REG-Ecolab Inc. Offer for Bioquell PLC: Rule 2.7 Announcement
. Offer for Bioquell PLC: Rule 2.7 Announcement
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
THIS ANNOUNCEMENT CONTAINS INSIDE INFORMATION
30 November 2018
RECOMMENDED CASH OFFER
for
Bioquell plc ("Bioquell" or the "Company")
by
Ecolab U.S. 2 Inc. ("Ecolab Offeror"), a wholly-owned subsidiary of Ecolab Inc. ("Ecolab")
to be effected by way of scheme of arrangement
under Part 26 of the Companies Act 2006Summary
- The boards of Ecolab and Bioquell are pleased to announce that they have reached agreement on the terms of a recommended cash offer to be made by Ecolab Offeror for the entire issued and to be issued ordinary share capital of Bioquell (the "Offer"). The Offer is to be effected by means of a Court-sanctioned scheme of arrangement under Part 26 of the Companies Act.
- Under the terms of the Offer, Bioquell Shareholders shall be entitled to receive:
for each Scheme Share : 590 pence in cash.
-
The Offer values the entire issued and to be issued ordinary share
capital of Bioquell at approximately £140.51 million and represents:
- a premium of approximately 40.48 per cent. to the Closing Price of 420 pence per Bioquell Share on 29 November 2018 (being the last Business Day before the commencement of the Offer Period);
- a premium of approximately 23.12 per cent. to the 3 month volume weighted average Closing Price per Bioquell Share of 479.20 pence for the 3 month period ended 29 November 2018 (being the last Business Day prior to the commencement of the Offer Period); and
- a premium of approximately 33.01 per cent. to the 6 month volume weighted average Closing Price per Bioquell Share of 443.58 pence for the 6 month period ended 29 November 2018 (being the last Business Day prior to the commencement of the Offer Period).
- If any dividend or other distribution or return of capital is proposed, authorised, declared, made, paid or becomes payable by Bioquell in respect of the Ordinary Shares on or after the date of this announcement, Ecolab Offeror will have the right to reduce the value of the consideration payable for each Ordinary Share by up to the amount per Ordinary Share of such dividend, distribution or return of capital.
Information on Ecolab
- Ecolab is a US publicly traded company (NYSE: ECL) with a current market capitalisation of over $40 billion.
- Ecolab is a global leader in water, hygiene and energy technologies and services that protect people and vital resources. With annual sales of approximately $14 billion (2017 financial year) and 48,000 associates, Ecolab delivers comprehensive solutions and on-site services to promote safe food, maintain clean environments, optimise water and energy use and improve operational efficiencies for customers in food, healthcare, life sciences, hospitality, energy and industrial markets in more than 170 countries around the world.
- Ecolab Offeror is a wholly-owned subsidiary of Ecolab.
Reasons for the Offer
- Ecolab is committed to building its global Life Sciences and Healthcare businesses with new market-leading products and top talent. In that context, Ecolab believes the Company will be an attractive extension of its value proposition to its customers, business model, global footprint and target areas for growth and investment. Ecolab’s mission is to make pharmaceutical and healthcare facilities cleaner, safer and healthier for patients and workers by combining innovative products with leading sales and service teams to deliver measurable improvements in operational efficiencies for its customers.
- The Company offers a unique opportunity to broaden Ecolab’s portfolio of products, services and solutions to pursue these objectives. In particular, Ecolab believes that Bioquell’s expertise in bio-decontamination and deep-cleaning complements Ecolab’s daily cleaning and disinfection offerings for cleanrooms and other high-grade environments. Ecolab believes that the acquisition will allow Ecolab to better meet the needs of its life sciences and healthcare customers.
Information on Bioquell
- Incorporated on 2 June 1925, the Bioquell Group is a provider of specialist hydrogen peroxide vapour bio-decontamination equipment, modular isolators and associated services for the life sciences and healthcare sectors.
- In its latest full financial year to 31 December 2017, the Bioquell Group achieved total revenue of £29.2 million (2016: £26.5 million) and profit before tax of £3.3 million (2016: £0.1 million). As at 31 December 2017, total assets were £34.8 million (2016: £30.7 million) with net assets of £26.8 million (2016: £23.8 million) and net cash of £14.6 million (2016: £8.8 million).
Recommendation
- The Bioquell Directors, who have been so advised by N+1 Singer on the financial terms of the Offer, consider the terms of the Offer to be fair and reasonable. In providing advice to the Bioquell Directors, N+1 Singer has taken into account the commercial assessments of the Bioquell Directors.
- Accordingly, the Bioquell Directors intend to recommend unanimously that Bioquell Shareholders vote in favour of the Scheme at the Court Meeting and the resolutions to be proposed at the General Meeting as all Bioquell Directors holding Ordinary Shares have irrevocably undertaken to do so in respect of their own Ordinary Shares (or those beneficially held), being a total of 646,229 Ordinary Shares (representing, in aggregate, approximately 2.89 per cent. of the ordinary share capital of Bioquell in issue on 29 November 2018 (being the latest practicable date prior to this announcement)).
Irrevocable Undertakings and letter of intent
- Ecolab Offeror has received irrevocable undertakings from entities connected with Harwood Capital LLP, whose principal Christopher Mills is a non-executive director of Bioquell, to vote in favour of the Scheme at the Court Meeting and the resolutions to be proposed at the General Meeting in respect of its entire aggregate beneficial holding of 6,305,000 Ordinary Shares (representing, in aggregate, approximately 28.21 per cent. of the ordinary share capital of Bioquell in issue on 29 November 2018 (being the latest practicable date prior to this announcement)).
- Ecolab Offeror has received irrevocable undertakings from all the other Bioquell Directors who are shareholders in Bioquell (excluding Christopher Mills – whose irrevocables are detailed above) to vote in favour of the Scheme at the Court Meeting and the resolutions to be proposed at the General Meeting in respect of their 646,229 Ordinary Shares (representing, in aggregate, approximately 2.89 per cent. of the ordinary share capital of Bioquell in issue on 29 November 2018 (being the latest practicable date prior to this announcement)).
- Ecolab Offeror has also received irrevocable undertakings from certain other Bioquell Shareholders to vote in favour of the Scheme at the Court Meeting and the resolutions to be proposed at the General Meeting in respect of 2,965,637 Ordinary Shares (representing, in aggregate, approximately 13.27 per cent. of the ordinary share capital of Bioquell in issue on 29 November 2018 (being the latest practicable date prior to this announcement)).
- In addition, Ecolab Offeror has received a letter of intent from Liontrust Asset Management to vote in favour of the Scheme at the Court Meeting and the resolutions to be proposed at the General Meeting in respect of 2,399,300 Ordinary Shares (representing approximately 10.73 per cent. of the ordinary share capital of Bioquell in issue on 29 November 2018 (being the latest practicable date prior to this announcement)).
- Ecolab Offeror has therefore received irrevocable undertakings or a letter of intent in respect of 12,316,166 Ordinary Shares (representing, in aggregate, approximately 55.10 per cent. of the ordinary share capital of Bioquell in issue on 29 November 2018 (being the latest practicable date prior to this announcement)).
- Further details of these irrevocable undertakings and the letter of intent are set out in Appendix III to this announcement, including the circumstances in which they cease to be binding.
Structure of the Offer
- The consideration payable under the Offer will be financed using existing cash resources of the Ecolab Group.
- The Offer will be put to Bioquell Shareholders at the Court Meeting and at the General Meeting. In order to become effective, the Scheme must be approved by a majority in number of the Scheme Shareholders voting at the Court Meeting, either in person or by proxy, representing at least 75 per cent. in value of the Scheme Shares voted. In addition, a special resolution implementing the Scheme must be passed by Bioquell Shareholders representing at least 75 per cent. of votes cast at the General Meeting.
- The Scheme Document, containing further information about the Offer and notices of the Court Meeting and the General Meeting and the Forms of Proxy, shall be published as soon as practicable and, in any event, within 28 days of the date of this announcement, unless Ecolab Offeror and Bioquell otherwise agree, and the Panel consents, to a later date.
Advisors
- N+1 Singer is acting as joint financial adviser, financial adviser for the purposes of Rule 3 of the Takeover Code and broker to Bioquell. BGL is acting as joint financial adviser to Bioquell. Bircham Dyson Bell LLP is acting as legal adviser to Bioquell.
- EY has been engaged by Ecolab and Ecolab Offeror to make the cash confirmation statement set out in paragraph 13 and to be set out in the Scheme Document. DLA Piper UK LLP is acting as legal adviser to Ecolab and Ecolab Offeror.
Commenting on the Offer, Elizabeth Simermeyer, Executive Vice President, Life Sciences, of Ecolab said:
"Bioquell’s bio-decontamination solutions complement Ecolab’s daily cleaning and disinfection offerings for cleanrooms and other areas that require an aseptic environment. With Bioquell’s suite of solutions and services, Ecolab will offer one of the most comprehensive portfolios of cleaning and decontamination solutions for pharmaceutical and health care environments."
Commenting on the Offer, Ian Johnson, Executive Chairman of Bioquell, said:
"Bioquell is a leading provider of risk reduction solutions for pharmaceutical, life science and healthcare markets. The Company’s proprietary bio-decontamination equipment and services are regarded as the gold standard for surface and airborne disinfection, guaranteeing the highest efficacy Bioquell also offers unique modular isolators for pharmaceutical production, drug compounding and life science research.
As part of Ecolab, Bioquell will be able to drive faster strategic growth in both life sciences and healthcare markets leveraging Ecolab’s extensive global footprint.
The Bioquell Directors believe the strategic fit is extremely strong and that the combination offers employees and customers a highly desirable opportunity to continue Bioquell’s successful tradition.
Ecolab’s offer provides Bioquell Shareholders with a certain cash exit at a premium to the price at which the Company’s shares have traded recently and is supported by Bioquell Shareholders representing, in aggregate, approximately 55.10 per cent. of the existing issued ordinary share capital of Bioquell. Accordingly the Bioquell Directors unanimously recommend that Bioquell Shareholders vote in favour of Scheme."
