SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 6-K
Report of Foreign Private Issuer
Pursuant to Rule 13a-16 or 15d-16 of
the Securities Exchange Act of 1934
Report on Form 6-K for March 6, 2006
The BOC Group plc
Chertsey Road, Windlesham,
Surrey GU20 6HJ
England
(Name and address of registrant's principal executive office)
Indicate by check mark whether the registrant files or will file annual reports
under cover of Form 20-F or Form 40-F.
Form 20-F X Form 40-F
----- -----
Indicate by check mark if the registrant is submitting the Form 6-K in paper as
permitted by Regulation S-T Rule 101(b)(1):
Yes: |_| No: |X|
Indicate by check mark if the registrant is submitting the Form 6-K in paper as
permitted by Regulation S-T Rule 101(b)(7):
Yes: |_| No: |X|
Indicate by check mark whether the registrant by furnishing the information
contained in this form is also thereby furnishing the information to the
Commission pursuant to Rule 12g3-2(b) under the Securities Exchange Act of 1934.
Yes: |_| No: |X|
Enclosures: Announcement of recommended cash offer for The BOC Group plc by
Linde AG, dated March 6, 2006
Not for release, publication or distribution, in whole or in part, in, into or
from Canada, Australia or Japan
6 March 2006
Recommended cash offer for The BOC Group plc by Linde AG
Summary
o The boards of directors of Linde and BOC are pleased to announce that they
have reached agreement on the terms of a recommended cash offer by Linde
for the entire issued and to be issued share capital of BOC. It is intended
that the Offer will be implemented by way of a court-approved scheme of
arrangement under section 425 of the Companies Act.
o Under the terms of the Offer, BOC Shareholders will receive 1,600 pence in
cash for each BOC Share (which results in 3,200 pence in cash for each BOC
ADS). The Offer values BOC's existing issued share capital at approximately
(pound)8.2 billion.
o The Offer Price represents:
o a premium of approximately 40 per cent. to the average closing price
of 1,143 pence per BOC Share during the three months up to and
including 23 January 2006 (being the last Business Day prior to the
announcement by BOC that it had received an approach from Linde); and
o premium of approximately 39 per cent. to the closing price of 1,151
pence per BOC Share on 23 January 2006.
o A Loan Note Alternative will also be made available to all BOC Shareholders
other than to Restricted Overseas Persons and US Persons.
o The making of the Offer is subject to the satisfaction or waiver of US and
European competition authority clearance pre-conditions. If these
pre-conditions are not satisfied by 31 May 2006, BOC Shareholders will be
entitled to receive and retain an increasing proportion of the ordinary
course Second Interim Dividend, up to a maximum amount of 27 pence per BOC
Share if such pre-conditions are not satisfied by 26 July 2006.
o The directors of BOC, who have been so advised by JPMorgan Cazenove and
Merrill Lynch, consider the terms of the Offer to be fair and reasonable.
In providing their advice, JPMorgan Cazenove and Merrill Lynch have taken
into account the commercial assessments of the directors of BOC.
Accordingly, the directors of BOC intend unanimously to recommend BOC
Shareholders to vote in favour of the Scheme and the resolutions at the
Court Meeting and the EGM as they have irrevocably undertaken to do in
respect of their own beneficial shareholdings of 101,677 BOC Shares,
representing approximately 0.02 per cent. of the existing issued share
capital of BOC.
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o The transaction provides the opportunity for Linde and BOC to create a
leading worldwide focused industrial gases business with combined gas and
engineering sales of around (euro)11.9 billion. The combination of Linde
and BOC would result in a much larger, global gas player with complementary
products and geographic positions. Such a combination would be very well
positioned in the key high growth products and regions of the gases
industry and would be better able to serve its customers worldwide.
o In addition to the improved growth prospects and increased sales volume
from integrating operations and businesses in many geographical regions of
the enlarged group, Linde believes the combination creates an opportunity
to deliver synergies through the combined group, prior to any one-off
expenses, of approximately (euro)250 million per annum, to be fully
realised during 2009. These synergies would be predominantly based on joint
supply management optimisation and combined procurement volumes and a
reduction in selling, general and administrative expenses.
o Through a rapid but smooth integration and transformation, as well as the
mutual exchange of best practices in all functions, regions and market
segments, the combined group would strive to unlock value opportunities for
shareholders, customers and employees. Linde believes that the acquisition
will further enhance its proven capability to execute a profitable growth
strategy.
o Commenting on the Offer, Prof Dr-Ing Wolfgang Reitzle, Chief Executive
Officer of Linde, said:
"I am delighted that BOC's board has decided to recommend our proposed
offer. Linde and BOC are a perfect match. We will combine the best
competencies and abilities of both organisations in a single integrated
whole and we will be able to offer our customers a significantly enlarged
product range as well as comprehensive services - and we will be able to do
so worldwide. We will have an even better entrance into the international
fast-growing markets which will provide the basis for stable future
earnings and cash flows. With this acquisition, we will continue to focus
on our strategy of dynamic, earnings-based growth and achieving a sustained
creation of value. Linde and BOC have enjoyed excellent relations over many
years and we look forward to welcoming the BOC management and employees
into the enlarged Linde Group."
o Commenting on the Offer, Tony Isaac, Chief Executive Officer of BOC, said:
"Today's Offer represents an excellent opportunity for BOC Shareholders to
realise significant value in cash from their investment. The price of the
Offer is a reflection of BOC's many attractions as a business and is a
tremendous endorsement of all the hard work by BOC's people in developing
and strengthening the group over recent years. The combination of BOC and
Linde will create an even more powerful international gases group, with
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significant operations on all five continents, that will benefit both its
customers and staff in the years to come."
This summary should be read in conjunction with the full text of the following
announcement. The sources and bases of certain financial information contained
in this announcement are set out in Appendix 2. Details of the irrevocable
undertakings are set out in Appendix 4 to this announcement. Certain terms used
in this announcement are defined in Appendix 6.
There will be an analysts' conference call at 8.30 a.m. (London time) and a
press conference at 10.00 a.m. (London) today at Staedel, Duererstrasse 2, 60596
Frankfurt, Germany.
Enquiries
Linde +49 611 770 0
Harry Roegner
Uwe Wolfinger
Thomas Eisenlohr
Deutsche Bank +44 207 545 8000
(Financial adviser to Linde)
Nigel Meek
Stephan Leithner
James Arculus
Morgan Stanley +44 207 425 8000
(Financial adviser to Linde)
Dietrich Becker
Dieter Turowski
Henry Stewart
Brunswick +44 207 404 5959
(Public relations adviser to Linde)
James Bradley
BOC +44 12764 77222
Christopher Marsay
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Nigel Abbott
JPMorgan Cazenove +44 207 588 2828
(Financial adviser and corporate broker to BOC)
Mark Breuer
Barry Weir
Michael Wentworth-Stanley
Merrill Lynch +44 207 628 1000
(Financial adviser and corporate broker to BOC)
Bob Wigley
Kevin Smith
Mark Astaire
The Maitland Consultancy +44 207 379 5151
(Public relations adviser to BOC)
Neil Bennett
This announcement does not constitute an offer or invitation to purchase any
securities. BOC Shareholders are advised to read carefully the formal
documentation in relation to the Offer once it has been despatched.
Deutsche Bank, which is authorised by Bundesanstalt fur
Finanzdienstleistungsaufsicht (BaFin) and by the Financial Services Authority
(FSA) and is regulated by the FSA for the conduct of UK business, is acting
exclusively for Linde and no one else in connection with the Offer and will not
be responsible to anyone other than Linde for providing the protections afforded
to clients of Deutsche Bank nor for providing advice in connection with the
Offer.
Morgan Stanley is acting for Linde in connection with the Offer and no one else
and will not be responsible to anyone other than Linde for providing the
protections afforded to clients of Morgan Stanley or for providing advice in
relation to the Offer or any other matters referred to in this announcement.
JPMorgan Cazenove, which is regulated in the UK by the FSA, is acting
exclusively for BOC and no one else in connection with the Offer and will not be
responsible to anyone other than BOC for providing the protections afforded to
clients of JPMorgan Cazenove nor for providing advice in relation to the Offer
or any other matters referred to in this announcement.
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Merrill Lynch is acting exclusively for BOC in connection with the Offer and no
one else and will not be responsible to anyone other than BOC for providing the
protections afforded to clients of Merrill Lynch or for providing advice in
relation to the Offer or any other matters referred to in this announcement.
Unless otherwise determined by Linde and BOC, and permitted by applicable law
and regulation, the Offer, including the Loan Note Alternative, will not be
made, directly or indirectly, in or into, and will not be capable of acceptance
in or from, Canada, Australia or Japan. Accordingly, copies of this announcement
are not being, and must not be, mailed or otherwise forwarded, distributed or
sent in, into or from Canada, Australia or Japan. Custodians, nominees and
trustees should observe these restrictions and should not send or distribute
this announcement in or into Canada, Australia or Japan.
The Loan Notes to be issued in connection with the Offer have not been, nor will
they be, registered under the US Securities Act or under the securities laws of
any state or other jurisdiction of the United States (or under the securities
laws of any other jurisdiction, the residents of which Linde is advised to treat
as Restricted Overseas Persons in order to observe the laws of such jurisdiction
or to avoid the requirement to comply with any governmental or other consent or
any registration, filing or other formality which Linde regards as unduly
onerous); the relevant clearances have not been, and will not be, obtained from
the securities commission of any province of Canada; and no prospectus has been
lodged with, or registered by, the Australian Securities and Investments
Commission or the Japanese Ministry of Finance. Accordingly, unless otherwise
determined by Linde and BOC, and permitted by applicable law and regulation, the
Loan Notes may not be offered, sold, resold, delivered or transferred, directly
or indirectly, in or into the United States, Canada, Australia or Japan or any
other jurisdiction if to do so would constitute a violation of the relevant laws
of, or require registration thereof in, such jurisdiction or to, or for the
account or benefit of, a person located in the United States, Canada, Australia
or Japan.
Notice to US Investors in BOC: The Offer relates to the shares of a UK company
and is proposed to be made by means of a scheme of arrangement provided for
under English company law. A transaction effected by means of a scheme of
arrangement is not subject to the tender offer rules under the US Securities
Exchange Act. Accordingly, the Offer is subject to the disclosure requirements
and practices applicable in the UK to schemes of arrangement which differ from
the disclosure requirements of the US tender offer rules. Financial information
included in the relevant documentation will have been prepared in accordance
with accounting standards applicable in the UK and Germany that may not be
comparable to the financial statements of US companies. If Linde exercises its
right to implement the Offer by way of a takeover offer, the Offer will be made
in compliance with the applicable US laws and regulations.
Forward Looking Statements
This announcement includes "forward-looking statements" under United States
securities laws. These statements are based on the current expectations of the
Page 5
management of BOC and Linde and are naturally subject to uncertainty and changes
in circumstances. The forward-looking statements contained herein include
statements about the expected effects on Linde of the Offer, the expected timing
and scope of the Offer, anticipated earnings enhancements, estimated cost
savings and other synergies, costs to be incurred in achieving synergies,
potential disposals and other strategic options and all other statements in this
announcement other than historical facts. Forward-looking statements include,
without limitation, statements typically containing words such as "intends",
"expects", "anticipates", "targets", "estimates" and words of similar import. By
their nature, forward-looking statements involve risk and uncertainty because
they relate to events and depend on circumstances that will occur in the future.
