RNS Number:0930K
Ferrovial Servicios S.A.
16 April 2003
OFFER FOR AMEY PLC
Not for release, publication or distribution in or into the United States of
America, Canada, Australia or Japan.
FOR IMMEDIATE RELEASE
16 April 2003
Summary announcement
Recommended Cash Offer by
Ferrovial Servicios S.A. ("Ferrovial Servicios")
a wholly owned subsidiary of
Grupo Ferrovial S.A. ("Ferrovial")
for
Amey plc ("Amey")
Summary
* The Boards of Ferrovial and Amey are pleased to announce that
agreement has been reached on the terms of a recommended cash offer for Amey by
Ferrovial Servicios.
* The Offer of 32 pence in cash for each Amey Share values the existing
issued ordinary share capital of Amey at approximately #81 million and
represents a premium of approximately 37 per cent. to the average Closing Price
for the three month period prior to the date of this announcement of 23.3 pence
per Amey Share and approximately 10 per cent. to the Closing Price of 29 pence
per Amey Share on 20 January 2003 (the last dealing day prior to the
announcement that tentative interest had been expressed in Amey).
* Ferrovial Servicios has received irrevocable undertakings to accept
the Offer from the Directors of Amey and other Amey Shareholders in respect of
82,330,551 Amey Shares in aggregate, representing approximately 32.6 per cent.
of the existing issued ordinary share capital of Amey.
* Ferrovial Servicios is a wholly owned subsidiary of Ferrovial, a
leading international construction and services company which is based in Spain
and listed on the Madrid stock exchange with a market capitalisation of Euro3.7
billion. Its activities include construction, infrastructure projects, services
and real estate. The services activities of Ferrovial are carried out by
Ferrovial Servicios and comprise facilities management, infrastructure
maintenance and urban services.
* Ferrovial is acquiring Amey in order to gain entry to the UK support
services market and to secure a platform from which to develop its business in
PFI / PPP markets inside and outside the UK. Amey would form a significant part
of Ferrovial Servicios.
* The Board of Amey, which has been so advised by Hawkpoint and
Deutsche Bank, considers the terms of the Offer to be fair and reasonable and
unanimously recommends that Amey Shareholders accept the Offer.
Commenting on the Offer, Joaquin Ayuso, Chief Executive Officer of Ferrovial,
said:
"The deal has a strong strategic component. Services is an area in which we
have a presence and want to continue to grow by increasing our exposure to
stable activities under long term contracts. With this acquisition, Ferrovial
will obtain a strong market position in the UK, a key European market with the
most experience of outsourcing services. We will also obtain critical mass and
know-how in PFI / PPP markets."
Commenting on the Offer, Inigo Meiras, Director and General Manager of Ferrovial
Servicios, said:
"I believe Amey has a positive future under our ownership. Despite its
financial difficulties in 2002, Amey has a sound portfolio of core businesses
and I look forward to working with Mel Ewell and his management team."
Commenting on the Offer, Sir Ian Robinson, Chairman of Amey, said:
"I am delighted that agreement has been reached for Amey to join the Ferrovial
group. This offer represents the best available outcome for shareholders and
will be good for the future development of Amey."
Commenting on the Offer, Mel Ewell, Chief Executive of Amey, said:
"Ferrovial will provide Amey with the additional financial muscle that the
company needs to make real progress. At the same time we believe that Amey's
expertise will assist Ferrovial in developing a PFI / PPP business
internationally."
This summary should be read in conjunction with the accompanying full text of
this announcement.
Enquiries:
Ferrovial Servicios
Inigo Meiras, Director and General Manager +34 91 586 25 00
PricewaterhouseCoopers
Simon Boadle +44 (0) 20 7212 4118
Mark Butler +44 (0) 20 7213 1120
Amey
Mel Ewell, Chief Executive +44 (0) 20 7907 7301
Hawkpoint
Paul Baines +44 (0) 20 7665 4568
Ben Mingay +44 (0) 20 7665 4695
Deutsche Bank
Hilary Bowman +44 (0) 20 7545 8000
Charles Wilkinson
CardewChancery
Anthony Cardew +44 (0) 20 7930 0777
This announcement does not constitute an offer or an invitation to purchase any
securities.
PricewaterhouseCoopers is acting as financial adviser to Ferrovial Servicios in
relation to the Offer, including in respect of the confirmation required
pursuant to Rule 24.7 of the City Code. PricewaterhouseCoopers has approved
this announcement for the purposes of section 21 of the Financial Services and
Markets Act 2000. The principal place of business of PricewaterhouseCoopers is 1
Embankment Place, London WC2N 6RH.
PricewaterhouseCoopers, which is authorised by the Financial Services Authority
to carry on investment business, is acting exclusively for Ferrovial Servicios
and for no one else in relation to the Offer and will not be responsible to
anyone other than Ferrovial Servicios for providing the protections afforded to
clients of PricewaterhouseCoopers or for giving advice in relation to the Offer
or any other matter referred to in this announcement.
Hawkpoint, which is regulated in the United Kingdom by the Financial Services
Authority, is acting exclusively for Amey and for no one else in connection with
the Offer and will not be responsible to anyone other than Amey for providing
the protections afforded to clients of Hawkpoint or for giving advice in
connection with the Offer or any other matter referred to in this announcement.
Deutsche Bank, which is regulated by the Financial Services Authority for the
conduct of designated investment business in the UK, is acting for Amey and
no-one else in connection with the Offer and will not be responsible to anyone
other than Amey for providing the protections afforded to customers of Deutsche
Bank or for providing advice in relation to the Offer.
The Offer will not be made in or into and will not be capable of acceptance in
or from Canada, Australia or Japan. In addition the Offer will not be made,
directly or indirectly, in or into, or by use of the mails or by any means or
instrumentality (including, without limitation, by means of telephone,
facsimile, telex, internet or other forms of electronic communication) of
interstate or foreign commerce of, or by any facilities of a national securities
exchange of, the United States and the Offer will not be capable of acceptance
by any such use, means, instrumentality or facility or from within the United
States. Accordingly, copies of this announcement are not being, and must not
be, mailed or otherwise forwarded, distributed or sent in, into or from the
United States. Custodians, nominees and trustees should observe these
restrictions and should not send or distribute this announcement in or into the
United States, Canada, Australia or Japan.