This summary should be read in conjunction with the full text of this announcement and its appendices. The Offer shall be subject to the Conditions and further terms that are set out in Appendix I to this announcement and to the full terms and conditions which shall be set out in the Scheme Document. Appendix II to this announcement contains the sources of information and bases of calculations of certain information set out in this announcement. Appendix III to this announcement contains further details of the irrevocable undertakings and the letter of intent. Appendix IV to this announcement contains definitions of certain terms used in this summary and in this announcement. The appendices form part of this announcement.
| Enquiries: | ||
| Ecolab Inc. | Tel: +1 (651) 250 2809 | |
| Mike Monahan, Senior Vice President - External Relations | ||
| Bioquell plc | Tel: 01264 835900 | |
| Ian Johnson, Executive Chairman | ||
| Michael Roller, Group Finance Director | ||
| Nplus1 Singer Advisory LLP, Joint Financial Adviser, Financial Adviser for the purposes of Rule 3 of the Takeover Code and broker to Bioquell | Tel: 0203 205 7500 | |
|
Mark Taylor
James White George Tzimas |
||
| Brown, Gibbons, Lang & Company Securities, Inc., Joint Financial Adviser to Bioquell | Tel: +1 (312) 658 1600 | |
|
John Riddle
Kyle Brown |
IMPORTANT NOTICES
N+1 Singer, which is authorised and regulated in the UK by the Financial Conduct Authority, is acting exclusively for Bioquell and no one else in connection with the matters set out in this announcement. In connection with such matters, N+1 Singer will not regard any other person as their client, nor will they be responsible to any other person for providing the protections afforded to clients of N+1 Singer or for providing advice in relation to any matter referred to herein.
Neither N+1 Singer nor any of its subsidiaries, affiliates or branches owes or accepts any duty, liability or responsibility whatsoever (whether direct, indirect, consequential, whether in contract, in tort, under statute or otherwise) to any person who is not a client in connection with this announcement, any statement contained herein or otherwise.
BGL, which is a registered broker dealer with the Securities and Exchange Commission, the Financial Industry Regulatory Authority, the State of Ohio Division of Securities and the Illinois Securities Department in the US, is acting as financial adviser to Bioquell in connection with the matters set out in this announcement.
Neither BGL nor any of its subsidiaries, affiliates or branches owes or accepts any duty, liability or responsibility whatsoever (whether direct, indirect, consequential, whether in contract, in tort, under statute or otherwise) to any person who is not a client in connection with this announcement, any statement contained herein or otherwise.
EY, which is authorised and regulated in the United Kingdom by the FCA, has been appointed by Ecolab and Ecolab Offeror to provide the cash confirmation statement in connection with the Offer and will not be acting for any other person or otherwise be responsible to any other person for providing the protections afforded to customers of EY. EY accordingly disclaims to the fullest extent permissible by law all and any liability to any person who is not a client of EY whether in tort, contract or otherwise.
This announcement is for information purposes only and is not intended to, and does not constitute, or form part of any offer, invitation, inducement or the solicitation of an offer to purchase, otherwise acquire, subscribe for, sell or otherwise dispose of or exercise rights in respect of any securities or the solicitation of any vote or approval in any jurisdiction pursuant to the Offer or otherwise. The Offer will be made solely through the Scheme Document and the accompanying Forms of Proxy (or by any other document by which the Offer is made), which will together contain the full terms and conditions of the Offer, including details of how to vote in favour of or accept the Offer. Any decision in respect of, or other response to, the Offer should be made only on the basis of the information contained in the Scheme Document or any document by which the Offer is made.
Overseas Shareholders
The availability of the Offer to Overseas Shareholders and the distribution of this announcement in, into or from jurisdictions other than the United Kingdom may be restricted by law. Persons who are not resident in the United Kingdom or who are subject to other jurisdictions should inform themselves of, and observe, any applicable restrictions.
The Offer relates to shares of a United Kingdom company and is proposed to be effected by means of a scheme of arrangement under the laws of England and Wales. A transaction effected by means of a scheme of arrangement is not subject to the proxy solicitation or tender offer rules under the US Exchange Act. Accordingly, the Scheme is subject to the disclosure requirements, rules and practices applicable in the United Kingdom to schemes of arrangement, which differ from the requirements of the US proxy solicitation and tender offer rules and the laws of other jurisdictions outside the United Kingdom.
Ecolab Offeror reserves the right to elect, with the consent of the Panel, to implement the Offer by way of a Takeover Offer. In such event, the Takeover Offer will be made in compliance with all applicable laws and regulations, including the United States tender offer rules, to the extent applicable. Such Takeover Offer would be made in the United States by Ecolab Offeror and no one else. In addition to such Takeover Offer, Ecolab Offeror, certain affiliated companies and the nominees or brokers (acting as agents) may make certain purchases of, or arrangements to purchase, Ordinary Shares outside such Takeover Offer during the period in which such Takeover Offer would remain open for acceptance. If such purchases or arrangements to purchase were to be made, they would be made outside the United States and would comply with applicable law, including the US Exchange Act.
Unless otherwise determined by Ecolab Offeror or required by the Takeover Code, and permitted by applicable law and regulation, the Offer shall not be made available, directly or indirectly, in, into or from a Restricted Jurisdiction where to do so would violate the laws in that jurisdiction and no person may vote in favour of the Scheme by any such use, means, instrumentality or form within a Restricted Jurisdiction or any other jurisdiction if to do so would constitute a violation of the laws of that jurisdiction. Accordingly, any person (including without limitation, nominees, trustees and custodians) who would, or otherwise intends to, forward this announcement, the Scheme Document or any accompanying document to any jurisdiction outside the United Kingdom should refrain from doing so and seek appropriate professional advice before taking any action. If any Overseas Shareholder remains in any doubt, it should consult an appropriate independent professional adviser in its relevant jurisdiction without delay. In particular, the ability of persons who are not resident in the United Kingdom to vote their Scheme Shares at the Court Meeting or their Ordinary Shares at the General Meeting or to execute and deliver Forms of Proxy appointing another to vote their Scheme Shares in respect of the Court Meeting or their Ordinary Shares in respect of the General Meeting on their behalf, may be affected by the laws of the relevant jurisdiction in which they are located.
Failure to comply with any such restrictions may constitute a violation of the securities laws of any such jurisdiction. To the fullest extent permitted by applicable law, the companies and persons involved in the Offer disclaim any responsibility or liability for the violation of such restrictions by any person.
This announcement has been prepared for the purposes of complying with the law of England and Wales and the Takeover Code 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 of England and Wales.
This announcement is not intended to, and does not, constitute or form part of any offer or invitation to purchase, otherwise acquire, subscribe for, sell or otherwise dispose of, any securities or the solicitation of any vote or approval pursuant to the Scheme or otherwise, in any jurisdiction in which such offer, invitation or solicitation is unlawful.
Purchases
In accordance with normal UK practice and subject to the provisions of the Takeover Code, Ecolab Offeror or its nominees, or its brokers (acting as agents), may from time to time make certain purchases of, or arrangements to purchase Ordinary Shares, other than pursuant to the Offer, until the date on which the Scheme (or Takeover Offer, if applicable) becomes effective, lapses or is otherwise withdrawn. These 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 as required in the UK and will be reported to a Regulatory Information Service.
Forward-Looking Statements
This announcement (including information incorporated by reference in this announcement) contains statements about Ecolab, Ecolab Offeror and Bioquell that are or may be forward-looking statements which are prospective in nature. All statements other than statements of historical facts may be forward-looking statements. Often, but not always, forward-looking statements can be identified by the use of forward-looking words such as "targets", "plans", "believes", "expects", "aims", "intends", "will", "should", "could", "would", "may", "anticipates", "estimates", "synergy", "cost-saving", "projects", "goal" or "strategy" or words or terms of similar substance or the negative thereof. Forward-looking statements may include statements relating to the following: (i) future capital expenditures, expenses, revenues, earnings, synergies, economic performance, indebtedness, financial condition, dividend policy, losses and future prospects; (ii) business and management strategies and the expansion and growth of Ecolab, Ecolab Offeror’s or Bioquell’s operations and potential synergies resulting from the Offer; and (iii) the effects of government regulation on Ecolab, Ecolab Offeror’s or Bioquell’s business.
These forward-looking statements are not guarantees of future performance. Such forward-looking statements involve known and unknown 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. All subsequent oral or written forward-looking statements attributable to Ecolab, Ecolab Offeror or Bioquell or any of their respective members, directors, officers or employees or any persons acting on their behalf are expressly qualified in their entirety by the cautionary statement above. Ecolab, Ecolab Offeror and Bioquell disclaim any obligation to update any forward-looking or other statements contained in this announcement, except as required by applicable law.
No Profit Forecasts or Estimates
No statement in this announcement is intended as a profit forecast or estimate for any period and no statement in this announcement should be interpreted to mean that earnings or earnings per share for Ecolab or Bioquell, as appropriate, for the current or future financial years would necessarily match or exceed the historical published earnings or earnings per share for Ecolab or Bioquell, as appropriate.
Disclosure Requirements of the Takeover Code
Under Rule 8.3(a) of the Takeover 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 Takeover 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(s), 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 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.
Information Relating to Bioquell Shareholders
Please be aware that addresses, electronic addresses and certain information provided by Bioquell Shareholders, persons with information rights and other relevant persons for the receipt of communications from Bioquell may be provided to Ecolab Offeror during the Offer Period as required under Section 4 of Appendix 4 of the Takeover Code.
Publication on Website(s) and availability of hard copies
A copy of this announcement will be available free of charge (subject to any applicable restrictions with respect to persons resident in Restricted Jurisdictions) on Bioquell’s website and Ecolab’s website (http://www.bioquellplc.com/investors and https://investor.ecolab.com respectively) by no later than 12 noon on 3 December 2018.
Neither the contents of these websites nor the content of any other website accessible from hyperlinks on such websites is incorporated into, or forms part of, this announcement.
You may request a hard copy of this announcement (and any information incorporated by reference in this announcement), free of charge, by contacting Link Asset Services during business hours on 0871 664 0300 within the United Kingdom or on +44 (0) 371 664 0300 from overseas or by submitting a request in writing to shareholderenquiries@linkgroup.co.uk. Calls are charged at the standard geographic rate and will vary by provider. Calls outside the United Kingdom will be charged at the applicable international rate. Lines will be open between 9.00 am to 5.30 pm, Monday to Friday excluding public holidays in England and Wales. Unless you make such a request, a hard copy of this announcement and any such information incorporated by reference in it will not be sent to you. You may also request that all future documents, announcements and information to be sent to you in relation to the Offer be in hard copy form.