There are a number of factors that could cause actual results and developments
to differ materially from those expressed or implied by such forward-looking
statements. These factors include, but are not limited to, the satisfaction of
the Pre-Conditions and the conditions to the Offer, and Linde's ability to
successfully integrate the operations and employees of BOC, as well as
additional factors, such as changes in economic conditions, changes in the level
of capital investment by the semiconductor industry, success of business and
operating initiatives and restructuring objectives, customers' strategies and
stability, changes in the regulatory environment, fluctuations in interest and
exchange rates, the outcome of litigation, government actions and natural
phenomena such as floods, earthquakes and hurricanes. Other unknown or
unpredictable factors could cause actual results to differ materially from those
in the forward-looking statements. Neither BOC nor Linde undertake any
obligation to update publicly or revise forward-looking statements, whether as a
result of new information, future events or otherwise, except to the extent
legally required.
Dealing Disclosure Requirements
Under the provisions of Rule 8.3 of the City Code, if any person is, or becomes,
"interested" (directly or indirectly) in 1 per cent. or more of any class of
"relevant securities" of BOC, all "dealings" in any "relevant securities" of BOC
(including by means of an option in respect of, or a derivative referenced to,
any such "relevant securities") must be publicly disclosed by no later than 3.30
p.m. (London time) on the London business day following the date of the relevant
transaction. This requirement will continue until the date on which the Scheme
becomes effective, lapses or is otherwise withdrawn or on which the "offer
period" otherwise ends. If two or more persons act together pursuant to an
agreement or understanding, whether formal or informal, to acquire an "interest"
in "relevant securities" of BOC, they will be deemed to be a single person for
the purpose of Rule 8.3.
Under the provisions of Rule 8.1 of the City Code, all "dealings" in "relevant
securities" of BOC by Linde or BOC, or by any of their respective "associates",
must be disclosed by no later than 12.00 noon (London time) on the London
business day following the date of the relevant transaction.
A disclosure table, giving details of the companies in whose "relevant
securities" "dealings" should be disclosed, and the number of such securities in
issue, can be found on the Panel's website at www.thetakeoverpanel.org.uk.
Page 6
"Interests in securities" arise, in summary, when a person has long economic
exposure, whether conditional or absolute, to changes in the price of
securities. In particular, a person will be treated as having an "interest" by
virtue of the ownership or control of securities, or by virtue of any option in
respect of, or derivative referenced to, securities.
Terms in quotation marks are defined in the City Code, which can also be found
on the Panel's website. If you are in any doubt as to whether or not you are
required to disclose a "dealing" under Rule 8, you should consult the Panel.
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Not for release, publication or distribution, in whole or in part,
in, into or from Canada, Australia or Japan
6 March 2006
Recommended cash offer for The BOC Group plc by Linde AG
1. Introduction
The boards of directors of Linde and BOC are pleased to announce that they have
reached agreement on the terms of a recommended cash offer by Linde for the
entire issued and to be issued share capital of BOC. It is intended that the
Offer will be implemented by way of a court-approved scheme of arrangement under
section 425 of the Companies Act.
The directors of BOC, who have been so advised by JPMorgan Cazenove and Merrill
Lynch, consider the terms of the Offer to be fair and reasonable. In providing
their advice, JPMorgan Cazenove and Merrill Lynch have taken into account the
commercial assessments of the directors of BOC. Accordingly, the directors of
BOC intend unanimously to recommend BOC Shareholders to vote in favour of the
Scheme and the resolutions at the Court Meeting and the EGM.
Linde has received irrevocable undertakings to vote in favour of the Scheme and
the resolutions at the Court Meeting and the EGM from directors of BOC in
respect of 101,677 BOC Shares, representing approximately 0.02 per cent. of the
existing issued share capital of BOC.
2. The Offer
It is intended that the Offer, the making of which will be subject to the
Pre-Conditions, will be implemented by way of a Court-approved scheme of
arrangement under section 425 of the Companies Act. Under the Scheme, which will
be subject to the conditions and further terms set out below and in Appendix 1
to this announcement and to be set out in the Scheme Document and the Form of
Election, BOC Shareholders at the Scheme Record Time will be entitled to
receive:
for each BOC Share 1,600 pence in cash
This results in 3,200 pence in cash for each BOC ADS.
The Offer values BOC's existing issued share capital at approximately (pound)8.2
billion.
The Offer Price represents:
o a premium of approximately 40 per cent. to the average closing price of
1,143 pence per BOC Share during the three months up to and including 23
January 2006 (being the last Business Day prior to the announcement by BOC
that it had received an approach from Linde); and
Page 8
o a premium of approximately 39 per cent. to the closing price of 1,151 pence
per BOC Share on 23 January 2006.
The making of the Offer is subject to the Pre-Conditions set out in Appendix 1
to this announcement, which relate to the obtaining of regulatory clearances
from the European Commission and the United States competition authorities. The
Scheme Document will not be posted unless and until such time as all the
Pre-Conditions have been satisfied or waived.
The new Shares to be issued to Linde pursuant to the Scheme and the Loan Note
Elected Shares to be acquired by Linde pursuant to the Scheme will be issued and
acquired, respectively, together with all rights now or hereafter attaching
thereto, including the right to receive and retain all dividends and other
distributions announced, declared or paid on or after the date of this
announcement, provided that BOC Shareholders may be entitled to receive and
retain the Second Interim Dividend, as described below.
If the Pre-Conditions have not been satisfied by 31 May 2006, BOC will be
permitted to pay the Second Interim Dividend to the BOC Shareholders, up to a
maximum of 27 pence per BOC Share. The amount of the Second Interim Dividend
shall be equal to 3.375 pence per BOC Share for each consecutive period of seven
days (but shall not accrue for part of such a period) during the period
commencing on 1 June 2006 and ending on the earlier of (a) 26 July 2006 and (b)
the date on which Linde announces the satisfaction of the Pre-Conditions. For
the avoidance of doubt, if the Pre-Conditions have been satisfied by 31 May
2006, no part of the Second Interim Dividend will either accrue or be paid.
3. Irrevocable Undertakings
Linde has received irrevocable undertakings to vote in favour of the Scheme and
the resolutions at the Court Meeting and the EGM from the directors of BOC in
respect of their entire holdings of 101,677 BOC Shares, representing
approximately 0.02 per cent. of the existing issued share capital of BOC. The
undertakings from the directors of BOC will cease to be binding only if:
(a) Linde announces, with the consent of the Panel and before the Scheme
Document is posted, that it does not intend to proceed with the Offer (and
no new, revised or replacement Scheme or offer is announced in accordance
with Rule 2.5 of the City Code, on terms no less favourable to BOC
Shareholders than those set out in this announcement, at the same time or
within 28 days thereafter); or
(b) the Pre-Conditions have not been satisfied (or waived) by 31 October 2006.
Further details of these irrevocable undertakings are set out in Appendix 4 to
this announcement.
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4. Information relating to Linde
Linde, headquartered in Wiesbaden, Germany, is a leading industrial gases and
engineering company. Linde is organised into the following business segments:
o Gas and Engineering comprises Linde's activities both in industrial and
medical gases and in plant construction. In the financial year to 31
December 2005, the Gas and Engineering segment had sales of (euro)5,831
million, accounting for 61 per cent. of Linde's total sales; and
o Material Handling is one of the largest manufacturers of industrial trucks
in the world and offers a comprehensive range of products: engine-powered
forklift trucks, electric trucks and warehouse equipment. In the financial
year to 31 December 2005, Material Handling had sales of (euro)3,628
million, accounting for 38 per cent. of Linde's total sales.
Linde's sales in the financial year to 31 December 2005 were 20 per cent. in
Germany, 51 per cent. in the rest of Europe, 14 per cent. in North America, 4
per cent. in South America, 8 per cent. in Asia and 3 per cent. in Australia and
Africa.
For the financial year ended 31 December 2005, Linde reported net income after
minority interests of (euro)501 million and sales of (euro)9,501 million. As at
31 December 2005, Linde had shareholders' capital and reserves excluding
minority interests of (euro)4,364 million.
Linde has a current market capitalisation of approximately (euro)7.9 billion
(based on the closing price of (euro)65.84 for each Linde share on 3 March 2006)
and is a member of Germany's DAX 30 Index (which includes the largest
publicly-owned companies in Germany).
5. Information relating to BOC
BOC, headquartered in Windlesham in the UK, is one of the world's leading
industrial gases companies. The BOC Group has an international portfolio of
companies grouped into three main lines of business:
o Process Gas Solutions encompasses large on-site supply schemes, especially
in the metals, chemicals and petroleum sectors, as well as small on-site
schemes and liquid supplies for customers in sectors such as food and
beverages, glass and minerals. In the financial year to 30 September 2005,
Process Gas Solutions had Total Revenue of (pound)1,466 million, accounting
for 32 per cent. of BOC's Total Revenue;
o Industrial and Special Products covers a range of products including
compressed gases, special and medical gases and LPG, as well as smaller
sales of bulk liquefied gases. In the financial year to 30 September 2005,
Industrial and Special Products had Total Revenue of (pound)1,722 million,
accounting for 37 per cent. of BOC's Total Revenue; and
Page 10
o BOC Edwards supplies a wide range of materials, process-enabling
equipment and services to the semi-conductor industry and its vacuum
technology business supplies vacuum pumps for a variety of industrial
and scientific applications. In the financial year to 30 September
2005, BOC Edwards had Total Revenue of (pound)826 million, accounting
for 18 per cent. of BOC's Total Revenue.
BOC also has a specialist logistics business, Gist, and the BOC Group has a 20
per cent. interest in a hospitals business based in South Africa.
BOC's sales from Process Gas Solutions and Industrial and Special Products
businesses in the financial year to 30 September 2005 were 30 per cent. in the
Americas, 25 per cent. in Europe, 35 per cent. in Asia-Pacific and 10 per cent.
in Africa.
For the financial year ended 30 September 2005, BOC reported earnings before
exceptional items of (pound)334 million and Total Revenue of (pound)4,605
million. In its interim results for the three months ended 31 December 2005, BOC
reported earnings before exceptional and certain remeasurement items of
(pound)91 million on Total Revenue of (pound)1,224 million. As at 31 December
2005, the BOC Group had shareholders' capital and reserves of (pound)2,066
million.
BOC has a current market capitalisation of approximately (pound)7.9 billion
(based on the closing price of 1,544 pence for each BOC Share on 3 March 2006).
BOC Shares are traded on the London Stock Exchange and BOC ADSs are traded on
the New York Stock Exchange.
