OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING ORDINARY SHARES
AND
ALL OUTSTANDING AMERICAN DEPOSITARY SHARES
(EACH AMERICAN DEPOSITARY SHARE REPRESENTING ONE CLASS A SHARE)
OF
ANANGEL-AMERICAN SHIPHOLDINGS LIMITED
AT
$5.00 PER SHARE
BY
SUPERIOR NAVIGATION LTD.
--------------------------------------------------------------------------------
THIS OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT,
NEW YORK CITY TIME, ON FRIDAY, MARCH 29, 2002, UNLESS THE
OFFER IS EXTENDED.
--------------------------------------------------------------------------------
Superior Navigation Ltd., a Liberian corporation, is offering to purchase (i)
all outstanding Class A ordinary shares, nominal value $1.00 each ("Class A
Shares"), (ii) all outstanding Class B ordinary shares, nominal value $1.00 each
("Class B Shares" and together with the Class A Shares, "Ordinary Shares") and
(iii) all outstanding American Depositary Shares, each representing one Class A
Share ("ADSs" and together with the Ordinary Shares, "Shares") of
Anangel-American Shipholdings Limited, upon the terms and conditions of this
Offer and the related Acceptance Form and Letter of Transmittal.
THE OFFER IS CONDITIONED ON, AMONG OTHER THINGS, THERE BEING VALIDLY TENDERED
AND NOT VALIDLY WITHDRAWN AT LEAST 90% OF THE OUTSTANDING SHARES. SUPERIOR
NAVIGATION LTD. WILL PURCHASE AND PAY FOR ALL SHARES VALIDLY TENDERED AND NOT
VALIDLY WITHDRAWN IF 90% HAVE BEEN TENDERED AND NOT VALIDLY WITHDRAWN WHEN THE
OFFER EXPIRES. SUPERIOR NAVIGATION LTD., MAY WITHDRAW THE OFFER AT ANY TIME IF
CERTAIN CONDITIONS SPECIFIED IN THIS DOCUMENT OCCUR. SUPERIOR NAVIGATION LTD.
MAY UPON EXPIRATION OF THE OFFER PROVIDE A SUBSEQUENT OFFERING PERIOD OF BETWEEN
THREE TO TWENTY BUSINESS DAYS DURING WHICH IT MAY ACCEPT AND PAY FOR ALL SHARES
TENDERED AT THE SAME PRICE PER SHARE. YOU SHOULD READ THIS ENTIRE DOCUMENT
CAREFULLY BEFORE DECIDING WHETHER TO TENDER YOUR SHARES.
ALL REFERENCES TO DOLLARS OR $ IN THIS OFFER ARE TO THE LAWFUL CURRENCY OF THE
UNITED STATES.
NEITHER THE US SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THIS TRANSACTION OR PASSED UPON THE
FAIRNESS OR MERITS OF SUCH TRANSACTION OR UPON THE ACCURACY OR ADEQUACY OF THE
INFORMATION CONTAINED IN THIS DOCUMENT. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The Information Agent for the Offer The International Manager for the
is: Offer is:
MELLON INVESTOR SERVICES LLC FIRST EUROPEAN TRANSFER AGENT S.A.
00 Xxxx Xxxxxx 0, xxx Xxxxxx Edison
7th Floor L-0000 Xxxxxxxx
Xxx Xxxx, XX 00000 X-X Xxxxxxxxxx
Call Toll-Free in the US: x0 (000) 000-0000 Telephone: x00 0 00 00 0000
Call Collect if Outside the US: x0(000) 000-0000 Telefax: x00 0 00 00 000 000
February 12, 2002
IMPORTANT INFORMATION
This Offer will expire at 12:00 midnight, New York City time, on Friday,
March 29, 2002, unless Superior Navigation Ltd. ("Superior Navigation" or
"Offeror") extends the Expiration Time of the Offer. "Expiration Time" means the
latest time and date on which the Offer is to expire.
In order for ADSs to be validly tendered, a completed and duly executed
Letter of Transmittal, with any required signature guarantees, or an Agent's
Message (defined below) in connection with a book-entry delivery of ADSs, and
any other required documents, must be received by The Bank of New York
("Depositary") at one of its addresses set forth on the back cover page of this
Offer before the Expiration Time. At the same time the Depositary must receive
the American Depositary Receipt ("ADR") evidencing the tendered ADSs unless the
tender is by book-entry transfer. In the latter event the Depositary must
receive a Book-Entry Confirmation (defined below) before the Expiration Time, or
alternatively the tendering holder may comply with the guaranteed delivery
procedures described below.