Rounding
Certain figures included in this announcement have been subjected to rounding adjustments. Accordingly, figures shown for the same category presented in different tables may vary slightly and figures shown as totals in certain tables may not be an arithmetic aggregation of the figures that precede them.
Rule 2.9 Disclosure
In accordance with Rule 2.9 of the Takeover Code, Bioquell confirms that, as at the date of this announcement, it has in issue and admitted to trading on the Main Market 22,352,987 Ordinary Shares (excluding treasury shares). The International Securities Identification Number (ISIN) of the Ordinary Shares is GB0004992003.
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
30 November 2018
RECOMMENDED CASH OFFER
for
Bioquell plc ("Bioquell" or the "Company")
by
Ecolab U.S. 2 Inc. ("Ecolab Offeror"), a wholly-owned subsidiary of Ecolab Inc. ("Ecolab")
to be effected by way of scheme of arrangement
under
Part 26 of the Companies Act 2006
1. Introduction
The boards of Ecolab and Bioquell are pleased to announce that they have reached agreement on the terms of a recommended cash offer pursuant to which Ecolab Offeror shall acquire the entire issued and to be issued ordinary share capital of Bioquell. The Offer is to be effected by means of a Court-sanctioned scheme of arrangement under Part 26 of the Companies Act.
2. The Offer
Under the terms of the Offer, which will be subject to the Conditions and further terms set out in Appendix I to this announcement, and to be set out in the Scheme Document, Scheme Shareholders will be entitled to receive:
for each Scheme Share: 590 pence in cash
The Offer values the entire issued and to be issued ordinary share capital of Bioquell at approximately £140.51 million and represents:
- a premium of approximately 40.48 per cent. to the Closing Price of 420 pence per Bioquell Share on 29 November 2018 (being the last Business Day before the commencement of the Offer Period);
- a premium of approximately 23.12 per cent. to the 3 month volume weighted average Closing Price per Bioquell Share of 479.20 pence for the 3 month period ended 29 November 2018 (being the last Business Day prior to the commencement of the Offer Period); and
- a premium of approximately 33.01 per cent. to the 6 month volume weighted average Closing Price per Bioquell Share of 443.58 pence for the 6 month period ended 29 November 2018 (being the last Business Day prior to the commencement of the Offer Period).
If any dividend or other distribution or return of capital is proposed, authorised, declared, made, paid or becomes payable by Bioquell in respect of the Ordinary Shares on or after the date of this announcement, Ecolab Offeror will have the right to reduce the value of the consideration payable for each Ordinary Share by up to the amount per Ordinary Share of such dividend, distribution or return of capital. If any such dividend, distribution or return of capital is paid or made after the date of this announcement and Ecolab Offeror exercises its rights described above, any reference in this announcement to the consideration payable under the Scheme shall be deemed to be a reference to the consideration as so reduced. Any exercise by Ecolab Offeror of its rights referred to in this paragraph shall be the subject of an announcement and shall not be regarded as constituting any revision or variation of the terms of the Scheme. Any payments made in cash or by way of the delivery of Ordinary Shares on the vesting of awards under the Bioquell Share Schemes that are calculated by reference to dividends accrued in respect of those underlying vested Ordinary Shares are not to be construed as a dividend, distribution or return of capital for these purposes.
It is expected that the Scheme Document will be published as soon as practicable and, in any event, on or before 28 December 2018 (unless Ecolab Offeror and Bioquell otherwise agree, and the Panel consents, to a later date). Further details regarding the Court Meeting and the General Meeting to be held will be included in the Scheme Document.
3. Recommendation
Bioquell’s Directors, who have been so advised by N+1 Singer on the financial terms of the Offer, consider the terms of the Offer to be fair and reasonable. In providing their advice to the Bioquell Directors, N+1 Singer has taken into account the commercial assessments of the Bioquell Directors. In addition, the Bioquell Directors consider the terms of the Offer to be in the best interests of the Bioquell Shareholders.
Accordingly, the Bioquell Directors intend to recommend unanimously that Bioquell Shareholders vote in favour of the Scheme at the Court Meeting and the resolutions to be proposed at the General Meeting as all Bioquell Directors holding Ordinary Shares have irrevocably undertaken to do so in respect of their own Ordinary Shares, being a total of 646,229 Ordinary Shares, (representing, in aggregate, approximately 2.89 per cent. of the ordinary share capital of Bioquell in issue on 29 November 2018 (being the latest practicable date prior to this announcement)).
Ecolab Offeror has also received irrevocable undertakings to vote in favour of the Scheme at the Court Meeting and the resolutions to be proposed at the General Meeting from entities connected with Harwood Capital LLP, whose principal Christopher Mills is a non-executive director of Bioquell, in respect of a total of 6,305,000 Ordinary Shares, representing approximately 28.21 per cent. of the ordinary share capital of Bioquell in issue on 29 November 2018 (being the latest practicable date prior to this announcement).
4. Background to and reasons for the Offer
Ecolab is committed to building its global Life Sciences and Healthcare businesses with new market-leading products and top talent. In that context, Ecolab believes the Company will be an attractive extension of its value proposition to its customers, business model, global footprint and target areas for growth and investment. Ecolab’s mission is to make pharmaceutical and healthcare facilities cleaner, safer and healthier for patients and workers by combining innovative products with leading sales and service teams to deliver measurable improvements in operational efficiencies for its customers.
The Company offers a unique opportunity to broaden Ecolab’s portfolio of products, services and solutions to pursue these objectives. In particular, Ecolab believes that Bioquell’s expertise in bio-decontamination and deep-cleaning complements Ecolab’s daily cleaning and disinfection offerings for cleanrooms and other high-grade environments. Ecolab believes that the acquisition will allow Ecolab to better meet the needs of its life sciences and healthcare customers.
5. Ecolab’s strategic plans
Ecolab expects to conduct a more detailed assessment of the Bioquell business following completion of the Offer for purposes of integration and strategic planning, however, cost synergies are not an objective of the Offer. Ecolab envisages that the business of the Bioquell Group would continue to operate in materially the same way following completion of the Offer. Ecolab expects its assessment to take six to twelve months and to cover potential new business opportunities, marketing strategies, revenue synergies, sales and support operations, management and financial reporting lines and responsibilities, compliance programs and how to maximise the benefits that the Offer will bring. This does not in any way qualify Ecolab’s express intentions as set out in this announcement.
6. Management, employees and locations of business
Ecolab places significant importance on the Bioquell employees and management team. Ecolab believes that the Bioquell team shares its customer-oriented focus on value and results and their extensive experience, skills and expertise would be a valuable addition to the Ecolab Group. In particular, Ecolab believes that Bioquell’s talented service and support personnel have deep equipment knowledge and application-specific knowhow that would be complementary to Ecolab’s existing Life Sciences and Healthcare businesses, which focus on integrated chemistry-based programs that improve hand-hygiene, cleaning and disinfection in manufacturing and patient care environments. Ecolab believes that Bioquell employees will also benefit from career and development opportunities within the Ecolab Group.
Ecolab believes that the integration can be achieved without significant disruption to either business and employee redundancies are not expected. In this respect, Ecolab confirms that, except as referred to in this announcement:
- whilst recognising that, following the integration of Bioquell within the Ecolab Group, complementary new business opportunities may be identified that influence future strategic plans, it has no intention to make material changes to the future business of Bioquell, including any research and development functions of Bioquell;
- it intends to integrate Bioquell’s management team into Ecolab’s Life Sciences team, however key roles are yet to be determined and Ecolab expects that these will be finalised as part of its assessment referred to in paragraph 5 above. In particular, Ecolab is having discussions with Ian Johnson, Michael Roller and Jay LeCoque regarding their on-going roles in the business;
- it recognises that there is the potential to combine some Bioquell sales and support staff with existing Ecolab offices, however, it has no intention to make any changes to the continued employment of employees or management of the Bioquell Group, nor does it intend to make any material changes to the conditions of employment or in the balance of the skills and functions of the employees and management;
- it has no intention to make material changes to the locations or functions of Bioquell’s places of business, including Bioquell’s current manufacturing facility and headquarters in Andover; and
- there is no intention to redeploy any significant fixed assets of Bioquell.
It is expected that, following completion of the Offer, the non-executive directors of Bioquell will each resign from their office as director of Bioquell.
7. Pension schemes
Following completion of the Offer, the existing Bioquell Group pension obligations will be honoured in compliance with applicable law. Ecolab intends to maintain at least the current level of employer contributions to Bioquell’s defined contribution pension scheme and does not intend to make any material change to the accrual of benefits for existing members and the policy for admission of new members.
8. Background to and reasons for the recommendation
In 2015, Bioquell disposed of its testing business, TRaC Global Limited, for £44.5 million, returning £41.4 million of the proceeds to Bioquell Shareholders in 2016 by way of a tender offer. The remaining Bioquell business was restructured in late 2016 with the implementation of a strategy to focus on developing its core bio-decontamination business. Two further non-core businesses have subsequently been sold – the defence business, sold in May 2018 for an initial consideration of £0.4 million and the airflow spares and service business disposed of in two stages in July 2017 and January 2018 respectively for an aggregate of £0.5 million.
As a result of this new focus, and associated initiatives to strengthen and incentivise the sales force, there has been markedly improved financial performance, with Bioquell’s 2017 results seeing sales growth in the core bio-decontamination and isolator business of 13 per cent. and growth of 29 per cent. in pre-exceptional earnings before interest, tax, depreciation and amortization. Bioquell is now a leading provider of risk reduction solutions for life sciences, which generates 80 per cent. of revenues, and a smaller but growing healthcare market.
Although the Bioquell Directors believe Bioquell would have a strong future as an independent business, they recognise the constraints resulting from Bioquell’s relative lack of scale in an increasingly global competitive market. To increase Bioquell’s global commercial footprint would require significant investment with the associated risks involved with effective execution. The substantial strategic benefits expected from a combination with the Wider Ecolab Group make it an attractive alternative. The Bioquell Directors believe the Offer represents an opportunity for Bioquell Shareholders to realise the value of their holdings in cash at an attractive premium, particularly in the context of Bioquell’s relative lack of liquidity as a small cap publicly listed company. The Offer will allow Bioquell Shareholders to crystallise the value of their shareholdings at a premium of 40.48 per cent. to the Closing Price of an Ordinary Share on 29 November 2018, being the last Business Day prior to this announcement and a premium of 23.12 per cent. to the volume weighted average price per Ordinary Share of 479.20 pence during the three month period to 29 November 2018.