6. Background to and reasons for the Offer
The transaction provides the opportunity for Linde and BOC to create a leading
worldwide focused industrial gases business with combined gas and engineering
sales of around (euro)11.9 billion. The combination of Linde and BOC would
result in a much larger, global gas player with complementary products and
geographic positions. Specifically, such a combination would:
o create a leading global industrial gases company:
o complementary worldwide footprint with a presence in approximately 70
countries;
o a leading market position in core product segments (cylinders, bulk
and onsite); and
o covering the key market segments in industrial gas in a leading
position (refining, manufacturing, metallurgy, food and chemicals
etc.);
o enable the combined group to improve its ability to serve its customers
worldwide:
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o strong international presence with local management, production, sales
and engineering;
o comprehensive product and service offering in industrial gases;
o joint application innovation with know-how exchange; and
o providing industrial gases and engineering from a single source; and
o enhance Linde's position in high growth areas for industrial gases:
o strong position in fast growing regions (Eastern Europe, Asia/Pacific
and South America);
o complementary development opportunities in high-growth gas segments
such as healthcare and electronics; and
o enhanced expertise in key future growth sectors such as specialty
gases and hydrogen.
In addition to the improved growth prospects of the enlarged group, Linde
believes the combination creates an opportunity to deliver synergies throughout
the combined group, prior to any one-off expenses, of approximately (euro)250
million per annum, to be fully realised during 2009. The one-off expenses
involved in obtaining such synergies are anticipated to be approximately
(euro)200 million, all of which are expected to be incurred before the end of
2008. These synergies are expected to be predominantly based on joint supply
management optimisation and combined procurement volumes and a reduction in
selling, general and administrative expenses. In addition, Linde expects to
achieve revenue synergies through increased sales volume from integrating
operations and businesses in many geographical regions, cross selling and an
enhanced global customer product and service offering.
Through a rapid but smooth integration and transformation, as well as the mutual
exchange of best practices in all functions, regions and market segments, the
combined group will strive to unlock value opportunities for shareholders,
customers and employees. Linde believes that the acquisition will further
enhance its proven capability to execute a profitable growth strategy and is
expected to be accretive in terms of earnings per share during 2008.
These statements of estimated cost savings and one-off costs for achieving them
relate to future actions and circumstances which, by their nature, involve
risks, uncertainties and other factors. Because of this, the cost savings
referred to may not be achieved, or those achieved could be materially different
from those estimated.
This statement regarding earnings enhancement is not a profit forecast and
should not be interpreted to mean that Linde's future earnings per share will
necessarily match or exceed the historical published earnings per share of Linde
or BOC.
Page 12
7. Background to and reasons for Recommending the Offer
BOC's strong financial performance over recent years has produced consistent
improvements in its return on capital employed and, with its excellent team of
employees driving the business, has delivered significant value to BOC
Shareholders.
Against this background, Linde approached BOC concerning a possible offer for
BOC in January 2006. In assessing Linde's proposal, the BOC Board has had regard
to both the price being offered and the likelihood that a transaction would
complete. The Offer is materially more attractive than Linde's initial proposal
and represents a significant premium to the BOC share price prior to the
approach from Linde. In the view of the BOC Board, it is a full and fair price,
taking into account the prospects for the BOC business and the strategic options
available to the BOC Group. In the light of the financing arrangements which
Linde has made and its plans to address any concerns raised by competition
authorities, the BOC Board believes that this is an offer that will ultimately
be delivered to BOC Shareholders.
Accordingly, the BOC Board intends to recommend that BOC Shareholders vote in
favour of the Scheme which it considers to be in the best interests of BOC
Shareholders as a whole.
8. Information on Anti-trust and Potential Disposals
Linde is confident that the Pre-Conditions will be satisfied in a timely manner,
subject to agreement with the US and European authorities on reasonable
divestments (which are expected to be limited given the complementary geographic
basis of the enlarged group). In addition to any disposals required to satisfy
anti-trust concerns or those triggered by reason of a change of control of BOC,
Linde is evaluating its strategic options regarding the Material Handling
business and the non-core assets of the combined group.
9. The Loan Note Alternative
As an alternative to some or all of the cash consideration of 1,600 pence per
BOC Share which would otherwise be receivable under the Scheme, BOC Shareholders
(other than Restricted Overseas Persons and US Persons) will be able to elect to
receive Loan Notes to be issued by Linde on the following basis:
for every (pound)1 of cash (pound)1 nominal value of Loan
consideration otherwise receivable Notes
under the Scheme
Further details of the Loan Note Alternative are included in Appendix 5 to this
announcement and full details will be included in the Scheme Document and the
Form of Election.
Page 13
10. Structure of the Offer
It is intended that the Offer will be implemented by way of a Court-sanctioned
scheme of arrangement under section 425 of the Companies Act. The Scheme will be
an agreement between BOC and the BOC Shareholders and will be subject to the
approval of the Court.
The purpose of the Scheme is to provide for Linde to become the owner of the
whole of the issued ordinary share capital of BOC. This is to be achieved by:
(a) the cancellation of the Cancellation Shares held by Cancellation
Shareholders and the application of the reserve arising from such
cancellation in paying up in full a number of new Shares (equal to the
number of Cancellation Shares) and issuing them to Linde, in consideration
for which Cancellation Shareholders, including those holding in the form of
BOC ADSs, will receive cash on the basis set out in paragraph 2 above; and
(b) the transfer by relevant BOC Shareholders to Linde of the Loan Note Elected
Shares in accordance with the Scheme in consideration for which such BOC
Shareholders will be issued Loan Notes, on the basis set out in paragraph 9
above, instead of the cash to which they would otherwise have been
entitled.
The Loan Note Elected Shares will be acquired by Linde fully paid and free from
all liens, equitable interests, charges, encumbrances and other third party
rights of any nature whatsoever and together with all rights now or hereafter
attaching thereto including the right to receive and retain all dividends and
other distributions announced, declared or paid on or after the date of this
announcement, other than the Second Interim Dividend (to the extent set out in
paragraph 2 above).
The Scheme, when proposed, will be subject to the conditions and certain further
terms set out in Appendix 1 to this announcement and to be set out in the Scheme
Document and the Form of Election. In particular, it will require the approval
of BOC Shareholders by the passing of a resolution at the Court Meeting. If the
Pre-Conditions are satisfied or waived by 31 May 2006, it is expected that the
Court Meeting will be held by the end of July 2006. However, there can be no
certainty as to whether or when the Pre-Conditions will be satisfied or waived.
The resolution at the Court Meeting must be approved by a majority in number of
BOC Shareholders present and voting, either in person or by proxy, representing
not less than 75 per cent. in value of the shares voted at the Court Meeting.
Implementation of the Scheme will also require the passing of the Special
Resolutions (requiring the approval of BOC Shareholders representing at least 75
per cent. of the votes cast at the EGM, which will be held immediately after the
Court Meeting).
Following the Meetings, and the satisfaction (or, where applicable, waiver) of
the other conditions to the Scheme, the Scheme and the related reduction of
BOC's ordinary share capital must be sanctioned by the Court and will become
effective only upon delivery to the Registrar of Companies of a copy of the
Order sanctioning the Scheme and confirming the reduction of ordinary share
capital of BOC forming part of the Scheme and, in relation to the proposed
reduction of ordinary share capital, the
Page 14
registration of such order. Upon the Scheme becoming effective, it will be
binding on all BOC Shareholders, irrespective of whether or not they attended or
voted at the Court Meeting or the EGM.
It is expected that the Scheme Document will be posted to BOC Shareholders
shortly after the satisfaction or waiver of the Pre-Conditions.
Holders of BOC ADSs will be given the opportunity to instruct the depositary of
the BOC ADS programme how to vote the BOC Shares underlying their BOC ADSs. BOC
ADS holders will receive their consideration from the depositary through the BOC
ADS programme in accordance with the terms of the BOC ADS deposit agreement.
Following the effective date of the Scheme, it is expected that the BOC ADS
programme will be terminated.
11. Management, employees and pensions
Linde attaches great importance to the skills and experience of the existing
management and employees of BOC. Linde and BOC's businesses are very
complementary on a geographic basis and Linde expects that BOC managers and
employees will play an important role in the enlarged group as well as
benefiting from greater opportunities within it. Accordingly, it is Linde's
intention to employ the best talents in the combined group. Further, Linde
confirms that the existing employment rights, including pension rights, of all
employees of BOC will be fully safeguarded.
Linde, BOC and the trustees of the BOC UK Defined Benefit Pension Schemes
(having regard to the interests of active, deferred and retired members) have
reached agreement in respect of BOC's obligations in relation to the funding of
such schemes following completion of the Offer and the agreement has been
cleared by the Pensions Regulator.
Participants in the BOC Share Schemes will be contacted regarding the effect of
the Scheme and the Offer on their rights and appropriate proposals will be made
to participants in due course (including a cashless exercise facility). Details
of these proposals will be set out in the Scheme Document.
12. Break Fee Agreement
Linde and BOC have entered into a break fee agreement on 6 March 2006 which sets
out various matters in relation to the Offer. In particular, Linde may be
required to pay to BOC an amount of (pound)75 million if:
(a) the Pre-Conditions have not been satisfied by 31 October 2006 provided that
the BOC board has continued to recommend the offer (unless it has withdrawn
its recommendation in response to a Linde Event as defined in Appendix 3);
or
(b) a Linde Event has occurred and:
(i) the Offer fails in response to such event; or
Page 15
(ii) the Offer has not become unconditional by 28 February 2007.
BOC may be required to pay to Linde an amount of (pound)75 million in
circumstances where:
(a) an independent competing offer is announced before Linde has indicated to
BOC that it does not wish to proceed with the Offer or the Offer lapses or
is withdrawn or is not made and the competing offer (or any other
independent competing offer which is announced before (A) Linde has
indicated to BOC that it does not wish to proceed with the Offer or (B) any
such earlier independent competing offer lapses, is withdrawn or is not
made) subsequently becomes unconditional in all respects or otherwise
completes; or
(b) the BOC board does not recommend the Offer or withdraws or adversely
modifies its recommendation or agrees to recommend an independent competing
offer, except in response to a Linde Event.
A summary of certain provisions of the Break Fee Agreement, including details
relating to the conditions of these payments, is set out in Appendix 3.
13. Offer financing
Linde has obtained committed funds to finance the Offer by means of a credit
agreement entered into on 3 March 2006 with, amongst others, Commerzbank
Aktiengesellschaft, Deutsche Bank AG, Dresdner Kleinwort Wasserstein, the
investment banking division of Dresdner Bank AG, Morgan Stanley Bank
International Limited and The Royal Bank of Scotland plc as mandated lead
arrangers and Deutsche Bank Luxembourg S.A. as facility agent.
It is intended to refinance the funds obtained pursuant to the Credit Agreement
through a combination of funds raised in the equity and debt capital markets
(including approximately (euro)1.4 to (euro)1.8 billion from new equity and
approximately (euro)1.2 to (euro)1.6 billion from new hybrid capital), proceeds
from disposals of selected businesses and cash flows generated in the course of
business.
The Credit Agreement provides for committed funds of approximately (euro)15
billion which will be used, among other things, to finance the Offer, refinance
certain existing indebtedness and pay transaction expenses, as well as to
provide ongoing working capital for the enlarged Linde Group.
It is Linde's intention to maintain an investment-grade rating for the combined
group.
Deutsche Bank and Morgan Stanley, joint financial advisers to Linde, are
satisfied that sufficient resources are available to satisfy in full the cash
consideration payable to BOC Shareholders under the terms of the Offer.
