority, which is the Financial
Services Authority acting in its capacity as the
competent authority pursuant to Part VI of FSMA;
"United States of the United States of America, its possessions and
America", territories,
"US" or "United States" any State of the United States and the District of
Columbia;
"Wider Offeror Group" Respironics and the subsidiaries and subsidiary
undertakings of Respironics and associated
undertakings (including any joint venture,
partnership, firm or company in which any member of
the Respironics Group is interested) or any
undertaking in which Respironics and such
undertakings (aggregating their interests) have a
Substantial Interest; and
"Wider Profile Group" Profile and the subsidiaries and subsidiary
undertakings of Profile and associated undertakings
(including any joint venture, partnership, firm or
company in which any member of the Profile is
interested) or any undertaking in which Profile and
such undertakings (aggregating their interests) have
a Substantial Interest.
For the purposes of this announcement, "subsidiary", "subsidiary undertaking",
"undertaking" and "associated undertaking" have the respective meanings given by
the Act (but for this purpose ignoring paragraph 20(1)(b) of Schedule 4A of the
Act).
This information is provided by RNS
The company news service from the London Stock Exchange
END
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