OFFER FOR AMEY PLC
Not for release, publication or distribution in or into the United States of
America, Canada, Australia or Japan.
FOR IMMEDIATE RELEASE
16 April 2003
Full text of the announcement
Recommended Cash Offer by
Ferrovial Servicios S.A. ("Ferrovial Servicios")
a wholly owned subsidiary of
Grupo Ferrovial S.A. ("Ferrovial")
for
Amey plc ("Amey")
1. Introduction
The Boards of Ferrovial and Amey are pleased to announce that agreement has been
reached on the terms of a recommended cash offer to be made by Ferrovial
Servicios, a wholly owned subsidiary of Ferrovial, to acquire the whole of the
issued and to be issued ordinary share capital of Amey.
The Offer of 32 pence in cash for each Amey Share values the existing issued
ordinary share capital of Amey at approximately #81 million and represents a
premium of approximately 37 per cent. to the average Closing Price for the three
month period prior to the date of this announcement of 23.3 pence per Amey Share
and approximately 10 per cent. to the Closing Price of 29 pence per Amey Share
on 20 January 2003 (the last dealing day prior to the announcement that
tentative interest had been expressed in Amey).
Definitions of certain expressions used in this announcement are set out in
Appendix II to this announcement.
2. Terms of the Offer
Ferrovial Servicios will offer to acquire, on the terms and subject to the
conditions set out or referred to in Appendix I to this announcement and to be
set out in the Offer Document and Form of Acceptance, all of the Amey Shares on
the following basis:
for each Amey Share 32 pence in cash
Amey Shares to be acquired under the Offer will be acquired free from all liens,
charges, encumbrances, equitable interests, rights of pre-emption and any other
third party rights of any nature whatsoever and together with all rights now and
hereafter attaching thereto, including the right, in full, to all dividends and
other distributions declared, made or paid hereafter.
The Offer will extend to all Amey Shares currently in issue, or unconditionally
allotted or issued (including any which are allotted or issued pursuant to the
exercise of options under the Amey Share Option Schemes or pursuant to the
Warrant Instrument) whilst the Offer remains open for acceptance (or by such
earlier date as Ferrovial Servicios may, subject to the City Code and with the
consent of the Panel, determine).
The cash payable under the Offer will be provided by Ferrovial from its existing
cash resources.
3. Recommendation
The Board of Amey, which has been so advised by Hawkpoint and Deutsche Bank,
considers the terms of the Offer to be fair and reasonable. In providing advice
to the Board of Amey, Hawkpoint and Deutsche Bank have taken into account the
commercial assessments of the Board of Amey. Accordingly, the Board of Amey
unanimously recommends that Amey Shareholders accept the Offer, as the Amey
Directors have irrevocably committed to do in respect of their entire holdings
of an aggregate of 74,050 Amey Shares, representing approximately 0.03 per cent.
of Amey's existing issued ordinary share capital.
4. Irrevocable undertakings to accept the Offer
Irrevocable undertakings to accept the Offer have been received by Ferrovial
Servicios in respect of an aggregate of 82,330,551 Amey Shares representing
approximately 32.6 per cent. of Amey's existing issued ordinary share capital as
summarised below:
Amey Shares
Directors
Sir Ian Robinson 20,000
M. Ewell 1,550
R.W. Entwistle 5,000
C.M. Mogg 15,000
J.A. Biles 8,000
G.F. Page 10,000
The Rt. Hon. the Lord Patten 14,500
Other Amey Shareholders*
N.Y. Nominees Limited 33,605,000
P.H. Nominees Limited 16,634,501
Morstan Nominees Limited 30,116,000
HSBC Bank Nominees Limited 1,901,000
Total 82,330,551
* The institutional registered shareholders above comprise investments held or
managed by, in the case of N.Y. Nominees Limited and P.H. Nominees Limited,
Sterling Investment Group Limited and, in the case of Morstan Nominees Limited
and HSBC Bank Nominees Limited, Meditor Capital Management Limited.
The undertakings in respect of the institutional shareholdings will lapse in the
event that a competing offer of 34.5 pence or more per Amey Share is announced
prior to 3.00 p.m. on the tenth day following the posting of the Offer Document.
5. Information on Ferrovial and Ferrovial Servicios
Ferrovial is a leading international construction and services company which is
based in Spain and listed on the Madrid stock exchange with a market
capitalisation of Euro3.7 billion. In terms of market capitalisation, Ferrovial is
Spain's largest construction company and Europe's second largest construction
company.
Ferrovial has over 28,000 employees and for the year ended 31 December 2002 it
had turnover of over Euro5.0 billion (2001: Euro4.2 billion) and operating income of
Euro485 million (2001: Euro374 million). Profits after tax and minority interests
were Euro456 million (2001: Euro218 million). The consolidated net assets of
Ferrovial as at 31 December 2002 were Euro1.5 billion (2001: Euro1.2 billion) and net
cash balances were Euro303 million (2001: net debt of Euro287 million).
Whilst maintaining construction as its core activity, Ferrovial has diversified
into complementary businesses such as infrastructure projects, services and real
estate. These non-construction activities now account for approximately 68 per
cent. of Ferrovial's operating profit.
Ferrovial has also expanded outside Spain in recent years. Ferrovial's
international presence is currently located in Canada, Poland, Australia,
Portugal, Ireland, Latin America and the UK, where Ferrovial jointly operates
Bristol Airport. In 2002, Ferrovial's overseas operations accounted for 28 per
cent. of turnover and 42 per cent. of operating profits.
Ferrovial's services activities are carried out by Ferrovial Servicios.
Activities include facilities management, infrastructure maintenance and urban
services (street cleaning, waste collection and water management).