14. Disclosure of interests in BOC Shares
As at the close of business on 2 March 2006, Morgan Stanley and its affiliates,
who are acting in concert with Linde, held 3,270,775 BOC Shares and 12,000 BOC
ADSs
Page 16
and Deutsche Bank and its affiliates, who are also acting in concert with Linde,
held 6,866,552 BOC Shares, representing in aggregate approximately 1.98 per
cent. of the existing issued share capital of BOC.
Save for the holdings referred to above and the irrevocables referred to in
paragraph 3 above, neither Linde nor any of the members of its Management Board
or Supervisory Board nor, so far as Linde is aware, any person acting in concert
with Linde has any interest in, or right to subscribe for, any BOC Shares, nor
does any such person have any short position or any arrangement in relation to
BOC Shares. For these purposes "arrangement" includes any agreement to sell or
any delivery obligation or right to require another person to purchase or take
delivery and borrowing and lending of BOC Shares. An "arrangement" also includes
any indemnity or option arrangement, any agreement or any understanding, formal
or informal, of whatever nature, relating to BOC Shares which may be an
inducement to deal or refrain from dealing in such securities.
It has not been possible, by the date of this announcement, to ascertain the
interests in BOC Shares (if any) of all of Linde's concert parties. Further
enquiries will be completed prior to publication of the Scheme Document. If such
enquiries reveal any such interests, they will be included in the Scheme
Document or announced earlier if so requested by the Panel.
"Interests in securities" is further explained in paragraph 15 below.
15. Dealing disclosure requirements
Under the provisions of Rule 8.3 of the City Code, if any person is, or becomes,
"interested" (directly or indirectly) in 1 per cent. or more of any class of
"relevant securities" of BOC, all "dealings" in any "relevant securities" of BOC
(including by means of an option in respect of, or a derivative referenced to,
any such "relevant securities") must be publicly disclosed by no later than 3.30
p.m. (London time) on the London business day following the date of the relevant
transaction. This requirement will continue until the date on which the Scheme
becomes effective, lapses or is otherwise withdrawn or on which the "offer
period" otherwise ends. If two or more persons act together pursuant to an
agreement or understanding, whether formal or informal, to acquire an "interest"
in "relevant securities" of BOC, they will be deemed to be a single person for
the purpose of Rule 8.3.
Under the provisions of Rule 8.1 of the City Code, all "dealings" in "relevant
securities" of BOC by Linde or BOC, or by any of their respective "associates",
must be disclosed by no later than 12.00 noon (London time) on the London
business day following the date of the relevant transaction.
A disclosure table, giving details of the companies in whose "relevant
securities" "dealings" should be disclosed, and the number of such securities in
issue, can be found on the Panel's website at www.thetakeoverpanel.org.uk.
"Interests in securities" arise, in summary, when a person has long economic
exposure, whether conditional or absolute, to changes in the price of
securities. In particular, a person will be treated as having an "interest" by
virtue of the ownership
Page 17
or control of securities, or by virtue of any option in respect of, or
derivative referenced to, securities.
Terms in quotation marks are defined in the City Code, which can also be found
on the Panel's website. If you are in any doubt as to whether or not you are
required to disclose a "dealing" under Rule 8, you should consult the Panel.
16. General
The Offer may be made by one or more subsidiaries of Linde in addition to or in
place of Linde. Provided that no bona fide competing offer has been made public
and there has been no change in the BOC board's recommendation of the Offer,
subsidiaries will only make the Offer with the consent of BOC (such consent not
to be unreasonably withheld or delayed). Details of any such companies will be
included in the Scheme Document. References to Linde in this announcement should
be construed accordingly.
Linde reserves the right, with the consent of the Panel, to elect to implement
the Offer by making a takeover offer for the entire issued and to be issued
share capital of BOC. Provided that no bona fide competing offer has been made
public and there has been no change in the BOC board's recommendation of the
Offer, Linde will only elect to implement the Offer by making a takeover offer
with the consent of BOC (such consent not to be unreasonably withheld or
delayed). If Linde elects to implement the Offer by a takeover offer, that offer
will be implemented on the same terms, so far as applicable, as those which
would apply to the Scheme. Further, if sufficient acceptances of such offer are
received and/or sufficient Shares are otherwise acquired, it is the intention of
Linde to apply the provisions of sections 428 to 430F (inclusive) of the
Companies Act to acquire compulsorily any outstanding Shares to which such offer
relates.
It is intended that, following the Offer becoming effective and subject to
applicable requirements of the London Stock Exchange and the UK Listing
Authority, Linde will procure that BOC will apply to the London Stock Exchange
and the UK Listing Authority for cancellations, respectively, of the admission
to trading of the BOC Shares on the London Stock Exchange's market for listed
securities and of the listing of the BOC Shares on the Official List. In
addition, it is expected that, following the Offer becoming effective, the BOC
ADSs will be delisted from the New York Stock Exchange and the BOC ADSs and the
underlying BOC Shares will be de-registered with the US Securities and Exchange
Commission.
The Offer is subject to the Pre-Conditions and, when made, will be subject to
the conditions and further terms set out, or referred to, in Appendix 1 to this
announcement and to be set out in the Scheme Document and the Form of Election.
Pursuant to the terms of the Credit Agreement, Linde has agreed with its
financing banks that it will not amend, waive or modify any condition to the
Offer save:
(a) to the extent that the majority lenders have agreed otherwise; or
Page 18
(b) where such amendments, waivers or modifications (i) could not be reasonably
expected to be material and prejudicial to the interests of the lenders, or
(ii) are required by the Panel, the City Code, the rules or requirements of
any securities exchange with jurisdiction over Linde or BOC or any
applicable law or regulation; or
(c) where the Panel will not allow the relevant condition to be invoked.
If Linde wishes to waive or amend any condition of the Offer (save as permitted
under paragraphs (a) to (c) above), the majority lenders may (if, in their
opinion, they consider that the proposed amendment, waiver or modification could
be reasonably expected to be material and prejudicial to the interests of the
lenders and is of material significance in the context of the Offer) require
Linde to make representations to the Panel to establish whether the Panel would
permit Linde to invoke the relevant condition. If the Panel grants such
permission, then Linde shall invoke such condition. Linde has agreed to give BOC
three business days' notice of any intention to invoke a condition.
The availability of the Offer to persons not resident in the UK may be affected
by the laws of the relevant jurisdiction. Any persons who are subject to the
laws of any jurisdiction other than the UK should inform themselves about and
observe any applicable requirements. Further details in relation to overseas
shareholders will be contained in the Scheme Document.
The bases and sources of certain financial information contained in this
announcement are set out in Appendix 2 to this announcement. Certain terms used
in this announcement are defined in Appendix 6 to this announcement.
This announcement does not constitute an offer or invitation to purchase any
securities. BOC Shareholders are advised to read carefully the formal
documentation in relation to the Offer once it has been despatched.
Deutsche Bank, which is authorised by Bundesanstalt fur
Finanzdienstleistungsaufsicht (BaFin) and by the Financial Services Authority
(FSA) and is regulated by the FSA for the conduct of UK business, is acting
exclusively for Linde and no one else in connection with the Offer and will not
be responsible to anyone other than Linde for providing the protections afforded
to clients of Deutsche Bank nor for providing advice in connection with the
Offer.
Morgan Stanley is acting for Linde in connection with the Offer and no one else
and will not be responsible to anyone other than Linde for providing the
protections afforded to clients of Morgan Stanley or for providing advice in
relation to the Offer or any other matters referred to in this announcement.
JPMorgan Cazenove, which is regulated in the UK by the FSA, is acting
exclusively for BOC and no one else in connection with the Offer and will not be
responsible to anyone other than BOC for providing the protections offered to
clients of JPMorgan Cazenove nor for providing advice in relation to the Offer
or any other matters referred to in this announcement.
Page 19
Merrill Lynch is acting exclusively for BOC in connection with the Offer and no
one else and will not be responsible to anyone other than BOC for providing the
protections afforded to clients of Merrill Lynch or for providing advice in
relation to the Offer or any other matters referred to in this announcement.
Unless otherwise determined by Linde and BOC, and permitted by applicable law
and regulation, the Offer, including the Loan Note Alternative, will not be
made, directly or indirectly, in or into, and will not be capable of acceptance
in or from, Canada, Australia or Japan. Accordingly, copies of this announcement
are not being, and must not be, mailed or otherwise forwarded, distributed or
sent in, into or from Canada, Australia or Japan. Custodians, nominees and
trustees should observe these restrictions and should not send or distribute
this announcement in or into Canada, Australia or Japan.
The Loan Notes to be issued in connection with the Offer have not been, nor will
they be, registered under the US Securities Act or under the securities laws of
any state or other jurisdiction of the United States (or under the securities
laws of any other jurisdiction, the residents of which Linde is advised to treat
as Restricted Overseas Persons in order to observe the laws of such jurisdiction
or to avoid the requirement to comply with any governmental or other consent or
any registration, filing or other formality which Linde regards as unduly
onerous); the relevant clearances have not been, and will not be, obtained from
the securities commission of any province of Canada; and no prospectus has been
lodged with, or registered by, the Australian Securities and Investments
Commission or the Japanese Ministry of Finance. Accordingly, unless otherwise
determined by Linde and BOC, and permitted by applicable law and regulation, the
Loan Notes may not be offered, sold, resold, delivered or transferred, directly
or indirectly, in or into the United States, Canada, Australia or Japan or any
other jurisdiction if to do so would constitute a violation of the relevant laws
of, or require registration thereof in, such jurisdiction or to, or for the
account or benefit of, a person located in the United States, Canada, Australia
or Japan.
Notice to US Investors in BOC: The Offer relates to the shares of a UK company
and is proposed to be made by means of a scheme of arrangement provided for
under English company law. A transaction effected by means of a scheme of
arrangement is not subject to the tender offer rules under the US Securities
Exchange Act. Accordingly, the Offer is subject to the disclosure requirements
and practices applicable in the UK to schemes of arrangement which differ from
the disclosure requirements of the US tender offer rules. Financial information
included in the relevant documentation will have been prepared in accordance
with accounting standards applicable in the UK and Germany that may not be
comparable to the financial statements of US companies. If Linde exercises its
right to implement the Offer by way of a takeover offer, the Offer will be made
in compliance with the applicable US laws and regulations.
Forward Looking Statements
This announcement includes "forward-looking statements" under United States
securities laws. These statements are based on the current expectations of the
Page 20
management of BOC and Linde and are naturally subject to uncertainty and changes
in circumstances. The forward-looking statements contained herein include
statements about the expected effects on Linde of the Offer, the expected timing
and scope of the Offer, anticipated earnings enhancements, estimated cost
savings and other synergies, costs to be incurred in achieving synergies,
potential disposals and other strategic options and all other statements in this
announcement other than historical facts. Forward-looking statements include,
without limitation, statements typically containing words such as "intends",
"expects", "anticipates", "targets", "estimates" and words of similar import. By
their nature, forward-looking statements involve risk and uncertainty because
they relate to events and depend on circumstances that will occur in the future.