Following careful consideration of the above factors, the Bioquell Directors believe that the offer price of 590 pence per Ordinary Share in cash provides attractive value and certainty to Bioquell Shareholders, recognising Bioquell’s market position, its future growth prospects and the risks associated with those prospects.
Ecolab has stated above that it has no intention to make material changes to the future business of Bioquell, nor to make any material changes to its places of business. Additionally, it has said that no employee redundancies and no material changes to any conditions of employment are expected. This, taken with the fact that Ecolab’s large and highly relevant commercial footprint will afford opportunities for increased sales of Bioquell’s products and services and opportunities for advancement within a much larger group for its employees, makes the Bioquell Directors confident that the Offer is very much in the interests of Bioquell’s Shareholders and employees and management.
9. Irrevocable undertakings and letter of intent
Ecolab Offeror has received irrevocable undertakings from all the Bioquell Directors holding Ordinary Shares and certain Bioquell Shareholders to vote in favour of the Scheme at the Court Meeting and the resolutions to be proposed at the General Meeting, in respect of a total of 9,916,866 Ordinary Shares, representing approximately 44.36 per cent. of the ordinary share capital of Bioquell in issue on 29 November 2018 (being the latest practicable date prior to this announcement).
Ecolab Offeror has also received a letter of intent from Liontrust Asset Management to vote in favour of the Scheme at the Court Meeting and the resolutions to be proposed at the General Meeting, in respect of a total of 2,399,300 Ordinary Shares, representing approximately 10.73 per cent. of the ordinary share capital of Bioquell in issue on 29 November 2018 (being the latest practicable date prior to this announcement).
Ecolab Offeror has therefore received irrevocable undertakings and a letter of intent in respect of a total of 12,316,166 Ordinary Shares, representing approximately 55.10 per cent. of the ordinary share capital of Bioquell in issue on 29 November 2018 (being the latest practicable date prior to this announcement).
Further details of these irrevocable undertakings and the letter of intent are set out in Appendix III to this announcement.
10. Information on Ecolab and Ecolab Offeror
Ecolab is a US publicly traded company) (NYSE: ECL) with a current market capitalisation of over $40 billion.
Ecolab is a global leader in water, hygiene and energy technologies and services that protect people and vital resources. With annual sales of approximately $14 billion (2017 financial year) and 48,000 associates, Ecolab delivers comprehensive solutions and on-site services to promote safe food, maintain clean environments, optimise water and energy use and improve operational efficiencies for customers in food, healthcare, life sciences, hospitality, energy and industrial markets in more than 170 countries around the world.
Ecolab Offeror is a wholly-owned subsidiary of Ecolab.
11. Information on Bioquell
Incorporated on 2 June 1925, the Bioquell Group is a provider of specialist hydrogen peroxide vapour bio-decontamination equipment, modular isolators and associated services for the life sciences and healthcare sectors.
In its latest full financial year to 31 December 2017, the Bioquell Group achieved total revenue of £29.2 million (2016: £26.5 million) and profit before tax of £3.3 million (2016: £0.1 million). As at 31 December 2017, total assets were £34.8 million (2016: £30.7 million) with net assets of £26.8 million (2016: £23.8 million) and net cash of £14.6 million (2016: £8.8 million).
The total number of Ordinary Shares in issue as at the date of this announcement is 22,352,987 (excluding treasury shares) and there are approximately 603 registered shareholders. The market capitalisation of Bioquell based on the mid-market price of a Bioquell Share of 420 pence as at the close of business on 29 November 2018 (being the last Business Day prior to this announcement) was approximately £93.88 million.
12. Bioquell Share Schemes
Participants in the Bioquell Share Schemes will be contacted regarding the effect of the Offer on their rights under the Bioquell Share Schemes. In accordance with Rule 15 of the Takeover Code, Ecolab Offeror will make appropriate proposals to such participants in due course and details of these proposals will be set out in the Scheme Document.
13. Financing
The consideration payable under the Offer will be financed using existing cash resources of the Ecolab Group.
EY, who have been engaged by Ecolab and Ecolab Offeror to make the cash confirmation statement, is satisfied that sufficient resources are available to satisfy in full the cash consideration payable to Bioquell Shareholders under the terms of the Offer.
14. Offer-related arrangements
Confidentiality Agreement
Ecolab and Bioquell entered into a confidentiality agreement dated 14 August 2018 pursuant to which Ecolab agreed to keep confidential information about Bioquell and not to disclose to third parties (other than permitted recipients) confidential information provided by Bioquell unless required by law or regulation. These confidential obligations remain in force until the earlier of (a) the Scheme becoming effective and (b) a period of two years expiring on 14 August 2020. Ecolab has also agreed not to solicit employees of Bioquell for a period expiring on the earlier of (a) termination of the confidentiality agreement in accordance with its terms and (b) 14 August 2019.
15. Structure of the Offer
It is intended that the Offer will be effected by means of a Court-sanctioned scheme of arrangement under Part 26 of the Companies Act, although Ecolab Offeror reserves the right to elect to implement the offer by means of a Takeover Offer (subject to Panel consent).
The purpose of the Scheme is for Ecolab Offeror to become the holder of the entire issued and to be issued ordinary share capital of Bioquell. Following the Scheme becoming effective, the Scheme Shares will be transferred to Ecolab Offeror, in consideration for which Scheme Shareholders whose names appear on the register of members of Bioquell at the Scheme Record Time will receive 590 pence per Scheme Share in cash on the basis set out in paragraph 2 of this announcement.
Ordinary Shares issued after the Scheme Record Time will not be subject to the Scheme. Accordingly, it is proposed that the Bioquell articles of association be amended so that Ordinary Shares issued after the Scheme Record Time other than to Ecolab Offeror will be automatically acquired by Ecolab Offeror on the same terms as under the Scheme.
The Offer will be subject to the Conditions and further terms set out in Appendix I to this announcement and to be set out in the Scheme Document and the Forms of Proxy. The Offer is conditional upon the Scheme becoming unconditional and effective, subject to the Takeover Code, on or before the Long-Stop Date or such later date (if any) as Ecolab Offeror and Bioquell may agree and the Panel and the Court may allow. In summary, the Scheme will be conditional upon:
- the approval of a majority in number of the Scheme Shareholders present and voting (and entitled to vote), either in person or by proxy, at the Court Meeting (or any adjournment thereof), representing not less than 75 per cent. in value of the Scheme Shares held by such Scheme Shareholders and such Court Meeting being held on or before the date being 22 days after the expected date of the Court Meeting (to be set out in the Scheme Document) or such later date (if any) as Ecolab Offeror and Bioquell may agree;
- the resolutions required to approve and implement the Scheme, as set out in the notice of the General Meeting (including, without limitation, the special resolution to implement the Scheme), being duly passed by the requisite majorities of Bioquell Shareholders at the General Meeting (or at any adjournment thereof) and such General Meeting being held on or before the date being 22 days after the expected date of the General Meeting (to be set out in the Scheme Document) or such later date (if any) as Ecolab Offeror and Bioquell may agree; and
- the sanction of the Scheme by the Court (without modification or with modification on terms acceptable to Ecolab Offeror and Bioquell) and the delivery of a copy of the Court Order to the Registrar of Companies and the Court Hearing being held on or before the date being 22 days after the expected date of such hearing (to be set out in the Scheme Document) or such later date (if any) as Ecolab Offeror and Bioquell may agree.
The deadlines for the timing of the Court Meeting, the General Meeting and the Court Hearing to approve the Scheme as set out above may be waived by Ecolab Offeror, and the Long-Stop Date may be extended by agreement between Bioquell and Ecolab Offeror (with the consent of the Panel and, if required, the approval of the Court).
Once the necessary approvals from Bioquell Shareholders and the Court have been obtained and the other Conditions have been satisfied or (where applicable) waived, the Scheme must be sanctioned by the Court at the Court Hearing. The Scheme shall then become effective upon delivery of the Court Order to the Registrar of Companies following the Court Hearing.
If the Scheme is not effective by the Long-Stop Date (or such later date (if any) as Bioquell and Ecolab Offeror may, with the consent of the Panel, agree and (if required) the Court may allow), the Scheme will not be implemented and the Offer will not proceed.
Upon the Scheme becoming effective, it shall be binding on all Bioquell Shareholders, irrespective of whether or not they attended or voted at the Court Meeting or the General Meeting.
The Scheme Document will include full details of the Scheme, together with notices of the Court Meeting and the General Meeting and an indicative timetable. It is expected that the Scheme Document and the Forms of Proxy accompanying the Scheme Document will be published as soon as reasonably practicable and, in any event within 28 days of this announcement (unless Ecolab Offeror and Bioquell otherwise agree, and the Panel consents, to a later date). The Scheme Document and Forms of Proxy will be made available to all Bioquell Shareholders at no charge to them.
16. Disclosure of interests in Bioquell
As at the close of business on 29 November 2018, being the last Business Day prior to the date of this announcement, save for the irrevocable undertakings and the letter of intent referred to in paragraph 9 above, none of Ecolab, any Ecolab Director, Ecolab Offeror, or any Ecolab Offeror Director or, so far as Ecolab Offeror is aware, any other person acting in concert (within the meaning of the Takeover Code) with Ecolab Offeror:
- had an interest in, or right to subscribe for, relevant securities of Bioquell;
- had any short position in (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 of, relevant securities of Bioquell;
- had procured an irrevocable commitment or letter of intent to accept the terms of the Offer in respect of relevant securities of Bioquell; or
- had borrowed or lent any Bioquell Shares.
Furthermore, save for the irrevocable undertakings and the letter of intent described in paragraph 9 above, no arrangement exists between Ecolab Offeror or Bioquell or a person acting in concert with Ecolab Offeror or Bioquell in relation to Bioquell Shares. For these purposes, an "arrangement" includes any indemnity or option arrangement, any agreement or any understanding, formal or informal, of whatever nature, relating to Bioquell Shares which may be an inducement to deal or refrain from dealing in such securities.