Further information on Ferrovial and Ferrovial Servicios will be set out in the
Offer Document.
6. Information on Amey
Amey is a leading support services company which provides a broad range of
services to both the public and private sectors through its key operating
businesses of Transportation (Rail, Road and Fleet Services), BPO Services and
Ventures. Its customers are present in the defence, education, health, road and
rail sectors, and include Network Rail, The Highways Agency, Centrica and
QinetiQ.
For the year ended 31 December 2002, turnover including joint ventures was #917
million (2001: #831 million). Operating profit (before exceptional items) for
the year was #9.6 million (2001: operating loss of #2.5 million). EBITA (before
exceptional items, goodwill amortisation and FRS 17 non cash charges) for core
continuing businesses was #26.9 million. Post tax exceptional charges were
#110.2 million, resulting in a post tax loss for the year of #118.5 million.
Net assets as at 31 December 2002 were #18.2 million, excluding an FRS 17
pension liability of #48.5 million.
Further information on Amey will be set out in the Offer Document.
7. Background to the Offer and reasons for the Amey Board recommendation
Over the past few years, Amey has transformed itself from a construction-focused
company to a market leading support services provider. In 1999 Amey was
reclassified into the Support Services sector after its acquisition of Comax,
the business process outsourcing provider.
However, the rapid growth and the need to expend significant up-front costs to
fund bid costs for new contracts contributed to imposing severe strains on
Amey's financial resources. This called for a number of initiatives to be
undertaken over recent months to address the company's growing cash
requirements.
In particular Amey decided to dispose of certain businesses, notably the
majority of its PFI equity interests and certain technology businesses, as well
as reducing its own cost base. Amey also negotiated with its partners in the
London Underground PPP, which closed on 31 December 2002, for them to fund
Amey's approximate #60 million equity commitment in the project, whilst granting
Amey an option to buy this interest by 30 June 2003.
Amey has also renegotiated its banking arrangements and new facilities were
secured in February of this year through to 30 June 2004. Under the terms of
these new banking facilities, Amey has undertaken not to pay ordinary dividends
without the prior consent of its lenders. Whilst the Amey Board believes that
Amey is operating in markets with good growth prospects, it considers that the
company's growth will continue to be constrained if it remains an independent
company.
Against this background, in November 2002 the Amey Board decided to review the
options available to the group and appointed Hawkpoint, alongside the company's
existing financial advisers, Deutsche Bank, to assist in this process. One of
the key options was for Amey to explore the possibility of an offer being made
for the company.
Talks have taken place with a number of parties. This process has resulted in
the receipt of the Offer from Ferrovial Servicios. The Board of Amey has
concluded that the acquisition of Amey pursuant to the Offer will enable Amey to
exercise the option to acquire the London Underground PPP equity interest and
provide immediate and certain opportunity for Amey Shareholders to realise their
investment at a significant premium to the recent market price. Accordingly the
Amey Board has decided unanimously to recommend Amey Shareholders to accept the
Offer.
8. Ferrovial's intentions for Amey
Ferrovial wishes to acquire Amey to gain entry to the UK support services market
and to provide it with a platform from which to develop its business in PFI /
PPP markets inside and outside the UK. Amey will form a significant part of the
services division of Ferrovial.
Ferrovial believes that Amey's business will benefit significantly from being
part of a larger well capitalised group and intends to work with Amey's
management and employees, led by Mel Ewell as Chief Executive Officer, to
continue the growth of the business, serving both existing and new customers and
markets. Ferrovial intends that Amey will continue to trade under the Amey
brand name.
The Ferrovial Servicios Board and the Amey Board have agreed to cooperate in the
period up to the closing of the Offer to ensure that the Tube Lines Option is
exercised prior to 30 June 2003.
9. Management and employees of Amey
Ferrovial Servicios has confirmed that the existing employment rights, including
pension rights, of all management and employees of Amey will be safeguarded in
the event that the Offer becomes or is declared unconditional in all respects.
10. Amey Share Option Schemes and Warrant Instrument
The Offer will extend to all Amey Shares which are unconditionally allotted or
issued (including any which are so allotted or issued pursuant to the exercise
of existing options granted under the Amey Share Option Schemes or pursuant to
the Warrant Instrument) whilst the Offer remains open for acceptance (or by such
earlier date as Ferrovial Servicios may, subject to the City Code, determine,
such earlier date not being earlier than the date on which the Offer becomes or
is declared unconditional as to acceptances or, such later date as Ferrovial
Servicios may, subject to the City Code and with the consent of the Panel,
determine).
Ferrovial Servicios does not intend to make an offer to the holders of options
granted under the Amey Share Option Schemes where the options have an exercise
price greater than the Offer price.
11. Inducement fee
Ferrovial Servicios and Amey have entered into an agreement under which Amey has
agreed to pay Ferrovial Servicios the sum of #471,000 if a third party offer is
made in relation to Amey and such offer becomes or is declared unconditional in
all respects or, in the case of a transaction not involving a takeover offer, is
otherwise completed, within twelve months of the date of this announcement or
the Amey Board withdraws or materially changes (in a manner adverse to the
likely success of the Offer) its recommendation of the Offer. The agreement
also contains a restriction on the solicitation of alternative offers.
12. Disclosure of interests in Amey
Save for the arrangements with Amey Shareholders summarised in paragraph 4
above, neither Ferrovial Servicios nor any person deemed to be acting in concert
with Ferrovial Servicios owns or controls any Amey Shares or has any options to
acquire any Amey Shares. Save as summarised in paragraph 4 above, neither
Ferrovial Servicios nor any person acting in concert with Ferrovial Servicios
for the purposes of the Offer has any arrangement in relation to Amey Shares or
any securities convertible or exchangeable into Amey Shares or options
(including traded options) in respect of, or derivatives referenced to, any such
shares. For these purposes, "arrangement" includes any indemnity or option
arrangement, any agreement or understanding, formal or informal, of whatever
nature, relating to Amey Shares which may be an inducement to deal or refrain
from dealing in such shares.
