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Share Name | Share Symbol | Market | Type |
---|---|---|---|
Protherics (MM) | NASDAQ:PTIL | NASDAQ | Common Stock |
Price Change | % Change | Share Price | Bid Price | Offer Price | High Price | Low Price | Open Price | Shares Traded | Last Trade | |
---|---|---|---|---|---|---|---|---|---|---|
0.00 | 0.00% | 6.30 | 0 | 01:00:00 |
PROTHERICS PLC
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Date: October 29, 2008 | By: | /s/ Julie Vickers | ||
Julie Vickers | ||||
Company Secretary | ||||
1. | complete and return the BLUE Form of Proxy (for the Court Meeting), so as to be received by no later than 11.30 a.m. on 9 November 2008; and | |
2. | complete and return the YELLOW Form of Proxy (for the EGM), so as to be received by no later than 11.45 a.m. on 9 November 2008. |
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3
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| a blue Form of Proxy for use in respect of the Court Meeting; | |
| a yellow Form of Proxy for use in respect of the EGM; | |
| a copy of the BTG Prospectus, certain sections of which have, where indicated, been incorporated into this document by reference; and | |
| multiple proxy voting instructions. |
Blue Forms of Proxy for the Court Meeting
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11.30 a.m. on 9 November 2008 | |
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Yellow Forms of Proxy for the EGM
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11.45 a.m. on 9 November 2008 |
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EVENT | TIME AND DATE (4) | |
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BTG EGM
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10.00 a.m. on 5 November 2008 | |
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Latest time for lodging blue Forms of Proxy for the Court
Meeting
(1)
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11.30 a.m. on 9 November 2008 | |
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Latest time for lodging yellow Forms of Proxy for the EGM
(1)
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11.45 a.m. on 9 November 2008 | |
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Voting Record Time for Court Meeting and EGM
(2)
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6.00 p.m. on 9 November 2008 | |
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Court Meeting
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11.30 a.m. on 11 November 2008 | |
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EGM
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11.45 a.m. (3) on 11 November 2008 | |
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Scheme Court Hearing (to sanction the Scheme)
(4)
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1 December 2008 | |
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Reduction Record Time
(4)
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6.00 p.m. on 2 December 2008 | |
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Reduction Court Hearing (to confirm the Reduction of
Capital)
(4)
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3 December 2008 | |
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Last day of dealings in, and time for registration of transfers of,
and disablement in CREST of, Protherics Shares
(4)
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5.00 p.m. on 3 December 2008 | |
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Scheme Record Time
(4)
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6.00 p.m. on 3 December 2008 | |
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Effective Date
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4 December 2008 | |
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Cancellation of listing of Protherics Shares
(4)
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8.00 a.m. on 4 December 2008 | |
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Expected date of Admission of, and dealings in, New BTG
Shares
(4)
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8.00 a.m. on 4 December 2008 | |
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Crediting of New BTG Shares to CREST accounts
(4)
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8.00 a.m. on 4 December 2008 | |
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Latest date for despatch of New BTG Share certificates and
crediting of CREST accounts under the Scheme
(4)
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18 December 2008 |
Notes: | ||
(1) | The blue Forms of Proxy for the Court Meeting may also be handed to Protherics registrars, Capita Registrars, on behalf of the Chairman at the Court Meeting before the taking of the poll. However, the yellow Forms of Proxy for the EGM must be lodged by 11.45 a.m. on 9 November 2008 in order to be valid (or, in the case of an adjournment, not later than 48 hours before the time fixed for the holding of the adjourned EGM). The Court Meeting and the EGM will be held at the offices of Ashurst LLP at Broadwalk House, 5 Appold Street, London EC2A 2HA. | |
(2) | If either the Court Meeting or the EGM is adjourned, the Voting Record Time for the adjourned Meeting will be 6.00 p.m. on the date two days before the date set for the adjourned Meeting. | |
(3) | In the event that the Court Meeting concludes after 11.45 a.m., the EGM will follow as soon as possible thereafter. | |
(4) | These dates and times are indicative only and will depend, among other things, on the dates on which the Court sanctions the Scheme and confirms the associated Reduction of Capital and whether the Conditions are either satisfied or, where applicable, waived. If any of the expected dates change, Protherics will, unless the Panel otherwise consents, give notice of the change by posting a circular to Protherics Shareholders and by issuing an announcement through a Regulatory Information Service. | |
Unless otherwise stated, all references to times are to London time. |
8
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Protherics PLC
The Heath Business & Technical Park Runcorn Cheshire WA7 4QX |
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(Registered in England and Wales No. 2459087) | |
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Independent Directors:
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17 October 2008 | |
Stuart Wallis (
Non-executive Chairman
)
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Dr Andrew Heath (
Chief Executive Officer
)
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Rolf Soderstrom (
Finance Director
)
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James Christie (
Operations Director
)
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Saul Komisar (
President, Protherics Inc.
)
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Jacques Gonella (
Non-executive Director
)
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Bryan Morton (
Non-executive Director
)
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Garry Watts (
Non-executive Director
)
|
1. | Introduction |
2. | Summary of the Acquisition |
9
3. | Recommendation |
10
4. | Information relating to BTG |
5. | Background to and reasons for the Acquisition |
| Significant revenues from royalties from marketed products such as BeneFIX Ò and Campath Ò , and from sales of critical care products, including CroFab Ô , DigiFab Ô and from cost recovery and sales of Voraxaze Ô . The Enlarged Group will also benefit from the return in distribution rights to, and the resultant anticipated increase in revenues and gross profits from sales of, CroFab Ô and DigiFab Ô , and subject to approvals in the US, Voraxaze Ô , from 2010 onwards; | |
| Significant milestone, manufacturing and royalty payments should partnered programmes, including CytoFab Ò , Campath Ò , TRX4 and CB7630, achieve development and sales milestones; | |
| Substantial potential future milestone and royalty payments from out-licensing certain pipeline and legacy programmes, including Varisolve Ò , Angiotensin Therapeutic Vaccine (ATV) and Digoxin Immune Fab (DIF); | |
| Strong existing cash balances; and |
11
| Improved financial margins through achieving direct cost synergies arising on the elimination of duplicated activities, potential improvements to gross margins on Protherics critical care products from planned process improvements and through efficiencies in development and operating activities. |
| Developing a rationalised pipeline of products that the Enlarged Group can commercialise itself in the future, while seeking to out-licence products where partners are required; | |
| Establishing a commercial operation in the US to sell its own products; and | |
| Acquiring additional programmes and products that can be sold through the planned US sales force. |
| CytoFab Ô a polyclonal antibody-based product intended to treat severe sepsis, which has shown significant promise in a phase IIb trial and is being developed by AstraZeneca; | |
| Campath Ò a treatment for multiple sclerosis, currently in two phase III trials, being developed by Genzyme Corporation; | |
| TRX4 a monoclonal antibody currently in phase III development, for the treatment of type 1 diabetes, by Tolerx, Inc. who signed a worldwide development and commercialisation agreement with GlaxoSmithKline to develop TRX4 in a range of autoimmune disorders; and | |
| CB7630 (abiraterone acetate) in phase III development by Cougar Biotechnology, Inc as a treatment for prostate cancer. |
12
| Varisolve Ò polidocanol endovenous microfoam for the treatment of varicose veins, which has completed a phase III trial in the EU and is anticipated to commence pivotal phase III trials in the US in 2009; | |
| Angiotensin Therapeutic Vaccine which is in a phase IIa proof of concept study for hypertension; | |
| Digoxin Immune Fab which has shown promise in a phase IIb study for the treatment of severe pre-eclampsia; | |
| BGC20-1259 a multifunctional compound that is scheduled to enter a phase II study for the treatment of Alzheimers disease by the end of 2008; and | |
| BGC20-1531 targeting migraine and BGC20-0134 targeting multiple sclerosisboth of which are nearing the end of phase I studies. |
| consider that there are immediate opportunities, through removal of duplicated corporate overhead costs and termination of Protherics US ADR listing, of achieving cost savings from over £3 million annually by 2008/09. A further £7 million of annualised cost savings (excluding R&D) are targeted from 2009/10 onwards; | |
| intend to target cost reductions of approximately £10 million through rationalising the Enlarged Groups development investment, in order to focus on the most commercially attractive programmes; and | |
| estimate the cost of achieving the savings and reductions to be an aggregate of £810 million arising in the financial years 2008/09 and 2009/10. |
13
6. | Directors, management and employees |
7. | Protherics Share Schemes and Protherics Convertible Loan Notes |
8. | De-listing of Protherics Shares |
9. | Taxation |
10. | Meetings and action to be taken |
14
| a blue Form of Proxy for use in respect of the Court Meeting; | |
| a yellow Form of Proxy for use in respect of the EGM; | |
| a copy of the BTG Prospectus, certain sections of which have, where indicated, been incorporated into this document by reference; and | |
| multiple proxy voting instructions. |
11. | Irrevocable undertakings and letters of intent |
15
12. | Further information |
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1. | Introduction |
2. | Summary of the Acquisition |
17
3. | The New BTG Shares |
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4. | Information relating to Protherics |
5. | Current trading and prospects and financial information relating to Protherics and BTG |
19
6. | Structure of the Acquisition |
(a) | Introduction |
(i) | The Scheme |
(ii) | Approval of the Scheme |
(b) | The Meetings |
(i) | The Court Meeting |
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(ii) | The EGM |
(i) | the authorisation of the Directors to take all actions necessary to give effect to the Scheme; | |
(ii) | the Reduction of Capital; | |
(iii) | the issue of the New Protherics Shares to BTG in accordance with the Scheme; | |
(iv) | the giving of authority to the Protherics Directors pursuant to section 80 of the 1985 Act to allot securities in the Company; and | |
(v) | certain amendments to Protherics Articles as described below. |
(c) | Amendments to Protherics Articles |
(d) | Approval of the Scheme by the Court |
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(e) | Conditions to the Acquisition |
(i) | the passing of the BTG Resolutions at the BTG EGM, which has been convened for 10.00 a.m. on 5 November 2008; | |
(ii) | the approval of the Scheme by a majority in number of those Scheme Shareholders (or any relevant class or classes thereof), present and voting, either in person or by proxy, at the Court Meeting (or at any adjournment of such meeting), representing 75 per cent. or more in value of the Scheme Shares voted by those Scheme Shareholders; | |
(iii) | the special resolution required to implement the Scheme and set out in the notice of EGM contained in Appendix IX ( Notice of Extraordinary General Meeting ) to this document being duly passed by the requisite majority at the EGM (or at any adjournment of such meeting); | |
(iv) | the sanction (with or without modification, on terms reasonably acceptable to Protherics and BTG) of the Scheme and the confirmation of the Reduction of Capital by the Court and office copies of the Court Orders being filed with, and in the case of the Reduction of Capital registered by, the Registrar of Companies; | |
(v) | Admission of the New BTG Shares becoming effective (or the UKLA agreeing to admit the New BTG Shares to the Official List and the London Stock Exchange agreeing to admit the New BTG Shares to trading on its market for listed securities); and | |
(vi) | the other Conditions set out in Appendix I ( Conditions and Certain Further Terms of the Acquisition) to this document which are not otherwise summarised in paragraphs (i) to (v) above being satisfied or, where applicable, waived. | |
(f) | Effective Date |
(g) | Modifications to the Scheme |
(h) | Alternative means of implementing the Acquisition |
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7. | Irrevocable undertakings and letters of intent |
8. | Disclosure of interests in Protherics |
9. | Implementation Agreement |
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(i) | a Competing Proposal in relation to Protherics (or any amendment, variation or revision of such proposal) is announced pursuant to Rule 2.5 of the Code prior to the Acquisition lapsing or being withdrawn and such Competing Proposal subsequently becomes or is declared wholly unconditional or is otherwise completed; or |
(ii) | the Independent Directors either (i) fail to recommend or (ii) withdraw or adversely modify or qualify their recommendation to Protherics Shareholders to vote in favour of the Scheme and the Protherics Resolutions respectively at the Court Meeting and the EGM or (as the case may be) accept a Takeover Offer, and subsequently the Acquisition lapses or is withdrawn; or |
(iii) | the Independent Directors recommend any Competing Proposal in relation to Protherics and subsequently the Acquisition lapses or is withdrawn. |
(i) | a Competing Proposal in relation to BTG (or any amendment, variation or revision of such proposal) is announced pursuant to Rule 2.5 of the Code prior to the Acquisition lapsing or being withdrawn and such Competing Proposal subsequently becomes or is declared wholly unconditional or is otherwise completed; or |
(ii) | the BTG Directors either (i) fail to recommend or (ii) withdraw or adversely modify or qualify their recommendation to BTG Shareholders to vote in favour of the BTG Resolutions at the BTG EGM, and subsequently the Acquisition lapses; or |
(iii) | the BTG Directors recommend any Competing Proposal in relation to BTG and subsequently the Acquisition lapses or is withdrawn. |
10. | Suspension and de-listing of Protherics Shares and ADSs and re-registration of Protherics as a private company |
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11. | Overseas Shareholders |
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12. | Protherics Share Schemes |
(a) | The Approved Scheme |
(b) | The Unapproved Scheme |
(c) | The ESOP |
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(d) | The 1998 Sharesave |
(e) | The LTIP |