In order for Ordinary Shares to be validly tendered, a completed and duly
executed Acceptance Form, together with any other required documents, must be
received before the Expiration Time by Dexia Banque Internationale a Luxembourg,
societe anonyme (the "Luxembourg Receiving Agent") at its address set forth on
the back cover page of this Offer. At the same time the Luxembourg Receiving
Agent must receive the certificate evidencing the tendered Ordinary Shares
unless the tender is by book-entry transfer. In the latter event the Luxembourg
Receiving Agent must receive confirmation of the Book-Entry transfer before the
Expiration Time.
Questions and requests for assistance or copies of the Offer to Purchase,
the Letter of Transmittal and related materials may be directed to Mellon
Investor Services LLC (the "Information Agent") in connection with the tender of
ADSs and to First European Transfer Agent S.A. (the "International Offer
Manager") in connection with the tender of Ordinary Shares, in each case at
their respective addresses and telephone numbers set forth on the back cover
page of this Offer. Copies will be furnished promptly at the Offeror's expense.
The Offer is not made to, nor will tenders be accepted from, holders in any
jurisdiction in which the making or acceptance of the Offer would not be in
compliance with the laws of that jurisdiction. Receipt of this document does not
constitute the making of the Offer in any jurisdiction in which the making or
acceptance of the Offer is not in compliance with the laws of that jurisdiction.
Tenders will not be accepted from or on behalf of any such holder.
In any jurisdiction where the securities, blue sky or other laws require
the Offer to be made by a licensed broker or dealer, the Offer will be made on
behalf of the Offeror by one or more registered brokers or dealers licensed
under the laws of that jurisdiction.
INFORMATION CONCERNING ANANGEL
The information concerning Anangel-American Shipholdings Limited in this
Offer has been taken from or based upon publicly available documents and records
on file with the US Securities and Exchange Commission ("SEC") or other public
sources and is qualified by reference to such documents and records. Superior
Navigation has no knowledge indicating that any statements in this Offer are
untrue or incomplete.
FORWARD-LOOKING STATEMENTS
This Offer and the documents incorporated by reference in this Offer
include forward-looking statements. These statements appear throughout this
Offer and include statements regarding the intent, beliefs or current
expectations of the Offeror and its management, including statements concerning
the Offeror's strategies following completion of the Offer and its plans with
respect to the acquisition of all of the equity interests in Anangel. Such
forward-looking statements are not guarantees of future events and involve risks
and uncertainties. Actual results may differ materially from those described in
the forward-looking statements as a result of various factors not all of which
are foreseeable.
2
AVAILABLE INFORMATION
Anangel is subject to the informational reporting requirements of the
Securities Exchange Act of 1934, as amended ("Exchange Act"), and accordingly
files reports and other information with the SEC. You can inspect and copy the
reports and other information filed by Xxxxxxx at the public reference
facilities maintained by the SEC at Judiciary Plaza, 000 Xxxxx Xxxxxx, X.X.,
Xxxxxxxxxx, X.X. 00000, and at its regional offices at 000 Xxxxxxxx, Xxx Xxxx,
Xxx Xxxx 00000 and Citicorp Center, 000 Xxxx Xxxxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxxxxx 00000. You can obtain copies of such materials at prescribed
rates from the SEC's Public Reference Section at 000 Xxxxx Xxxxxx, X.X.,
Xxxxxxxxxx, X.X. 00000. You can obtain further information on the operation of
the SEC's Public Reference Room in Washington, D.C. by calling the SEC at
0-000-XXX-0000. The SEC also maintains an Internet worldwide web site that
contains reports, proxy statements and other information about issuers, such as
Xxxxxxx, who file electronically with the SEC. The address of that site is
xxxx://xxx.xxx.xxx. You can also inspect and copy the reports and other
information filed by Xxxxxxx at the facilities of its listing agent, Dexia
Banque Internationale a Luxembourg, societe anonyme, 00, xxxxx x'Xxxx, XX 0000,
X-0000 Xxxxxxxxxx.
