TIDMMRK TIDMAZEM
RNS Number : 6554G
Merck KGaA
08 May 2014
NOT FOR RELEASE, PUBLICATION OR DISTRIBUTION IN WHOLE OR IN
PART, IN, INTO OR FROM ANY JURISDICTION WHERE TO DO SO WOULD
CONSTITUTE A VIOLATION OF THE RELEVANT LAWS OF SUCH
JURISDICTION
For immediate release 8 May 2014
RECOMMENDED CASH OFFER
for
AZ Electronic Materials S.A.
By
Merck 15. Allgemeine Beteiligungs-GmbH
Darmstadt, Germany
an indirect wholly owned subsidiary of
Merck KGaA
Darmstadt, Germany
Offer update - closing of offer and compulsory acquisition
On 2 May 2014, Merck KGaA, Darmstadt, Germany (Merck) announced
that all of the Conditions to its recommended cash offer (the
Offer) made by Merck 15. Allgemeine Beteiligungs-GmbH (Bidco) for
the entire issued and to be issued share capital of AZ Electronic
Materials S.A. (AZ) had been satisfied or waived and the Offer was
declared unconditional in all respects.
Closing of the Offer
Notice is now given to AZ Shareholders that, in anticipation of
the compulsory acquisition referred to below, the Offer will close
at 1.00 p.m. (London time) / 2.00 p.m. (CET) on 23 May 2014 and,
accordingly, there will be no further extensions to the Offer.
Level of acceptances
As at 1.00 p.m. (London time) on 8 May 2014, Bidco had received
valid acceptances of the Offer in respect of 372,608,841 AZ Shares,
representing approximately 97.81 per cent. of the existing issued
share capital of AZ. As at 1.00 p.m. (London time) on 8 May 2014,
Bidco had purchased 150,000 AZ Shares, representing approximately
0.04 per cent. of AZ's existing issued share capital.
Accordingly, as at 1.00 p.m. (London time) on 8 May 2014, Bidco
had purchased or received valid acceptance in respect of a total of
372,758,841 AZ Shares, representing approximately 97.85 per cent.
of the existing share capital of AZ.
Before the announcement of the Offer on 5 December 2013, Bidco
had received irrevocable undertakings from AZ Directors who (or
whose close family) hold AZ Shares in respect of, in aggregate,
2,735,070 AZ Shares issued or subject to options and/or awards,
representing approximately 0.705 per cent. of AZ's fully diluted
share capital. Acceptances in respect of all of these AZ Shares
have been received pursuant to these undertakings and are included
in the total number of acceptances referred to above.
Compulsory Acquisition
As Bidco has purchased or received valid acceptances in respect
of AZ Shares representing not less than 95 per cent. of: (i) the
capital carrying voting rights in AZ; and (ii) the voting rights in
AZ, once the Offer closes at 1.00 p.m. (London time) / 2.00 p.m.
(CET) on 23 May 2014, Bidco intends to exercise its compulsory
acquisition right pursuant to Article 15 of the Luxembourg law of
19 May 2006 on takeover bids (the Takeover Law), under the
supervision of the Luxembourg regulator, the Commission de
Surveillance du Secteur Financier (and as described under paragraph
13(b) of Part 2 of the offer document which was posted to AZ
Shareholders on 20 December 2013 (the Offer Document)) and will
acquire, by operation of law and in consideration for payment by
Bidco of a "fair price" as required by Article 15(2) of the
Takeover Law, the remaining AZ Shares in respect of which the Offer
has not been accepted.
Action to be taken
AZ Shareholders who have not yet accepted the Offer are urged to
do so immediately and in any event by the following deadlines:
-- If you are a holder of AZ Shares in certificated form (that
is, not in CREST), you should complete and return the Form of
Acceptance, which accompanied the Offer Document, as soon as
possible and, in any event, by no later than 1.00 p.m. (London
time) on 23 May 2014.
-- If you are a holder of AZ DIs (in CREST), you should ensure
that an Electronic Acceptance is made by you or on your behalf and
that settlement occurs as soon as possible and, in any event, by no
later than 1.00 p.m. (London time) on 23 May 2014. If you are a
CREST-sponsored member, you should refer to your CREST sponsor as
only your CREST sponsor will be able to send the necessary TTE
instruction(s) to Euroclear.