(i) | a cash payment shall be made by BTG to any LTIP participants, who cease to be employed by the BTG Group following the Acquisition, equal in value to the percentage of their salaries which would otherwise have been used to determine the number of Protherics Shares over which an LTIP option or award would have been granted to those participants under the second tranche, subject to the deduction of appropriate taxes; and |
(ii) | BTG shall grant LTIP participants, who become employees of the BTG Group following the Acquisition, an award under the BTG Performance Share Plan, over that number of BTG Shares whose value is equivalent to the percentage of their salaries which would otherwise have been used to determine the number of Protherics Shares over which an LTIP option or award would have been granted to those participants under the second tranche. This award will be granted on the Effective Date, or if such date falls at a time when the grant of an award would be prohibited under the Model Code, or by other statutory or regulatory provision, on the first date on which the prohibition ceases to apply, with reference to the BTG Share price on the grant date. |
(f) | The DBS |
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(g) | The Individual Agreements |
(i) | Dr A Heath Agreement |
(ii) | A McMillan |
(iii) | H Browne |
(iv) | C Lents |
(h) | The 2008 Sharesave |
13. | Protherics Convertible Loan Notes and other rights to subscribe for Protherics Shares |
14. | Settlement |
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(a) | Scheme Shares held in uncertificated form (that is, in CREST) |
(b) | Scheme Shares held in certificated form |
15. | Taxation |
16. | Directors, management and employees and the effect of the Scheme on their interests |
17. | Action to be taken |
18. | Further information |
29
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IN THE HIGH COURT OF JUSTICE | ||
CHANCERY DIVISION | ||
COMPANIES COURT | No. 8832 of 2008 |
(A) | In this Scheme, unless inconsistent with the subject or context, the following expressions bear the following meanings: | |||||
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1985 Act | the Companies Act 1985 (as amended); | |||||
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2006 Act | the Companies Act 2006 (as amended); | |||||
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BTG | BTG plc, registered in England and Wales (registered number 2670500); | |||||
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BTG Group | BTG and its subsidiaries and, where the context requires, each one of them; | |||||
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BTG Shares | ordinary shares of 10 pence each in the capital of BTG (including, if the context so requires, the New BTG Shares); | |||||
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Business Day | a day (excluding Saturdays and Sundays or public holidays in England and Wales) on which banks generally are open for business in London for the transaction of normal banking business; | |||||
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certificated or in certificated form | in relation to a share, not in uncertificated form in CREST; | |||||
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Court | the High Court of Justice in England and Wales; | |||||
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Court Hearings | the Scheme Court Hearing and the Reduction Court Hearing; | |||||
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Court Meeting | the meeting (and any adjournment thereof) of the holders of Scheme Shares convened by the Court under section 896 of the 2006 Act to consider and, if thought fit, approve the Scheme; | |||||
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Court Orders | the Reduction Court Order and the Scheme Court Order; | |||||
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CREST | the relevant system, as defined in the Regulations (in respect of which Euroclear UK & Ireland Limited is operator as defined in the Regulations); | |||||
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Effective Date | the date on which the Scheme becomes effective in accordance with its terms; | |||||
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Euroclear | Euroclear UK & Ireland Limited, a limited company incorporated in England and Wales with registered number (02878738); | |||||
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holder | a registered holder including any person entitled by transmission; | |||||
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New BTG Shares | the BTG Shares proposed to be issued and credited as fully paid to Scheme Shareholders pursuant to the Scheme; | |||||
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New Protherics Shares | the new Protherics Shares to be issued credited as fully paid in accordance with the Scheme; | |||||
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Panel | the Panel on Takeovers and Mergers; | |||||
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Protherics or the Company | Protherics PLC, registered in England and Wales (registered number 2459087); | |||||
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Protherics Shareholders | holders of Protherics Shares; | |||||
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Protherics Shares | ordinary shares of two pence each in the capital of Protherics; | |||||
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Reduction Court Hearing | the hearing at which the Reduction Court Order will be sought; | |||||
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Reduction Court Order | the order of the Court confirming the Reduction of Capital and the associated re-registration of Protherics as a private limited company; | |||||
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Reduction of Capital | the proposed reduction of capital under section 135 of the 1985 Act associated with the Scheme; | |||||
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Reduction Record Time | 6.00 p.m. on the last Business Day before the date of the Reduction Court Hearing; | |||||
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Registrar of Companies | the Registrar of Companies for England and Wales; | |||||
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Regulations | the Uncertificated Securities Regulations 2001 (SI 2001 No. 3755); | |||||
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Scheme | this scheme of arrangement under part 26 of the 2006 Act to be proposed by Protherics to the Protherics Shareholders with or subject to any modification, addition or condition approved or imposed by the Court and agreed by Protherics and BTG; | |||||
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Scheme Court Hearing | the hearing at which the Scheme Court Order will be sought; | |||||
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Scheme Court Order | the order of the Court, granted at the Court Hearing to sanction the Scheme, sanctioning the Scheme under section 899 of the 2006 Act; | |||||
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Scheme Record Time | 6.00 p.m. on the Business Day immediately prior to the Effective Date; | |||||
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Scheme Shareholders | holders of Scheme Shares; | |||||
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Scheme Shares | the Protherics Shares: | |||||
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(i) | in issue at the date of this document; | ||||
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(ii) | any issued after the date of this document and before the Voting Record Time; and |
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(iii) | any issued on or after the Voting Record Time but on or before the Reduction Record Time either on terms that the original or subsequent holders thereof shall be bound by the Scheme or in respect of which the holder thereof shall have agreed in writing to be bound by the Scheme; | ||||
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uncertificated or in uncertificated form | in relation to a share, title to which is recorded in the relevant register of the share as being held in uncertificated form in CREST, and title to which, by virtue of the Regulations, may be transferred by means of CREST; | |||||
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Voting Record Time | 6.00 p.m. on the day which is two days before the date of the Court Meeting or, if the Court Meeting is adjourned, 6.00 p.m. on the day which is two days before the date of such adjourned meeting; and | |||||
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£, Sterling, pence and p | the lawful currency of the United Kingdom. | |||||
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(B) | References to clauses are to clauses of this Scheme. | |||||
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(C) | At the date of this Scheme, the authorised share capital of the Company is £9,700,000 divided into 485,000,000 ordinary shares of two pence each, of which, as at 15 October 2008 (the latest practicable date prior to the posting of this document), 342,560,165 have been issued and are credited as fully paid and the remainder are unissued. | |||||
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(D) | As at the date of this Scheme, BTG does not hold any Protherics Shares. | |||||
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(E) | As at the date of this Scheme, no member of the BTG Group holds or will hold before the Effective Date any Protherics Shares. | |||||
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(F) | BTG has agreed to appear by Counsel on the hearing to sanction this Scheme and to submit to be bound by, and to undertake to the Court to be bound by, this Scheme and to execute and do and procure to be executed and done all such documents, acts and things as may be necessary or desirable to be executed or done by it for the purpose of giving effect to this Scheme. |
33
1.1 | The Company shall be re-registered as a private limited company pursuant to section 139(3) of the 1985 Act and the Companys memorandum and articles of association shall be amended accordingly. |
1.2 | Immediately following the re-registration of the Company as a private limited company in accordance with clause 1.1 of this Scheme having taken effect, the capital of the Company shall be reduced by cancelling and extinguishing all of the Scheme Shares. |
1.3 | Subject to, and forthwith upon, the said Reduction of Capital taking effect: |
(a) | the authorised share capital of the Company shall be increased to its former amount by the creation of such number of New Protherics Shares as is equal to the number of Scheme Shares cancelled pursuant to clause 1.2 of this Scheme; and |
(b) | the reserve arising in the books of account of the Company as a result of the Reduction of Capital shall be capitalised and applied in paying up in full at par the New Protherics Shares created pursuant to clause 1.3(a) of this Scheme, which shall be allotted and issued credited as fully paid (free from all liens, charges, encumbrances, rights of pre-emption and any other third party rights of any nature whatsoever) to BTG in consideration for the issue of the New BTG Shares by BTG as set out in clause 2 of this Scheme. |
2.1 | In consideration for the cancellation of the Scheme Shares and the allotment and issue of the New Protherics Shares, as provided in clauses 1.2 and 1.3 respectively of this Scheme, BTG shall (subject as hereinafter provided) issue credited as fully paid to or for the account of holders of Scheme Shares (as appearing on the register of members of the Company at the Scheme Record Time): |
for each Scheme Share | 0.291 New BTG Shares |
and so in proportion for any other number of Scheme Shares held at the Scheme Record Time. Fractional entitlements to New BTG Shares will be rounded down to the nearest whole number of New BTG Shares. |
2.2 | The New BTG Shares will be issued credited as fully paid, will rank equally with the existing BTG Shares and will be entitled to all dividends and other distributions declared or paid by BTG by reference to a record date on or after the Effective Date. The New BTG Shares will not carry any right to participate in any other dividends or other distributions declared or paid by BTG by reference to a record date prior to the Effective Date. |
2.3 | The New BTG Shares to be issued pursuant to clause 2.1 of this Scheme shall be issued free from all liens, charges, equitable interest, encumbrances and other third party rights and interest of any nature whatsoever. |
2.4 | The provisions of this clause 2 of this Scheme shall be subject to any prohibition or condition imposed by law. Without prejudice to the generality of the foregoing, if, in respect of any holder of Scheme Shares with a registered address in a jurisdiction outside the United Kingdom, BTG is advised that the allotment and/or issue of New BTG Shares pursuant to this clause would infringe the laws of such jurisdiction or would require BTG to comply with any governmental or other consent or any registration, filing or other formality (including ongoing requirements) with which BTG is unable to comply or compliance with which BTG reasonably regards as unduly onerous, BTG may, in its sole discretion, either: |
(a) | determine that such New BTG Shares shall not be allotted and/or issued to such holder under this clause but shall instead be allotted and issued to a nominee for such holder appointed by BTG on terms that the nominee shall, as soon as is practicable following the Effective Date, sell the New BTG Shares so allotted and issued and shall account to such holder for the net proceeds of such sale; or |
(b) | determine that such New BTG Shares shall be sold, in which case the New BTG Shares shall be issued to such holder and BTG shall appoint a person to act pursuant to this clause 2.4(b) of this Scheme and such person shall be authorised on behalf of such holder to procure that any shares |
34
in respect of which BTG has made such determination shall, as soon as is practicable following the Effective Date, be sold. |
Any sale under clause 2.4(a) or clause 2.4(b) of this Scheme shall be carried out as soon as reasonably practicable following the Effective Date (and in any event so as to enable the payment referred to below to be made within 14 days thereof) at the best price which can reasonably be obtained at the time of sale and the net proceeds of such sale (after the deduction of all expenses and commissions incurred in connection with such sale including any amount in respect of value added tax thereon) shall then (and in any event within 14 days of the Effective Date) be paid to the persons entitled thereto in accordance with their entitlement and the provisions of clause 3 of this Scheme. To give effect to any sale under clause 2.4(a) of this Scheme or clause 2.4(b) of this Scheme, the nominee referred to in clause 2.4(a) of this Scheme and/or the person appointed by BTG in accordance with clause 2.4(b) of this Scheme (as the case may be) shall be authorised as attorney on behalf of the holder concerned to execute and deliver as transferor an instrument or instruction of transfer and to give such instructions and to do all other things which he may consider necessary or expedient in connection with such sale. In the absence of bad faith or wilful default, none of the Company, BTG, the nominee or the person so appointed shall have any liability for any loss or damage arising as a result of the timing or terms of such sale. |
3.1 | As soon as practicable after the Effective Date and, in any event, no later than 14 days from the Effective Date, BTG shall despatch, or procure the despatch of, definitive share certificates for the New BTG Shares (and, where appropriate, cheques in respect of any cash consideration due under clause 2.4(a) or clause 2.4(b) of this Scheme) by first class post (or by such other method as may be approved by the Panel) to Scheme Shareholders who hold Scheme Shares in certificated form at the Effective Date. Such certificates (and, where applicable, cheques) will be sent at the risk of the person entitled to them. Fractional entitlements to cash, where applicable, will be rounded down to the nearest whole penny. |