3
TABLE OF CONTENTS
SUMMARY TERM SHEET...........................................................5
INTRODUCTION................................................................10
SPECIAL FACTORS.............................................................11
BACKGROUND OF THE OFFER..................................................11
PURPOSE OF THE OFFER; PLANS FOR THE COMPANY..............................12
CERTAIN OTHER RIGHTS OF HOLDERS..........................................14
POSITION OF THE OFFEROR REGARDING FAIRNESS OF THE OFFER..................14
RELATED PARTY TRANSACTIONS...............................................16
INTERESTS OF CERTAIN PERSONS IN THE OFFER................................16
BENEFICIAL OWNERSHIP OF SHARES...........................................16
THE OFFER...................................................................17
GENERAL..................................................................17
TERMS OF THE OFFER.......................................................17
PROCEDURES FOR TENDERING ADSS AND ORDINARY SHARES........................18
WITHDRAWAL RIGHTS........................................................22
ACCEPTANCE FOR PAYMENT AND PAYMENT FOR ADSS AND ORDINARY SHARES..........23
CERTAIN TAX CONSEQUENCES.................................................24
PRICE RANGE OF SHARES; DIVIDENDS.........................................26
EFFECT OF THE OFFER ON THE MARKET FOR THE ADSS AND ORDINARY SHARES.......27
CERTAIN INFORMATION CONCERNING THE COMPANY...............................27
CERTAIN INFORMATION CONCERNING THE OFFEROR...............................30
INTEREST OF DIRECTORS AND EXECUTIVE OFFICERS AND PRINCIPAL SHAREHOLDERS;
TRANSACTIONS AND ARRANGEMENTS CONCERNING SHARES.......................30
SOURCE AND AMOUNT OF FUNDS...............................................30
CONDITIONS OF THE OFFER..................................................30
LEGAL MATTERS; REGULATORY APPROVALS......................................33
EXTENSION OF THE TENDER OFFER; TERMINATION; AMENDMENT....................33
FEES AND EXPENSES........................................................34
MISCELLANEOUS............................................................34
SCHEDULE I INFORMATION CONCERNING THE DIRECTORS AND EXECUTIVE OFFICERS OF
SUPERIOR NAVIGATION LTD...................................................I
SCHEDULE II CAYMAN ISLANDS COMPANIES LAW (2001 SECOND REVISION) EXTRACT OF
RELEVANT PROVISIONS APPLICABLE TO THE COMPULSORY ACQUISITION.............II
4
--------------------------------------------------------------------------------
SUMMARY TERM SHEET
Superior Navigation Ltd. is a recently formed Liberian corporation
controlled by Xxxxxxxxxxxxx family interests. Xxxxxxxxxxxxx family interests own
approximately 81% of the Shares of Anangel-American Shipholdings Limited.
Superior Navigation is offering to purchase all outstanding Class A and Class B
Shares and all outstanding American Depositary Shares of Anangel, at a price of
$5.00 per Share, net to the seller in cash.
The following are some questions you, as a shareholder of Anangel, may have
and answers to those questions.
We urge you to read carefully this Offer and the related Letter of
Transmittal, if you are a holder of ADSs, or Acceptance Form, if you are a
holder of Ordinary Shares. The information in this summary term sheet does not
contain all of the information you should consider before tendering your Shares.
Additional important information is contained in the remainder of this Offer and
in the related Letter of Transmittal or Acceptance Form.
Who is offering to purchase
my Shares? ................ Our name is Superior Navigation, Ltd. We are
incorporated under the laws of Liberia. See "The
Offer - Certain Information Concerning the
Offeror" to this Offer. We are controlled by the
Xxxxxxxxxxxxx family interests that control
Anangel.
How many Shares will you
purchase? ................. We are seeking to purchase all of the issued and
outstanding Class A and Class B Shares, including
the Class A Shares represented by American
Depositary Shares. See the "Introduction" to this
Offer.
How much are you offering to
pay, what is the form of
payment and will I have to
pay any fees or
commissions? .............. We are offering to pay $5.00, in cash, without
interest, per Share, including each Share
represented by an ADS. If you are the record
owner and tender ADSs or Ordinary Shares, you
will not have to pay brokerage fees or other
expenses. If you own through a broker or other
nominee, your broker or nominee may charge you a
fee for tendering your ADSs or Ordinary Shares.
You should consult your broker or nominee to
determine whether it will charge you a fee. See
the "Introduction" to this Offer.