There are a number of factors that could cause actual results and developments
to differ materially from those expressed or implied by such forward-looking
statements. These factors include, but are not limited to, the satisfaction of
the Pre-Conditions and the conditions to the Offer, and Linde's ability to
successfully integrate the operations and employees of BOC, as well as
additional factors, such as changes in economic conditions, changes in the level
of capital investment by the semiconductor industry, success of business and
operating initiatives and restructuring objectives, customers' strategies and
stability, changes in the regulatory environment, fluctuations in interest and
exchange rates, the outcome of litigation, government actions and natural
phenomena such as floods, earthquakes and hurricanes. Other unknown or
unpredictable factors could cause actual results to differ materially from those
in the forward-looking statements. Neither BOC nor Linde undertake any
obligation to update publicly or revise forward-looking statements, whether as a
result of new information, future events or otherwise, except to the extent
legally required.
Page 21
APPENDIX 1
PRE-CONDITIONS, CONDITIONS AND
CERTAIN FURTHER TERMS OF THE OFFER
1. PRE-CONDITIONS OF THE OFFER
The Offer, and the posting of the Scheme Document, will take place only if the
following Pre-Conditions are satisfied or waived:
(a) insofar as the proposed acquisition of BOC by Linde constitutes a
concentration with a Community dimension within the scope of Council
Regulation (EC) 139/2004 (as amended) (the "Merger Regulation"):
(i) the European Commission shall have made a decision declaring the
concentration compatible with the common market under Articles
6(1)(b), 8(1) or 8(2) of the Merger Regulation, any conditions
and obligations attached to the European Commission's decision
being in form and substance reasonably satisfactory to Linde; or
(ii) the European Commission shall not have taken a decision in
accordance with Articles 6(1)(b), 6(1)(c), 8(1), 8(2) or 8(3) of
the Merger Regulation within the time limits set in Articles
10(1) and 10(3) and is thereby deemed to have declared the
concentration compatible with the common market pursuant to the
presumption in Article 10(6) of the Merger Regulation; or
(iii) in the event that the European Commission makes a referral to a
competent authority under Articles 4(4) or 9(1) of the Merger
Regulation in connection with the proposed acquisition of BOC by
Linde, such competent authority shall have issued a decision,
finding or declaration, in terms reasonably satisfactory to
Linde, approving the proposed acquisition and permitting its
closing without any breach of applicable law; and
(b) all filings having been made and all or any applicable waiting periods
(including any extensions thereof) under the United States Hart-Scott
Rodino Antitrust Improvements Act of 1976 and the regulations thereunder
having expired, lapsed or been terminated as appropriate in each case in
respect of the proposed acquisition of BOC by Linde and neither of the
parties being subject to any order or injunction of a court of competent
jurisdiction in the United States that prohibits consummation of the Offer
as a result of action brought by the US Federal Trade Commission or US
Department of Justice.
Linde reserves the right to waive all or any of these Pre-Conditions, in whole
or in part, with the prior consent of BOC (such consent not to be unreasonably
withheld or delayed), provided that Linde shall not need to obtain BOC's consent
if a bona fide proposal competing with the Offer has been made public or the
board of directors of
Page 22
BOC does not recommend the Offer or withdraws or adversely modifies its
recommendation or intention to recommend, except, in any such case, in response
to a Linde Event (as defined in Appendix 3).
The Offer will not proceed if the Pre-Conditions have not been satisfied or
waived by the close of business on 31 October 2006, or such later date (if any)
as Linde and BOC may, with the consent of the Panel, agree.
2. CONDITIONS OF THE OFFER
The Offer will be conditional upon the Scheme becoming unconditional and
becoming effective, subject to the City Code, by not later than 28 February
2007, or such later date (if any) as BOC, Linde and the Court may agree. The
Scheme will be conditional upon:
(a) approval of the Scheme by a majority in number, representing 75 per cent.
or more in value, of the BOC Shareholders (or the relevant class or classes
thereof) present and voting, either in person or by proxy, at the Court
Meeting or at any adjournment thereof;
(b) all resolutions necessary to implement the Scheme as set out in the notice
of the EGM (including, without limitation, the Special Resolutions) being
duly passed by the requisite majority at the EGM or at any adjournment
thereof; and
(c) the sanction (without modification or with modification as agreed by BOC
and Linde) of the Scheme and the confirmation of any reduction of capital
involved therein by the Court, an office copy of the Order and the minute
of such reduction attached thereto being delivered for registration to the
Registrar of Companies and, in relation to the reduction of capital, being
registered by him.
3. CONDITIONS OF THE SCHEME
In addition, BOC and Linde have agreed that the Scheme will be conditional upon
the following matters and, accordingly, the necessary action to make the Scheme
effective will not be taken unless such conditions (as amended if appropriate)
have been satisfied or waived:
(a) since 30 September 2005 and except as disclosed in BOC's annual report and
accounts for the year then ended or as otherwise publicly announced by BOC
prior to the date of this announcement (by the delivery of an announcement
to a Regulatory Information Service) or as otherwise fairly disclosed prior
to the date of this announcement in writing to Linde or its advisers by or
on behalf of BOC in the course of negotiations, no Third Party having
intervened (as defined below) and there not continuing to be outstanding
any statute, regulation or order of any Third Party in each case which is
material in the context of the Offer and which, in each case to an extent
which is material in the context of the Wider Linde Group or Wider BOC
Group taken as a whole, would reasonably be expected to:
Page 23
(i) make the Offer, its implementation or the acquisition or
proposed acquisition by Linde or any member of the Wider Linde
Group of any shares or other securities in, or control or
management of, BOC or any member of the Wider BOC Group void,
illegal or unenforceable in any jurisdiction, or otherwise
directly or indirectly materially restrain, prevent, prohibit,
restrict or delay the same or impose material additional
conditions or obligations with respect to the Offer or such
acquisition, or otherwise materially impede, challenge or
interfere with the Offer or such acquisition, or require
material amendment to the terms of the Offer or the acquisition
or proposed acquisition of any Shares or the acquisition of
control or management of BOC or the Wider BOC Group by Linde or
any member of the Wider Linde Group;
(ii) limit or delay, or impose any limitations on, the ability of any
member of the Linde Group or any member of the BOC Group to
acquire or to hold or to exercise effectively, directly or
indirectly, all or any rights of ownership in respect of shares
or other securities in, or to exercise voting or management
control over, any member of the Wider BOC Group or any member of
the Linde Group;
(iii) prevent or delay or alter the terms envisaged for any proposed
divestiture or require any additional divestiture by any member
of the Wider Linde Group of any shares or other securities in
BOC;
(iv) prevent or delay or alter the terms envisaged for any proposed
divestiture or require any additional divestiture by any member
of the Wider Linde Group or by any member of the Wider BOC Group
of all or any portion of their respective businesses, assets or
properties or limit the ability of any of them to conduct any of
their respective businesses or to own or control any of their
respective businesses, assets or properties or any part thereof;
(v) except pursuant to Part XIIIA of the Companies Act, require any
member of the Wider Linde Group or of the Wider BOC Group to
acquire, or to offer to acquire, any shares or other securities
(or the equivalent) in any member of the Wider BOC Group owned
by any third party;
(vi) limit the ability of any member of the Wider Linde Group or of
the Wider BOC Group to conduct or integrate or co-ordinate its
business, or any part of it, with the businesses or any part of
the businesses of any other member of the Wider Linde Group or
of the Wider BOC Group;
(vii) result in any member of the Wider BOC Group ceasing to be able
to carry on business under any name under which it presently
does so; or
Page 24
(viii) otherwise adversely affect any or all of the business, assets,
profits, financial or trading position or prospects of any
member of the Wider BOC Group,
and all applicable waiting and other time periods (including any
extensions of such waiting and other time periods) during which any
Third Party could intervene under any applicable legislation or
regulation of any relevant jurisdiction having expired, lapsed or been
terminated (as appropriate), in each case which is material in the
context of the Wider Linde Group or the Wider BOC Group taken as a
whole;
(b) in the event that the Pre-Condition set out in paragraph 1(a) above is
waived in whole or in part and insofar as the proposed acquisition of
BOC by Linde constitutes a concentration with a Community dimension
within the scope of Council Regulation (EC) 139/2004 (as amended) (the
"Merger Regulation"):
(i) the European Commission shall have made a decision declaring the
concentration compatible with the common market under Article
6(1)(b) of the Merger Regulation, any conditions and obligations
attached to the European Commission's decision being in form and
substance reasonably satisfactory to Linde; or
(ii) the European Commission shall have made a decision declaring the
concentration compatible with the common market under Articles
8(1) or 8(2) of the Merger Regulation, any conditions and
obligations attached to the European Commission's decision being
in form and substance reasonably satisfactory to Linde,
following the European Commission's decision under Article
6(1)(c) of the Merger Regulation provided that the Panel has
granted its consent to proceed with the Scheme following the
European Commission's decision under Article 6(1)(c) of the
Merger Regulation; or
(iii) the European Commission shall not have taken a decision in
accordance with Articles 6(1)(b) or 6(1)(c) of the Merger
Regulation within the time limits set in Article 10(1) and is
thereby deemed to have declared the concentration compatible
with the common market pursuant to the presumption in Article
10(6) of the Merger Regulation; or
(iv) the European Commission shall not have taken a decision in
accordance with Articles 8(1), 8(2) or 8(3) of the Merger
Regulation within the time limits set in Article 10(3) and is
thereby deemed to have declared the concentration compatible
with the common market pursuant to the presumption in Article
10(6) of the Merger Regulation, following the European
Commission's decision under Article 6(1)(c) of the Merger
Regulation provided that the Panel has granted its consent to
proceed with the Scheme following the European Commission's
decision under Article 6(1)(c) of the Merger Regulation; or
Page 25
(v) in the event that the European Commission makes a referral to a
competent authority under Articles 4(4) or 9(1) of the Merger
Regulation in connection with the proposed acquisition of BOC by
Linde and provided the Panel has granted, if required, its
consent to proceed with the Scheme following the European
Commission's decision to refer the case, such competent
authority shall have issued a decision, finding or declaration,
in terms reasonably satisfactory to Linde, approving the
proposed acquisition and permitting its closing without any
breach of applicable law;
(c) in the event that the Pre-Condition set out in paragraph 1(b) is waived in
whole or in part, all filings having been made and all or any applicable
waiting periods (including any extensions thereof) under the United States
Hart-Scott Rodino Antitrust Improvements Act of 1976 and the regulations
thereunder having expired, lapsed or been terminated as appropriate in each
case in respect of the proposed acquisition of BOC by Linde and neither of
the parties being subject to any order or injunction of a court of
competent jurisdiction in the United States that prohibits consummation of
the Offer as a result of action brought by the US Federal Trade Commission
or US Department of Justice;
(d) since 30 September 2005 and except as disclosed in BOC's annual report and