In view of the requirement for confidentiality, Ferrovial Servicios has not made
any enquiries in this respect of certain parties who may be deemed by the Panel
to be acting in concert with it for the purposes of the Offer. Ferrovial
Servicios proposes to make any appropriate such enquiries following the issue of
this announcement.
13. Cancellation of listing and compulsory acquisition
Assuming the Offer becomes or is declared unconditional in all respects,
Ferrovial Servicios intends to procure the making of an application by Amey to
the UK Listing Authority for the cancellation of the listing of Amey Shares on
the Official List and to the London Stock Exchange for the cancellation of the
admission to trading of Amey Shares on its market for listed securities. Such
cancellation will take effect after the Offer becomes unconditional in all
respects.
If Ferrovial Servicios receives acceptances under the Offer in respect of, and/
or otherwise acquires, 90 per cent. or more of the Amey Shares to which the
Offer relates, Ferrovial Servicios intends to exercise its rights pursuant to
the provisions of sections 428 to 430F of the Companies Act to acquire
compulsorily the remaining Amey Shares.
14. General
The Offer Document and the Form of Acceptance will be despatched as soon as
possible and, in any event, within 28 days of the date of this announcement.
Enquiries:
Ferrovial Servicios
Inigo Meiras, Director and General Manager +34 91 586 25 00
PricewaterhouseCoopers
Simon Boadle +44 (0) 20 7212 4118
Mark Butler +44 (0) 20 7213 1120
Amey
Mel Ewell, Chief Executive +44 (0) 20 7907 7301
Hawkpoint
Paul Baines +44 (0) 20 7665 4568
Ben Mingay +44 (0) 20 7665 4695
Deutsche Bank
Hilary Bowman +44 (0) 20 7545 8000
Charles Wilkinson
CardewChancery
Anthony Cardew +44 (0) 20 7930 0777
This announcement does not constitute an offer or an invitation to purchase any
securities.
PricewaterhouseCoopers is acting as financial adviser to Ferrovial Servicios in
relation to the Offer, including in respect of the confirmation required
pursuant to Rule 24.7 of the City Code. PricewaterhouseCoopers has approved
this announcement for the purposes of section 21 of the Financial Services and
Markets Act 2000. The principal place of business of PricewaterhouseCoopers is 1
Embankment Place, London WC2N 6RH.
PricewaterhouseCoopers, which is authorised by the Financial Services Authority
to carry on investment business, is acting exclusively for Ferrovial Servicios
and for no one else in relation to the Offer and will not be responsible to
anyone other than Ferrovial Servicios for providing the protections afforded to
clients of PricewaterhouseCoopers or for giving advice in relation to the Offer
or any other matter referred to in this announcement.
Hawkpoint, which is regulated in the United Kingdom by the Financial Services
Authority, is acting exclusively for Amey and for no one else in connection with
the Offer and will not be responsible to anyone other than Amey for providing
the protections afforded to clients of Hawkpoint or for giving advice in
connection with the Offer or any other matter referred to in this announcement.
Deutsche Bank, which is regulated by the Financial Services Authority for the
conduct of designated investment business in the UK, is acting for Amey and
no-one else in connection with the Offer and will not be responsible to anyone
other than Amey for providing the protections afforded to customers of Deutsche
Bank or for providing advice in relation to the Offer.
The Offer will not be made in or into and will not be capable of acceptance in
or from Canada, Australia or Japan. In addition the Offer will not be made,
directly or indirectly, in or into, or by use of the mails or by any means or
instrumentality (including, without limitation, by means of telephone,
facsimile, telex, internet or other forms of electronic communication) of
interstate or foreign commerce of, or by any facilities of a national securities
exchange of, the United States and the Offer will not be capable of acceptance
by any such use, means, instrumentality or facility or from within the United
States. Accordingly, copies of this announcement are not being, and must not
be, mailed or otherwise forwarded, distributed or sent in, into or from the
United States. Custodians, nominees and trustees should observe these
restrictions and should not send or distribute this announcement in or into the
United States, Canada, Australia or Japan.
APPENDIX I
CONDITIONS AND CERTAIN FURTHER TERMS
OF THE OFFER
1. Conditions of the Offer
The Offer will be subject to the following conditions:
(a) valid acceptances being received (and not, where permitted,
withdrawn) by not later than 3.00 p.m. (London time) on the first
closing date of the Offer (or such later time(s) and/or date(s) as
Ferrovial Servicios may, subject to the rules of the City Code,
decide) in respect of not less than 90 per cent. (or such lower
percentage as Ferrovial Servicios may decide) in nominal value of the
Amey Shares to which the Offer relates, provided that this condition
will not be satisfied unless Ferrovial Servicios and/or its wholly
owned subsidiaries shall have acquired or agreed to acquire (whether
pursuant to the Offer or otherwise) Amey Shares carrying in aggregate
more than 50 per cent. of the voting rights then normally exercisable
at a general meeting of Amey, including for this purpose (except to
the extent otherwise agreed by the Panel) any such voting rights
attaching to any Amey Shares that are unconditionally allotted or
issued before the Offer becomes or is declared unconditional as to
acceptances, whether pursuant to the exercise of any outstanding
subscription or conversion rights or otherwise; and for this purpose:
(i) the expression "Amey Shares to which the Offer relates"
shall be construed in accordance with sections 428 to
430F of the Companies Act;
(ii) Amey Shares which have been unconditionally allotted
shall be deemed to carry the voting rights which they
will carry upon issue; and
(iii) valid acceptances shall be deemed to have been received
in respect of Amey Shares which are treated for the
purposes of section 429(8) of the Companies Act as having
been acquired or contracted to be acquired by Ferrovial
Servicios by virtue of acceptances of the Offer;
(b) save in respect of change of control arrangements fairly disclosed in
writing to Ferrovial, Ferrovial Servicios or its or their advisers
by or on behalf of Amey prior to the day immediately preceding the
date of this announcement, no Third Party having intervened and there
not continuing to be outstanding any statute, regulation or order of
any Third Party in each case which would or might reasonably be
expected (in any case to an extent which is material in the context of
the Ferrovial Group or the Amey Group, as the case may be, taken as a
whole) to:
(i) make the Offer, its implementation or the acquisition or
proposed acquisition by Ferrovial Servicios or any member
of the Wider Ferrovial Group of any shares or other
securities in, or control or management of, Amey or any
member of the Wider Amey Group void, illegal or