Do you have the financial
resources to make
payment? .................. Funds to purchase all Shares tendered by
non-Xxxxxxxxxxxxx family interests will be
provided out of the Offeror's cash on hand. The
Xxxxxxxxxxxxx family interests intend to tender
their Shares in exchange for a note of the
Offeror which the Offeror will repurchase with
its Shares. See "The Offer - Source and Amount of
Funds" in the Offer.
Is your financial condition
relevant to my decision to
tender? ................... We do not believe that our financial condition is
relevant to your decision whether to tender
Shares and accept the Offer because:
o the Offer is not subject to any financing
condition;
o if you tender and receive payment for your
Shares, you will have no continuing equity
interest in Anangel; and
o we may acquire all remaining Shares for the
same cash price pursuant to a compulsory
acquisition in accordance with the Companies
Law (2001 Second Revision) of the Cayman
Islands.
5
See "Special Factors - Purpose of the
Offer; Plans for the Company" for a discussion
of the requirements for effecting a compulsory
acquisition in accordance with the Companies
Law of the Cayman Islands.
How long do I have to decide
whether to tender? ........ You have until 12:00 midnight, New York City
time, on Friday, March 29, 2002, unless the Offer
is extended. Further, if you cannot deliver
everything required to make a valid tender by
that time, you may, if you are tendering ADSs, be
able to use the guaranteed delivery procedure
described later in this Offer. See "The Offer -
Terms of the Offer" and "The Offer - Procedures
for Tendering ADSs and Ordinary Shares" in this
Offer.
How will I be notified if you
extend the Offer? ......... If we extend the Offer, we will inform the
Depositary, the Luxembourg Receiving Agent, the
International Manager and the Information Agent
of the extension. We will also make a public
announcement through the PR Newswire of the
extension, not later than 9:00 a.m. New York City
time, on the business day following the day on
which the Offer was scheduled to expire. See "The
Offer - Terms of the Offer" in this Offer.
Are there conditions to the
Offer? .................... Yes. The Offer is subject to several conditions,
including that enough Shares are tendered and not
withdrawn so that on expiration of the Offer
Superior Navigation will own at least 90% of
Xxxxxxx's outstanding Shares. The Offeror may
also amend or terminate the Offer if certain
events occur such as an actual or threatened
material change in the financial condition of
Anangel, governmental or judicial action with
regard to Anangel, or a change in market
conditions. See "The Offer - Conditions of the
Offer" in this Offer.
How do I tender my Shares? ... To tender ADSs, you must deliver the
certificate(s) representing your ADSs, together
with a completed Letter of Transmittal, to The
Bank of New York, not later than the Expiration
Time of the Offer at one of its addresses listed
on the back cover page of this Offer. If your
ADSs are held in "street name" your nominee can
tender your ADSs through The Depository Trust
Company. If you cannot obtain all the documents
and instruments required to be delivered to the
Depositary by the Expiration Time of the Offer,
you may obtain an extension of three additional
New York Stock Exchange trading days to do so by
having a broker, a bank or other fiduciary which
is a member of the Securities Transfer Agents
Medallion Program or other eligible institution
guarantee that the missing items will be received
by the Depositary within the three New York Stock
Exchange trading days. For your tender to be
valid, the Depositary must receive the missing
items within that three trading day period. See
"The Offer - Procedures for Tendering ADSs and
Ordinary Shares" in this Offer.
To tender Ordinary Shares, you must deliver the
certificate(s) representing your Ordinary Shares,
together with a completed Acceptance Form, to
Dexia Banque Internationale a Luxembourg, societe
anonyme, the Luxembourg Receiving Agent, not
later than the
6
Expiration Time of the Offer, at one of its
address listed on the back cover of this Offer.
You may only tender Ordinary Shares if you are a
registered holder. If you are a beneficial owner
of Ordinary Shares rather than a registered
holder, you should direct your broker, dealer,
commercial bank, trust company or other
nominee to complete the Acceptance Form and
tender the Ordinary Shares for you.
Until what time can I withdraw
previously tendered ADSs
or Ordinary Shares? ........ You can withdraw previously tendered ADSs and
Ordinary Shares at any time until the Expiration
Time of the Offer (excluding any subsequent
offering period) and, if we have not by April 13,
2002 agreed to accept your ADSs or Ordinary
Shares for payment, you can withdraw them at any
time after that date until we accept ADSs or
Ordinary Shares for payment. You may not withdraw
any ADSs or Ordinary Shares tendered in a
subsequent offering period. See "The Offer -
Terms of the Offer" and "The Offer - Withdrawal
Rights" in this Offer.