accounts for the year then ended or as otherwise publicly announced by BOC
prior to the date of this announcement (by the delivery of an announcement
to a Regulatory Information Service) or as fairly disclosed prior to the
date of this announcement in writing to Linde or its advisers by or on
behalf of BOC in the course of negotiations, all Authorisations which are
necessary or are reasonably considered necessary or appropriate by Linde in
any relevant jurisdiction for or in respect of the Offer or the acquisition
or proposed acquisition of any shares or other securities in, or control or
management of, BOC or any other member of the Wider BOC Group by any member
of the Wider Linde Group or the carrying on by any member of the Wider BOC
Group of its business having been obtained, in terms and in a form
reasonably satisfactory to Linde, from all appropriate Third Parties or
from any persons or bodies with whom any member of the Wider BOC Group has
entered into contractual arrangements and all such Authorisations remaining
in full force and effect and there being no notice or intimation of any
intention to revoke, suspend, restrict, modify or not to renew any of the
same (in any case to an extent which is or would be material in the context
of the Wider BOC Group taken as a whole);
(e) since 30 September 2005 and except as disclosed in BOC's annual report and
accounts for the year then ended or as otherwise publicly announced by BOC
prior to the date of this announcement (by the delivery of an announcement
to a Regulatory Information Service) or as fairly disclosed prior to the
date of this announcement in writing to Linde or its advisers by or on
behalf of BOC in the course of negotiations, there being no provision of
any material arrangement, agreement, licence, permit, franchise or other
instrument to which any member of the Wider BOC Group is a party, or by or
to which any such member or any of its assets is or are or may be bound,
entitled or subject
Page 26
or any material circumstance, which, in each case as a consequence of the
Offer or the acquisition or proposed acquisition of any shares or other
securities in, or control or management of, BOC or any other member of the
Wider BOC Group by any member of the Wider Linde Group or otherwise, could
or might reasonably be expected to result in (in any case to an extent
which is or would be material in the context of the Wider BOC Group taken
as a whole):
(i) any monies borrowed by, or any other indebtedness or liabilities
(actual or contingent) of, or any grant available to, any member
of the Wider BOC Group being or becoming repayable or capable of
being declared repayable immediately or prior to its stated
repayment date;
(ii) the creation or enforcement of any mortgage, charge or other
security interest over the whole or any part of the business,
property, assets or interests of any member of the Wider BOC
Group or any such mortgage, charge or other security interest
(wherever created, arising or having arisen) becoming
enforceable;
(iii) any such arrangement, agreement, licence, permit, franchise or
other instrument, or the rights, liabilities, obligations or
interests of any member of the Wider BOC Group thereunder, or
the interests or business of any such member in or with any
other person, firm, company or body (or any arrangement or
arrangements relating to any such interests or business) being,
or becoming capable of being, terminated or adversely modified
or affected or any adverse action being taken or any obligation
or liability arising thereunder;
(iv) any material asset or interest of any member of the Wider BOC
Group being or falling to be disposed of or ceasing to be
available to any member of the Wider BOC Group or any right
arising under which any such asset or interest could be required
to be disposed of or could cease to be available to any member
of the Wider BOC Group;
(v) any member of the Wider BOC Group ceasing to be able to carry on
business under any name under which it presently does so;
(vi) the creation of material liabilities (actual or contingent) by
any member of the Wider BOC Group;
(vii) the financial or trading position or the value of any member of
the Wider BOC Group being prejudiced or adversely affected,
and, except as aforesaid, no event having occurred which, under any
provision of any such arrangement, agreement, licence, permit, franchise or
other instrument, would result in or would be reasonably likely to result
in any of the events or circumstances which are referred to in paragraphs
(i) to (vii) of this condition (e) in any case to an extent which is or
would be material in the context of the Wider BOC Group taken as a whole;
Page 27
(f) since 30 September 2005 and except as disclosed in BOC's annual report and
accounts for the year then ended or as otherwise publicly announced by BOC
prior to the date of this announcement (by the delivery of an announcement
to a Regulatory Information Service) or as otherwise fairly disclosed prior
to the date of this announcement in writing to Linde or its advisers by or
on behalf of BOC in the course of negotiations, no member of the Wider BOC
Group having (in each case, save for paragraph (ii) below, to an extent
which is material in the context of the Wider BOC Group taken as a whole):
(i) issued or agreed to issue, or authorised the issue of,
additional shares of any class, or securities convertible into
or exchangeable for, or rights, warrants or options to subscribe
for or acquire, any such shares or convertible securities or
transferred or sold any shares out of treasury, other than:
(A) to other members of the Wider BOC Group or to third
parties, provided that such issue, transfer or sale
preserves the BOC Group's existing interest in such member
of the Wider BOC Group as at the date of this announcement;
or
(B) shares issued pursuant to the exercise of options or the
vesting of awards in each case granted under the BOC Share
Schemes or under an employee's terms of employment;
(ii) purchased or redeemed or repaid any of its own shares or other
securities or reduced or, save in respect of the matters
mentioned in paragraph (i) above, made any other change to any
part of its share capital to an extent which (other than in the
case of BOC) is material in the context of the Wider BOC Group
taken as a whole;
(iii) recommended, declared, paid or made any dividend or other
distribution whether payable in cash or otherwise or made any
bonus issue (other than to a member of the BOC Group or a third
party, provided that such dividend or other distribution is pro
rata to that party's existing interest in such member of the
Wider BOC Group as at the date of this announcement) save, to
the extent applicable, in relation to the Second Interim
Dividend;
(iv) except as a result of the issue of notes under the Euro Medium
Term Note Programme or commercial paper under any BOC commercial
paper programme or the refinancing of any existing indebtedness,
or as between members of the BOC Group, made or authorised any
change in its loan capital;
(v) merged with, demerged or acquired any body corporate,
partnership or business or acquired or disposed of or
transferred, mortgaged, charged or created any security interest
over any assets of a material value or any right, title or
interest in any assets of a material value (including shares in
any undertaking and trade investments) or authorised the
Page 28
same (in each case other than in the ordinary course of
business), other than a transaction between:
(A) members of the BOC Group; or
(B) a member of the BOC Group and a third party, provided that
such transaction preserves the BOC Group's existing
interest in such member of the Wider BOC Group as at the
date of this announcement;
(vi) except as a result of the issue of notes under the Euro Medium
Term Note Programme or commercial paper under any BOC commercial
paper programme or the refinancing of any existing indebtedness,
issued, agreed to issue or authorised the issue of, or made any
change in or to, any debentures or incurred or increased any
indebtedness or liability (actual or contingent), in each case
other than as between:
(A) members of the BOC Group; or
(B) a member of the BOC Group and a third party, provided that
such issue, change, incurrence or increase preserves the
BOC Group's existing interest in such member of the Wider
BOC Group as at the date of this announcement;
(vii) entered into, varied, or authorised any contract, agreement,
commitment, transaction or arrangement other than in the
ordinary course of business (whether in respect of capital
expenditure or otherwise) which:
(A) is of a long term, onerous or unusual nature or magnitude
or which could reasonably be expected to involve an
obligation of such nature or magnitude; or
(B) could restrict the business of any member of the Wider BOC
Group;
(viii) entered into, implemented, effected or authorised any
reconstruction, amalgamation or scheme in respect of itself or
another member of the Wider BOC Group, other than as between:
(A) members of the BOC Group; or
(B) a member of the BOC Group and a third party, provided that
such transaction preserves the BOC Group's existing
interest in such member of the Wider BOC Group as at the
date of this announcement;
(ix) entered into, or varied the terms of, any contract, agreement,
commitment, transaction or arrangement with any director of BOC;
Page 29
(x) other than by way of a solvent winding-up in respect of a member
which is dormant at the relevant time, taken any corporate
action or had any legal proceedings instituted or threatened
against it or petition presented or order made for its
winding-up (voluntarily or otherwise), dissolution or
reorganisation or for the appointment of a receiver,
administrator, administrative receiver, trustee or similar
officer of all or any material part of its assets and revenues
or any analogous proceedings in any jurisdiction or appointed
any analogous person in any jurisdiction;
(xi) been unable, or admitted in writing that it is unable, to pay
its debts or having stopped or suspended (or threatened to stop
or suspend) payment of its debts generally or ceased or
threatened to cease carrying on all or a substantial part of its
business;
(xii) waived or compromised any claim;
(xiii) made any alteration to its memorandum or articles of
association;
(xiv) made or agreed or consented to:
(A) any material change to:
(I) the terms of the trust deeds constituting the
pension scheme(s) established by any member of the
BOC Group for its directors, employees or their
dependants; or
(II) the benefits which accrue or to the pensions which
are payable thereunder; or
(III) the basis on which qualification for, or accrual
or entitlement to, such benefits or pensions are
calculated or determined; or
(IV) the basis upon which the liabilities (including
pensions) or such pension schemes are funded or
made,
(B) any change to the trustees including the appointment of a
trust corporation;
(xv) proposed, agreed to provide or modified the terms of any share
option scheme, incentive scheme or, other than increases in
emoluments in the ordinary course of business, other benefit
relating to the employment or termination of employment of any
person employed by the BOC Group; or
(xvi) entered into any contract, agreement, commitment, transaction or
arrangement or passed any resolution or made any offer (which
remains open for acceptance) or proposed or announced any
intention
Page 30
in each case with respect to any of the transactions, matters or
events referred to in this condition (f);
(g) since 30 September 2005 and except as disclosed in BOC's annual report and
accounts for the year then ended or as otherwise publicly announced by BOC
prior to the date of this announcement (by the delivery of an announcement
to a Regulatory Information Service) or as otherwise fairly disclosed prior
to the date of this announcement in writing to Linde or its advisers by or
on behalf of BOC in the course of negotiations:
(i) there having been no adverse change or deterioration in the
business assets, financial or trading position or profit or
prospects of any member of the Wider BOC Group which in any case
is material in the context of the Wider BOC Group taken as a
whole;
(ii) no contingent or other liability of any member of the Wider BOC
Group having arisen or become apparent or increased which in any
case is material in the context of the Wider BOC Group taken as
a whole; and
(iii) no litigation, arbitration proceedings, prosecution or other
legal proceedings to which any member of the Wider BOC Group is
or may become a party (whether as plaintiff, defendant or
otherwise) having been threatened, announced, implemented or
instituted by or against or remaining outstanding against or in
respect of any member of the Wider BOC Group which in any case
is material in the context of the Wider BOC Group taken as a
whole.