17. Delisting
Prior to the Scheme becoming effective applications will be made to the UK Listing Authority for the cancellation of the listing of Bioquell Shares on the Official List and to the London Stock Exchange for the cancellation of trading of Bioquell Shares on the Main Market, with effect as of or shortly following the Effective Date.
The last day of dealings in, and registrations of transfers of, Bioquell Shares is expected to be the Business Day immediately prior to the Effective Date and no transfers of Bioquell Shares will be registered after that date.
On the Effective Date, share certificates in respect of Bioquell Shares will cease to be valid and should be destroyed. In addition, on the Effective Date, entitlements to Bioquell Shares held within the CREST system will be cancelled.
18. General
Ecolab Offeror reserves the right to elect, with the consent of the Panel, to implement the Offer by way of a Takeover Offer rather than a Scheme. In such event, the Offer will be implemented on substantially the same terms, subject to appropriate amendments, so far as applicable, as those which would apply to the Scheme, including (without limitation) an acceptance condition set at 90 per cent of the shares to which such offer relates (or such lower percentage, being more than 50 per cent of the Bioquell Shares carrying voting rights, as Ecolab Offeror may decide).
N+1 Singer, BGL and EY have each given and not withdrawn their consent to the publication of this announcement with the inclusion herein of the references to their names in the form and context in which they appear.
19. Documents published on websites
Copies of the following documents will be made available on Bioquell’s website and Ecolab’s website at http://www.bioquellplc.com/investors and https://investor.ecolab.com respectively by no later than 12 noon on 3 December 2018 until the end of the Offer:
- this announcement;
- the irrevocable undertakings and the letter of intent referred to in paragraph 9 above; and
- the confidentiality agreement referred to in paragraph 14 above.
Neither the contents of Bioquell’s and Ecolab’s websites, nor the content of any other website accessible from hyperlinks on either such website, is incorporated into or forms part of, this announcement.
| Enquiries: | ||
| Ecolab Inc. | Tel: +1 (651) 250 2809 | |
| Mike Monahan, Senior Vice President - External Relations | ||
| Bioquell plc | Tel: 01264 835900 | |
| Ian Johnson, Executive Chairman | ||
| Michael Roller, Group Finance Director | ||
| Nplus1 Singer Advisory LLP, Financial Adviser for the purposes of Rule 3 of the Takeover Code and broker for Bioquell | Tel: 0203 205 7500 | |
|
Mark Taylor
James White George Tzimas |
||
| Brown, Gibbons, Lang & Company Securities, Inc., Joint Financial Adviser to Bioquell | Tel: +1 (312) 658 1600 | |
|
John Riddle
Kyle Brown |
APPENDIX I
CONDITIONS AND FURTHER TERMS OF THE OFFER AND
THE SCHEME
Part A: Conditions of the Offer and the Scheme
1. The Offer will be conditional upon the Scheme becoming unconditional and effective, subject to the Takeover Code, on or before the Long-Stop Date or such later date (if any) as Ecolab Offeror and Bioquell may, with the consent of the Panel, agree and (if required) the Court may approve.
2. The Scheme will be subject to the following conditions:
(i) its approval by a majority in number representing not less than 75 per cent. in value of the Scheme Shareholders present and voting (and entitled to vote), in person or by proxy, at the Court Meeting and at any separate class meeting which the Court may require (or, in either case, any adjournment thereof) and (ii) such Court Meeting being held on or before the 22nd day after the expected date of the Court Meeting to be set out in the Scheme Document (or such later date as may be agreed by Ecolab Offeror and Bioquell and the Court may allow);
(ii) the resolutions required to approve and implement the Scheme being duly passed by Bioquell Shareholders by the requisite majority or majorities at the General Meeting (or any adjournment thereof) and (ii) such General Meeting being held on or before the 22nd day after the expected date of the General Meeting to be set out in the Scheme Document (or such later date as may be agreed by Ecolab Offeror and Bioquell and the Court may allow); and
(iii) the sanction of the Scheme by the Court (with or without modification but subject to any modification being on terms acceptable to Bioquell and Ecolab Offeror) and the delivery of a copy of the Court Order to the Registrar of Companies and (ii) the Court Hearing being held on or before the 22nd day after the expected date of such Court Hearing to be set out in the Scheme Document (or such later date as may be agreed by Ecolab Offeror and Bioquell and the Court may allow).
3. Subject as stated in Part B below and to the requirements of the Panel, the Offer will be conditional upon the following Conditions and, accordingly, the Court Order will not be delivered to the Registrar of Companies unless such Conditions (as amended if appropriate) have been satisfied (where capable of satisfaction) and continue to be satisfied or, where relevant, waived:
Notifications, waiting periods and authorisations
3.1 All material notifications, filings or applications which are necessary having been made in connection with the Offer and all necessary waiting periods (including any extensions thereof) under any applicable legislation or regulation of any jurisdiction having expired, lapsed or been terminated (as appropriate) and all statutory and regulatory obligations in any relevant jurisdiction having been complied with in respect of the Offer and the acquisition or the proposed acquisition of any shares or other securities in, or control or management of, Bioquell or any other member of the Wider Bioquell Group by any member of the Wider Ecolab Group, in each case where the absence of such notification, filing or application would have a material adverse effect on the Wider Ecolab Group or the Wider Bioquell Group in each case taken as a whole, and all Authorisations necessary in respect thereof having been obtained in terms and in a form reasonably satisfactory to Ecolab Offeror from all appropriate Third Parties or (without prejudice to the generality of the foregoing) from any person or bodies with whom any member of the Wider Bioquell Group or the Wider Ecolab Group has entered into contractual arrangements and all such Authorisations necessary to carry on the business of any member of the Wider Bioquell Group in any jurisdiction remaining in full force and effect at the time at which the Offer becomes otherwise wholly unconditional and no notice of an intention to revoke, suspend, restrict, modify or not to renew such Authorisations having been made where, in each case absence of such Authorisation would have a material adverse effect on the Wider Bioquell Group or the Wider Ecolab Group in each case taken as a whole;
Certain matters arising as a result of any arrangement, agreement, etc.
3.2 save as Disclosed, there being no provision of any arrangement, agreement, lease, licence, franchise, permit or other instrument to which any member of the Wider Bioquell Group is a party or by or to which any such member or any of its assets is or may be bound, entitled or be subject or any event or circumstance, which, as a consequence of the Offer or the acquisition or the proposed acquisition by any member of the Wider Ecolab Group of any shares or other securities (or the equivalent) in Bioquell or because of a change in the control or management of any member of the Wider Bioquell Group or otherwise, would or might reasonably be expected to result in, to an extent in any such case which is material in the context of the Wider Bioquell Group taken as a whole:
3.2.1 any monies borrowed by, or any other indebtedness, actual or contingent, of, or any grant available to, any member of the Wider Bioquell Group being or becoming repayable, or capable of being declared repayable, immediately or prior to its or their stated maturity date or repayment date, or the ability of any such member to borrow monies or incur any indebtedness being withdrawn or inhibited or being capable of becoming or being withdrawn or inhibited;
3.2.2 the creation or enforcement of any mortgage, charge or other security interest over the whole or any part of the business, property or assets of any member of the Wider Bioquell Group or any such mortgage, charge or other security interest (whenever created, arising or having arisen) becoming enforceable;
3.2.3 any such arrangement, agreement, lease, licence, franchise, permit or other instrument being terminated or the rights, liabilities, obligations or interests of any member of the Wider Bioquell Group being adversely modified or adversely affected or any obligation or liability arising or any adverse action being taken or arising thereunder;
3.2.4 any liability of any member of the Wider Bioquell Group to make any severance, termination, bonus or other payment to any of its directors, or other officers;
3.2.5 any member of the Wider Bioquell Group ceasing to be able to carry on business under any name under which it presently carries on business;
3.2.6 the value of, or the financial or trading position of any member of the Wider Bioquell Group being prejudiced or adversely affected; or
3.2.7 the creation of any liability (actual or contingent) by any member of the Wider Bioquell Group other than trade creditors or other liabilities incurred in the ordinary course of business,
and no event having occurred which, under any provision of any arrangement, agreement, licence, permit, franchise, lease or other instrument to which any member of the Wider Bioquell Group is a party or by or to which any such member or any of its assets are bound, entitled or subject, would or might reasonably be expected to result in any of the events or circumstances as are referred to in Conditions 3.2.1 to 3.2.7 to an extent in any such case which is material in the context of the Wider Bioquell Group taken as a whole;
Certain events occurring since 30 June 2018:
3.3 save as Disclosed, no member of the Wider Bioquell Group having since 30 June 2018:
3.3.1 issued or agreed to issue or authorised or announced its intention to authorise or propose the issue, of additional shares of any class, or securities or securities convertible into, or exchangeable for, or rights, warrants or options to subscribe for or acquire, any such shares, securities or convertible securities or transferred or sold or agreed to transfer or sell or authorised or proposed the transfer or sale of Ordinary Shares out of treasury (except, in each case, where relevant, as between Bioquell and wholly owned subsidiaries of Bioquell or between the wholly owned subsidiaries of Bioquell and except for the issue or transfer out of treasury of Ordinary Shares on the exercise of employee share options or vesting of employee share awards in the ordinary course under the Bioquell Share Schemes);
3.3.2 recommended, declared, paid or made or proposed to recommend, declare, pay or make any bonus, dividend or other distribution (whether payable in cash or otherwise) other than dividends (or other distributions whether payable in cash or otherwise) lawfully paid or made by any wholly owned subsidiary of Bioquell to Bioquell or any of its wholly owned subsidiaries;
3.3.3 other than pursuant to the Offer (and except for transactions between Bioquell and its wholly owned subsidiaries or between the wholly owned subsidiaries of Bioquell and transactions in the ordinary course of business) implemented, effected, authorised or announced its intention to implement, effect or authorise any merger, demerger, reconstruction, amalgamation, scheme, commitment or acquisition or disposal of assets or shares or loan capital (or the equivalent thereof) in any undertaking or undertakings to an extent in any such case which is material in the context of the Wider Bioquell Group taken as a whole;
3.3.4 except for transactions in the ordinary course of business or between the Wider Bioquell Group and its wholly owned subsidiaries, or between such subsidiaries, disposed of, or transferred, mortgaged or created any security interest over any material asset or any right, title or interest in any material asset or authorised or announced any intention to do so;
3.3.5 issued, authorised or announced an intention to authorise the issue of or made any change in or to the terms of any debentures or become subject to any contingent liability or (other than trade credit incurred in the ordinary course of business) incurred or increased any indebtedness except as between Bioquell and any of its wholly owned subsidiaries or between such subsidiaries which in any case is material in the context of the Wider Bioquell Group taken as a whole;