3.2 | Where, at the Effective Date, Scheme Shareholders hold Scheme Shares in uncertificated form, the New BTG Shares to which such shareholder is entitled will be issued to such person in uncertificated form through CREST. BTG shall procure that Euroclear is instructed to credit the appropriate stock account in CREST of such shareholder with such shareholders entitlements to New BTG Shares. As from the Scheme Record Time, each holding of Scheme Shares credited to any stock account in CREST shall be disabled and all Scheme Shares will be removed from CREST in due course thereafter. As soon as practicable after the Effective Date, and in any event no later than 14 days from the Effective Date, BTG will, in respect of Scheme Shares held within CREST on the Effective Date, procure the creation of a CREST payment in favour of the appropriate CREST account through which the relevant Scheme Shareholder holds his/her uncertificated Scheme Shares in respect of any cash consideration due to him/her under clause 2.4(a) or clause 2.4(b) of this Scheme. Fractional entitlements to cash, where applicable, will be rounded down to the nearest whole penny. BTG reserves the right to pay all or any part of any cash consideration due to any such holders of uncertificated Scheme Shares under clause 2.4(a) or clause 2.4(b) of this Scheme in the manner referred to in clause 3.1 of this Scheme if, for any reasons outside its reasonable control, it wishes to do so. |
3.3. | All deliveries of share certificates (and, where applicable, cheques) required to be made pursuant to this Scheme shall be effected by sending the same by first class post in prepaid envelopes (or by such other method as may be approved by the Panel) addressed to the person entitled thereto at their respective registered addresses as appearing in the register of members of the Company at the Scheme Record Time (or, in the case of joint holders, at the registered address of one of the joint holders whose name stands first in the said register in respect of such joint holding on such date) or in accordance with any special instructions regarding communications, and neither BTG nor the Company nor their respective agents shall be responsible for any loss or delay in the transmission of any certificates or cheques sent in accordance with this clause, which shall be sent at the risk of the persons entitled thereto. |
3.4 | The provisions of this clause 3 of this Scheme shall be subject to any prohibition or condition imposed by law. |
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4.1 | all certificates representing Scheme Shares shall cease to have effect as documents of title to the Scheme Shares comprised therein and every holder of Scheme Shares shall be bound at the request of the Company to deliver up the same to the Company or as it may direct; |
4.2 | Euroclear shall be instructed to cancel the entitlements to Scheme Shares of Protherics Shareholders who hold their Protherics Shares in uncertificated form, that is, in CREST; and |
4.3 | appropriate entries will be made in the Companys register of members to reflect the cancellation of the Scheme Shares. |
5.1 | This Scheme shall become effective in accordance with its terms as soon as office copies of the Court Orders shall have been delivered to the Registrar of Companies and, in the case of the Reduction of Capital, shall become effective as soon as the Reduction Court Order has been registered by the Registrar of Companies. |
5.2 | Unless this Scheme shall become effective on or before 31 March 2009 or such later date (if any) as BTG and Protherics may, with the consent of the Panel, agree and (if required) the Court may allow, this Scheme shall never become effective. |
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1. | The Scheme is conditional upon: | |
1.1 | the approval of the Scheme by a majority in number of Scheme Shareholders (or any relevant class or classes thereof), present and voting either in person or by proxy, at the Court Meeting (or at any adjournment of such meeting) representing three-fourths or more in value of the Scheme Shares voted by those Scheme Shareholders; | |
1.2 | the resolution(s) required to implement the Scheme and set out in the notice of the EGM being duly passed by the requisite majority at the EGM (or at any adjournment of such meeting); and | |
1.3 | the sanction (with or without modification, any such modification being on terms reasonably acceptable to Protherics and BTG) of the Scheme and the confirmation of the Reduction of Capital by the Court being obtained and office copies of the Court Orders being filed with, and in the case of the Reduction Court Order registered by, the Registrar of Companies. | |
2. | In addition, subject as stated in Part B below, the Acquisition is conditional upon the following matters, and accordingly the necessary actions to make the Scheme effective will not be taken unless such Conditions have been satisfied (where capable of satisfaction), or waived, prior to the Scheme being sanctioned by the Court in accordance with paragraph 1 above: | |
2.1 | the passing at the BTG EGM (or any adjournment thereof) of such resolution or resolutions as are necessary to approve, implement and effect the Acquisition (as such resolutions are set out in the BTG Circular) including a resolution to increase the authorised share capital of BTG and to authorise the allotment of the New BTG Shares; | |
2.2 | admission to the Official List of the New BTG Shares becoming effective in accordance with the Listing Rules and the admission of the New BTG Shares to trading on the London Stock Exchanges market for listed securities becoming effective in accordance with its admission and disclosure standards or the UK Listing Authority agreeing to admit the New BTG Shares to the Official List and the London Stock Exchange agreeing to admit the New BTG Shares to trading on its market for listed securities; | |
2.3 | no central bank, 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 having statutory or regulatory competence in any jurisdiction (each a Relevant Authority) having decided to take, instituted, implemented or threatened any action, proceedings, suit, investigation or enquiry or enacted, made or proposed any statute, regulation or order or otherwise taken any other step or done any thing, and there not being outstanding any statute, legislation or order, which would or might reasonably be expected to: |
(i) | make the Acquisition or its implementation or the acquisition of shares in, or control of, Protherics by any member of the BTG Group, illegal, void or unenforceable in or under the laws of any jurisdiction or directly or indirectly otherwise, to an extent which is material, restrict, restrain, prohibit, delay, impose additional conditions or obligations with respect to, or otherwise interfere with the implementation of, the Acquisition or the acquisition of any shares in, or control of Protherics by any member of the BTG Group or any matters arising therefrom; | ||
(ii) | require, prevent, delay or affect the divestiture (or alter the terms of any proposed divestiture) by any member of the Wider BTG Group or Wider Protherics Group of all or any portion of their respective businesses, assets or properties or of any Protherics Shares or other securities in Protherics or impose any limitation on the ability of any of them to conduct their respective businesses or own their respective assets or properties or any part thereof, in any such case to an |
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extent which is material in the context of the Wider BTG Group, or the Wider Protherics Group, as the case may be, taken as a whole; |
(iii) | impose any material limitation on the ability of any member of the Wider BTG Group to acquire or hold or exercise effectively, directly or indirectly, all rights attaching to all or any of the Protherics Shares (whether acquired pursuant to the Acquisition or otherwise); | ||
(iv) | other than in connection with the Acquisition, require any member of the Wider BTG Group or the Wider Protherics Group to acquire or to offer to acquire any shares or other securities or rights thereover in any member of the Wider Protherics Group owned by any third party, in any such case to an extent which is material in the context of the Wider BTG Group, or the Wider Protherics Group, as the case may be, taken as a whole; | ||
(v) | impose any limitation on the ability of any member of the Wider BTG Group or the Wider Protherics Group to integrate or co-ordinate its business, or any part of it, with the business of any other member of the Wider BTG Group or the Wider Protherics Group in any such case to an extent which is material in the context of the Wider BTG Group or the Wider Protherics Group, as the case may be, taken as a whole; or | ||
(vi) | otherwise adversely affect any or all of the businesses, assets, financial or trading position, prospects or profits of any member of the Wider BTG Group or the Wider Protherics Group or the exercise of any rights attaching to the shares of any company in the Protherics Group, in any such case to an extent which is material in the context of the Wider BTG Group, or the Wider Protherics Group, as the case may be, taken as a whole, |
and all applicable waiting or other time periods during which such Relevant Authority could take, institute, implement or threaten any such action, proceeding, suit, investigation, enquiry or reference or otherwise intervene in respect of the Acquisition, having expired, lapsed or been terminated; | ||
2.4 | (i) all authorisations, orders, grants, consents, clearances, licences, permissions and approvals, in any jurisdiction, deemed reasonably necessary or appropriate by BTG in respect of the Acquisition, being obtained in terms and in a form satisfactory to BTG (acting reasonably) from all appropriate Relevant Authorities or (without prejudice to the generality of the foregoing) from any persons or bodies with whom any member of the Wider BTG Group or the Wider Protherics Group has entered into contractual arrangements or which are necessary for Protherics or any member of the Protherics Group to carry on its business; (ii) 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, suspend, restrict, modify or not to renew the same and all necessary notifications, applications and 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 (iii) all material statutory or regulatory obligations in any jurisdiction in respect of the Acquisition or the proposed acquisition of Protherics by BTG having been complied with; | |
2.5 | appropriate assurances being received, in terms satisfactory to BTG (acting reasonably), from the Relevant Authorities or any party with whom any member of the Wider Protherics Group has any contractual or other relationship that the interests held by any member of the Wider Protherics Group under any material licences, leases, consents, permits and other rights will not be materially and adversely amended or otherwise materially and adversely affected by the Acquisition or the proposed acquisition of Protherics 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; | |
2.6 | save as Disclosed, there being no provision of any agreement, instrument, permit, licence or other arrangement to which any member of the Wider Protherics 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 Acquisition or the proposed acquisition of Protherics or because of a change in the control or management of Protherics or any member of the Protherics Group or otherwise, would or might reasonably be expected to have the result (which, in any such case is material and adverse in the context of the Wider Protherics Group taken as a whole), that: |
(a) | any monies borrowed by, or other indebtedness, actual or contingent, of, or grant available to, any member of the Wider Protherics Group becomes or is capable of being declared repayable |
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immediately or earlier than the repayment date stated in such agreement, instrument or other arrangement or the ability of any member of the Wider Protherics Group to borrow monies or incur indebtedness is withdrawn, inhibited or adversely affected or becomes capable of being withdrawn or inhibited; |
(b) | any mortgage, charge or other security interest is created over the whole or any material part of the business, property or assets of any member of the Wider Protherics Group or any such security interest (whenever arising) becomes enforceable; | ||
(c) | any such agreement, instrument, permit, licence or other arrangement, or any right, interest, liability or obligation of any member of the Wider Protherics Group therein, is terminated, adversely modified or adversely affected, or any adverse action is taken or onerous obligation or liability arises thereunder; | ||
(d) | the value of any member of the Wider Protherics Group or its financial or trading position is adversely affected; | ||
(e) | any material asset of any member of the Wider Protherics Group is or falls to be disposed of or charged other than in the ordinary course of business; | ||
(f) | the rights, liabilities, obligations or interests or business of any member of the Wider Protherics Group in or with any other person, firm or company (or any arrangement relating to such interest or business) are terminated, adversely modified or adversely affected; or | ||
(g) | any member of the Wider Protherics Group ceases to be able to carry on business under any name under which it currently does so; |
2.7 | since 31 March 2008 and save as Disclosed, no member of the Protherics Group having: |
(a) | 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 or agreed to grant 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 as between Protherics and wholly owned subsidiaries of Protherics and save for the issue of Protherics Shares pursuant to or in connection with rights granted under, or the grant of rights under, Protherics Share Schemes which have been Disclosed; | ||
(b) | 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 other members of the Protherics Group; | ||
(c) | authorised or proposed or announced its intention to propose any merger or demerger or acquisition or disposal or transfer of assets or shares or securities (other than to other members of the Protherics Group) or any material change in its share or loan capital; | ||
(d) | issued or authorised or proposed the issue of any debentures or incurred or increased any indebtedness or contingent liability, in each case of an aggregate amount that is material in the context of the Wider Protherics Group taken as a whole; | ||
(e) | (save for transactions between members of the Protherics Group) disposed of or transferred, mortgaged or encumbered any asset or any right, title or interest in any asset or entered into or varied or terminated any contract, commitment or arrangement (whether in respect of capital expenditure or otherwise) which is of a long term or onerous or unusual nature or which involves or might reasonably be expected to involve an obligation of a nature or magnitude which is material or authorised, proposed or announced any intention to do so, where in each such case it is material in the context of the Wider Protherics Group taken as a whole; | ||
(f) | other than pursuant to the Acquisition (and save for transactions between members of the Protherics Group) entered into or varied or proposed to enter into or vary any contract, commitment, arrangement or other transaction which is of a long term or unusual or onerous nature or is otherwise than in the ordinary course of business or announced any intention to do so, that is material in the context of the Wider Protherics Group taken as a whole; |
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(g) | implemented or authorised any reconstruction, amalgamation or other transaction (other than pursuant to the Acquisition and save for transactions between members of the Protherics Group) which is, in any case, material in the context of the Wider Protherics Group taken as a whole; | ||
(h) | entered into, or varied the terms of, any contract or agreement with any of the directors or senior executives of Protherics; | ||
(i) | 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 or the appointment of any analogous person in any jurisdiction; | ||
(j) | (other than in respect of claims between members of the Protherics Group) waived or compromised or settled any claim other than in the ordinary course of business, which is material in the context of the business of the Wider Protherics Group taken as a whole; | ||
(k) | (other than pursuant to the Acquisition and as envisaged in accordance with the terms of the Scheme) made any amendment to its memorandum or articles of association or other constitutional documents; | ||
(l) | made or agreed or consented to any significant change to the terms of the trust deeds or rules constituting the pension schemes established for its directors, employees or their dependants; or to the benefits which accrue or to the pensions which are payable thereunder or to the basis on which qualification for, or accrual or entitlement to such benefits or pensions are calculated or determined or the basis upon which the liabilities (including pensions) of such pension schemes are funded or made or agreed or consented to any change to the trustees including the appointment of a trust corporation; | ||