unenforceable in any jurisdiction, or otherwise directly
or indirectly restrain, prevent, prohibit, restrict or
delay the same or impose additional conditions or
obligations with respect to the Offer or such
acquisition, or otherwise impede, challenge or interfere
with the Offer or such acquisition, or require amendment
to the terms of the Offer or the acquisition or proposed
acquisition of any Amey Shares or the acquisition of
control of Amey or the Wider Amey Group by Ferrovial
Servicios;
(ii) limit or delay the ability of any member of the Wider
Ferrovial Group or any member of the Wider Amey Group to
acquire or to hold or to exercise effectively, directly
or indirectly, all or any rights of ownership in respect
of shares or other securities in, or to exercise voting
or management control over, any member of the Wider Amey
Group or any member of the Wider Ferrovial Group;
(iii) require, prevent or delay the divestiture or alter the
terms envisaged for any proposed divestiture by any
member of the Wider Ferrovial Group of any shares or
other securities in Amey;
(iv) require, prevent or delay the divestiture or alter the
terms envisaged for any proposed divestiture by any
member of the Wider Ferrovial Group or by any member of
the Wider Amey Group of all or any portion of their
respective businesses, assets or properties or limit
the ability of any of them to conduct any of their
respective businesses or to own or control any of their
respective assets or properties or any part thereof;
(v) except pursuant to Part XIIIA of the Companies Act,
require any member of the Wider Ferrovial Group or of the
Wider Amey Group to acquire, or to offer to acquire, any
shares or other securities (or the equivalent) in any
member of either group owned by any third party;
(vi) limit the ability of any member of the Wider Ferrovial
Group or of the Wider Amey Group to conduct or integrate
or co-ordinate its business, or any part of it, with the
businesses or any part of the businesses of any other
member of the Wider Ferrovial Group or of the Wider Amey
Group;
(vii) result in any member of the Wider Amey Group or the Wider
Ferrovial Group ceasing to be able to carry on business
under any name under which it presently does so; or
(viii) otherwise adversely affect the business, assets, profits,
financial or trading position or prospects of any
member of the Wider Amey Group or of the Wider Ferrovial
Group,
and all applicable waiting and other time periods during which any Third Party
could intervene under the laws of any relevant jurisdiction having expired,
lapsed or been terminated;
(c) without limitation to condition (b) above or (d) below the
European Commission indicating, in terms satisfactory to Ferrovial
Servicios, that it does not intend to initiate proceedings under
Article 6(1)(c) of Council Regulation (EEC) 4064/89, or to make a
referral to a competent authority in the UK under Article 9(1) of such
Regulation, in either case with respect to the Offer or any matter
arising from the proposed acquisition of Amey by Ferrovial Servicios;
(d) all notifications and filings which are necessary having been made,
all appropriate waiting and other time periods (including any
extensions of such waiting and other time periods) under any
applicable legislation or regulation of any relevant jurisdiction
having expired, lapsed or been terminated (as appropriate) and all
statutory or regulatory obligations in any relevant jurisdiction
having been complied with in each case in connection with
the Offer or the acquisition or proposed acquisition of any shares or
other securities in, or control of, Amey or any other member of the
Wider Amey Group by any member of the Wider Ferrovial Group or the
carrying on by any member of the Wider Amey Group of its business;
(e) all Authorisations which are necessary or are reasonably considered
necessary or appropriate by Ferrovial Servicios in any relevant
jurisdiction for or in respect of the Offer or the acquisition or
proposed acquisition of any shares or other securities in, or control
of, Amey or any other member of the Wider Amey Group by any member of
the Wider Ferrovial Group or the carrying on by any member of the
Wider Amey Group of its business having been obtained, in terms and in
a form reasonably satisfactory to Ferrovial Servicios, from all
appropriate Third Parties or from any persons or bodies with whom any
member of the Wider Amey Group has entered into contractual
arrangements (in the case of Authorisations relating to the activities
of the Amey Group, where the absence of such Authorisation would have
a material adverse effect on the Amey Group taken as a whole) and all
such Authorisations remaining in full force and effect and there being
no notice or intimation of any intention to revoke, suspend, restrict,
modify or not to renew any of the same;
(f) except as publicly announced by Amey (by the delivery of an
announcement to a Regulatory Information Service) prior to the day
immediately preceding the date of this announcement or as fairly
disclosed in writing to Ferrovial, Ferrovial Servicios or its or their
advisers by or on behalf of Amey on or prior to the day immediately
preceding the date of this announcement, there being no provision of
any arrangement, agreement, licence, permit, franchise or other
instrument to which any member of the Wider Amey Group is a party, or
by or to which any such member or any of its assets is or are or may
be bound, entitled or subject or any circumstance, which, in each case
as a consequence of the Offer or the acquisition or proposed
acquisition of any shares or other securities in, or control of, Amey
or any other member of the Wider Amey Group by any member of the Wider
Ferrovial Group or otherwise, would reasonably be expected to result
in (in any case to an extent which is or would be material in the
context of the Amey Group taken as a whole):
(i) any monies borrowed by or any other indebtedness or
liabilities (actual or contingent) of, or any grant
available to, any member of the Wider Amey Group being or
becoming repayable or capable of being declared repayable
immediately or prior to its stated repayment date or
the ability of any member of the Wider Amey Group to
borrow monies or incur any indebtedness being withdrawn
or inhibited or becoming capable of being withdrawn;
(ii) the creation or enforcement of any mortgage, charge or
other security interest over the whole or any part of the
business, property, assets or interests of any member of
the Wider Amey Group or any such mortgage, charge or
other security interest (wherever created, arising
or having arisen) becoming enforceable;
(iii) any such arrangement, agreement, licence, permit,
franchise or instrument, or the rights, liabilities,
obligations or interests of any member of the Wider Amey
Group thereunder, being, or becoming capable of being,
terminated or adversely modified or affected or any
adverse action being taken or any obligation or liability
arising thereunder;
(iv) any asset or interest of any member of the Wider Amey
Group being or falling to be disposed of or ceasing to be