How do I withdraw previously
tendered ADSs or Ordinary
Shares? ................... To withdraw ADSs, you must deliver a written
notice of withdrawal with the required
information to The Bank of New York, the
Depositary for this Offer, while you have the
right to withdraw the ADSs. See "The Offer -
Withdrawal Rights" in this Offer.
To withdraw Ordinary Shares, you must deliver a
written notice of withdrawal with the required
information to Dexia Banque Internationale a
Luxembourg, societe anonyme, the Luxembourg
Receiving Agent for the Offer, while you have the
right to withdraw the Ordinary Shares. See "The
Offer - Withdrawal Rights" in this Offer.
Will there be a subsequent
offering period? .......... We may decide to have a subsequent offering
period, depending on how many ADSs and Ordinary
Shares are tendered during the initial offering
period. The subsequent offering period would be a
continuous extension of the original Offer period
and would commence immediately at the Expiration
Time of the original Offer. The subsequent
offering period would be an additional period of
time beginning after the Expiration Time of the
Offer, during which holders of Shares may tender
their Shares and receive the same $5.00 per
Share.
The subsequent offering period, if included,
would be available for a minimum of three and up
to a maximum of 20 business days after the
Expiration Time of the Offer. An announcement of
any subsequent offering period will be made by a
press release through PR Newswire. In Luxembourg
announcement will be made by publishing a notice
in the Luxemburger Wort. We would immediately
accept and pay for all Shares validly tendered in
the subsequent offering period. Holders will not
have withdrawal rights with respect to Shares
tendered during the subsequent offering period.
For more information, see "The Offer - Terms of
the Offer" in this Offer.
7
Have the independent
directors on Xxxxxxx's
board adopted a position
on the Offer? ............. Upon receiving notice that the Offer was to be
made and ascertaining that the price afforded a
premium over the then existing market and
Anangel's net asset value (i.e. its book value
adjusted to reflect the current market value of
its vessels), Xxxxxxx's independent directors
endorsed the Offer subject to obtaining an
opinion of an independent investment adviser that
the Offer was fair to the holders of Shares other
than Xxxxxxxxxxxxx family interests. See "Special
Factors - Certain Other Rights of Holders" in
this Offer.
Has a fairness opinion been
delivered in connection
with your Offer? .......... Yes. A fairness opinion has been delivered to
Xxxxxxx's independent directors by an independent
investment adviser and will be attached as an
annex to the recommendation of the independent
directors that will be filed with the SEC on
Schedule 14D-9. See "Special Factors - Certain
Other Rights of Holders" in this Offer.
Are there any conflicts of
interest in your Offer? ... The same Xxxxxxxxxxxxx family interests control
Superior Navigation and own 81% of the Shares of
Anangel. Superior Navigation can be considered to
have a conflict of interests with holders of
Xxxxxxx Xxxxxx not controlled by Xxxxxxxxxxxxx
family interests. See "The Offer - Interest of
Directors and Executive Officers and Principal
Shareholders; Transactions and Arrangements
Concerning Shares" in this Offer.
Is the Offer fair in the
opinion of Superior
Navigation? ................Yes. See "Special Factors - Position of the
Offeror Regarding Fairness of the Offer" in this
Offer.
What are the United States
federal income tax
consequences if I tender
my Shares? ................ Generally, if you are a US taxpayer your receipt
of cash for Shares in this Offer will be a
taxable transaction for US federal income tax
purposes. You will generally recognize gain or
loss in an amount equal to the difference between
(1) the cash you receive in the Offer and (2)
your adjusted tax basis in the Shares in Anangel
you tender in the Offer. That gain or loss will
be a capital gain or loss if the Shares are a
capital asset in your hands, and will be
long-term capital gain or loss if the Shares have
been held for more than one year at the time the
Offer is completed. You are urged to consult your
own tax adviser as to the particular tax
consequences to you if you accept the Offer. See
"The Offer - Certain Tax Consequences" in this
Offer, particularly if you have a relationship
with any of the Xxxxxxxxxxxxx family interests.