(m) | entered into any contract, commitment, transaction or arrangement which is or may be restrictive in a material way on the business of any member of the Wider Protherics Group; | ||
(n) | 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; | ||
(o) | modified in any respect the terms of the Protherics Share Schemes or proposed, agreed to provide, or modified in any respect any other share option scheme or incentive scheme relating to the employment or termination of employment of any person employed by the Wider Protherics Group, in each case to the extent material in the context of the Wider Protherics Group taken as a whole; or | ||
(p) | entered into any contract, commitment or agreement or passed any resolution or made any offer (which remains open) with respect to, or proposed or announced any intention to effect or propose any of the transactions, matters or events referred to in this condition 2.7; |
2.8 | since 31 March 2008 and save as Disclosed: |
(a) | no litigation, arbitration, prosecution or other legal proceedings or investigation by any Relevant Authority having been instituted, announced or threatened or become pending or remained outstanding by or against any member of the Wider Protherics Group or to which any member of the Wider Protherics Group is or may become a party (whether as plaintiff, defendant or otherwise), and no enquiry or investigation by any Relevant Authority or other investigative body having been threatened, announced, implemented or instituted or remaining outstanding by, against or in respect of any member of the Protherics Group which in any such case would have a material adverse effect on the Wider Protherics Group taken as a whole; | ||
(b) | no adverse change having occurred in the business, assets, financial or trading position, profits or prospects of any member of the Wider Protherics Group, which is material in the context of the Wider Protherics Group taken as a whole; | ||
(c) | no contingent or other liability in respect of any member of the Wider Protherics Group having arisen which would or might reasonably be expected materially and adversely to affect any member of the Wider Protherics Group and which in any such case is material in the context of the Wider Protherics Group taken as a whole; and |
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(d) | no steps having been taken and no omissions having been made which would or would be reasonably likely to result in the withdrawal, cancellation, termination or adverse modification of any licence held by any member of the Wider Protherics Group which is necessary for the proper carrying on of its business and which, in any such case, is material in the context of the Wider Protherics Group taken as a whole; and |
2.9 | save as Disclosed, BTG not having discovered that: |
(a) | any business, financial or other information concerning any member of the Protherics Group that has been Disclosed, either contains a misrepresentation of fact or omits to state a fact necessary to make the information contained therein not misleading and which, in any such case, is material in the context of the Wider Protherics Group taken as a whole; | ||
(b) | any member of the Wider Protherics Group is subject to any liability, actual or contingent, arising other than in the ordinary course of business and which in each such case is material in the context of the Wider Protherics Group taken as a whole; | ||
(c) | any past or present member of the Wider Protherics Group has not complied with all applicable legislation or regulations of any jurisdiction or any notice or requirement of any Relevant Authority 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 or animal health or otherwise relating to environmental matters (which non-compliance might reasonably be expected to give rise to any liability (whether actual or contingent) or cost on the part of any member of the Wider Protherics 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 liability (whether actual or contingent) or cost on the part of any member of the Wider Protherics Group and which in each such case is material, in the context of the Wider Protherics Group taken as a whole; | ||
(d) | there is or is reasonably likely to be any liability (whether actual or contingent) to make good, repair, reinstate or clean up any property now or previously owned, occupied or made use of or controlled by any past or present member of the Wider Protherics Group or any controlled waters under any environmental legislation, regulation, notice, circular or order of any Relevant Authority or third party or otherwise in any jurisdiction, in each case to an extent which is material in the context of the Wider Protherics Group taken as a whole; | ||
(e) | circumstances exist (whether as a result of the Acquisition of otherwise) which might reasonably be expected to lead to any Relevant Authority instituting, or any member of the Wider Protherics Group might reasonably be expected to be required to institute, an environmental audit or take any other steps which in any such case might reasonably be expected to result in any actual or contingent liability to improve or install new plant or equipment or make good, repair, reinstate or clean up any land or other asset now or previously owned, occupied or made use of or controlled by any member of the Wider Protherics Group, which in each case, are material in the context of the Wider Protherics Group taken as a whole; or | ||
(f) | 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 Protherics Group which in each such case, are material in the context of the Wider Protherics Group taken as a whole. |
3. | BTG reserves the right to waive, in whole or in part, all or any of Conditions 2.3 to 2.9 (inclusive). BTG shall be under no obligation to waive or treat as satisfied any of such Conditions by a date earlier than the date specified above for the satisfaction thereof notwithstanding that the other Conditions of the Acquisition may at such earlier date have been waived or fulfilled and that there are at such earlier date no circumstances indicating that any such Conditions may not be capable of fulfilment. |
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4. | If BTG is required by the Panel to make an offer for Protherics Shares under the provisions of Rule 9 of the Code, BTG may make such alterations to any of the above Conditions as are necessary to comply with the provisions of that Rule. | |
5. | The Acquisition will lapse and the Scheme will not proceed if the European Commission initiates proceedings under Article 6(1)(c) of the EC Merger Regulation or the Acquisition is referred to the Competition Commission before the date of the Court Meeting. |
6. | BTG reserves the right, with the consent of the Panel and the consent (such consent not to be unreasonably withheld or delayed) of Protherics, to elect to implement the Acquisition by way of a takeover offer. In such event, such offer will be implemented on the same terms (subject to appropriate amendments including (without limitation) an acceptance condition set at 90 per cent. (or such lesser percentage (being more than 50 per cent.) as BTG may decide) of the shares to which such offer relates and of the voting rights carried by those shares) so far as applicable, as those which would apply to the Scheme. | |
7. | The availability of the Acquisition to persons not resident in the United Kingdom may be affected by the laws of the relevant jurisdictions. Persons who are not resident in the United Kingdom should inform themselves about any applicable requirements. | |
8. | If the Scheme is effected, the New Protherics Shares to be issued pursuant to the Scheme will be acquired by BTG fully paid and free from all liens, charges, equitable interests, encumbrances, rights of pre-emption and any other rights and interests of any nature whatsoever and together with all rights now and hereafter attaching thereto, including voting rights and the right to receive and retain in full all dividends and other distributions (if any) declared, made or paid on or after the effective date of the Scheme. Under the terms of the Acquisition, each Protherics Shareholder will forego all rights to any future dividend or undeclared dividends or other returns of capital of Protherics. |
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(a) | The auditors report relating to the consolidated statements of Protherics for the year to 31 March 2006 (the Protherics 2006 Financial Statements ) is on page 98 of the 2006 annual report and accounts of Protherics (the Protherics 2006 Annual Report ). The consolidated income statement in the Protherics 2006 Financial Statements is on page 49 of the Protherics 2006 Annual Report. The consolidated balance sheet in the Protherics 2006 Financial Statements is on page 50 of the Protherics 2006 Annual Report. The consolidated cash flow statement in the Protherics 2006 Financial Statements is on page 51 of the Protherics 2006 Annual Report. The accounting policies relevant to the Protherics 2006 Financial Statements are on pages 52 to 58 of the Protherics 2006 Annual Report. The critical accounting judgements relevant to the Protherics 2006 Financial Statements are on page 58 of the Protherics 2006 Annual Report. The notes to the Protherics 2006 Financial Statements are on pages 52 to 97 of the Protherics 2006 Annual Report. | |
(b) | The auditors report relating to the consolidated statements of Protherics for the year to 31 March 2007 (the Protherics 2007 Financial Statements ) is on page 41 of the 2007 annual report and accounts of Protherics (the Protherics 2007 Annual Report ). The consolidated income statement in the Protherics 2007 Financial Statements is on page 42 of the Protherics 2007 Annual Report. The consolidated balance sheet in the Protherics 2007 Financial Statements is on page 43 of the Protherics 2007 Annual Report. The consolidated cash flow statement in the Protherics 2007 Financial Statements is on page 44 of the Protherics 2007 Annual Report. The accounting policies relevant to the Protherics 2007 Financial Statements are on pages 45 to 49 of the Protherics 2007 Annual Report. The critical accounting judgements relevant to the Protherics 2007 Financial Statements are on page 49 of the Protherics 2007 Annual Report. The notes to the Protherics 2007 Financial Statements are on pages 45 to 71 of the Protherics 2007 Annual Report. | |
(c) | The auditors report relating to the consolidated statements of Protherics for the year to 31 March 2008 (the Protherics 2008 Financial Statements ) is on page 53 of the 2008 annual report and accounts of Protherics (the Protherics 2008 Annual Report ). The consolidated income statement in the Protherics 2008 Financial Statements is on page 54 of the Protherics 2008 Annual Report. The consolidated balance sheet in the Protherics 2008 Financial Statements is on page 55 of the Protherics 2008 Annual Report. The consolidated cash flow statement in the Protherics 2008 Financial Statements is on page 56 of the Protherics 2008 Annual Report. The accounting policies relevant to the Protherics 2008 Financial Statements are on pages 58 to 64 of the Protherics 2008 Annual Report. The critical accounting judgements and key sources of estimation uncertainty relevant to the Protherics 2008 Financial Statements are on page 64 of the Protherics 2008 Annual Report. The notes to the Protherics 2008 Financial Statements are on pages 57 to 97 of the Protherics 2008 Annual Report. |
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(a) | The auditors report relating to the consolidated statements of BTG for the year to 31 March 2006 (the BTG 2006 Financial Statements ) is on page 39 of the 2006 annual report and accounts of BTG (the BTG 2006 Annual Report ). The consolidated profit and loss account in the BTG 2006 Financial Statements is on page 40 of the BTG 2006 Annual Report. The consolidated balance sheet in the BTG 2006 Financial Statements is on page 41 of the BTG 2006 Annual Report. The consolidated cash flow statement in the BTG 2006 Financial Statements is on page 42 of the BTG 2006 Annual Report. The accounting policies relevant to the BTG 2006 Financial Statements are on pages 44 to 49 of the BTG 2006 Annual Report. The notes to the BTG 2006 Financial Statements are on pages 44 to 74 of the BTG 2006 Annual Report. The reconciliation of movements in shareholders funds in the BTG 2006 Financial Statements is on page 59 of the BTG 2006 Annual Report. | |
(b) | The auditors report relating to the consolidated statements of BTG for the year to 31 March 2007 (the BTG 2007 Financial Statements ) is on pages 44 and 45 of the 2007 annual report and accounts of BTG (the BTG 2007 Annual Report ). The consolidated income statement in the BTG 2007 Financial Statements is on page 46 of the BTG 2007 Annual Report. The consolidated balance sheet in the BTG 2007 Financial Statements is on page 47 of the BTG 2007 Annual Report. The consolidated cash flow statement in the BTG 2007 Financial Statements is on page 48 of the BTG 2007 Annual Report. The accounting policies relevant to the BTG 2007 Financial Statements are on pages 50 to 54 of the BTG 2007 Annual Report. The critical accounting estimates and judgements relevant to the BTG 2007 Financial Statements are on page 78 of the BTG 2007 Annual Report. The notes to the BTG 2007 Financial Statements are on pages 50 to 79 of the BTG 2007 Annual Report. The reconciliation of movements in shareholders funds in the BTG 2007 Financial Statements is on page 65 of the BTG 2007 Annual Report. | |
(c) | The auditors report relating to the consolidated statements of BTG for the year to 31 March 2008 (the BTG 2008 Financial Statements ) is on page 46 of the 2008 annual report and accounts of BTG (the BTG 2008 Annual Report ). The consolidated income statement in the BTG 2008 Financial Statements is on page 48 of the BTG 2008 Annual Report. The consolidated balance sheet in the BTG 2008 Financial Statements is on page 49 of the BTG 2008 Annual Report. The consolidated cash flow statement in the BTG 2008 Financial Statements is on page 50 of the BTG 2008 Annual Report. The accounting policies relevant to the BTG 2008 Financial Statements are on pages 52 to 57 of the BTG 2008 Annual Report. The critical accounting estimates and judgements relevant to the BTG 2008 Financial Statements are on page 83 of the BTG 2008 Annual Report. The notes to the BTG 2008 Financial Statements are on pages 52 to 83 of the BTG 2008 Annual Report. The reconciliation of movements in shareholders funds in the BTG 2008 Financial Statements is on page 68 of the BTG 2008 Annual Report. |
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(a) | Taxation of chargeable gains |
(b) | Stamp Duty and SDRT |
45
(c) | Protherics Share Schemes |
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| No gain or loss should be recognised by a US holder of Scheme Shares or Protherics ADSs as a result of the receipt of New BTG Shares solely in exchange for Scheme Shares or Protherics ADSs pursuant to the Scheme. | |
| The aggregate tax basis of the New BTG Shares received by a US holder pursuant to the Scheme should be the same as the aggregate tax basis of the Scheme Shares or Protherics ADSs surrendered in exchange therefor. | |
| The holding period of the New BTG Shares received by a US holder pursuant to the Scheme should include the holding period of the Scheme Shares or Protherics ADSs surrendered in exchange therefor. |
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48
1. | Responsibility statements | |
(a) | The Protherics Directors, whose names are set out in paragraph 2(a) below, each accept responsibility for the information contained in this document other than information for which responsibility is taken by others pursuant to paragraph 1(b) or 1(c) below. To the best of the knowledge and belief of the Protherics Directors (who have taken all reasonable care to ensure that such is the case), the information contained in this document for which they accept responsibility is in accordance with the facts and does not omit anything likely to affect the import of such information. | |
(b) | The Independent Directors each accept responsibility for any opinion attributed to the Independent Directors and contained in this document, including the recommendation as contained in paragraph 3 of the letter from the Chairman of Protherics in Part 1 ( Letter from the Chairman of Protherics PLC ) of this document. To the best of the knowledge and belief of the Independent Directors (who have taken all reasonable care to ensure that such is the case), the information contained in this document for which they accept responsibility is in accordance with the facts and does not omit anything likely to affect the import of any such information. | |