The Offer Document and a specimen Form of Acceptance are
available on Merck's website at www.merckgroup.com and on AZ's
website at www.azem.com. Further copies of the Offer Document and
the Form of Acceptance may be obtained by contacting the Receiving
Agent, Capita Asset Services, on 0871 664 0321 from within the UK
or on + 44 20 8639 3399 if calling from outside the UK. Lines are
open 9.00 a.m. to 5.30 p.m. (London time) Monday to Friday.
Unless otherwise stated, terms used in this announcement have
the same meanings as given to them in the Offer Document.
Enquiries
Merck KGaA +49 (0) 6151 72 3321
Constantin Fest
Annett Weber
Bank of America Merrill
Lynch
(Financial adviser to Merck
and Bidco) +44 (0) 20 7628 1000
Adrian Mee
Michael Findlay
Peter Brown
Geoff Iles
Further information
Merrill Lynch International (BofA Merrill Lynch), a subsidiary
of Bank of America Corporation, is acting exclusively for Merck and
Bidco in connection with the Offer and for no one else and will not
be responsible to anyone other than Merck and Bidco for providing
the protections afforded to its clients or for providing advice in
relation to the Offer.
This announcement is not intended to, and does not, constitute
or form part of any offer, invitation or the solicitation of an
offer to purchase, otherwise acquire, subscribe for, sell or
otherwise dispose of any securities, or the solicitation of any
vote or approval in any jurisdiction, pursuant to the Offer or
otherwise. The Offer is made solely by means of the Offer Document
and the Form of Acceptance accompanying the Offer Document, which
contains the full terms and conditions of the Offer, including
details of how the Offer may be accepted. Any response to the Offer
should be made only on the basis of information contained in the
Offer Document. AZ Shareholders are advised to read the formal
documentation in relation to the Offer carefully.
This announcement has been prepared for the purpose of complying
with English law, the Code and Luxembourg law and the information
disclosed may not be the same as that which would have been
disclosed if this announcement had been prepared in accordance with
the laws of jurisdictions outside the United Kingdom and
Luxembourg.
Overseas jurisdictions
The distribution of this announcement in jurisdictions other
than the United Kingdom or the United States and the availability
of the Offer to AZ Shareholders who are not resident in the United
Kingdom or the United States may be affected by the laws of
relevant jurisdictions. Therefore any persons who are subject to
the laws of any jurisdiction other than the United Kingdom or the
United States or AZ Shareholders who are not resident in the United
Kingdom or the United States will need to inform themselves about,
and observe, any applicable legal or regulatory requirements. Any
failure to comply with the applicable restrictions may constitute a
violation of the securities laws of any such jurisdiction. Further
details in relation to overseas shareholders are contained in the
Offer Document.
The Offer is not being, and will not be, made, directly or
indirectly, in or into or by the use of the mails of, or by any
other means or instrumentality of interstate or foreign commerce
of, or any facility of a national state or other securities
exchange of any Restricted Jurisdiction, and will not be capable of
acceptance by any such use, means, instrumentality or facility or
from within any Restricted Jurisdiction.
Accordingly, copies of this announcement and all documents
relating to the Offer are not being, and must not be, directly or
indirectly, mailed, transmitted or otherwise forwarded, distributed
or sent in, into or from any Restricted Jurisdiction and persons
receiving this announcement (including, without limitation, agents,
nominees, custodians and trustees) must not distribute, send or
mail it in, into or from such jurisdiction. Any person (including,
without limitation, any agent, nominee or trustee) who has a
contractual or legal obligation, or may otherwise intend, to
forward this announcement and/or the Offer Document and/or any
other related document to a jurisdiction outside the United
Kingdom, Luxembourg or the United States should inform themselves
of, and observe, any applicable legal or regulatory requirements of
their jurisdiction.
Notice to US holders of AZ Shares
The Offer is being made in the United States pursuant to Section
14(e) and Regulation 14E under the Exchange Act and otherwise in
accordance with the requirements of the Code. Accordingly, the
Offer is subject to disclosure and other procedural requirements,
including with respect to withdrawal rights, offer timetable,
settlement procedures and timing of payments, that are different
from those applicable under US domestic tender offer procedures and
law.