Will you seek to acquire
Xxxxxxx's entire share
capital if all of
Xxxxxxx's Shares are not
tendered in the Offer? .... Yes. If we accept for payment and pay for ADSs
and Ordinary Shares representing at least 90% of
the Shares, we intend to take all necessary
action to effect a compulsory acquisition of the
Shares not
8
acquired by us, in accordance with Section 88 of
the Companies Law (2001 Second Revision) of the
Cayman Islands.
If a compulsory acquisition takes place, we would
acquire all Shares we did not acquire in the
Offer for $5.00 per Share in cash. See the
"Introduction" in this Offer.
Xxxx Xxxxxxx continue as a
public company? ........... No. If we acquire Xxxxxxx's entire share capital,
Anangel will no longer be publicly owned. Even if
a compulsory acquisition does not take place, if
we purchase 90% or more of the Shares there will
likely be so few remaining holders of Shares that
(a) Anangel Shares will no longer meet the
guidelines of the Nasdaq National Market for
continued listing and may be delisted from the
Nasdaq, (b) there will likely not be a public
trading market for the Shares, and (c) Anangel
may not be required to comply with the SEC rules
relating to publicly held companies and
accordingly may cease making filings with the
SEC. See "The Offer - Effect of the Offer on the
Market for the ADSs and Ordinary Shares" in this
Offer.
If I decide not to tender,
how will the Offer affect
my Shares? ................ If the compulsory acquisition takes place,
shareholders not tendering in the Offer will
receive the same amount of cash per ADS or
Ordinary Share they would have received had they
tendered. Therefore, if the compulsory
acquisition takes place, the only difference to
you between tendering and not tendering is that
you will be paid earlier if you tender in the
Offer. However, if a compulsory acquisition does
not take place, there may be so few remaining
holders of Shares that there may not be any
market for them and the delisting or
deregistration described above may occur. See the
"Introduction" and "The Offer - Effect of the
Offer on the Market for the ADSs and Ordinary
Shares" of this Offer.
What is the market value of
Xxxxxxx's Shares as of a
recent date? .............. On December 5, 2001, the last full trading day
prior to the public announcement of the Offer,
the last reported sales price of the ADSs on the
Nasdaq was $3.351 per share. The $5.00 Offer
Price is a $1.649 (49%) per Share premium over
the market price prior to the public
announcement. On February 8, 2002, the most
recent practicable date prior to the printing of
this Offer, the last reported sales price of the
ADSs was $4.69 per share. Holders are urged to
obtain current and historical market quotations
for the ADSs and Ordinary Shares. See "The Offer
- Price Range of Shares; Dividends" of this
Offer.
Who can I talk to if I have
questions about the
Offer? .................... For any questions you may have regarding ADSs you
can call Mellon Investor Services LLC, the
Information Agent for the Offer, toll-free in the
US at (000) 000-0000 or call collect if outside
the US at x0 (000) 000-0000. For questions
regarding Ordinary Shares you can call First
European Transfer Agent S.A., the International
Manager for the Offer at x00 0 00 00 000000. You
can also access Xxxxxxx's public filings on the
SEC's website at xxxx://xxx.xxx.xxx. If you wish,
you may contact Superior Navigation by calling
Xxxxxxxxx X. Xxxxxxxxx at x00 00 000 0000 or
Xxxxx Xxxxxx at x00 000 000 0000.
--------------------------------------------------------------------------------
9
INTRODUCTION
Superior Navigation Ltd., a Liberian corporation ("Superior Navigation" or
the "Offeror"), hereby offers to purchase (i) all outstanding Class A ordinary
shares, nominal value $1.00 each ("Class A Shares"), (ii) all outstanding Class
B ordinary shares, nominal value $1.00 each ("Class B Shares" and together with
the Class A Shares, "Ordinary Shares"), and (iii) all outstanding American
Depositary Shares, each representing one Class A Share ("ADSs" and together with
the Ordinary Shares, "Shares") of Anangel-American Shipholdings Limited, a
Cayman Islands company ("Anangel" or the "Company").
The price to be paid is US$5.00 per Share in cash, without interest ("Offer
Price"), upon the terms and conditions set forth in this Offer and in the
related Letter of Transmittal (for ADSs) and Acceptance Form (for Ordinary
Shares). This Offer, together with the Letter of Transmittal and Acceptance
Form, as they may be amended or supplemented from time to time, constitute the
"Offer".
The Offeror is controlled by the same Xxxxxxxxxxxxx family interests that
control approximately 81% of the Shares of Anangel.