(c) | The BTG Directors, whose names are set out in paragraph 2(b) below, each accept responsibility for the information contained in this document relating to BTG, the BTG Group, the BTG Directors (and, in each case, their close relatives and related trusts). To the best of the knowledge and belief of the BTG Directors (who have taken all reasonable care to ensure that such is the case), the information contained in this document for which they accept responsibility is in accordance with the facts and does not omit anything likely to affect the import of such information. | |
2. | Directors and executive officers | |
(a) | The Protherics Directors are as follows: | |
Stuart Wallis (
Non-executive Chairman
)
Dr Andrew Heath ( Chief Executive Officer ) Rolf Soderstrom ( Finance Director ) James Christie ( Operations Director ) Saul Komisar ( President Protherics Inc. ) Dr John Brown ( Non-executive Director ) Jacques Gonella ( Non-executive Director ) Bryan Morton ( Non-executive Director ) Garry Watts ( Non-executive Director ) |
||
of whom all except Dr John Brown are the Independent Directors. | ||
The registered office of Protherics is The Heath Business & Technical Park, Runcorn, Cheshire WA7 4QX and the business address of each of the Protherics Directors is 3 Creed Court, 5 Ludgate Hill, London EC4M 7AA. | ||
(b) | The BTG Directors are as follows: | |
Dr John Brown (
Chairman
)
Dr Louise Makin ( Chief Executive Officer ) Christine Soden ( Chief Financial Officer ) Colin Blakemore ( Non-executive Director ) Peter Chambré ( Non-executive Director ) William Jenkins ( Non-executive Director ) Giles Kerr ( Non-executive Director ) |
||
The registered office of BTG, and the business address of each of the BTG Directors, is 10 Fleet Place, Limeburner Lane, London EC4M 7SB. |
49
3. | Market quotations | |
Set out below are the Closing Prices for Protherics Shares and BTG Shares respectively on the first Business Day in each of the six months immediately before the date of this document, on 12 August 2008 (the last Business Day prior to the commencement of the Offer Period), and on 15 October 2008 (the latest practicable date prior to the posting of this document): |
Protherics Share | BTG Share | |||||||
Date | price (pence) | price (pence) | ||||||
15 October 2008
|
34.75 | 129.00 | ||||||
1 October 2008
|
40.50 | 143.75 | ||||||
1 September 2008
|
47.25 | 241.00 | ||||||
12 August 2008
|
31.25 | 226.00 | ||||||
1 August 2008
|
29.25 | 204.25 | ||||||
1 July 2008
|
31.00 | 179.00 | ||||||
2 June 2008
|
41.00 | 116.25 | ||||||
1 May 2008
|
48.75 | 117.75 |
4. | Disclosure of interests and dealings in shares | |
(a) | For the purposes of this Appendix V, reference to: |
(i) | acting in concert is to such term as defined in the City Code; | ||
(ii) | an arrangement includes any indemnity or option arrangement, and any agreement or understanding, formal or informal, of whatever nature, relating to relevant securities of Protherics or (as the case may be) BTG which may be an inducement to deal or refrain from dealing; | ||
(iii) | an associate is to: |
(a) | subsidiaries and associated companies of Protherics or (as the case may be) BTG and companies of which any such subsidiaries or associated companies are associated companies ( relevant associates ). For this purpose, ownership or control of 20 per cent. or more of equity share capital of a company is regarded as the test of associated company status; | ||
(b) | connected advisers to Protherics or (as the case may be) BTG and persons controlling, controlled by or under the same control as any such connected advisers; | ||
(c) | the directors of Protherics or (as the case may be) BTG or any relevant associate (together in each case with their close relatives and related trusts); | ||
(d) | the pension funds of Protherics or (as the case may be) BTG or any relevant associate; | ||
(e) | any investment company, unit trust or other person whose investments an associate manages on a discretionary basis, in respect of the relevant investment accounts; | ||
(f) | an employee benefit trust of Protherics or (as the case may be) BTG or any relevant company; and | ||
(g) | a company having a material trading arrangement with Protherics or (as the case may be) BTG; |
(iv) | a bank does not mean a bank whose sole relationship with Protherics or a company covered in (iii)(a) above is the provision of normal commercial banking services or such activities in connection with the Acquisition as handling acceptances and other registration work; | ||
(v) | a connected adviser means, in relation to any person, the organisation which is advising that person in relation to the Acquisition including, but not limited to, banks, financial and other professional advisers (including stockbrokers) and, if that person is Protherics or BTG, the corporate broker to that person (other than any corporate broker which is unable to act in connection with the Acquisition because of a conflict of interest); |
50
(vi) | a connected person has the meaning given in section 252 of the 2006 Act; | ||
(vii) | control means an interest, or interests, in shares carrying in aggregate 30 per cent. or more of the voting rights of a company, irrespective of whether such interest or interests give de facto control; | ||
(viii) | dealing or dealt includes the following: |
(a) | the acquisition or disposal of securities, of the right (whether conditional or absolute) to exercise or direct the exercise of the voting rights attaching to the securities, or of general control of securities; | ||
(b) | the taking, granting, acquisition, disposal, entering into, closing out, termination, exercise (by either party) or variation of an option (including a traded option contract) in respect of any securities; | ||
(c) | subscribing or agreeing to subscribe for securities; | ||
(d) | the exercise or conversion, whether in respect of new or existing securities, of any securities carrying conversion or subscription rights; | ||
(e) | the acquisition of, or disposal of, entering into, closing out, exercise (by either party) of any rights under, or variation of, a derivative referenced, directly or indirectly, to securities; | ||
(f) | entering into, terminating or varying the terms of any agreement to purchase or sell securities; and | ||
(g) | any other action resulting, or which may result, in an increase or decrease in the number of securities in which a person is interested or in respect of which he has a short position; |
(ix) | derivative includes any financial product whose value in whole or in part is determined directly or indirectly by reference to the price of an underlying security; | ||
(x) | disclosure period means the period commencing on 12 August 2007 (being the date 12 months prior to the commencement of the Offer Period) and ending on 15 October 2008 (the latest practicable date prior to the posting of this document); | ||
(xi) | exempt principal trader or exempt fund manager is to such term as defined in the City Code; | ||
(xii) | a person has an interest or is treated as interested in securities if he has long economic exposure, whether absolute or conditional, to changes in the price of those securities (and a person who only has a short position in securities is not treated as interested in those securities). In particular, a person is treated as interested in securities if: |
(a) | he owns them; | ||
(b) | he has a right (whether conditional or absolute) to exercise or direct the exercise of the voting rights attaching to them or has general control of them; | ||
(c) | by virtue of any agreement to purchase, option or derivative, he: |
(i) | has the right or option to acquire them or call for their delivery; or | ||
(ii) | is under an obligation to take delivery of them, |
whether the right, option or obligation is conditional or absolute and whether it is in the money or otherwise; or |
(d) | he is a party to any derivative: |
(i) | whose value is determined by reference to their price; and | ||
(ii) | which results, or may result, in his having a long position in them; |
(xiii) | offer period means the period commencing on 13 August 2008 and ending on 15 October 2008 (the latest practicable date prior to the posting of this document); |
51
(xiv) | a pension fund of BTG or (as the case may be) Protherics or of a company which is a relevant associate does not include any such pension funds which are managed under an agreement or arrangement with an independent third party in the terms set out in Note 7 on the definition of acting in concert in the City Code; | ||
(xv) | relevant securities of BTG include BTG Shares and securities convertible into or exchangeable for, rights to subscribe for or options in respect of, and derivatives referenced to, BTG Shares; | ||
(xvi) | relevant securities of Protherics include Protherics Shares and securities convertible into or exchangeable for, rights to subscribe for or options in respect of, and derivatives referenced to, Protherics Shares; and | ||
(xvii) | short position means any short position (whether conditional or absolute and whether in the money or otherwise) including any short position under a derivative, any agreement to sell or any delivery obligation or right to require another person to purchase or take delivery. |
(b) | Interests in BTG Shares |
(i) | As at the close of business on 15 October 2008 (the latest practicable date prior to the posting of this document), Protherics held no interests or short positions in BTG Shares. | ||
(ii) | As at the last day of the disclosure period, none of the Protherics Directors, their immediate families nor connected persons held any interests or short positions in BTG Shares. | ||
(iii) | As at the close of business on 15 October 2008 (the latest practicable date prior to the posting of this document), the interests of the BTG Directors and members of their respective immediate families, related trusts and connected persons in BTG Shares were as follows: |
Number of | % of issued | |||||||
Name | BTG Shares | share capital | ||||||
Peter Chambré
|
3,000 | 0.002 | ||||||
Dr Louise Makin
|
58,337 | 0.039 | ||||||
Christine Soden
|
23,432 | 0.015 | ||||||
|
||||||||
Total
|
84,769 | 0.056 | ||||||
|
By virtue of being potential beneficiaries of the BTG Employee Share Trust, Dr. Louise Makin and Christine Soden have an interest in 650,724 existing BTG Shares held on behalf of all BTG employees by the trustee of the BTG Employee Share Trust, none of which have been allocated under the BTG Share Option Scheme. | |||
(iv) | As at the close of business on 15 October 2008 (the latest practicable date prior to the posting of this document), the following options in respect of BTG Shares had been granted to certain BTG Directors and remain outstanding under the BTG Share Option Schemes: |
Number of | Exercise | |||||||||||||||
Existing | price per | |||||||||||||||
BTG Shares | BTG Share | Exercisable within | Exercisable within | |||||||||||||
Name | BTG Share Scheme | under option | Date of grant | (pence) | seven years from | six months from | ||||||||||
Dr Louise Makin
|
BTG SOP | 75,000 | 11 November 2004 | 92.00 | 11 November 2007 | | ||||||||||
|
BTG SOP | 236,270 | 22 August 2006 | 143.50 | 22 August 2009 | | ||||||||||
|
BTG Sharesave Scheme | 3,467 | 26 July 2006 | 107.87 | | 1 September 2009 | ||||||||||
|
BTG Sharesave Scheme | 4,032 | 30 July 2007 | 93.74 | | 1 September 2010 | ||||||||||
|
BTG Sharesave Scheme | 1,455 | 15 July 2008 | 129.20 | 1 September 2011 | | ||||||||||
|
||||||||||||||||
Christine Soden
|
BTG SOP | 144,250 | 22 August 2006 | 143.50 | 22 Aug 2009 | | ||||||||||
|
BTG Sharesave Scheme | 3,467 | 26 July 2006 | 107.87 | | 1 September 2009 | ||||||||||
|
BTG Sharesave Scheme | 4,032 | 30 July 2007 | 93.74 | | 1 September 2010 | ||||||||||
|
BTG Sharesave Scheme | 1,455 | 15 July 2008 | 129.20 | | 1 September 2011 |
52
The following awards over existing BTG Shares have been made to the following BTG Directors under the BTG Performance Share Plan and the BTG Deferred Share Bonus Plan. In relation to the awards made under the BTG Performance Share Plan these are purchased with 50 per cent. of the relevant BTG Directors bonuses at the time of award and are held for three years by the BTG Employee Share Trust. At the end of the three year period they are released to the relevant BTG Director as long as they are still employed by the BTG Group and they are pro rated if the BTG Director leaves early. In relation to the awards made under the BTG Performance Share Plan, these are awards made at nil cost to the relevant BTG Director and vest on the date shown below assuming performance conditions are achieved. If the performance conditions are not achieved the awards will lapse. |
No. of Existing | ||||||||||
BTG Shares | ||||||||||
awarded as of | Vesting Date of | |||||||||
Director | Date of Grant | 15 October 2008 | Award | BTG Share Scheme | ||||||
Dr Louise Makin
|
23 August 2006 | 152,323 | 23 August 2009 | BTG Performance Share Plan | ||||||
|
15 June 2007 | 285,975 | 15 June 2010 | BTG Performance Share Plan | ||||||
|
28 May 2008 | 316,824 | 28 May 2011 | BTG Performance Share Plan | ||||||
|
15 June 2007 | 98,991 | 15 June 2010 | BTG Deferred Share Bonus Plan | ||||||
|
28 May 2008 | 85,185 | 28 May 2011 | BTG Deferred Share Bonus Plan | ||||||
|
||||||||||
Christine Soden
|
23 August 2006 | 92,998 | 23 August 2009 | BTG Performance Share Plan | ||||||
|
15 June 2007 | 174,598 | 15 June 2010 | BTG Performance Share Plan | ||||||
|
28 May 2008 | 193,180 | 28 May 2011 | BTG Performance Share Plan | ||||||
|
15 June 2007 | 63,795 | 15 June 2010 | BTG Deferred Share Bonus Plan | ||||||
|
28 May 2008 | 52,008 | 28 May 2011 | BTG Deferred Share Bonus Plan |
(c) | Dealings in BTG Shares |
(i) | During the offer period, there have been no dealings for value by Protherics in BTG Shares. | ||
(ii) | During the offer period, there have been no dealings for value in BTG Shares in which the Protherics Directors, their immediate families or connected persons were interested. | ||
(iii) | During the disclosure period, the dealings for value in BTG Shares by the BTG Directors and members of their respective immediate families, related trusts or connected persons were as follows: |
Price per | ||||||||||||
Number of | BTG Share | |||||||||||
Name | Date of Dealing | Nature of Dealing | BTG Shares | (pence) | ||||||||
Dr Louise Makin
|
12 November 2007 | Release of nil cost conditional share award (50,000 BTG Shares before some sold to pay taxes) | 28,987 | nil | ||||||||
|
22 September 2008 | Exercise of Sharesave options | 1,432 | 132.37 | ||||||||
|
||||||||||||
Christine Soden
|
22 September 2008 | Exercise of Sharesave options | 1,432 | 132.37 |
Interests and Dealings in Protherics Shares | ||
(d) | Interests in Protherics Shares |
(i) | As at the close of business on 15 October 2008 (the latest practicable date prior to the posting of this document), BTG held no interests or short positions in Protherics Shares. | ||
(ii) | As at the close of business on 15 October 2008 (the latest practicable date prior to the posting of this document), none of the BTG Directors, their immediate families nor connected persons (within the meaning of section 252 of the 2006 Act) held any short positions in Protherics Shares. | ||
(iii) | As at the close of business on 15 October 2008 (the latest practicable date prior to the posting of this document), the interests of the BTG Directors and members of their |
53
respective immediate families, related trusts and connected persons, all of which are beneficial, in Protherics Shares were as follows: |
Number of | % of issued | |||||||
Name | Protherics Shares | share capital | ||||||
Dr John Brown
|
22,500 | 0.007 | ||||||
|
||||||||
Total
|
22,500 | 0.007 | ||||||
|
(iv) | As at the close of business on 15 October 2008 (the latest practicable date prior to the posting of this document), the interests of the Protherics Directors and members of their respective immediate families, related trusts and connected persons, all of which are beneficial, in Protherics Shares and Protherics Convertible Loan Notes were as follows: |
Number of | ||||||||||||
Protherics Shares | ||||||||||||
issuable on | ||||||||||||
Protherics Shares | conversion of | |||||||||||
% of issued | Protherics | |||||||||||
Number of | share | Convertible | ||||||||||
Name | shares | capital (1) | Loan Notes | |||||||||
Dr John Brown
|
22,500 | 0.007 | | |||||||||
James Christie
|
31,885 | 0.009 | | |||||||||
Jacques Gonella
|
9,162,017 | 2.675 | | |||||||||