The Offer is being made for the securities of a Luxembourg
company with a listing on the London Stock Exchange. The Offer is
subject to UK disclosure requirements, which are different from
certain United States disclosure requirements. The financial
information on the AZ Group included in the Offer Document has been
prepared in accordance with IFRS and the financial information on
the Merck Group included in the Offer Document has been prepared in
accordance with IFRS, thus neither may be comparable to financial
information of US companies or companies whose financial statements
are prepared in accordance with generally accepted accounting
principles in the United States.
The receipt of cash pursuant to the Offer by a US holder of AZ
Shares may be a taxable transaction for US federal income tax
purposes and under applicable US state and local, as well as
foreign and other, tax laws. Each AZ Shareholder is urged to
consult his independent professional adviser immediately regarding
the tax consequences of accepting the Offer. Furthermore, the
payment and settlement procedure with respect to the Offer will
comply with the relevant United Kingdom rules, which differ from
the United States payment and settlement procedures, particularly
with regard to the date of payment of consideration.
The Offer is being made in the United States by Bidco and no one
else. Neither BofA Merrill Lynch nor Rothschild nor Goldman Sachs
International nor UBS Limited, nor any of their respective
affiliates, is or will be making the Offer in the United
States.
It may be difficult for US holders of AZ Shares to enforce their
rights and any claim arising out of US federal securities laws,
since Bidco and Merck are incorporated under the laws of Germany
and AZ is incorporated under the laws of Luxembourg, and some or
all of their officers and directors are residents of non-US
jurisdictions. In addition, most of the assets of Bidco, Merck and
AZ are located outside the United States. US holders of AZ Shares
may not be able to sue a non-US company or its officers or
directors in a non-US court for violations of US securities laws.
Further, it may be difficult to compel a non-US company and its
affiliates to subject themselves to a US court's judgment.
This announcement does not constitute an offer of securities for
sale in the United States or an offer to acquire or exchange
securities in the United States. No offer to acquire securities or
to exchange securities for other securities has been made, or will
be made, directly or indirectly, in or into, or by the use of the
mails of, or by any means or instrumentality of interstate or
foreign commerce or any facilities of a national securities
exchange of, the United States or any other country in which such
offer may not be made other than: (i) in accordance with the tender
offer requirements under the Exchange Act, or the securities laws
of such other country, as the case may be, or: (ii) pursuant to an
available exemption from such requirements.
Neither the US Securities and Exchange Commission nor any US
state securities commission has approved or disapproved the Offer,
or passed comment upon the adequacy or completeness of this
announcement or the Offer Document. Any representation to the
contrary is a criminal offence in the United States.
In accordance with normal UK market practice, Bidco, or its
nominees or brokers (acting as agents) may from time to time make
certain purchases of, or arrangements to purchase, AZ Shares
outside the Offer before or during the period in which the Offer
remains open for acceptance. Those purchases may occur either in
the open market at prevailing prices or in private transactions at
negotiated prices. Any information about such purchases will be
disclosed to all investors to the extent required in the United
Kingdom, the United States or Luxembourg, will be reported to a
Regulatory Information Service provider and will be available on
the London Stock Exchange website, www.londonstockexchange.com. If
such purchases or arrangements to purchase are made they will be
made outside the United States and will comply with applicable law,
including the Exchange Act.
Forward-looking statements
This announcement contains statements which are, or may be
deemed to be, "forward-looking statements" which are prospective in
nature. All statements other than statements of historical fact may
be forward-looking statements. They are based on current
expectations and projections about future events, and are therefore
subject to risks and uncertainties which could cause actual results
to differ materially from the future results expressed or implied
by the forward-looking statements. Often, but not always,
forward-looking statements can be identified by the use of
forward-looking words such as "plans", "expects", "is expected",
"is subject to", "budget", "scheduled", "estimates", "forecasts",
"intends", "anticipates", "believes", "targets", "aims", "projects"
or words or terms of similar substance or the negative thereof, as
well as variations of such words and phrases or statements that
certain actions, events or results "may", "could", "should",
"would", "might" or "will" be taken, occur or be achieved. Such
statements are qualified in their entirety by the inherent risks
and uncertainties surrounding future expectations.