3.3.6 entered into or varied or authorised or announced its intention, other than in the ordinary course of business, to enter into or vary any material contract, arrangement, agreement, transaction or commitment (whether in respect of capital expenditure or otherwise) which is of a long term, unusual or onerous nature or magnitude to an extent in any such case which is material in the context of the Wider Bioquell Group taken as a whole;
3.3.7 entered into or varied the terms of, or made any offer (which remains open for acceptance) to enter into or vary to a material extent the terms of any contract, service agreement, commitment or arrangement with any director of Bioquell except for salary increases, bonuses or variation of terms, in each case, in the ordinary and usual course of business and consistent with past practice;
3.3.8 proposed, agreed to provide or modified the terms of any share option scheme, incentive scheme or other benefit relating to the employment or termination of employment of any employee of the Wider Bioquell Group (in a manner which is material in the context of the Wider Bioquell Group taken as a whole);
3.3.9 purchased, redeemed or repaid or announced any proposal to purchase, redeem or repay any of its own shares or other securities or reduced or, except in respect of the matters mentioned in sub-paragraph 3.3.1 above, made any other change to any part of its share capital (other than pursuant to the implementation of the Offer);
3.3.10 (other than in respect of claims between Bioquell and any wholly owned subsidiaries of Bioquell) waived, compromised or settled any claim which is material in the context of the Wider Bioquell Group taken as a whole;
3.3.11 terminated or varied the terms of any agreement or arrangement between any member of the Wider Bioquell Group and any other person in a manner which would or might reasonably be expected to have a material adverse effect on the financial position of the Wider Bioquell Group taken as a whole;
3.3.12 save as disclosed on publicly available registers or as envisaged in accordance with the terms of the Scheme made any alteration to its memorandum or articles of association or other incorporation documents;
3.3.13 made or agreed or consented to any material change to the terms of the trust deeds and rules constituting the pension scheme(s) established by any member of the Wider Bioquell Group for its directors, employees or their dependants or to the contributions payable to any such scheme(s) 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 to the basis upon which the liabilities (including pensions) of such pension schemes are funded or made, or agreed or consented to;
3.3.14 been unable, or admitted in writing that it is unable, to pay its debts or commenced negotiations with one or more of its creditors with a view to rescheduling or restructuring any of its indebtedness, 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;
3.3.15 (other than in respect of a member of the Wider Bioquell Group which is dormant and was solvent at the relevant time) taken any steps, corporate action or had any legal proceedings instituted or threatened in writing against it in relation to the suspension of payments, a moratorium of any indebtedness, its winding-up (voluntary or otherwise), dissolution, reorganisation or for the appointment of a receiver, administrator, manager, administrative receiver, trustee or similar officer of all or any material part of its assets or revenues or any analogous or equivalent steps or proceedings in any jurisdiction or appointed any analogous person in any jurisdiction or had any such person appointed (in any case to an extent which is material in the context of the Wider Bioquell Group taken as a whole);
3.3.16 made, authorised or announced an intention to propose any change in its loan capital to an extent in any such case which is material in the context of the Wider Bioquell Group taken as a whole; or
3.3.17 entered into any agreement, arrangement, commitment or contract or passed any resolution or made any offer (which remains open for acceptance) with respect to or announced an intention to, or to propose to, effect any of the transactions, matters or events referred to in this Condition 3.3;
No adverse change, litigation, regulatory enquiry or similar
3.4 save as Disclosed, since 30 June 2018:
3.4.1 no adverse change having occurred in the business, assets, financial or trading position or profits of any member of the Wider Bioquell Group which is material in the context of the Wider Bioquell Group taken as a whole;
3.4.2 no litigation, arbitration proceedings, prosecution or other legal proceedings having been threatened in writing, announced or instituted by or against or remaining outstanding against or in respect of, any member of the Wider Bioquell Group or to which any member of the Wider Bioquell Group is or may become a party (whether as claimant, defendant or otherwise) having been threatened, announced, instituted or remaining outstanding by, against or in respect of, any member of the Wider Bioquell Group, in each case which is material in the context of the Wider Bioquell Group taken as a whole;
3.4.3 no enquiry, review or investigation by, or complaint or reference to, any Third Party against or in respect of any member of the Wider Bioquell Group having been threatened in writing, announced or instituted or remaining outstanding by, against or in respect of any member of the Wider Bioquell Group, in each case which is material in the context of the Wider Bioquell Group taken as a whole;
3.4.4 no contingent or other liability in respect of any member of the Wider Bioquell Group having arisen or increased other than in the ordinary course of business which is reasonably likely to materially affect adversely the business, assets, financial or trading position or profits of any member of the Wider Bioquell Group to an extent in any such case which is material in the context of the Wider Bioquell Group taken as a whole; and
3.4.5 no steps having been taken and no omissions having been made which are reasonably likely to result in the withdrawal, cancellation, termination or modification of any licence held by any member of the Wider Bioquell Group which is necessary for the proper carrying on of its business and the withdrawal, cancellation, termination or modification of which might reasonably be expected to have a material adverse effect on the Wider Bioquell Group taken as a whole;
No discovery of certain matters regarding information, liabilities and environmental issues
3.5 save as Disclosed, Ecolab Offeror not having discovered:
3.5.1 that any financial, business or other information concerning the Wider Bioquell Group publicly announced prior to the date of this announcement or disclosed at any time to any member of the Wider Ecolab Group by or on behalf of any member of the Wider Bioquell Group prior to the date of this announcement is materially misleading, contains a material misrepresentation of any fact, or omits to state a fact necessary to make that information not misleading (in any case to an extent which is material in the context of the Wider Bioquell Group taken as a whole);
3.5.2 that any member of the Wider Bioquell Group is, otherwise than in the ordinary course of business, subject to any liability, contingent or otherwise and which is material in the context of the Wider Bioquell Group taken as a whole;
3.5.3 that any past or present member of the Wider Bioquell Group has not complied in any material respect with all applicable legislation, regulations of any jurisdiction or any notice or requirement of any Authorisations relating to the use, treatment, storage, carriage, disposal, discharge, spillage, release, leak or emission of any waste or hazardous substance or any substance likely to impair the environment (including property) or harm human health or otherwise relating to environmental matters or the health and safety of humans, which non-compliance would be likely to give rise to any material liability including any penalty for non-compliance (whether actual or contingent) on the part of any member of the Wider Bioquell Group (in any case to an extent which is material in the context of the Wider Bioquell Group taken as a whole);
3.5.4 that there has been a material disposal, discharge, spillage, accumulation, release, leak, emission or the migration, production, supply, treatment, storage, transport or use of any waste or hazardous substance or any substance likely to impair the environment (including any property) or harm human health which (whether or not giving rise to non-compliance with any law or regulation), would be likely to give rise to any material liability (whether actual or contingent) on the part of any member of the Wider Bioquell Group (in any case to an extent which is material in the context of the Wider Bioquell Group taken as a whole); or
3.5.5 that there is or is reasonably likely to be any material obligation or liability (whether actual or contingent) or requirement to make good, remediate, repair, reinstate or clean up any property, asset or any controlled waters currently or previously owned, occupied, operated or made use of or controlled by any past or present member of the Wider Bioquell Group, under any environmental legislation, common law, regulation, notice, circular, Authorisation or order of any Third Party in any jurisdiction or to contribute to the cost thereof or associated therewith or indemnify any person in relation thereto (in any case to an extent which is material in the context of the Wider Bioquell Group taken as a whole);
Anti-corruption and sanctions
3.6 except as Disclosed, Ecolab Offeror not having discovered that:
3.6.1 any past or present member, director, officer or employee of the Wider Bioquell Group or any person that performs or has performed services for or on behalf of any such company is or has, at any time during the course of such person's employment with, or performance of services for or on behalf of, any member of the Wider Bioquell Group, engaged in any activity, practice or conduct (or omitted to take any action) in contravention of the UK Bribery Act 2010, the US Foreign Corrupt Practices Act of 1977, as amended or any other applicable anti-corruption legislation; or
3.6.2 any past or present member, director, officer or employee of the Wider Bioquell Group or any person that performs or has performed services for or on behalf of any such company has, during the course of such person's employment with, or performance of services for or on behalf of, any member of the Wider Bioquell Group, engaged in any activity or business with, or made any investments in, or made any funds or assets available to, or received any funds or assets from any government, entity or individual covered by any of the economic sanctions administered by the United Nations or the European Union (or any of their respective member states) or the United States Office of Foreign Assets Control or any other governmental or supranational body or authority in any jurisdiction; and
No criminal property
3.7 except as Disclosed, Ecolab Offeror not having discovered that any asset of any member of the Wider Bioquell Group constitutes criminal property as defined by Section 340(3) of the Proceeds of Crime Act 2002 (but disregarding paragraph (b) of that definition).
Part B: Further terms of the Offer
Each of the Conditions shall be regarded as a separate Condition and shall not be limited by reference to any other Condition.
To the extent permitted by law and subject to the requirements of the Panel, Ecolab Offeror reserves the right to waive:
- the deadline set out in the Condition in paragraph 1 of Part A and any of the deadlines set out in the Conditions in paragraph 2 of Part A for the timing of the Court Meeting, General Meeting and the Court Hearing. If any such deadline is not met, Ecolab Offeror shall make an announcement by 8.00 am on the Business Day following such deadline confirming whether it has invoked or waived the relevant Condition or agreed with Bioquell to extend the deadline in relation to the relevant Condition; and
- in whole or in part, all or any of the Conditions in paragraphs 3.1 to 3.7 (inclusive) of Part A.
Ecolab Offeror 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 the Conditions by a date earlier than the latest date for the fulfilment of that Condition notwithstanding that the other Conditions may at such earlier date have been waived or fulfilled and that there are at such earlier date no circumstances indicating that any of such Conditions may not be capable of fulfilment.
If Ecolab Offeror is required by the Panel to make an offer for Ordinary Shares under the provisions of Rule 9 of the Takeover Code, Ecolab Offeror may make such alterations to any of the above Conditions and terms of the Offer as are necessary to comply with the provisions of that Rule.