Dr Andrew Heath
|
419,810 | 0.123 | 96,968 | |||||||||
Saul Komisar
|
67,153 | 0.020 | | |||||||||
Bryan Morton
|
| | | |||||||||
Rolf Soderstrom
|
20,000 | 0.006 | | |||||||||
Stuart Wallis
|
566,689 | 0.165 | 242,424 | |||||||||
Garry Watts
|
90,000 | 0.026 | | |||||||||
|
||||||||||||
Total
|
10,380,054 | 3.030 | 339,392 | |||||||||
|
(v) | As at the close of business on 15 October 2008 (the latest practicable date prior to the posting of this document), awards and/or options over the following number of Protherics Shares had been granted to Protherics Directors and remain outstanding: |
Number of | Exercise Price | |||||||||||||
Protherics Shares | per Protherics | |||||||||||||
Protherics Share | under option/ | Date of | Share | Exercise period/ | ||||||||||
Name | Scheme | award | grant | (pence) | vesting date | |||||||||
James Christie
|
Unapproved
Scheme |
250,000 | 22/12/99 | 39.00 | 22/12/02-22/12/09 | |||||||||
|
80,000 | 22/02/01 | 43.50 | 22/02/04-21/02/11 | ||||||||||
|
250,000 | 16/01/02 | 39.50 | 16/01/05-16/01/12 | ||||||||||
|
100,000 | 20/06/03 | 23.25 | 20/06/06-20/06/13 | ||||||||||
|
122,610 | 01/03/04 | 58.50 | 01/03/07-01/03/14 | ||||||||||
|
||||||||||||||
|
LTIP | 77,707 | 21/12/05 | 2.00 | 21/12/08-21/12/15 | |||||||||
|
101,547 | 12/06/06 | 2.00 | 12/06/09-12/06/16 | ||||||||||
|
118,644 | 15/12/06 | 2.00 | 15/12/09-15/12/16 | ||||||||||
|
161,702 | 11/06/07 | 2.00 | 11/06/10-11/06/17 | ||||||||||
|
176,744 | 23/11/07 | 2.00 | 23/11/10-23/11/17 | ||||||||||
|
270,270 | 09/06/08 | 2.00 | 09/06/11-09/06/18 | ||||||||||
|
||||||||||||||
|
DBS | 128,378 | 09/06/08 | 2.00 | 09/06/10-09/06/18 | |||||||||
|
1998 Sharesave | 14,384 | 11/01/06 | 65.00 | 01/02/09-01/08/09 | |||||||||
|
||||||||||||||
|
Total | 1,851,986 | ||||||||||||
|
54
Number of | Exercise Price | |||||||||||||
Protherics Shares | per Protherics | |||||||||||||
Protherics Share | under option/ | Date of | Share | Exercise period/ | ||||||||||
Name | Scheme | award | grant | (pence) | vesting date | |||||||||
Dr Andrew Heath
|
Unapproved
Scheme |
500,000 | 22/02/01 | 43.50 | 22/02/04-22/02/11 | |||||||||
|
1,000,000 | 16/01/02 | 39.50 | 16/01/05-16/01/12 | ||||||||||
|
300,000 | 20/06/03 | 23.25 | 20/06/06-20/06/13 | ||||||||||
|
325,000 | 01/03/04 | 58.50 | 01/03/09-01/03/14 | ||||||||||
|
||||||||||||||
|
LTIP | 157,556 | 21/12/05 | 2.00 | 21/12/08-21/12/15 | |||||||||
|
186,507 | 12/06/06 | 2.00 | 12/06/09-12/06/16 | ||||||||||
|
215,304 | 15/12/06 | 2.00 | 15/12/09-15/12/16 | ||||||||||
|
297,661 | 11/06/07 | 2.00 | 11/06/10-11/06/17 | ||||||||||
|
325,581 | 23/11/07 | 2.00 | 23/11/10-23/11/17 | ||||||||||
|
500,000 | 09/06/08 | 2.00 | 09/06/11-09/06/18 | ||||||||||
|
||||||||||||||
|
Individual Share Option Agreement | 600,000 | 22/12/99 | 39.00 | 22/12/02-22/12/09 | |||||||||
|
||||||||||||||
|
Total | 4,407,609 | ||||||||||||
|
||||||||||||||
Saul Komisar
|
Unapproved
Scheme |
15,000 | 22/12/99 | 39.00 | 22/12/02-22/12/09 | |||||||||
|
11,629 | 27/01/00 | 37.50 | 27/01/03-27/01/10 | ||||||||||
|
200,000 | 22/02/01 | 43.50 | 22/02/04-22/02/11 | ||||||||||
|
150,000 | 20/06/03 | 23.25 | 20/06/06-20/06/13 | ||||||||||
|
143,045 | 01/03/04 | 58.50 | 01/03/07-01/03/14 | ||||||||||
|
||||||||||||||
|
LTIP | 72,380 | 21/12/05 | 2.00 | 21/12/08 | |||||||||
|
91,456 | 12/06/06 | 2.00 | 12/06/09 | ||||||||||
|
100,173 | 15/12/06 | 2.00 | 15/12/09 | ||||||||||
|
151,396 | 11/06/07 | 2.00 | 11/06/10 | ||||||||||
|
157,980 | 15/11/07 | 2.00 | 15/11/10 | ||||||||||
|
252,460 | 09/06/08 | 2.00 | 09/06/11 | ||||||||||
|
||||||||||||||
|
DBS | 50,177 | 11/06/07 | 2.00 | 11/06/09 | |||||||||
|
||||||||||||||
|
Total | 1,395,696 | ||||||||||||
|
||||||||||||||
Rolf Soderstrom
|
LTIP | 423,076 | 10/08/07 | 2.00 | 10/08/10-10/08/17 | |||||||||
|
204,651 | 23/11/07 | 2.00 | 23/11/10-23/11/17 | ||||||||||
|
313,513 | 09/06/08 | 2.00 | 09/06/11-09/06/18 | ||||||||||
|
||||||||||||||
|
DBS | 99,099 | 09/06/08 | 2.00 | 09/06/10-09/06/18 | |||||||||
|
||||||||||||||
|
Total | 1,040,339 | ||||||||||||
|
(vi) | As at the close of business on 15 October 2008 (the latest practicable date prior to the posting of this document), Jefferies held interests in 238,617 Protherics Shares in aggregate, representing approximately 0.07 per cent. of Protherics issued share capital as at that date. |
(e) | Dealings in Protherics Shares |
(i) | During the disclosure period there have been no dealings for value by BTG in Protherics Shares. | ||
(ii) | During the disclosure period, there have been no dealings for value in Protherics Shares in which the BTG Directors, their immediate families or connected persons were interested. | ||
(iii) | During the offer period, there have been no dealings for value in Protherics Shares by the Protherics Directors and members of their respective immediate families, related trusts or connected persons. |
(i) | neither BTG, nor any other member of the BTG Group, nor the BTG Directors, nor (in the case of the BTG Directors) any member of their respective immediate families or related trusts, nor any |
55
person acting in concert with BTG, nor any person with whom BTG (or any person acting in concert with BTG) had an arrangement of any kind referred to in paragraph 4(a)(ii) above, had any interest in or right to subscribe for, or had any short position in relation to any relevant securities of Protherics or BTG, and nor had any such person dealt for value in relevant securities of Protherics or BTG during the disclosure period; |
(ii) | neither Protherics, nor the Protherics Directors, nor (in the case of the Protherics Directors) any member of their respective immediate families or related trusts, nor any person with whom Protherics (or any associate of Protherics) had an arrangement of any kind referred to in paragraph 4(a)(ii) above, had any interest in or right to subscribe for, or had any short position in relation to any relevant securities of Protherics or BTG, and nor had any such person dealt for value in relevant securities of Protherics or BTG during the offer period; | |
(iii) | no relevant associate of Protherics, nor any pension fund of Protherics or of any company which is a relevant associate, nor any employee benefit trust of Protherics or of any company which is a relevant associate, nor any connected adviser to Protherics (or any associate of Protherics or any person acting in concert with Protherics) or any person controlling, controlled by or under the same control as any such adviser (except for an exempt principal trader or an exempt fund manager) had an interest in or a right to subscribe for, or any short position in relation to, relevant securities of Protherics or of BTG, and nor had any such person dealt for value in relevant securities of Protherics or BTG during the offer period; and | |
(iv) | neither Protherics nor BTG, nor any person acting or presumed to be acting in concert with Protherics or BTG has borrowed or lent any relevant securities in Protherics or BTG (save for any borrowed shares which have been either on-lent or sold). | |
5. | Irrevocable undertakings | |
(a) | The following persons, all of whom are Independent Directors of Protherics, have given irrevocable undertakings to BTG to vote in favour of the resolutions to be proposed at the Court Meeting and EGM (or, if applicable, to accept a Takeover Offer) in respect of the number of Protherics Shares set out below (and any further Protherics Shares acquired by them prior to the completion of the Scheme including pursuant to the exercise of options or vesting of awards under the Share Schemes and/or the conversion of the Protherics Convertible Loan Notes as also set out below): |
Number of | ||||||||||||
Shares issuable | ||||||||||||
on conversion of | ||||||||||||
Protherics Shares | Protherics | |||||||||||
Number of | % of issued | Convertible | ||||||||||
Name | shares | share capital | Loan Notes | |||||||||
James Christie
|
31,885 | 0.009 | | |||||||||
Jacques Gonella
|
9,162,017 | 2.675 | | |||||||||
Dr Andrew Heath
|
419,810 | 0.123 | 96,968 | |||||||||
Saul Komisar
|
67,153 | 0.020 | | |||||||||
Rolf Soderstrom
|
20,000 | 0.006 | | |||||||||
Stuart Wallis
|
566,689 | 0.165 | 242,424 | |||||||||
Garry Watts
|
90,000 | 0.026 | | |||||||||
|
||||||||||||
Total
|
10,357,554 | 3.024 | 339,392 | |||||||||
|
(b) | These irrevocable undertakings shall terminate and be of no further force and effect if: |
(i) | the Implementation Agreement is terminated in accordance with its terms; or | ||
(ii) | the Scheme does not become effective, lapses or is withdrawn in accordance with its terms. |
(c) | These irrevocable undertakings will continue to be binding on such persons even in the event that a third party makes a higher competing offer. |
56
6. | Executive directors and non-executive directors service agreements and letters of appointment |
(a) | Executive Directors | |
It is the Companys policy that executive directors of the Company should have service contracts with an indefinite term providing for a maximum of one years notice by the Company. Summary details of the executive directors contracts are set out below: |
Base salary | Date of service | Notice period | Notice period | |||||||
per annum | contract | (director) | (Company/Employer) | |||||||
James Christie
|
£ | 200,000 | 21/09/2000 | 6 months | 12 months | |||||
Dr Andrew Heath
|
£ | 370,000 | 06/11/2001 | 12 months | 12 months | |||||
Saul Komisar*
|
$ | 368,000 | 08/06/2007 | 3 months | | |||||
Rolf Soderstrom
|
£ | 232,000 | 02/10/2007 | 12 months | 12 months |
(*) | Mr Komisars contract of employment is with Protherics Inc, a wholly owned subsidiary of Protherics |
In the event of early termination, each of the executive directors contracts provide for compensation up to a maximum of basic salary for the notice period, save in the case of the termination of Mr Komisars employment by the Protherics Group other than for cause in which case Mr Komisar is entitled to receive an amount equal to twelve months base salary. | ||
Each of the executive directors are also eligible to participate in the Protherics Share Schemes, and receive bonus payments in such amounts, in each case, as the Company may determine from time to time. In addition, each of the executive directors is eligible to participate in the Protherics Groups pension scheme, with the Company making annual contributions to the scheme equal to 20 per cent. of base salary, subject to the rules of the pension scheme and any limits imposed by HM Revenue & Customs. | ||
Each of the executive directors service contracts also contain customary restrictions on their being involved with undertakings in competition with the Protherics Group or from soliciting customers or hiring employees of the Protherics Group following termination of their employment, as well as confidentiality restrictions without reference to time, and, in the case of Mr Christie, Dr Heath and Mr Soderstrom, provisions regarding the ownership of certain intellectual property rights established during the relevant individuals employment by the Protherics Group. | ||
As noted in paragraphs 5 and 6 of Part 1 ( Letter from the Chairman of Protherics PLC ) of this document, Mr Soderstrom will be joining the BTG Board as Chief Financial Officer upon the Acquisition completing. It is expected that the terms of Mr Soderstroms employment by the Enlarged Group will be substantially similar to the terms of his current employment by the Company, as described above. | ||
(b) | Chairman and Non-executive Directors | |
The non-executive directors of Protherics each have specific letters of appointment. Their remuneration is determined by the Board within limits set by the Articles and based upon Board surveys of fees paid to non-executive directors of similar companies with similar responsibilities. Currently, Dr John Brown is entitled to fees of £41,000 per annum under a letter of appointment dated 23 February 2004, Jacques Gonella is entitled to fees of £35,000 per annum under a letter of appointment dated 20 January 2007, Bryan Morton is entitled to fees of £35,000 under a letter of appointment dated 21 July 2005, and Garry Watts is entitled to fees of £41,000 under a letter of appointment dated 19 January 2004. All of these appointments are terminable by three months notice by either party. | ||
Stuart Wallis is entitled to payment of £25,000 pursuant to a consultancy agreement entered into with the Company dated 1 April 2007, and is entitled to fees of £60,000 per annum under a letter of appointment dated 24 May 2007, as well as an entitlement to a fully expensed company car. Both of these agreements are terminable with twelve months notice by either party. |
57
7. | Material Contracts |
8. | Other information | |
(a) | Save as disclosed in this document, no agreement, arrangement or understanding (including any compensation arrangement) exists between BTG or any party acting or presumed to be acting in concert with BTG for the purposes of the Acquisition and any of the Directors, recent directors, shareholders or recent shareholders of Protherics, or any person interested or recently interested in shares of Protherics, having any connection with or dependence on the Acquisition. | |
(b) | Save as disclosed in this document, no proposal exists in connection with the Acquisition that any payment or other benefit be made or given to any Protherics Director as compensation for loss of office or as consideration for or in connection with his retirement from office. | |
(c) | Save as disclosed in this document, no agreement, arrangement or understanding exists whereby the legal or beneficial ownership of any of the Protherics Shares to be acquired by BTG in pursuance of the Acquisition will be transferred to any other person. | |
(d) | Save as disclosed in this document or the BTG Prospectus, the Protherics Directors are not aware of any material change in the financial or trading position of Protherics since 31 March 2008, the date to which the latest published audited accounts of Protherics were prepared. | |
(e) | Save as disclosed in this document or the BTG Prospectus, the BTG Directors are not aware of any material change in the financial or trading position of BTG since 31 March 2008, the date to which the latest published audited accounts of BTG were prepared. | |
(f) | Rothschild has given and has not withdrawn its written consent to the issue of this document with the inclusion herein of the references to its name in the form and context in which it appears. | |
(g) | Jefferies has given and has not withdrawn its written consent to the issue of this document with the inclusion herein of the references to its name in the form and context in which it appears. | |
(h) | Neither the payment of interest on, nor the repayment of, nor the security for, any liability (contingent or otherwise) of BTG will depend to any significant extent on the business of Protherics. | |
(i) | It is not currently intended that the emoluments of the BTG Directors will be affected by the Acquisition. | |
9. | Documents available for inspection |
(a) | the memorandum and articles of association of Protherics; | |
(b) | the memorandum and articles of association of BTG; | |
(c) | the Protherics 2006 Financial Statements, the Protherics 2007 Financial Statements and the Protherics 2008 Financial Statements, which are each incorporated by reference into Appendix II ( Historical Financial Information on the Protherics Group ) to this document; | |
(d) | the BTG 2006 Financial Statements, the BTG 2007 Financial Statements and the BTG 2008 Financial Statements, which are each incorporated by reference into Appendix III ( Historical Financial Information on the BTG Group ) to this document; |
58
(e) | the service contracts and letters of appointment referred to in paragraph 6 above; | |
(f) | the material contracts referred to in paragraph 7 above and summarised in Part 11 ( Additional Information ) of the BTG Prospectus (including the Implementation Agreement); | |
(g) | the written consents referred to in paragraph 8 above; | |
(h) | the irrevocable undertakings referred to in paragraph 5 above and the letters of intent referred to in paragraph 11 of Part 1 ( Letter from the Chairman of Protherics PLC ) of this document; | |
(i) | the BTG Prospectus; and | |
(j) | this document and the Forms of Proxy. |
59
1. | Historic financial information relating to Protherics has been extracted without material adjustment from the relevant published audited reports and accounts of Protherics. | |
2. | Historic financial information relating to BTG has been extracted without material adjustment from the relevant published audited reports and accounts of BTG. | |
3. | Reference to the Protherics Fully Diluted Share Capital assumes: |