available to any member of the Wider Amey Group or any
right arising under which any such asset or interest
could be required to be disposed of or could cease to
be available to any member of the Wider Amey Group
otherwise than in the ordinary course of business;
(v) any member of the Wider Amey Group ceasing to be able to
carry on business under any name under which it presently
does so;
(vi) the creation of liabilities (actual or contingent) by any
member of the Wider Amey Group;
(vii) the rights, liabilities, obligations or interests of any
member of the Wider Amey Group under any such
arrangement, agreement, licence, permit, franchise or
other instrument or the interests or business of any such
member in or with any other person, firm, company or body
(or any arrangement or arrangements relating to any such
interests or business) being terminated, adversely
modified or affected; or
(viii) the financial or trading position or the prospects or the
value of any member of the Wider Amey Group being
prejudiced or adversely affected,
and no event having occurred which, under any provision of any such
arrangement, agreement, licence, permit or other instrument, could
result in any of the events or circumstances which are referred to in
paragraphs (i) to (viii) of this condition (f) in any case to an
extent which is or would be material in the context of the Amey Group
taken as a whole;
(g) since 31 December 2002 and except as disclosed in Amey's annual report
and accounts for the year then ended or as otherwise publicly
announced by Amey (by the delivery of an announcement to a Regulatory
Information Service) prior to the day immediately preceding the date
of this announcement or as otherwise fairly disclosed in writing to
Ferrovial, Ferrovial Servicios or its or their advisers by or on
behalf of Amey on or prior to the day immediately preceding the date
of this announcement, no member of the Wider Amey Group having:
(i) issued or agreed to issue, or authorised the issue of,
additional shares of any class, or securities
convertible into or exchangeable for, or rights, warrants
or options to subscribe for or acquire, any such shares
or convertible securities other than as between Amey and
wholly-owned subsidiaries of Amey and other than any
options granted as disclosed to Ferrovial, Ferrovial
Servicios or its or their advisers prior to the day
immediately preceding the date of this announcement and
any shares issued upon the exercise of any options
granted under any of the Amey Share Option Schemes;
(ii) purchased or redeemed or repaid any of its own shares or
other securities or reduced or made any other change to
any part of its share capital;
(iii) recommended, declared, paid or made any bonus, dividend
or other distribution whether payable in cash or
otherwise (other than to Amey or a wholly-owned
subsidiary of Amey);
(iv) made or authorised any change in its loan capital;
(v) merged with, demerged or acquired any body corporate,
partnership or business or acquired or disposed of or
transferred, mortgaged or charged or created any security
interest over any assets or any right, title or interest
in any assets (including shares in any undertaking and
trade investments) or authorised the same (which in any
case is material in the context of the Amey Group taken
as a whole);
(vi) issued or authorised the issue of, or made any change in
or to, any debentures or incurred or increased any
indebtedness or liability (actual or contingent);
(vii) entered into, varied, or authorised any agreement,
transaction, arrangement or commitment (whether in
respect of capital expenditure or otherwise) which:
(A) is of a long term, onerous or unusual nature or
magnitude or which is or could involve an
obligation of such nature or magnitude (save for
any agreement, transaction, arrangement or
commitment entered into in the ordinary course of
business unless the same is unusual in the context
of comparable agreements, transactions,
arrangements or commitments undertaken by
the Amey Group in the two year period prior to the
date of this announcement);
(B) could restrict the business of any member of the
Wider Amey Group; or
(C) is other than in the ordinary course of business;
(viii) entered into, implemented, effected or authorised any
merger, demerger, reconstruction, amalgamation, scheme,
commitment or other transaction or arrangement in respect
of itself or another member of the Wider Amey Group;
(ix) entered into or varied the terms of, any contract,
agreement or arrangement with any of the directors or
senior executives of any member of the Wider Amey Group;
(x) taken any corporate action or had any legal proceedings
instituted or threatened against it or petition presented
or order made for its winding-up (voluntarily or
otherwise), dissolution or reorganisation or for the
appointment of a receiver, administrator, administrative
receiver, trustee or similar officer of all or any
material part of its assets and revenues or any analogous
proceedings in any jurisdiction or appointed any
analogous person in any jurisdiction which in any case is
material in the context of the Amey Group taken as a
whole;
(xi) been unable, or admitted in writing that it is unable, to
pay its debts or having stopped or suspended (or
threatened to stop or suspend) payment of its debts
generally or ceased or threatened to cease carrying on
all or a substantial part of its business in any
case with a material adverse effect on the Amey Group
taken as a whole;
(xii) waived or compromised any claim which is material in the
context of the Amey Group taken as a whole;
(xiii) made any alteration to its memorandum or articles of
association which is material in the context of the
Offer; or
(xiv) entered into any agreement, commitment or arrangement or
passed any resolution or made any offer (which remains
open for acceptance) or proposed or announced any
intention with respect to any of the transactions,
matters or events referred to in this condition (g);
(h) since 31 December 2002 and except as disclosed in Amey's annual
report and accounts for the year then ended or as otherwise publicly
announced by Amey (by the delivery of an announcement to a Regulatory
Information Service) prior to the day immediately preceding the date
of this announcement or as otherwise fairly disclosed in writing to
Ferrovial, Ferrovial Servicios or its or their advisers by or on
behalf of Amey on or prior to the day immediately preceding the date
of this announcement:
(i) there having been no adverse change or deterioration in
the business, assets, financial or trading positions or
profit or prospects (including, in each case, through the
loss or material adverse variation of any material
contract or arrangement to which any member of the Wider
Amey Group is a party) of any member of the Wider Amey
Group which in any case is material in the context of the
Amey Group taken as a whole;
(ii) no contingent or other liability of any member of the
Wider Amey Group having arisen or become apparent or
increased which in any case is material in the context of
the Amey Group taken as a whole;