The Offer shall lapse and the Scheme shall not become effective if:
- in so far as the Offer or any matter arising from or relating to the Scheme or Offer constitutes a concentration with a Community dimension within the scope of the EC Regulation, the European Commission either initiates proceedings under Article 6(1)(c) of the EC Regulation or makes a referral to a competent authority in the United Kingdom under Article 9(1) of the EC Regulation and there is then a CMA Phase 2 Reference; or
- in so far as the Offer or any matter arising from the Scheme or Offer does not constitute a concentration with a Community dimension within the scope of the EC Regulation the Scheme or Offer or any matter arising from or relating to the Offer becomes subject to a CMA Phase 2 Reference,
in either case, before the date of the Court Meeting.
Ecolab Offeror reserves the right to elect, with the consent of the Panel, to implement the Offer by way of a takeover offer. In such event, the Offer will be implemented on substantially the same terms, subject to appropriate amendments, so far as applicable, as those which would apply to the Scheme, including (without limitation) an acceptance condition set at 90 per cent. of the shares to which such offer relates (or such lower percentage, being more than 50 per cent. of the Bioquell Shares carrying voting rights, as Ecolab Offeror may decide)(the "Takeover Offer Acceptance Condition").
The availability of the Offer to Overseas Shareholders and the distribution of this document in, into or from jurisdictions other than the United Kingdom may be restricted by the laws of those jurisdictions and therefore persons into whose possession this document comes should inform themselves of, and observe, any such restrictions.
Unless otherwise determined by Ecolab Offeror or required by the Takeover Code and permitted by applicable law and regulation, 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 (including, without limitation, facsimile transmission, telex, telephone, internet or other forms of electronic transmission) of interstate or foreign commerce of, or by 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.
Under Rule 13.5(a) of the Takeover Code, Ecolab Offeror may not invoke a condition to the Offer so as to cause the Offer not to proceed, to lapse or to be withdrawn unless the circumstances which give rise to the right to invoke the condition are of material significance to Ecolab Offeror in the context of the Offer. The Conditions contained in paragraphs 1 and 2 of Part A and, if applicable, the Takeover Offer Acceptance Condition set out in this Part B are not subject to this provision of the Takeover Code.
Under Rule 13.6 of the Takeover Code, Bioquell may not invoke, or cause or permit Ecolab Offeror to invoke, any Condition unless the circumstances which give rise to the right to invoke the Condition are of material significance to the shareholders in Bioquell in the context of the Offer.
If any dividend or other distribution or return of capital is proposed, authorised, declared, made, paid or becomes payable by Bioquell in respect of the Ordinary Shares on or after the date of this announcement, Ecolab Offeror reserves the right to reduce the value of the consideration payable for each Ordinary Share up to the amount per Ordinary Share of such dividend, distribution or return of value. If Ecolab Offeror exercises its right to reduce the offer consideration by all or part of the amount of a dividend (or other distribution) that has not been paid, Bioquell Shareholders will be entitled to receive and retain that dividend (or other distribution) ("Subsequent Dividend"). Any exercise by Ecolab Offeror of its rights referred to in this paragraph shall be the subject of an announcement and shall not be regarded as constituting any revision or variation of the terms of the Scheme.
The Ordinary Shares which will be acquired under the Offer will be acquired with full title guarantee, fully paid and free from all liens, equities, charges, encumbrances, options, rights of pre-emption and any other third party rights and interests of any nature and together with all rights now or hereafter attaching or accruing to them, including voting rights and the right to receive and retain in full all dividends and other distributions (if any), and any other return of capital (whether by way of reduction of share capital or share premium account or otherwise), declared, made or paid on or after the date of this announcement other than any Subsequent Dividend.
Ecolab Offeror reserves the right for any other member of the Ecolab Group from time to time to implement the Offer.
The Offer is governed by the law of England and Wales and is subject to the jurisdiction of the English courts. The Offer will be made on and subject to the conditions and further terms set in this Appendix I and to be set out in the Scheme Document. The Offer will be subject to the applicable requirements of the Takeover Code, the London Stock Exchange and the UK Listing Authority. APPENDIX II
SOURCES OF INFORMATION AND BASES OF CALCULATION
The value of Bioquell as implied by the offer price stated in paragraph 2 of this announcement is based on the issued ordinary share capital as at 29 November 2018 (being the last Business Day prior to the commencement of the Offer Period), adjusted for the dilutive effect of in-the-money options, being:
- issued ordinary share capital of 22,352,987 (excluding treasury shares) (as per the confirmation by Bioquell pursuant to Rule 2.9 of the Takeover Code set out above); and
- 23,815,487 Ordinary Shares being the maximum number of ordinary shares that can be in issue following the allotment of 1,462,500 in-the-money options.
Further sources of information regarding data reported in this announcement are as follows:
- unless otherwise stated, the financial information relating to Bioquell is extracted from the audited consolidated financial statements of Bioquell for the financial year ended on 31 December 2017 or from the interim statement of Bioquell for the six month period ended on 30 June 2018;
- unless otherwise stated, the financial information relating to Ecolab is extracted from the audited consolidated financial statements of Ecolab for the financial year ended 31 December 2017;
- the Closing Price is the middle market price of a Bioquell Share at the close of business on the day to which such price relates, as derived from the Daily Official List for that day or from Bloomberg in the case of the average Closing Price for the three and six month period ended on 29 November 2018; and
- references to the market capitalisation of Ecolab have been taken from Bloomberg and are as at 29 November 2018.
APPENDIX III
IRREVOCABLE UNDERTAKINGS AND LETTER OF INTENT
The following holders or controllers of Ordinary Shares have given irrevocable undertakings (Parts A and B) or a letter of intent (Part C) to vote in favour of the Scheme at the Court Meeting and the resolutions to be proposed at the General Meeting.
Market soundings, as defined in the Market Abuse Regulation No.596/2014, were taken in respect of the Offer with the result that certain persons became aware of inside information, as permitted by the Market Abuse Regulation No.596/2014. That inside information is set out in this announcement. Therefore, those persons that received inside information in a market sounding are no longer in possession of inside information relating to Bioquell and Ecolab and their respective securities.
PART A - Director shareholder irrevocable undertakings
| Name | Number of Ordinary Shares | % of Ordinary Shares in issue | Number of Ordinary Shares under Bioquell Share Schemes | |||
| Michael Roller | 150,106 | 0.67 | - | |||
| Michael Roller (SIPP) | 9,623 | 0.04 | - | |||
| Michael Roller (PSP nil cost options) | - | - | 90,000 | |||
| Michael Roller (ESOP) | - | - | 159,000 | |||
| Simon Constantine | 153,500 | 0.69 | ||||
| Jay LeCoque (PSP restricted stock award) (1) | - | 1.49 | 333,000 | |||
| Ian Johnson (PSP nil cost options) | - | - | 667,000 | |||
| TOTAL | 313,229 | 2.89 | 1,249,000 |
Note:
(1) The restrictions under Jay LeCoque’s PSP restricted stock award do not prevent him from voting in favour of the Scheme at the Court Meeting or the resolutions to be proposed at the General Meeting.
The undertakings listed in this Part A cease to be binding if:
- the Scheme Document is not published within 28 days of the date of this announcement (or within such longer period as the Panel may agree); or
-
the Offer is withdrawn on or before 31 March 2019, except in
circumstances where:
- the Offer is withdrawn or lapses as a result of Ecolab Offeror exercising its right to implement the Offer by way of a Takeover Offer rather than by way of a Scheme; or
- a new, revised or replacement scheme of arrangement pursuant to Part 26 of the Companies Act or takeover offer (within the meaning of section 974 of the Companies Act) is or has been announced by Ecolab Offeror, in accordance with Rule 2.7 of the Takeover Code, within 10 Business Days after any such lapse or renewal.
PART B - Non-director shareholder irrevocable undertakings
| Name | Number of Ordinary Shares | % of Ordinary Shares in issue | ||
| Harwood Capital Nominees Limited | 55,000 | 0.25 | ||
| Oryx International Growth Fund Limited | 1,500,000 | 6.71 | ||
| North Atlantic Smaller Companies Investment Trust plc | 4,750,000 | 21.25 | ||
| Marlborough Nano-Cap Growth Fund | 420,000 | 1.88 | ||
| John Salkeld | 1,064,674 | 4.76 | ||
| Andrew Muir | 1,246,000 | 5.57 | ||
| Ann Muir | 140,082 | 0.63 | ||
| Susan Roller | 13,381 | 0.06 | ||
| Joanna Constantine | 81,500 | 0.36 | ||
| TOTAL | 9,270,637 | 41.47 |
The undertakings listed in this Part B cease to be binding if:
- the Scheme Document is not published within 28 days of the date of this announcement (or within such longer period as the Panel may agree); or
-
the Offer is withdrawn on or before 31 March 2019, except in
circumstances where:
- the Offer is withdrawn or lapses as a result of Ecolab Offeror exercising its right to implement the Offer by way of a Takeover Offer rather than by way of a Scheme; or
- a new, revised or replacement scheme of arrangement pursuant to Part 26 of the Companies Act or takeover offer (within the meaning of section 974 of the Companies Act) is or has been announced by Ecolab Offeror, in accordance with Rule 2.7 of the Takeover Code, within 10 Business Days after any such lapse or renewal.
PART C - Letter of intent
Liontrust Asset Management has given a letter of intent to vote in favour of the Scheme at the Court Meeting and the resolutions to be proposed at the General Meeting in respect of 2,399,300 Ordinary Shares, representing approximately 10.73 per cent. of the Ordinary Shares in issue.