(a) | 342,560,165 Protherics Shares in issue; | ||
(b) | Protherics Convertible Loan Notes with an aggregate nominal value of £1,966,829 (carrying conversion rights over 7,867,316 Protherics Shares in aggregate) outstanding; and | ||
(c) | the vesting of all awards and exercise of all options issued and outstanding over Protherics Shares, where such options have an exercise price of not more than 37.54 pence, being the value of a Protherics Share under the terms of the Acquisition based on the Closing Price of a BTG Share of 129 pence on 15 October 2008 (the latest practicable date prior to the posting of this document) representing 7,539,498 Protherics Shares in aggregate, in each case as at 15 October 2008 (the latest practicable date prior to the posting of this document). |
4. | Unless otherwise stated, all prices quoted for shares are Closing Prices. | |
5. | The expected percentage ownership of the Enlarged Group held by former Protherics Shareholders and existing BTG Shareholders is based on the enlarged issued share capital of BTG following the Acquisition being the aggregate of 151,265,827 BTG Shares in issue on 15 October 2008 (source: BTG registrar) and, based on the Protherics Fully Diluted Share Capital, a maximum number of 104,168,390 New BTG Shares to be issued pursuant to the Acquisition. | |
6. | The combined cash and liquid investments of BTG and Protherics are an aggregate of the cash and liquid investments of each company as extracted from the BTG audited financial statements for the financial year ended 31 March 2008 and the Protherics audited financial statements for the financial year ended 31 March 2008 (before taking into account any Acquisition costs). |
60
1985 Act
|
the Companies Act 1985 (as amended); | |
|
||
2006 Act
|
the Companies Act 2006 (as amended); | |
|
||
1998 Sharesave
|
the Protherics PLC Savings Related Share Option Scheme adopted by the Company on 23 July 1998; | |
|
||
2008 Sharesave
|
the Protherics PLC Savings Related Share Option Scheme adopted by the Company on 22 July 2008; | |
|
||
Acquisition
|
the recommended acquisition of the entire issued and to be issued share capital of Protherics by BTG to be implemented by way of the Scheme (or, should BTG elect, with the consent of Protherics, by means of a Takeover Offer) on the terms and subject to the Conditions set out in this document and any subsequent revision, variation, extension or renewal thereof; | |
|
||
Admission
|
the admission of the New BTG Shares (i) to the Official List and (ii) to trading on the London Stock Exchanges market for listed securities in accordance with the Admission and Disclosure Standards; | |
|
||
ADS Holders
|
all registered and beneficial holders of Protherics ADSs; | |
|
||
Approved Scheme
|
the Protherics PLC Approved Executive Share Option Scheme as amended on 13 September 1999; | |
|
||
Articles
or
Protherics Articles
|
the articles of association of Protherics; | |
|
||
Aviva Investors
|
Aviva Investors Global Services Limited; | |
|
||
Board
|
the board of directors of Protherics; | |
|
||
BTG
|
BTG plc, registered in England and Wales (registered number 2670500); | |
|
||
BTG Board
|
means the board of directors of BTG; | |
|
||
BTG Circular
|
the circular to be sent to BTG Shareholders convening the BTG EGM; | |
|
||
BTG Directors
|
the directors of BTG as at the date of this document and BTG Director means any one of them; | |
|
||
BTG EGM
|
the extraordinary general meeting of BTG to be convened in connection with the Acquisition, including any adjournment thereof; | |
|
||
BTG Group
|
BTG and its subsidiaries and, where the context requires, each one of them; | |
|
||
BTG Prospectus
|
the prospectus or prospectus equivalent document proposed to be published by BTG in connection with the Admission of the New BTG Shares; | |
|
||
BTG Resolutions
|
the resolutions to be proposed at the BTG EGM for the purposes of approving and implementing the Acquisition; | |
|
||
BTG Share Option Schemes
|
the BTG Employees Share Option Plan, the BTG Sharesave Scheme, the BTG Restricted Share Scheme, the BTG Deferred Share Bonus Plan, the BTG Performance Share Plan and the BTG Stock Purchase Plan; | |
|
||
BTG Shareholders
|
holders of BTG Shares; |
61
BTG Shares
|
ordinary shares of 10 pence each in the capital of BTG (including, if the context so requires, the New BTG Shares); | |
|
||
BTG SOP
|
the BTG Employees Share Option Plan; | |
|
||
Business Day
|
a day (excluding Saturdays and Sundays or public holidays in England and Wales) on which banks generally are open for business in London for the transaction of normal banking business; | |
|
||
Capita Registrars
|
Capita Registrars, a trading name for Capita Registrars Limited of Northern House, Woodsome Park, Fenay Bridge, Huddersfield HD8 0GA; | |
|
||
certificated
or
in certificated form
|
in relation to a share, not in uncertificated form in CREST; | |
|
||
close of business
|
6.00 p.m. on that Business Day; | |
|
||
Closing Price
|
the closing middle market quotation of a share at the close of business on a particular trading day as derived from the Official List published for that day; | |
|
||
Code
or
City Code
|
the City Code on Takeovers and Mergers; | |
|
||
Competing Proposal
|
means a proposed offer, tender offer, merger, acquisition, scheme of arrangement, recapitalisation or other combination (including a transaction involving a dual listed company structure) whether or not subject to any pre-conditions and howsoever to be implemented relating to any direct or indirect acquisition or purchase of 50 per cent. or more of the Protherics Shares or (as the case may be) the BTG Shares or substantially all of the business and assets of Protherics or (as the case may be) BTG and its respective subsidiaries proposed by any third party; | |
|
||
Conditions
|
the conditions to the implementation of the Acquisition (including the Scheme), which are set out in Appendix I to this document; | |
|
||
Court
|
the High Court of Justice in England and Wales; | |
|
||
Court Hearings
|
the Scheme Court Hearing and the Reduction Court Hearing; | |
|
||
Court Meeting
|
the meeting (and any adjournment thereof) of the holders of Scheme Shares convened by the Court under section 896 of the 2006 Act to consider and, if thought fit, approve the Scheme; | |
|
||
Court Orders
|
the Reduction Court Order and the Scheme Court Order; | |
|
||
CREST
|
the relevant system, as defined in the Regulations (in respect of which Euroclear UK & Ireland Limited is operator as defined in the Regulations); | |
|
||
CREST Manual
|
the CREST Manual referred to in agreements entered into by Euroclear; | |
|
||
CREST member
|
a person who is, in relation to CREST, a system member (as defined in the Regulations); | |
|
||
CREST sponsor
|
a person who is, in relation to CREST, a sponsoring system participant (as defined in the Regulations); | |
|
||
CREST sponsored member
|
a CREST member admitted to CREST as a sponsored member under the sponsorship of a CREST sponsor; | |
|
||
Daily Official List
|
the Daily Official List of the London Stock Exchange; | |
|
||
DBS
|
the Protherics PLC 2005 Deferred Bonus Plan approved by the Company on 27 January 2005; |
62
Depositary
|
Bank of New York Mellon; | |
|
||
Depositary Agreement
|
the Deposit Agreement, dated 20 June 1995, as amended and restated as of 27 September 2005, among Protherics, the Depositary and all ADS Holders; | |
|
||
Directors
or
Protherics Directors
|
the directors of Protherics as at the date of this document and Protherics Director means any one of them; | |
|
||
Disclosed
|
disclosed in: | |
|
||
|
(i) the 2008 annual report and accounts of Protherics (including the audited
consolidated financial statements of Protherics for the year ended 31 March 2008);
|
|
|
||
|
(ii) any documents delivered to any director, officer or employee of BTG or any
professional advisers engaged by BTG in connection with the Acquisition by or on behalf of
Protherics at any time prior to 6.00 p.m. on 17 September 2008; or
|
|
|
||
|
(iii) any public announcement released by or on behalf of Protherics to a Regulatory
Information Service at any time prior to 6.00 p.m. on 17 September 2008;
|
|
|
||
EC Merger Regulation
|
Council Regulation (EC) 13 9/2004 (as amended); | |
|
||
Effective Date
|
the date on which the Scheme becomes effective in accordance with its terms; | |
|
||
Enlarged Group
|
the BTG Group, including Protherics and its subsidiaries following the Acquisition becoming effective; | |
|
||
ESOP
|
the Protherics PLC 2005 Executive Share Option Plan approved by the Company on 27 January 2005; | |
|
||
Euroclear
|
Euroclear UK & Ireland Limited, a limited company incorporated in England and Wales with registered number 02878738; | |
|
||
Explanatory Statement
|
the explanatory statement relating to the Acquisition, as set out in Part 2 of this document, which together with the documents incorporated therein constitutes the explanatory statement relating to the Scheme as required by section 897 of the 2006 Act; | |
|
||
Extraordinary General Meeting
or
EGM
|
the general meeting of Protherics convened for the purpose of passing the Protherics Resolutions, including any adjournment thereof; | |
|
||
Forms of Proxy
or
Form of Proxy
or
Proxy
|
the blue form of proxy for use at the Court Meeting and the yellow form of proxy for use at the EGM or either of them as the context requires; | |
|
||
FSA
|
the Financial Services Authority; | |
|
||
FSMA
|
the Financial Services and Markets Act 2000 (as amended); | |
|
||
holder
|
a registered holder including any person entitled by transmission; | |
|
||
Implementation Agreement
|
the implementation agreement between BTG and Protherics dated 18 September 2008; | |
|
||
Independent Directors
|
all of the directors of Protherics as at the date hereof except Dr John Brown; | |
|
||
Individual Agreements
|
the individual option arrangements under which options been granted over Protherics Shares to employees; |
63
|
||
Invesco Asset Management
|
Invesco Asset Management Limited; | |
|
||
Jefferies
|
Jefferies International Limited; | |
|
||
Listing Rules
|
the listing rules made by the UK Listing Authority for the purposes of Part VI of FSMA; | |
|
||
London Stock Exchange
|
London Stock Exchange plc; | |
|
||
LTIP
|
the Protherics PLC 2005 Long Term Incentive Plan approved by the Company on 27 January 2005; | |
|
||
Meetings
|
the Court Meeting and the EGM and Meeting shall mean either of them as the context dictates; | |
|
||
New BTG Shares
|
the BTG Shares proposed to be issued and credited as fully paid to Scheme Shareholders pursuant to the Acquisition; | |
|
||
New Protherics Shares
|
the new Protherics Shares to be issued credited as fully paid in accordance with the Scheme; | |
|
||
Offer Period
|
the period commencing on 13 August 2008 and ending on the Effective Date; | |
|
||
Official List
|
the Official List of the UK Listing Authority; | |
|
||
Overseas Shareholders
|
Protherics Shareholders whose registered addresses are outside the United Kingdom or who are citizens or residents of countries other than the United Kingdom; | |
|
||
Panel
|
the Panel on Takeovers and Mergers; | |
|
||
Protherics
or
Company
|
Protherics PLC, registered in England and Wales (registered number 2459087); | |
|
||
Protherics ADSs
|
securities representing interests in Protherics Shares, which are currently registered under the US Securities Exchange Act and listed on the US Nasdaq National Market. Each Protherics ADS represents ten Protherics Shares; | |
|
||
Protherics Convertible Loan Notes
|
the six per cent. unsecured convertible loan notes 2010 of Protherics; | |
|
||
Protherics Fully Diluted Share Capital
|
has the meaning set out in Appendix VI to this document; | |
|
||
Protherics Group
|
Protherics and its subsidiaries and, where the context requires, each one of them; | |
|
||
Protherics Resolutions
|
the resolution(s) to be proposed at the EGM for the purposes of approving the Reduction of Capital and certain amendments to the Articles, together with such other matters as may be agreed between Protherics and BTG as necessary or desirable for the purposes of implementing the Acquisition; | |
|
||
Protherics Shareholders
or
Shareholders
|
holders of Protherics Shares; | |
|
||
Protherics Shares
|
ordinary shares of two pence each in the capital of Protherics; | |
|
||
Protherics Share Schemes
|
the Approved Scheme, the Unapproved Scheme, the ESOP, the 1998 Sharesave, the 2008 Sharesave, the LTIP, the DBS and the Individual Agreements; | |
|
||
Reduction Court Hearing
|
the hearing at which the Reduction Court Order will be sought; | |
|
||
Reduction Court Order
|
the order of the Court confirming the Reduction of Capital and the associated re-registration of Protherics as a private limited company; |
64
Reduction of Capital
|
the proposed reduction of capital under section 135 of the 1985 Act associated with the Scheme; | |
|
||
Reduction Record Time
|
6.00 p.m. on the last Business Day before the date of the Reduction Court Hearing; | |
|
||
Registrar of Companies
|
the Registrar of Companies for England and Wales; | |
|
||
Regulations
|
the Uncertificated Securities Regulations 2001 (SI 2001 No. 3755); | |
|
||
Regulatory Information Service
|
any of the information services set out in Appendix 3 to the Listing Rules; | |
|
||
Restricted Jurisdiction
|
Australia, South Africa, Japan, Canada and any other jurisdiction where the New BTG Shares cannot be made available to Scheme Shareholders without breaching any applicable securities law; | |
|
||
Rothschild
|
N.M. Rothschild & Sons Limited; | |
|
||
Scheme
or
Scheme of Arrangement
|
the scheme of arrangement under part 26 of the 2006 Act to be proposed by Protherics to the Scheme Shareholders with or subject to any modification, addition or condition approved or imposed by the Court and agreed by Protherics and BTG; | |
|
||
Scheme Court Hearing
|
the hearing at which the Scheme Court Order will be sought; | |
|
||
Scheme Court Order
|
the order of the Court, granted at the Court hearing to sanction the Scheme, sanctioning the Scheme under section 899 of the 2006 Act; | |
|
||
Scheme Record Time
|
6.00 p.m. on the Business Day immediately prior to the Effective Date; | |
|
||
Scheme Shareholders
|
holders of Scheme Shares; | |
|
||
Scheme Shares
|
the Protherics Shares: | |
|
||
|
(i) in issue at the date of this document;
|
|
|
||
|
(ii) issued after the date of this document and before the Voting Record Time; and
|
|
|
||
|
(iii) issued on or after the Voting Record Time but on or before the Reduction Record Time
either on terms that the original or subsequent holders thereof shall be bound by the
Scheme or in respect of which the holder thereof shall have agreed in writing to be bound by
the Scheme;
|
|
|
||
SEC
|
the United States Securities and Exchange Commission; | |
|
||
subsidiary
,
subsidiary undertaking
,
undertaking
and
associated undertaking
|
have the respective meanings given thereto by the 1985 Act, but for this purpose ignoring paragraph 20(1)(b) of Schedule 4A of the 1985 Act, and substantial interest means a direct or indirect interest in 20 per cent. or more of the equity capital of an undertaking; | |
|
||
Takeover Offer
|
a takeover offer governed by the Code to implement the acquisition of Protherics as BTG may elect to make in accordance with the terms of the Implementation Agreement; | |
|
||
UK
or
United Kingdom
|
United Kingdom of Great Britain and Northern Ireland; | |
|
||
UK Listing Authority
|
the FSA acting in its capacity as the competent authority for the purposes of Part VI of the FSMA; | |
|
||
Unapproved Scheme
|
the Protherics PLC Unapproved Share Option Scheme adopted by the Company on 24 May 1996;
|
65
uncertificated
or
in uncertificated form
|
in relation to a share, title to which is recorded in the relevant register of the share as being held in uncertificated form in CREST, and title to which, by virtue of the Regulations, may be transferred by means of CREST; | |
|
||
United States
or
US
|
the United States of America, its territories and possessions, any state of the United States of America and the District of Columbia; | |
|
||
US$
or
US dollar
|
the lawful currency of the US; | |
|
||
US Securities Act
|
the United States Securities Act of 1933, as amended; | |
|
||
US Securities Exchange Act
|
the United States Securities Exchange Act of 1934, as amended; | |
|
||
Voting Record Time
|
6.00 p.m. on the day which is two days before the date of the Court Meeting or, if the Court Meeting is adjourned, 6.00 p.m. on the day which is two days before the date of such adjourned meeting; | |
|
||
Wider BTG Group
|