(iii) no litigation, arbitration proceedings, prosecution or
other legal proceedings to which any member of the
Wider Amey Group is or may become a party (whether as
plaintiff, defendant or otherwise) having been
threatened, announced, implemented or instituted by or
against or remaining outstanding against or in respect of
any member of the Wider Amey Group which in any case is
material in the context of the Amey Group taken as a
whole; and
(iv) (other than as a result of the Offer) no enquiry or
investigation by, or complaint or reference to, any Third
Party having been threatened, announced, implemented,
instituted by or against or remaining outstanding against
or in respect of any member of the Wider Amey Group which
in any case is material in the context of the Amey Group
taken as a whole;
(i) Ferrovial Servicios not having discovered:
(i) that any financial or business or other information
concerning the Wider Amey Group disclosed at any time by
or on behalf of any member of the Wider Amey Group,
whether publicly, to any member of the Wider Ferrovial
Group (including to its professional advisers) or
otherwise, is misleading or contains any
misrepresentation of fact or omits to state a fact
necessary to make any information contained therein not
misleading and which was not subsequently corrected
before the day immediately preceding the date of this
announcement by disclosure either publicly or otherwise
to Ferrovial Servicios to an extent which in any case is
material in the context of the Amey Group taken as a whole;
(ii) that any member of the Wider Amey Group is subject to any
liability (actual or contingent) which is not disclosed
in Amey's annual report and accounts for the financial
year ended 31 December 2002 or as otherwise fairly
disclosed to Ferrovial, Ferrovial Servicios or its
or their advisers by or on behalf of Amey on or prior to
the day immediately preceding the date of this
announcement and which in any case is material in the
context of the Amey Group taken as a whole; or
(iii) any information which affects the import of any
information disclosed at any time by or on behalf of any
member of the Wider Amey Group to an extent which in any
case is material in the context of the Amey Group taken
as a whole;
(j) Ferrovial Servicios not having discovered:
(i) that save as fairly disclosed in writing to Ferrovial,
Ferrovial Servicios or its or their advisers by or on
behalf of Amey prior to the day immediately preceding the
date of this announcement any past or present member of
the Wider Amey Group has not complied with any applicable
legislation or regulations of any jurisdiction with
regard to the use, treatment, handling, storage,
transport, release, disposal, discharge, spillage, leak
or emission of any waste or hazardous substance or any
substance likely to impair the environment or harm human
health, or otherwise relating to environmental matters or
the health and safety of any person, or that there has
otherwise been any such use, treatment, handling,
storage, transport, release, disposal, discharge,
spillage, leak or emission (whether or not this
constituted a non-compliance by any person with any
legislation or regulations and wherever the same may have
taken place) which, in any case, would be likely to give
rise to any liability (whether actual or contingent) or
cost on the part of any member of the Wider Amey Group
which in any case is material in the context of the Amey
Group taken as a whole;
(ii) that save as fairly disclosed in writing to Ferrovial,
Ferrovial Servicios or its or their advisers by or on
behalf of Amey prior to the day immediately preceding the
date of this announcement there is, or is 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 by any past or
present member of the Wider Amey Group or any other
property or any controlled waters under any environmental
legislation, regulation, notice, circular, order or other
lawful requirement of any relevant authority or third
party or otherwise which in any case is material in the
context of the Amey Group taken as a whole; or
(iii) save as fairly disclosed in writing to Ferrovial,
Ferrovial Servicios or its or their advisers by or on
behalf of Amey prior to the day immediately preceding the
date of this announcement that circumstances exist
whereby a person or class of persons would be likely to
have a claim in respect of any service, activity, product
or process of manufacture or materials used therein now
or previously delivered, provided, constructed,
manufactured, sold or carried out by any past or present
member of the Wider Amey Group which is or would be
material in the context of the Amey Group taken as a
whole; and
(k) no event having occurred which would or would reasonably be
expected to result in the Tube Lines Option ceasing for any reason to
be capable of exercise by JNP Ventures Limited (a subsidiary of Amey)
in accordance with its terms.
For the purpose of these conditions:
(a) "Third Party" means any government, government department or
governmental, quasi-governmental, supranational, statutory, regulatory or
investigative body, authority (including any national anti-trust or merger
control authority), court, trade agency, association, institution or
professional or environmental body or any other person or body whatsoever in any
relevant jurisdiction;
(b) a Third Party shall be regarded as having "intervened" if it
has decided to take, institute, implement or threaten any action, proceeding,
suit, investigation, enquiry or reference or made, proposed or enacted any
statute, regulation, decision or order or taken any measures or other steps or
required any action to be taken or information to be provided or otherwise
having done anything and "intervene" shall be construed accordingly; and
(c) "Authorisations" means authorisations, orders, grants,
recognitions, determinations, certificates, confirmations, consents, licences,
clearances, provisions and approvals.
Subject to the requirements of the Panel, Ferrovial Servicios reserves the right
to waive all or any of the above conditions, in whole or in part, except
conditions (a) and (c).
Conditions (b) to (k) (inclusive) must be fulfilled, be determined by Ferrovial
Servicios to be or remain satisfied or (if capable of waiver) be waived by
midnight on the 21st day after the later of the first closing date of the Offer
and the date on which condition (a) is fulfilled (or in each case such later
date as Ferrovial Servicios may, with the consent of the Panel, decide), failing
which the Offer will lapse. Ferrovial Servicios shall be under no obligation to
waive (if capable of waiver), to determine to be or remain satisfied or to treat
as fulfilled any of conditions (b) to (k) (inclusive) by a date earlier than the
latest date specified above for the fulfilment of that condition.
If the Panel requires Ferrovial Servicios to make an offer for Amey Shares under
the provisions of Rule 9 of the City Code, Ferrovial Servicios may make such
alterations to the conditions of the Offer, including to condition (a), as are
necessary to comply with the provisions of that Rule.