THE OFFER IS CONDITIONED ON, AMONG OTHER THINGS, THERE BEING VALIDLY
TENDERED AND NOT VALIDLY WITHDRAWN PRIOR TO EXPIRATION OF THE OFFER, SHARES
WHICH REPRESENT AT LEAST 90% OF THE OUTSTANDING SHARES ("MINIMUM CONDITION").
SUPERIOR NAVIGATION WILL PURCHASE AND PAY FOR ALL SHARES TENDERED IF THE MINIMUM
CONDITION IS MET AT THE EXPIRATION TIME OF THE OFFER. THE OFFEROR MAY FROM TIME
TO TIME EXTEND THE OFFER BY MAKING A PUBLIC ANNOUNCEMENT BY A PRESS RELEASE
THROUGH PR NEWSWIRE NO LATER THAN 9:00 A.M., NEW YORK CITY TIME, ON THE NEXT
BUSINESS DAY AFTER THE PREVIOUSLY SCHEDULED EXPIRATION TIME. THE OFFEROR MAY
ALSO MAKE AVAILABLE A SUBSEQUENT OFFERING PERIOD ON ONE OCCASION FOR A PERIOD OF
NOT LESS THAN THREE AND NOT MORE THAN TWENTY BUSINESS DAYS DURING WHICH ALL
SHARES TENDERED WILL BE PURCHASED AND PAID FOR AS THEY ARE TENDERED.
ANNOUNCEMENT OF EXTENSIONS OR A SUBSEQUENT OFFERING PERIOD WILL BE MADE IN
LUXEMBOURG BY PUBLICATION OF A NOTICE IN THE LUXEMBURGER WORT. SUPERIOR
NAVIGATION MAY AMEND OR TERMINATE THE OFFER IF ANY OF THE EVENTS DESCRIBED IN
"THE OFFER - CONDITIONS OF THE OFFER" HAVE OCCURRED.
Tendering record holders will not be obligated to pay brokerage fees or
commissions or, except as set forth in the Instruction 6 of the Letter of
Transmittal, stock transfer taxes in respect of their sale of the Shares
pursuant to the Offer. However, in order to avoid "backup withholding" of US
federal income tax at a rate of 30% of the gross payment received pursuant to
the Offer and other related tax penalties, each holder tendering ADSs and each
US holder tendering Ordinary Shares is urged to provide the Offeror with either
the holder's correct taxpayer identification number on Form W-9, or a
certificate of the holder's non-US status as a non-US taxpayer on a Form W-8BEN,
W-8IMY or other appropriate Form W-8. A substitute Form W-9 and Form W-8BEN are
included with the Offer materials and holders may obtain a Form W-8IMY from the
Depositary or the Luxembourg Receiving Agent. For more information, see "The
Offer - Certain Tax Consequences" in this Offer.
According to filings by Xxxxxxx with the SEC and other publicly available
sources, as of January 30, 2002, there were 23,973,854 Shares issued and
outstanding. The 11,745,854 outstanding Class A Shares (including 11,144,701
ADSs) consist of (i) 7,207,207 Shares (approximately 61% of all Class A Shares)
owned by Xxxxxxxxxxxxx family interests and (ii) 4,538,647 Shares held by a
total of 79 holders of record. The 12,228,000 Class B Shares are owned by
Anangel Integrity, a company controlled by Xxxxxxxxxxxxx family interests.
Therefore, the Xxxxxxxxxxxxx family interests hold in the aggregate 19,435,207
Shares which represented approximately 81% of the Shares issued and outstanding.
THIS OFFER AND IN THE CASE OF ADSS THE RELATED LETTER OF TRANSMITTAL AND IN
THE CASE OF ORDINARY SHARES THE ACCEPTANCE FORM CONTAIN IMPORTANT INFORMATION
AND SHOULD BE READ IN THEIR ENTIRETY BEFORE ANY DECISION IS MADE WITH RESPECT TO
THE OFFER.
10
SPECIAL FACTORS
BACKGROUND OF THE OFFER
Anangel-American Shipholdings Limited was founded by the late Xxxxxxx
Xxxxxxxxxxxxx as a Cayman Islands company in April 1987 to be the holding
company of subsidiaries engaged in acquiring, operating and disposing of
ocean-going cargo vessels. Xxxxxxx's Class A Shares were first listed on the
Luxembourg Stock Exchange in June 1987. Upon the death of the founder in 1989,
control of Xxxxxxx passed to interests of his wife, Xxxxx X. Xxxxxxxxxxxxx.