(h) since 30 September 2005 and except as disclosed in BOC's annual report and
accounts for the year then ended or as otherwise publicly announced by BOC
prior to the date of this announcement (by the delivery of an announcement
to a Regulatory Information Service) or as otherwise fairly disclosed prior
to the date of this announcement in writing to Linde or its advisers by or
on behalf of BOC in the course of negotiations, Linde not having
discovered:
(i) that any financial or business or other information concerning
the Wider BOC Group publicly disclosed at any time by or on
behalf of any member of the Wider BOC Group, or otherwise
disclosed prior to the date of this announcement in writing to
Linde or its advisers by or on behalf of BOC in the course of
negotiations, is misleading or contains any misrepresentation of
fact or omits to state a fact necessary to make any information
contained therein not misleading and which was not subsequently
corrected before the date of this announcement by disclosure
either publicly or otherwise to Linde and which in any case is
material in the context of the Wider BOC Group taken as a whole;
or
(ii) any information which affects the import of any information
disclosed at any time by or on behalf of any member of the Wider
BOC Group to
Page 31
an extent which in any case is material in the context of the
Wider BOC Group taken as a whole; and
(i) since 30 September 2005 and except as disclosed in BOC's annual report and
accounts for the year then ended or as otherwise publicly announced by BOC
prior to the date of this announcement (by the delivery of an announcement
to a Regulatory Information Service) or as otherwise fairly disclosed prior
to the date of this announcement in writing to Linde or its advisers by or
on behalf of BOC in the course of negotiations, Linde not having
discovered:
(i) that any past or present member of the Wider BOC Group has not
complied with any applicable legislation or regulations of any
jurisdiction with regard to the use, treatment, handling,
storage, transport, release, disposal, discharge, spillage, leak
or emission of any waste or hazardous substance or any substance
likely to impair the environment or harm human health, or
otherwise relating to environmental matters or the health and
safety of any person, or that there has otherwise been any such
use, treatment, handling, storage, transport, release, disposal,
discharge, spillage, leak or emission (whether or not this
constituted a non-compliance by any person with any legislation
or regulations and wherever the same may have taken place)
which, in any case, would be likely to give rise to any
liability (whether actual or contingent) or cost on the part of
any member of the Wider BOC Group which in any case is material
in the context of the Wider BOC Group taken as a whole;
(ii) that there is, or is likely to be, any liability (whether actual
or contingent) to make good, repair, reinstate or clean up any
property now or previously owned, occupied or made use of by any
past or present member of the Wider BOC Group or any other
property or any controlled waters under any environmental
legislation, regulation, notice, circular, order or other lawful
requirement of any relevant authority or Third Party or
otherwise which in any case is material in the context of the
Wider BOC Group taken as a whole; or
(iii) that circumstances exist whereby a person or class of persons
would be likely to have a claim in respect of any product or
process of manufacture or materials used therein now or
previously manufactured, sold or carried out by any past or
present member of the Wider BOC Group which in any case is or
would be material in the context of the Wider BOC Group taken as
a whole.
For the purpose of these conditions:
(a) "Third Party" means any central bank, government, government department or
governmental, quasi-governmental, supranational, statutory, regulatory or
investigative body, authority, court, trade agency, association,
institution or professional or environmental body or any other similar
person or body whatsoever in any relevant jurisdiction, but excluding any
anti-trust or merger control authority;
Page 32
(b) a Third Party shall be regarded as having "intervened" if it has decided
to take, institute, implement or threaten any action, proceeding, suit,
investigation, enquiry or reference or made, proposed or enacted any
statute, regulation, decision or order or taken any measures or other
steps or required any action to be taken or information to be provided or
otherwise having done anything and "intervene" shall be construed
accordingly; and
(c) "Authorisations" means authorisations, orders, grants, recognitions,
determinations, certificates, confirmations, consents, licences,
clearances, provisions and approvals.
Subject to the requirements of the Panel, Linde reserves the right to waive all
or any of the above conditions, in whole or in part, except the conditions in
paragraph 2 above.
Linde reserves the right to remove the reference to any Pre-Condition in
condition 3(b) and (c) above at the time the Scheme Document is issued.
If the Panel requires Linde to make an offer for BOC Shares under the provisions
of Rule 9 of the City Code, Linde may make such alterations to the conditions of
the Offer as are necessary to comply with the provisions of that Rule.
The Offer will lapse and the Scheme will not proceed (unless otherwise agreed by
the Panel) if, following the posting of the Scheme Document, the European
Commission either initiates proceedings under Article 6(1)(c) of the Merger
Regulation or makes a referral to a competent authority of the United Kingdom
under Article 9(1) of the Merger Regulation and there is then a reference to the
Competition Commission before the date of the Court Meeting.
4. CERTAIN FURTHER TERMS OF THE OFFER
The Loan Note Elected Shares will be acquired by Linde fully paid and free from
all liens, equitable interests, charges, encumbrances and other third party
rights of any nature whatsoever and together with all rights now or hereafter
attaching thereto including the right to receive and retain all dividends and
other distributions announced, declared or paid on or after the date of this
announcement other than the Second Interim Dividend (details of which are set
out in paragraph 2 of the main body of this announcement above).
The Offer and, where relevant, the Loan Note Alternative will be on the terms
and will be subject, inter alia, to those terms which will be set out in the
Scheme Document and, in relation to the Loan Note Alternative, in the Form of
Election and such further terms as may be required to comply with the Listing
Rules of the UK Listing Authority and the provisions of the City Code.
The availability of the Offer to persons not resident in the United Kingdom may
be affected by the laws of the relevant jurisdictions. Persons who are not
resident in the United Kingdom should inform themselves about and observe any
applicable requirements.
Page 33
Linde reserves the right, with the consent of the Panel and, in certain
circumstances, of BOC, to elect to implement the Offer by way of a takeover
offer. In such event, such offer will be implemented on the same terms (subject
to appropriate amendments, including (without limitation) an acceptance
condition set at ninety per cent. of the shares to which such offer relates), so
far as applicable, as those which would apply to the Scheme.
This announcement and any rights or liabilities arising hereunder, together with
the Offer and the Scheme, will be governed by English law and be subject to the
jurisdiction of the English courts. The rules and regulations of the FSA, the
rules of the London Stock Exchange and the rules contained in the City Code, so
far as they are appropriate, apply to the Offer.
Page 34
APPENDIX 2
SOURCES OF INFORMATION AND BASES OF CALCULATION
(a) The value attributed to the existing issued share capital of BOC is based
upon the 512,809,520 BOC Shares in issue as at the close of business on 3
March 2006.
(b) Unless otherwise stated, the financial information on Linde is extracted
from Linde's Annual Report and Accounts for the year ended 31 December
2005.
(c) Unless otherwise stated, the accounting information on BOC is extracted or
derived without any adjustment from BOC's Annual Report and Accounts for
the year ended 30 September 2005 and from the announcement of BOC's interim
results for the three months ended 31 December 2005.
(d) As at the close of business on 3 March 2006, Linde had in issue 119,864,046
ordinary shares of no par value (each of which has an attributable pro rata
share capital of (euro)2.56).
(e) The closing price per BOC Share on 23 January 2006, the last business day
prior to the announcement by Linde that it had made a preliminary approach
to BOC regarding a possible offer, is taken from the Official List.
(f) The average closing price per BOC Share during the three months up to and
including 23 January 2006 is derived from the Official List.
Page 35
APPENDIX 3
THE BREAK FEE AGREEMENT
Linde and BOC entered into a break fee agreement on 6 March 2006 which sets out
various matters in relation to the Offer. In particular, the Break Fee Agreement
provides that:
(a) without BOC's consent (such consent not to be unreasonably withheld or
delayed), Linde undertakes not to (i) waive, in whole or in part, any of
the Pre-Conditions or (ii) elect to implement the proposed acquisition by
way of a takeover offer or by using one or more subsidiaries of Linde in
addition to or in place of Linde. Such consent shall not be required if a
bona fide competing offer has been made public or there has been a change
in the BOC board's recommendation of the Offer, except in response to a
Linde Event;
(b) Linde and BOC will use all reasonable endeavours to achieve the
satisfaction of the Pre-Conditions as promptly as practicable and in any
event by 31 May 2006 (including co-operating and proceeding with a Phase II
enquiry under the Merger Regulation, if such enquiry is initiated and a
Second Request under the Hart-Scott-Rodino Anti-trust Improvements Act
1976, as amended, if a Second Request is made);
(c) BOC will pay to Linde a compensation fee of (pound)75 million if:
(i) an independent competing offer is announced before Linde has
indicated to BOC that it does not wish BOC to proceed with the
Scheme or the takeover offer lapses or is withdrawn or (with the
consent of the Panel) is not made and that competing offer (or
any other independent competing offer which is announced before
(A) Linde has indicated to BOC that it does not wish BOC to
proceed with the Scheme or the takeover offer lapses or is
withdrawn or (with the consent of the Panel) is not made or (B)
any such earlier independent competing offer lapses, is
withdrawn or is not made) subsequently becomes or is declared
unconditional in all respects or is otherwise completed; or
(ii) the BOC board does not recommend the Offer or withdraws or
adversely modifies its recommendation of the Offer or agrees or
resolves to recommend an independent competing offer, except in
response to a Linde Event; and
(d) Linde will pay to BOC a compensation fee of (pound)75 million if:
(i) the Pre-Conditions have not been satisfied by 31 October 2006
and the BOC board has continued to recommend to its shareholders
to vote in favour of the Scheme (or, if applicable, the takeover
offer) except if it has withdrawn its recommendation in response
to a Linde Event;
Page 36
(ii) a Linde Event has occurred and:
(A) the Offer fails in response to such event; or
(B) the Offer has not become unconditional by 28 February
2007.
A "Linde Event" is defined in the Break Fee Agreement as any event or
circumstance attributable to any act or omission of Linde, its Supervisory or
Management Board or its advisers (acting in their capacity as such) or its
financing banks or other debt holders or shareholders (acting in their capacity
as such) which would materially delay or prevent completion of the acquisition
other than the exercise by Linde or the financing banks of any rights under, or
relating to, the conditions to the Offer.
Page 37
APPENDIX 4
DETAILS OF IRREVOCABLE UNDERTAKINGS
The following holders of BOC Shares have given irrevocable undertakings to vote
in favour of the Scheme and the resolutions at the Court Meeting and the EGM:
Name Number of BOC Shares
Robert John Margetts 34,000
Anthony Eric Isaac 8,057
John Andrew Bevan 23,108
Andrew Robert John Bonfield 1,772
Guy Neville Dawson 1,663
Alan Murray Ferguson 500
Jerry Kent Masters 2,452
Rebecca Ann McDonald 500
Matthew F.C. Miau 4,044
Sir Christopher John O'Donnell 2,389
Anne Cecille Quinn 1,376
Krishnamurthy Rajagopal 21,816
Total 101,677
Page 38
APPENDIX 5
LOAN NOTE ALTERNATIVE
The Loan Notes, which will be governed by English law, will be cash
collateralised. The Loan Notes will bear interest, payable every six months in
arrear, from the date of issue to the relevant holder of the Loan Notes (less
any tax required by law to be deducted or withheld therefrom) on 30 June and 31
December (or, if such date is not a Business Day, on the first Business Day
thereafter), at a rate per annum calculated to be 0.75 per cent. below LIBOR as
determined on the first Business Day of each such interest period.
The Loan Notes will be redeemable at par (together with accrued interest) at the
option of the holders, in whole or in part, on interest payment dates commencing
on the first 30 June or 31 December date which falls more than six months after
the date of issue of the Loan Notes. Any Loan Notes outstanding on the final
redemption date (which is expected to be 31 December 2013) will be redeemed at
par (together with any accrued interest) on that date (or, if such date is not a
Business Day, on the first Business Day thereafter). Linde may elect to redeem
any Loan Notes on any earlier interest payment date if the aggregate nominal
value of the Loan Notes then outstanding is less than (pound)5 million. The Loan
Notes will be transferable but no application will be made for them to be listed
or dealt in on any stock exchange. If Linde elects to implement the Offer by
making a takeover offer, the Loan Notes will not be transferable.