The Offer will lapse if the European Commission either initiates proceedings
under Article 6(1)(c) of Council Regulation (EEC) 4064/89 (the "Regulation") or
makes a referral to a competent authority of the United Kingdom under Article 9
(1) of the Regulation and there is then a reference to the Competition
Commission before the later of 3.00 p.m. on the first closing date of the Offer
and the date when the Offer becomes or is declared unconditional as to
acceptances.
If the Offer lapses it will cease to be capable of further acceptance. Amey
Shareholders who have accepted the Offer and Ferrovial Servicios shall then
cease to be bound by acceptances delivered on or before the date on which the
Offer lapses.
2. Certain further terms of the Offer
Amey Shares will be acquired by Ferrovial Servicios fully paid up and free from
all liens, equities, charges, encumbrances and other third party rights and/or
interests and together with all rights now or hereafter attaching thereto,
including the right to receive and retain all dividends, and other distributions
declared, made or payable after the date of this announcement.
The Offer will be on the terms and will be subject, inter alia, to the
conditions which are set out in part 1 of Appendix I and those terms which will
be set out in the formal offer document and such further terms as may be
required to comply with the Listing Rules of the UK Listing Authority and the
provisions of the City Code. The Offer and any acceptances thereunder will be
governed by English law.
The availability of the Offer 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 and observe any
applicable requirements.
APPENDIX II
DEFINITIONS
The following definitions apply throughout this announcement unless the context
requires otherwise:
"Amey" Amey plc
"Amey Group" or "the Group" Amey and its subsidiary undertakings
"Amey Shares" the existing unconditionally allotted or issued and fully paid
ordinary shares of 1 pence each in the capital of Amey and any
further such shares which are unconditionally allotted or
issued (including pursuant to the exercise of options granted
under the Amey Share Option Schemes or pursuant to the Warrant
Instrument) after the date hereof and before the Offer closes
(or before such other time as Ferrovial Servicios may, subject
to the City Code, decide in accordance with the terms and
conditions of the Offer)
"Amey Shareholders" holders of Amey Shares
"Amey Share Option Holders" holders of options granted under any of the Amey Share Option
Schemes
"Amey Share Option Schemes" the Amey plc 1994 Executive Share Option Scheme, the Amey plc
1998 Executive Share Option Scheme and the 1994 Savings Related
Share Option Scheme
"Australia" the Commonwealth of Australia, its states, possessions and
territories
"Canada" Canada, its possessions, provinces and territories and all
areas subject to its jurisdiction and any political subdivision
thereof
"City Code" The City Code on Takeovers and Mergers
"Closing Price" the closing middle market price of an Amey Share as derived
from the Official List
"Companies Act" the Companies Act 1985, as amended
"Deutsche Bank" Deutsche Bank AG London
"Ferrovial" Grupo Ferrovial S.A.
"Ferrovial Servicios" Ferrovial Servicios S.A., a wholly owned subsidiary of
Ferrovial
"First Closing Date" 3.00 p.m. on the first day on which the Offer closes as to be
set out in the Offer Document
"Form of Acceptance" the form of acceptance, and authority for use in connection
with the Offer
"Hawkpoint" Hawkpoint Partners Limited
"Japan" Japan, its cities, prefectures, territories and possessions
"Listing Rules" the Listing Rules of the UK Listing Authority
"London Stock Exchange" London Stock Exchange plc
"Offer" the recommended cash offer to be made by Ferrovial Servicios
for the whole of the issued and to be issued share capital of
Amey on the terms and subject to the conditions to be set out
in the Offer Document and the Form of Acceptance (including,
where the context so requires, any subsequent revision,
variation, renewal or extension thereof)
"Offer Document" the offer document (to be posted to Amey Shareholders other
than Overseas Shareholders) detailing the terms and conditions
of the Offer
"Official List" The Daily Official List of the London Stock Exchange
"Overseas Shareholders" certain persons not resident in the United Kingdom, or who are
citizens, residents or nationals of jurisdictions outside the
United Kingdom, or who are nominees of, or custodians or
trustees for, citizens, residents or nationals of other
countries
"Panel" The Panel on Takeovers and Mergers
"Regulatory Information Service" any of the services set out in schedule 12 of the Listings
Rules
"substantial interest" a direct or indirect interest in 20 per cent. or more of the
voting equity capital of an undertaking
"Tube Lines Option" the option which JNP Ventures Limited, a wholly owned
subsidiary of Amey, has to convert its B shares in Amey Tube
Limited into ordinary shares in Amey Tube Limited pursuant to a
shareholders' agreement dated 23 December 2002 between UIC
Transport Tube Limited, Jarvis Tube Limited, JNP Ventures
Limited, JNP Ventures 2 Limited, Amey LUL 2 Limited and Amey
Tube Limited
"UK" or "United Kingdom" the United Kingdom of Great Britain and Northern Ireland
"USA", "United States of America" or " the United States of America, its territories and possessions,
United States" any state of the United States and the District of Columbia and
all other areas subject to its jurisdiction or any subdivision
thereof
"Warrant Instrument" a warrant instrument dated 14 March 2003, pursuant to which
Amey's lending banks were granted the right to subscribe for
12,576,000 new Amey Shares at a price of 19.05 pence per new
Amey Share
"Wider Amey Group" Amey and its subsidiary undertakings, associated undertakings
and any other undertakings in which Amey and such undertakings
(aggregating their interests) have a substantial interest
"Wider Ferrovial Group" Ferrovial and its subsidiary undertakings, associated
undertakings and any other undertaking in which Ferrovial and
such undertakings (aggregating their interests) have a
substantial interest
For the purposes of this announcement, "subsidiary", "subsidiary undertaking", "
undertaking" and "associated undertaking" have the meanings given by the
Companies Act (but for this purpose ignoring paragraph 20(1)(b) of Schedule 4A
of the Companies Act).
This information is provided by RNS
The company news service from the London Stock Exchange
END
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