APPENDIX IV
DEFINITIONS
The following definitions apply throughout this announcement unless the context requires otherwise.
| "£", or "pence" | the lawful currency of the United Kingdom; | |
| "Authorisations" | regulatory authorisations, orders, recognitions, grants, determinations, consents, clearances, confirmations, certificates, licences, permissions, exemptions or approvals; | |
| "BGL" | Brown, Gibbons, Lang & Company Securities, Inc.; | |
| "Bioquell" or "Company" | Bioquell plc, a public limited company incorporated in England and Wales registered with registered number 00206372; | |
| "Bioquell Directors" | the directors of Bioquell as at the date of this announcement; | |
| "Bioquell Group" or "Group" | Bioquell and its subsidiary undertakings; | |
| "Bioquell Shares" | the ordinary shares of ten pence each in the capital of Bioquell; | |
| "Bioquell Shareholders" or "Shareholders" | the holders of Ordinary Shares; | |
| "Bioquell Share Schemes" | means the Bioquell 1996 Sharesave Scheme, the Bioquell Performance Share Plan, the Bioquell Executive Share Option Scheme (No.1) and the Bioquell Executive Share Option Scheme (No.2); | |
| "Closing Price" | the middle market price of a Bioquell Share at the close of business on the day to which such price relates, as derived from the Daily Official List for that day or from Bloomberg in the case of the average Closing Price for the three and six month period ended on 29 November 2018; | |
| "CMA Phase 2 Reference" | a reference of the Offer to the chair of the Competition and Markets Authority for the constitution of a group under Schedule 4 to the Enterprise and Regulatory Reform Act 2013; | |
| "Companies Act" | the Companies Act 2006, as amended from time to time; | |
| "Competition and Markets Authority" | a UK statutory body established under the Enterprise and Regulatory Reform Act 2013; | |
| "Conditions" | the conditions to the Offer and the Scheme, as set out in Appendix I of this announcement and to be set out in the Scheme Document; | |
| "Court" | the High Court of Justice in England and Wales; | |
| "Court Hearing" | the hearing of the Court to sanction the Scheme under section 899 of the Companies Act and if such hearing is adjourned reference to commencement of any such hearing shall mean the commencement of the final adjournment thereof; | |
| "Court Meeting" | the meeting of Bioquell Shareholders (and any adjournment thereof) to be convened pursuant to an order of the Court under section 896 of the Companies Act for the purposes of considering and, if thought fit, approving the Scheme (with or without amendment) including any adjournment thereof, notice of which is to be contained in the Scheme Document; | |
| "Court Order" | the order of the Court sanctioning the Scheme under section 899 of the Companies Act; | |
| "CREST" | a relevant system (as defined in the Regulations) in respect of which Euroclear UK & Ireland Limited is the Operator (as defined in the Regulations); | |
| "Daily Official List" | the daily official list of the London Stock Exchange; | |
| "Dealing Disclosure" | has the meaning given by Rule 8 of the Takeover Code; | |
|
the information fairly disclosed by or on behalf of Bioquell:
(a) in the Bioquell annual report and accounts in respect of the financial year ended 31 December 2017; (b) in the Bioquell interim statement in respect of the six month period ended on 30 June 2018; (c) in any documents in the electronic data-room established by Bioquell in connection with the Offer to which the employees, agents and advisers of Ecolab Offeror have had access on or before 5 p.m. on the Business Day prior to the date of this announcement; (d) in any public announcement by Bioquell made to a Regulatory Information Service on or before 5 p.m. on the Business Day prior to the date of this announcement; (e) in this announcement; (f) in any filings made with the Registrar of Companies and appearing in Bioquell’s file at Companies House within the last two years; or (g) as otherwise fairly disclosed to Ecolab Offeror or the Wider Ecolab Group (or their advisers) in writing prior to the date of this announcement; |
||
| "EC Regulation" | Regulation Council Regulation (EC) No 139/2004; | |
| "Ecolab" | Ecolab Inc., a company incorporated and registered in Delaware, US; | |
| "Ecolab Directors" | the directors of Ecolab as at the date of this announcement; | |
| "Ecolab Group" | Ecolab Offeror, any parent undertaking of Ecolab Offeror, and any undertaking which is a subsidiary undertaking of Ecolab Offeror or of any such parent undertaking; | |
| "Ecolab Offeror" | Ecolab U.S. 2 Inc., a company incorporated and registered in Delaware, US; | |
| "Ecolab Offeror Directors" | the directors of Ecolab Offeror as at the date of this announcement; | |
| "Effective Date" | the date on which the Scheme becomes effective in accordance with its terms or, if Ecolab Offeror elects, and the Panel consents, to implement the Offer by way of a Takeover Offer, such offer having been declared or become unconditional in all respects in accordance with the requirements of the Takeover Code; | |
| "Excluded Shares" |
any Ordinary Shares:
(a) registered in the name of, or beneficially owned by, Ecolab Offeror or any member of the Wider Ecolab Group (if any); or (b) held by the Company in treasury, at any relevant date or time; |
|
| "EY" | Ernst & Young LLP; | |
| "FCA" or "Financial Conduct Authority" | the UK Financial Conduct Authority or its successor from time to time; | |
| "Forms of Proxy" | the forms of proxy for use at the Court Meeting and the General Meeting; | |
| "General Meeting" | the general meeting of Bioquell Shareholders (and any adjournment thereof) to be convened in connection with the Scheme; | |
| "Listing Rules" | the rules and regulations made by the UK Listing Authority under Part VI of FSMA and contained in the UK Listing Authority’s publication of the same name (as amended from time to time); | |
| "London Stock Exchange" | London Stock Exchange plc, a public company incorporated in England and Wales under number 2075721; | |
| "Long-Stop Date" | 31 March 2019, or such later date, if any, as Ecolab Offeror and Bioquell may agree and, if required, the Court and the Panel may allow; | |
| "Main Market" | the London Stock Exchange’s main market for listed securities; | |
| "N+1 Singer" | Nplus1 Singer Advisory LLP of One Bartholomew Lane, London EC2N 2AX; | |
| "Offer" | the offer by Ecolab Offeror to acquire the entire issued and to be issued ordinary share capital of Bioquell at a price of 590 pence per Ordinary Share in cash to be effected by means of the Scheme or (should Ecolab Offeror so elect, subject to the consent of the Panel) by means of a Takeover Offer and, in either case, where the context admits, any subsequent variation, revision, extension or renewal thereof; | |
| "Offer Period" | the offer period (as defined by the Takeover Code) relating to Bioquell, which commenced on the date of this announcement; | |
| "Opening Position Disclosure" | has the meaning given by Rule 8 of the Takeover Code; | |
| "Ordinary Shares" | the ordinary shares of ten pence each in the capital of Bioquell; | |
| "Overseas Shareholders" | Bioquell Shareholders (or nominees of, custodians or trustees for Bioquell Shareholders) not resident in, or nationals or citizens of the United Kingdom; | |
| "Panel" | the Panel on Takeovers and Mergers; | |
| "Registrar of Companies" | the Registrar of Companies in England and Wales; | |
| "Regulations" | the Uncertificated Securities Regulations 2001 (SI2001 No. 3755), as amended from time to time; | |
| "Regulatory Information Service" | a service approved by the London Stock Exchange for the distribution to the public of announcements and included within the list maintained on the London Stock Exchange’s website; | |
| "Restricted Jurisdiction" |
any jurisdiction where the making of the Offer would:
(a) constitute a violation of the relevant laws or regulations of such jurisdiction; or (b) result in a requirement to comply with any governmental or other consent or any registration, filing or other formality which Ecolab Offeror or Bioquell regards as unduly onerous; |
|
| "Scheme" | the proposed scheme of arrangement under Part 26 of the Companies Act to effect the Offer, the full terms of which will be set out in the Scheme Document, with or subject to any modification, addition or condition which Bioquell and Ecolab Offeror may agree and, if required, the Court may approve or impose; | |
| "Scheme Document" | the document to be sent to Bioquell Shareholders, containing and setting out the Scheme, the notices convening the Court Meeting, the General Meeting and the further particulars required by Part 26 of the Companies Act; | |
| "Scheme Record Time" | the time and date specified in the Scheme Document as being the record time for the Scheme; | |
| "Scheme Shareholders" | the holders of Scheme Shares at any relevant date or time; | |
| "Scheme Shares" | the Ordinary Shares: | |
| (a) in issue at the date of the Scheme Document; | ||
| (b) (if any) issued after the date of the Scheme Document and prior to the Voting Record Time; and | ||
| (c) (if any) issued on or after the Voting Record Time and on or prior to the Scheme Record Time either on terms that the original or any subsequent holders thereof shall be bound by the Scheme, or in respect of which the holders thereof shall have agreed in writing to be bound by the Scheme, | ||
| and in each case remaining in issue at the Scheme Record Time, but excluding any Excluded Shares; | ||
| "Substantial Interest" | in relation to an undertaking, a direct or indirect interest of 20 per cent. or more of the total voting rights conferred by the equity share capital (as defined in Section 548 of the Companies Act) of such undertaking; | |
| "Takeover Code" | the City Code on Takeovers and Mergers; | |
| "Takeover Offer" | should the Offer be implemented by way of a takeover offer as defined in Chapter 3 of Part 28 of the Companies Act, the offer to be made by or on behalf of Ecolab Offeror to acquire the entire issued and to be issued share capital of Bioquell including any revision, variation, extension or renewal of such offer; | |
| "Third Party" | each of a central bank, government or governmental, quasi-governmental, supranational, statutory, regulatory, environmental, administrative, fiscal or investigative body, court, trade agency, association, institution, environmental body, or any other body or person whatsoever in any jurisdiction; | |
| "United Kingdom" or "UK" | the United Kingdom of Great Britain and Northern Ireland; | |
| "United States of America", "United States" or "US" | the United States of America, its territories and possessions, any State of the United States and the District of Columbia; | |
| "US Exchange Act" | the US Securities and Exchange Act of 1934, as amended; | |
| "Voting Record Time" | the time and date specified in the Scheme Document as being the record time for voting at the Court Meeting and the General Meeting; | |
| "Wider Bioquell Group" | Bioquell, its subsidiary undertakings, associated undertakings and any other undertakings in which that company and such undertakings (aggregating their interests) have a Substantial Interest; and | |
| "Wider Ecolab Group" | Ecolab Offeror, its parent undertakings, its subsidiary undertakings, associated undertakings and any other undertakings in which that company and such undertakings (aggregating their interests) have a Substantial Interest. |
For the purposes of this announcement, "associated undertaking", "parent undertaking", "subsidiary undertaking" and "undertaking" have the respective meanings given thereto by the Companies Act.
References to an enactment include references to that enactment as amended, replaced, consolidated or re-enacted by or under any other enactment before or after the date of this document.
All the times referred to in this announcement are London times unless otherwise stated.
References to the singular include the plural and vice versa.
View source version on businesswire.com: https://www.businesswire.com/news/home/20181129005856/en/
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