Until such time as the Loan Notes have been repaid in full, there shall at all
times be deposited with a security trustee in a bank account charged in favour
of the security trustee for the holders of the Loan Notes, the then outstanding
amount of the Loan Notes (including accrued but unpaid interest).
The Loan Notes will be issued, credited as fully paid, in integral multiples of
(pound)1 nominal value. Fractional entitlements to Loan Notes will be
disregarded and will not be issued to persons otherwise electing to receive
them. Linde reserves the right not to issue the Loan Notes where valid elections
are received for an aggregate of less than (pound)20 million in nominal value of
Loan Notes by the date the Scheme becomes effective. If insufficient elections
are received and Linde exercises this right, BOC Shareholders who elected to
receive Loan Notes will instead receive cash consideration in accordance with
the terms of the Scheme.
The Loan Notes to be issued in connection with the Offer have not been, and will
not be, registered under the US Securities Act or under the securities laws of
any state or other jurisdiction of the United States, Canada, Australia or Japan
(or under the securities laws of any other jurisdiction, the residents of which
Linde is advised to treat as Restricted Overseas Persons in order to observe the
laws of such jurisdiction or to avoid the requirement to comply with any
governmental or other consent or any registration, filing or other formality
which Linde regards as unduly onerous). Accordingly, the Loan Notes may not
(unless an exemption under the relevant
Page 39
securities laws is applicable) be offered, sold, resold, delivered or
transferred, directly or indirectly, in or into the United States, Canada,
Australia or Japan (or any other jurisdiction if to do so would constitute a
violation of the relevant laws of, or require registration thereof in, such
jurisdiction) or to, or for the account or benefit of, a person located in the
United States, Canada, Australia or Japan.
The Loan Note Alternative will be conditional on the Scheme becoming effective.
Full details of the Loan Note Alternative will be contained in the Scheme
Document and the Form of Election.
Page 40
APPENDIX 6
DEFINITIONS
The following definitions apply throughout this announcement unless the context
requires otherwise.
"Australia" the Commonwealth of Australia, its
territories and possessions
"BOC" The BOC Group plc
"BOC ADS" a BOC American Depositary Share evidenced
by an American Depositary Receipt
representing two BOC Shares
"BOC Group" BOC and its subsidiary undertakings
"BOC Shareholders" holders of BOC Shares
"BOC Shares" 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
Scheme Voting Record Time; and
(c) (if any) issued on or after the
Scheme Voting Record Time and prior
to 6.00 p.m. (London time) on the
day before the Hearing 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
"BOC Share Schemes" the BOC Executive Share Option Scheme
1995, the BOC Executive Share Option
Scheme 1995 Jersey, the BOC Executive
Share Option Scheme 2003, the BOC Long
Term Incentive Plan, the BOC Share
Matching Plan, the BOC UK Savings-Related
Share Option Schemes 1995, the BOC UK
Savings-Related Share Option Plan 2005,
the BOC Republic of Ireland
Savings-Related Share Option Scheme 2005,
the BOC Employee Share Option Scheme
(Australia)
Page 41
1995, the BOC Employee Share Option
Scheme (New Zealand) 1995, the BOC
Employee Share Option Scheme (Australia)
2005 and the BOC Employee Share Option
Scheme (New Zealand) 2005
"BOC UK Defined Benefit the BOC Pension Scheme and the BOC Senior
Pension Schemes" Executive Pension Scheme
"Break Fee Agreement" the break fee agreement entered into by
Linde and BOC on 6 March 2006
"Business Day" any day other than a Saturday or a Sunday
when banks generally are open in London
for general banking business
"Canada" Canada, its provinces and territories and
all areas under its jurisdiction and
political sub-divisions thereof
"Cancellation Shareholders" holders of Cancellation Shares
"Cancellation Shares" BOC Shares other than the Loan Note
Elected Shares
"City Code" the City Code on Takeovers and Mergers
"Companies Act" the UK Companies Act 1985, as amended
"Court" the High Court of Justice in England and
Wales
"Court Meeting" the meeting of the BOC Shareholders (and
any adjournment thereof) to be convened
by an order of the Court pursuant to
section 425 of the Companies Act to
consider and, if thought fit, approve the
Scheme (with or without amendment)
"Credit Agreement" the credit agreement entered into on 3
March 2006 by Linde with, amongst others,
Commerzbank Aktiengesellschaft, Deutsche
Bank AG, Dresdner Kleinwort Wasserstein,
the investment banking division of
Dresdner Bank AG, Morgan Stanley Bank
International Limited and The Royal Bank
of Scotland plc as mandated lead
arrangers and Deutsche Bank Luxembourg
S.A. as facility agent
"Deutsche Bank" Deutsche Bank AG, London Branch
Page 42
"Effective Date" the day on which the Scheme becomes
effective in accordance with its terms
"EGM" the extraordinary general meeting of the
BOC Shareholders (and any adjournment
thereof), to be convened in connection
with the Offer
"Euro Medium Term Note Programme" the BOC euro medium term note programme
as set out in a prospectus dated 30
January 2006 including any updates
thereto
"Form of Election" the form of election and authority
relating to the Loan Note Alternative
which will accompany the Scheme Document
"FSA" The Financial Services Authority
"Hearing" the hearing or hearings by the Court of
the petition to sanction the Scheme
and/or to confirm the associated
reduction of capital and grant the Order
(as the context requires)
"Japan" Japan, its cities, prefectures,
territories and possessions
"JPMorgan Cazenove" JPMorgan Cazenove Limited
"LIBOR" the London inter-bank Offered Rate
expressed as a rate per annum for six
month sterling deposits of (pound)1
million
"Linde" Linde AG
"Linde Group" Linde and its subsidiary undertakings
"Listing Rules" the rules and regulations made by the
Financial Services Authority in its
capacity as the UK Listing Authority
under the Financial Services and Markets
Act 2000, and contained in the UK Listing
Authority's publication of the same name
"Loan Notes" the loan notes of Linde to be issued
pursuant to the Loan Note Alternative
which, at the election of the relevant
BOC Shareholder, shall be either QCB or
non-QCB loan notes
"Loan Note Alternative" the alternative whereby BOC Shareholders
(other than Restricted Overseas Persons
and US Persons) may elect to receive,
subject to the terms and conditions set
out in the Scheme, Loan
Page 43
Notes instead of all or part of the cash
consideration to which they would
otherwise be entitled under the Scheme
"Loan Note Elected Shares" BOC Shares (if any) in respect of which
(a) valid elections have been made under
the Loan Note Alternative in accordance
with its terms; and (b) Loan Notes are to
be issued in accordance with the Loan
Note Alternative
"London Stock Exchange" London Stock Exchange plc
"Merrill Lynch" Merrill Lynch International
"Meetings" the Court Meeting and/or the EGM, as the
case may be
"Morgan Stanley" Morgan Stanley & Co. Limited
"Offer" the proposed offer by Linde for BOC to be
implemented by way of the Scheme and the
other matters relevant thereto to be
considered at the Court Meeting and the
EGM (or, if, with the consent of the
Panel and, subject to a continuing
recommendation by the BOC board and no
bona fide competing proposal having been
made public, BOC, Linde so elects, to
be implemented by a takeover offer)
"Offer Price" 1,600 pence per BOC Share
"Official List" the Daily Official List of the UK Listing
Authority
"Order" the Order of the Court sanctioning the
Scheme and confirming the reduction of
share capital involved therein
"Panel" the Panel on Takeovers and Mergers
"Pre-Conditions" the pre-conditions set out in paragraph 1
of Appendix 1 to this announcement which
must be satisfied or waived before the
Scheme Document is posted
"Registrar of Companies" the Registrar of Companies in England and
Wales
"Regulatory Information Service" any of the services set out in Appendix 3
to the Listing Rules
Page 44
"Restricted Overseas Person" a person (including an individual,
partnership, unincorporated syndicate,
limited liability company, unincorporated
organisation, trust, trustee, executor,
administrator or other legal
representative) in, or resident in, or
any person whom Linde reasonably believes
to be in, or resident in, Australia,
Canada or Japan and persons in any other
jurisdiction (other than US Persons or
persons in the UK) whom Linde is advised
to treat as restricted overseas persons
in order to observe the laws of such
jurisdiction or to avoid the requirement
to comply with any governmental or other
consent or any registration, filing or
other formality which Linde regards as
unduly onerous
"Scheme" the proposed scheme of arrangement under
section 425 of the Companies Act between
BOC and the BOC Shareholders, with or
subject to any modification, addition or
condition approved or imposed by the
Court and agreed by BOC and Linde
"Scheme Document" the document to be posted to BOC
Shareholders and others following the
satisfaction or waiver of the
Pre-Conditions containing, among other
things, the terms and conditions of the
Offer, certain information about BOC and
Linde, the Scheme and the notices of the
Meetings
"Scheme Record Time" 6.00 p.m. (London time) on the Business
Day immediately prior to the Effective
Date
"Scheme Voting Record Time" the time and date to be specified in the
Scheme Document
"Second Interim Dividend" the second interim dividend, the details
of which are set out in paragraph 2 of
this announcement, to be paid by BOC to
the BOC Shareholders if the
Pre-Conditions have not been satisfied
prior to 31 May 2006, on the basis set
out in paragraph 2
"Shares" BOC ordinary shares of 25 pence each
"Special Resolutions" the special resolutions to be proposed by
BOC at the EGM in connection with, inter
alia, amendments to be made to the
articles of association of BOC, the
approval of the Scheme and the
sanctioning of the related reduction of
Page 45
capital
"Substantial Interest" a direct or indirect interest in 20 per
cent. or more of the voting equity
capital of an undertaking
"Total Revenue" means total revenue including share of
revenue generated by joint ventures and
associates
"UK" the United Kingdom of Great Britain and
Northern Ireland
"UK Listing Authority" the Financial Services Authority in its
capacity as the competent authority under
the Financial Services and Markets Act
2000
"United States of America" the United States of America, its
or "United States" territories and possessions, any state of
the United States and the District of
Columbia
"US Person" a US person as defined in Regulation S
under the US Securities Act
"US Securities Act" the United States Securities Act of 1933,
as amended, and the rules and regulations
promulgated thereunder
"US Securities Exchange Act" the United States Securities Exchange Act
of 1934, as amended, and the rules and
regulations promulgated thereunder
"Wider BOC Group" BOC and its subsidiary undertakings and
associated undertakings and any other
undertaking in which BOC and/or such
undertakings (aggregating their
interests) have a Substantial Interest
"Wider Linde Group" Linde and its subsidiary undertakings and
associated undertakings and any other
undertaking in which Linde and/or such
undertakings (aggregating their
interests) have a Substantial Interest
For the purposes of this announcement, "subsidiary", "subsidiary undertaking",
"undertaking" and "associated undertaking" have the meanings given by the
Companies Act (but for this purpose ignoring paragraph 20(1)(b) of Schedule 4A
of the Companies Act).
Page 46
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant, The BOC Group plc, has duly caused this report to be signed on its
behalf by the undersigned, thereunto duly authorized.
Date: 6 March 2006
By: /s/ Carol Hunt
---------------------------------------
Name: Carol Hunt
Title: Deputy Company Secretary