Such forward-looking statements involve risks and uncertainties
that could significantly affect expected results and are based on
certain key assumptions. Many factors could cause actual results to
differ materially from those projected or implied in any
forward-looking statements. Due to such uncertainties and risks,
readers are cautioned not to place undue reliance on such
forward-looking statements, which speak only as of the date of this
announcement. Each of the Merck Group and the AZ Group, and each of
their respective members, directors, officers, employees, advisers
and any person acting on their behalf, expressly disclaims any
intention or obligation to update or revise any forward-looking or
other statements contained in this announcement, whether as a
result of new information, future events or otherwise, except as
required by applicable law.
Neither the Merck Group, the AZ Group, nor their respective
members, directors, officers or employees, advisers or any person
acting on their behalf, provides any representation, assurance or
guarantee that the occurrence of the events expressed or implied in
any forward-looking statements in this announcement will actually
occur.
Except as expressly provided in this announcement, no
forward-looking or other statements have been reviewed by the
auditors of the Merck Group or the AZ Group. All subsequent oral or
written forward-looking statements attributable to the Merck Group
or the AZ Group, or any of their respective members, directors,
officers, advisers or employees or any person acting on their
behalf are expressly qualified in their entirety by the cautionary
statement above.
No profit forecasts or estimates
Nothing in this announcement shall be deemed to be a forecast,
projection or estimate of the future financial performance of Merck
or the Merck Group, or AZ or the AZ Group, except where otherwise
stated.
Disclosure requirements of the Code
Under Rule 8.3(a) of the Code, any person who is interested in
1% or more of any class of relevant securities of an offeree
company or of any securities exchange offeror (being any offeror
other than an offeror in respect of which it has been announced
that its offer is, or is likely to be, solely in cash) must make an
Opening Position Disclosure following the commencement of the offer
period and, if later, following the announcement in which any
securities exchange offeror is first identified. An Opening
Position Disclosure must contain details of the person's interests
and short positions in, and rights to subscribe for, any relevant
securities of each of (i) the offeree company and (ii) any
securities exchange offeror(s). An Opening Position Disclosure by a
person to whom Rule 8.3(a) applies must be made by no later than
3.30 pm (London time) on the 10th business day following the
commencement of the offer period and, if appropriate, by no later
than 3.30 pm (London time) on the 10th business day following the
announcement in which any securities exchange offeror is first
identified. Relevant persons who deal in the relevant securities of
the offeree company or of a securities exchange offeror prior to
the deadline for making an Opening Position Disclosure must instead
make a Dealing Disclosure.
Under Rule 8.3(b) of the Code, any person who is, or becomes,
interested in 1% or more of any class of relevant securities of the
offeree company or of any securities exchange offeror must make a
Dealing Disclosure if the person deals in any relevant securities
of the offeree company or of any securities exchange offeror. A
Dealing Disclosure must contain details of the dealing concerned
and of the person's interests and short positions in, and rights to
subscribe for, any relevant securities of each of (i) the offeree
company and (ii) any securities exchange offeror, save to the
extent that these details have previously been disclosed under Rule
8. A Dealing Disclosure by a person to whom Rule 8.3(b) applies
must be made by no later than 3.30 pm (London time) on the business
day following the date of the relevant dealing.
If two or more persons act together pursuant to an agreement or
understanding, whether formal or informal, to acquire or control an
interest in relevant securities of an offeree company or a
securities exchange offeror, they will be deemed to be a single
person for the purpose of Rule 8.3.
Opening Position Disclosures must also be made by the offeree
company and by any offeror and Dealing Disclosures must also be
made by the offeree company, by any offeror and by any persons
acting in concert with any of them (see Rules 8.1, 8.2 and
8.4).
Details of the offeree and offeror companies in respect of whose
relevant securities Opening Position Disclosures and Dealing
Disclosures must be made can be found in the Disclosure Table on
the Takeover Panel's website at www.thetakeoverpanel.org.uk,
including details of the number of relevant securities in issue,
when the offer period commenced and when any offeror was first
identified. You should contact the Panel's Market Surveillance Unit
on +44 (0)20 7638 0129 if you are in any doubt as to whether you
are required to make an Opening Position Disclosure or a Dealing
Disclosure.
Publication on website
Pursuant to Rule 30.4 of the Code, this announcement will be
made available on the website of Merck at www.merckgroup.com and on
the website of AZ at www.azem.com no later than 12 noon on the
business day following the date of this announcement.
This information is provided by RNS
The company news service from the London Stock Exchange
END
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