BTG Group and its subsidiary undertakings, associated undertakings and any other body corporate, partnership, joint venture or person in which the BTG Group and such undertakings (aggregating their interests) have an interest of more than 20 per cent. of the voting or equity capital or the equivalent; | |
|
||
Wider Protherics Group
|
the Protherics Group and its subsidiary undertakings, associated undertakings and any other body corporate, partnership, joint venture or person in which the Protherics Group and such undertakings (aggregating their interests) have an interest of more than 20 per cent. of the voting or equity capital or the equivalent; and | |
|
||
£
,
Sterling
,
pence
and
p
|
the lawful currency of the United Kingdom. |
66
IN THE HIGH COURT OF JUSTICE | No. 8832 of 2008 | |
CHANCERY DIVISION | ||
COMPANIES COURT | ||
Chief Registrar Baister |
67
Dated: 17 October 2008 | ||
Ashurst LLP | ||
Broadwalk House | ||
5 Appold Street | ||
London EC2A 2HA | ||
Solicitors for the Company |
68
(a) | the directors of the Company be authorised to take all such actions as they may consider necessary or appropriate for carrying the Scheme into effect; | |
(b) | the share capital of the Company be reduced by cancelling and extinguishing all of the Scheme Shares (as defined in the Scheme); | |
(c) | subject to, and forthwith upon, the reduction of capital referred to in paragraph (b) above (the Reduction of Capital ) taking effect: |
(i) | the share capital of the Company be increased to its former amount by the creation of such number of new ordinary shares of 2 pence each as is equal to the number of Scheme Shares cancelled pursuant to paragraph (b) above and having the same rights as the Scheme Shares so cancelled; | ||
(ii) | the reserve arising in the books of account of the Company as a result of the reduction of share capital referred to in paragraph (b) above be capitalised and applied in paying up in full at par all of the new ordinary shares created pursuant to paragraph (c)(i) above, which shall be allotted and issued, credited as fully paid, to BTG in accordance with the Scheme; and | ||
(iii) | conditional upon the Scheme becoming effective, the directors of the Company be and they are hereby generally and unconditionally authorised for the purposes of section 80 of the Companies Act 1985 to allot the new ordinary shares referred to in paragraph (c)(i) above, provided that: (1) the maximum aggregate nominal amount of relevant securities that may be allotted under this authority shall be the higher of the aggregate nominal amount of the said new ordinary shares created pursuant to paragraph (c)(i) above and £2,283,734; (2) this authority shall expire (unless previously revoked, varied or renewed) on 31 December 2009; and (3) this authority shall be in addition, and without prejudice, to any other authority under the said section 80 previously granted and in force on the date on which this resolution is passed; and |
(d) | with effect from the passing of this resolution, the articles of association of the Company be amended by the adoption and inclusion of the following new Article 43A: |
43A.1
|
In this Article, the Scheme means the scheme of arrangement under part 26 of the Companies Act 2006 dated 17 October 2008 between the Company and Scheme Shareholders in its form at that date or with or subject to any modification, addition or condition approved or imposed by the Court and agreed to by the Company and BTG plc ( BTG ), and save as defined in this Article |
69
|
expressions defined in the Scheme (as it may be modified or amended in accordance with its terms) shall have the same meanings in this Article. | |
|
||
43A.2
|
If the Company issues any shares to any person other than to BTG or its nominee(s) after the adoption of this Article and on or before the Reduction Record Time, such shares shall be subject to the terms of the Scheme (and shall be Scheme Shares for the purposes of the Scheme) and the original or any subsequent holder or holders of such shares shall be bound by the Scheme accordingly. | |
|
||
43A.3
|
Notwithstanding any of the provisions of these Articles and subject to the Scheme and Reduction of Capital becoming effective, if any shares are issued to any person (a New Member ) (other than to BTG or its nominee(s)) after the Reduction Record Time (the Post-Scheme Shares ), such Post-Scheme Shares will, subject to Article 43A.4 below, be immediately transferred to BTG in consideration for and conditional upon the payment by BTG to the New Member of such consideration as would have been payable to such New Member pursuant to the Scheme (as it may be modified or amended in accordance with its terms) for each such share as if it were a Scheme Share. | |
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43A.4
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Any New Member may, before the issue or transfer of Post-Scheme Shares to him or her pursuant to the exercise of an option or satisfaction of an award under one of the Companys employee share plans, give not less than two business days notice to the Company, in such manner as the Board shall prescribe, of his or her intention to transfer some or all of such Post-Scheme Shares to his or her spouse or civil partner, and may, if such notice has been validly given, on such Post-Scheme Shares being issued or transferred to him or her, immediately transfer to his or her spouse or civil partner any such Post-Scheme Shares, provided that such Post-Scheme Shares will then immediately be transferred from that spouse or civil partner to BTG pursuant to Article 43A.3 above as if the spouse or civil partner was a New Member. If notice has been validly given pursuant to this Article but the New Member does not immediately transfer to his or her spouse or civil partner the Post-Scheme Shares in respect of which notice was given, such shares will be transferred to BTG pursuant to Article 43A.3 above. | |
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43A.5
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On any reorganisation of, or material alteration to, the share capital of the Company (including, without limitation, any subdivision and/or consolidation), the amount of the consideration per share to be paid under Article 43A.3 above shall be adjusted by the Directors in such manner as the auditors of the Company may determine to be appropriate to reflect such reorganisation or alteration. References in this Article to shares shall, following such adjustment, be construed accordingly. | |
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43A.6
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To give effect to any transfer required by Article 43A.3 and/or Article 43A.4 above, the Company may appoint any person as attorney for the New Member to transfer the Post-Scheme Shares to BTG and to do all such other things and execute and deliver all such documents as may, in the opinion of the attorney, be necessary or desirable to vest the Post-Scheme Shares in BTG, and pending such vesting to exercise all such rights attaching to the Post-Scheme Shares as BTG may direct. If such an attorney is so appointed, the New Member shall not thereafter (except to the extent that such an attorney fails to act in accordance with the directions of BTG) be entitled to exercise any rights attaching to the Post-Scheme Shares unless so agreed by BTG. The Company may give good receipt for the purchase price of the Post-Scheme Shares and may register BTG as holder thereof and issue it certificates of the same. The Company shall not be obliged to issue a certificate to the New Member for the Post-Scheme Shares. BTG shall, or shall procure that, the requisite consideration as set out in Article 43A.3 above is settled with such New Member (or any subsequent holder or any nominee of such New Member or any such subsequent holder) within 14 days of the date on which the Post-Scheme Shares are issued to the New Member. |
Dated: 17 October 2008 | ||
BY ORDER OF THE BOARD | ||
Julie Vickers | ||
Company Secretary | ||
Registered Office: | ||
The Heath Business & Technical Park | ||
Runcorn | ||
Cheshire | ||
WA7 4QX |
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(1) | A member of the Company entitled to attend and vote at this meeting is entitled to appoint one or more proxies to attend and, on a poll, vote instead of him. A proxy need not be a member of the Company but must attend the meeting in person. | |
(2) | In the case of joint holders, the vote of the senior who tenders a vote, whether in person or by proxy, will be accepted to the exclusion of the votes of other joint holders. For this purpose, seniority will be determined by the order in which the names stand in the register of members in respect of the joint holding. | |
(3) | A yellow Form of Proxy is enclosed with this notice for members who are unable to attend the meeting. Instructions for use are shown on the form. Lodging a yellow Form of Proxy will not prevent the shareholder from attending and voting in person (in substitution for their proxy) at the meeting or any adjournment thereof. | |
(4) | To be valid, the yellow Form of Proxy (together with any power of attorney or authority under which it is signed, or a certified copy of such power or authority) must be received at the offices of the Companys registrars, Capita Registrars, Proxy Department, The Registry, 34 Beckenham Road, Beckenham, Kent BR3 4TU not less than 48 hours before the time appointed for the meeting or, as the case may be, the adjourned meeting. | |
(5) | Members are entitled to appoint a proxy in respect of some or all of their shares. Members are also entitled to appoint more than one proxy. A space has been included in the yellow Form of Proxy to allow members to specify the number of shares in respect of which that proxy is appointed. Members who return the yellow Form of Proxy duly executed but leave this space blank will be deemed to have appointed the proxy in respect of all of their shares. Members who wish to appoint more than one proxy in respect of their shareholding should contact Capita Registrars for further yellow Forms of Proxy or photocopy the yellow Form of Proxy as required. Such members should also read the sheet enclosed with the yellow Form of Proxy headed Multiple Proxy Voting Instructions and note the principles that will be applied in relation to multiple proxies. | |
(6) | Any amendments you make to the yellow Form of Proxy must be initialled by you. | |
(7) | The Company, pursuant to Regulation 41 of the Uncertificated Securities Regulations 2001, specifies that entitlement to attend and vote at the EGM or any adjournment thereof and the number of votes which may be cast thereat will be determined by reference to the register of members of the Company at 6.00 p.m. on the date two days before the date set for the EGM or of the adjourned EGM. Changes to the register after 6.00 p.m. on 9 November 2008, or if the EGM is adjourned, 6.00 p.m. on the date two days before the date of the adjourned EGM, will be disregarded in determining the rights of any person to attend or vote at the EGM. | |
(8) | CREST members who wish to appoint a proxy or proxies through the CREST electronic proxy appointment service may do so for the EGM (and any adjournment(s) thereof) by using the procedures described in the CREST Manual. CREST personal members or other CREST sponsored members, and those CREST members who have appointed (a) voting service provider(s), should refer to their CREST sponsor or voting service provider(s), who will be able to take the appropriate action on their behalf. | |
(9) | In order for a proxy appointment or instruction made using the CREST service to be valid, the appropriate CREST message (a CREST Proxy Instruction ) must be properly authenticated in accordance with Euroclears specifications and must contain the information required for such instructions, as described in the CREST Manual. The message, regardless of whether it constitutes the appointment of a proxy or an amendment to the instruction given to a previously appointed proxy must, in order to be valid, be transmitted so as to be received by Capita Registrars (Companys agent ID number RA10) by no later than 11.30 a.m. on 9 November 2008 (or, in the case of any adjournment, not later than 48 hours before the time fixed for the holding of the adjourned EGM). For this purpose, the time of receipt will be taken to be the time (as determined by the timestamp applied to the message by the CREST Applications Host) from which Capita Registrars is able to retrieve the message by enquiry to CREST in the manner prescribed by CREST. After this time, any change of instructions to proxies appointed through CREST should be communicated through other means. | |
CREST members and, where applicable, their CREST sponsors or voting service providers should note that Euroclear does not make available special procedures in CREST for any particular messages. Normal system timings and limitations will therefore apply in relation to the input of CREST Proxy Instructions. It is the responsibility of the CREST member concerned to take (or, if the CREST member is a CREST personal member or sponsored member or has appointed (a) voting service provider(s), to procure that his CREST sponsor or voting service provider(s) take(s)) such action as shall be necessary to ensure that a message is transmitted by means of the CREST system by any particular time. In this connection, CREST members and, where applicable, their CREST sponsors or voting service providers are referred, in particular, to those sections of the CREST Manual concerning practical limitations of the CREST system and timings. | ||
(10) | The Company may treat as invalid a CREST Proxy Instruction in the circumstances set out in Regulation 35(5)(a) of the Uncertificated Securities Regulations 2001. | |
(11) | A shareholder which is a company (a corporation) and which wishes to be represented at the meeting by a person with authority to speak, vote on a show of hands and vote on a poll (a corporate representative) must appoint such a person by resolution of its directors. A corporate representative has the same powers on behalf of the corporation he/she represents as that corporation could exercise if it were an individual member of the Company. | |
(12) | In order to facilitate voting by corporate representatives at the meeting, arrangements will be put in place at the meeting so that (a) if a corporate shareholder has appointed the Chairman of the meeting as its corporate representative with instructions to vote on a poll in accordance with the directions of all of the other corporate representatives for that shareholder at the meeting, then on a poll those corporate representatives will give voting directions to the Chairman and the Chairman will vote (or withhold a vote) as corporate representative in accordance with those directions; and (b) if more than one corporate representative for the same corporate shareholder attends the meeting but the corporate shareholder has not appointed the |
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Chairman of the meeting as its corporate representative, a designated corporate representative will be nominated, from those corporate representatives who attend, who will vote on a poll and the other corporate representatives will give voting directions to that designated corporate representative. Corporate shareholders are referred to the guidance issued by the Institute of Chartered Secretaries and Administrators on proxies and corporate representatives ( www.icsa.org.uk ) for further details of this procedure. The guidance includes a sample form of representation letter if the Chairman is being appointed as described in (a) above. | ||
(13) | If you are in any doubt about completing the Form of Proxy please telephone Capita Registrars between 9.00 a.m. and 5.00 p.m., Monday to Friday, (London time), on 0871 664 0321 (calls cost 10p per minute plus network extras) (from within the UK) and +44 (0)20 8639 3399 (from outside the UK). | |
(14) | Any question relevant to the business of the meeting may be asked at the meeting by anyone permitted to speak at the meeting. You may alternatively submit your question in advance by way of a letter addressed to the Company Secretary at the Companys registered office. | |
(15) | Copies of the Companys articles of association (as proposed to be amended by the special resolution set out in the notice of meeting) are available for inspection at the offices of Ashurst LLP at Broadwalk House, 5 Appold Street, London EC2A 2HA during normal business hours on any weekday until the time when the Scheme becomes effective in accordance with its terms and will also be available for inspection at the place of the meeting for at least 15 minutes before, and during, the meeting. |
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