Their son, Xxxx Xxxxxxxxxxxxx has been Chairman of Xxxxxxx's Board of Directors
since 1989. Xxxxxxxx X. Xxxxxxxxxx, the husband of their daughter, Xxxx, served
on Xxxxxxx's Board from 1989 until 2001. Anangel sold ADSs to the public
(approximately 19.06% of the Shares issued and outstanding after the offering)
at $16.50 per share in June 1989. The ADRs have traded on the National Market
System of the National Association of Securities Dealers, Inc. Automated
Quotation System ("Nasdaq") since 1989 under the symbol "ASIPY." Xxxxxxx's Class
B Shares are owned by a company controlled by Xxxxxxxxxxxxx family interests.
On November 19, 1999, Anangel offered its shareholders the right to
purchase one additional Share for every two Shares held at the closing bid price
of $5.75 on the Nasdaq as of November 15, 1999. The Xxxxxxxxxxxxx and Kanellakis
family interests agreed to purchase the Shares offered to them and all Shares
offered to and not purchased by shareholders not controlled by Xxxxxxxxxxxxx and
Kanellakis family interests.
This offering resulted in Anangel issuing 7,991,285 additional Shares,
7,167,148 (or approximately 89.69%) of which were purchased by Xxxxxxxxxxxxx
Shipholding Group Limited ("ASGL"), a company controlled by Xxxxxxxxxxxxx and
Kanellakis family interests, and its then wholly owned subsidiary, Anangel
Integrity Compania Naviera S.A. ("Anangel Integrity"), a Panama corporation.
By 2001, Xxxxxxxx X. Xxxxxxxxxx and his wife, Xxxx, the sister of Xxxx
Xxxxxxxxxxxxx, were developing their own direct involvement in the shipping
industry, which they intended to pursue further. At that time, the Kanellakis
family interests together with the Xxxxxxxxxxxxx family interests controlled
approximately 81% of the outstanding Shares of Anangel. To avoid any conflicts
of interest between Xxxxxxx and the Kanellakis family interests, it was agreed
that the interests in Anangel would be reorganized so that the Xxxxxxxxxxxxx
family interests would become the sole beneficial owner of the Shares in Anangel
held by ASGL and its subsidiaries.
To facilitate this reorganization Xxxxxxx declared and paid a $3.00 per
share cash dividend on May 4, 2001, to all shareholders of record as of April
30, 2001, and the Xxxxxxxxxxxxx family interests then paid the Kanellakis family
interests $6.00 per Anangel share for their interests in Anangel. In connection
with this reorganization the Kanellakis family interests were also granted a 30
day option expiring on May 1, 2001 to purchase one or more of four
vessels/newbuilding contracts at a strike price set at the fair market value
determined by independent shipbrokers on March 31, 2001. The option was
exercised by the Kanellakis family interests and all four vessels/newbuilding
contracts were purchased.
Subsequent to the reorganization, Xxxxxxx's management presented the
Company's Board with a strategy for expanding Xxxxxxx's presence in the market
place and increasing shareholder value. The Board endorsed the plan, which would
have increased Xxxxxxx's involvement in the shipping industry and focused its
activities around energy related transportation.
As part of its plan to broaden its activities in the shipping industry,
Anangel explored a number of merger and acquisition possibilities. On May 29,
2001, Anangel announced its acquisition of 25% of the outstanding shares of ACOL
Tankers Limited ("ACOL") from Xxxxxxxxxxxxx family interests for $47,404,000 and
an option to acquire an additional 26% of ACOL's outstanding shares before
December 31, 2001 at ACOL's net asset value at the time of exercise of the
option. The 26% option was not exercised. ACOL is a privately owned
owner/operator of modern crude oil tankers of which the Xxxxxxxxxxxxx family
interests controlled 78% of the shares before the sale to Anangel.
Xxxxxxx's management has discussed merger possibilities with several
shipping companies with no transactions emerging as possible without
unacceptable dilution.
11
Throughout Anangel's existence as a public company, its revenues and
operating profits have generally increased while at the same time the price of
its Shares has never commensurately increased. Despite the initiatives that have
been taken to increase shareholder value, Xxxxxxx's share price has failed to
improve and further expansion or acquisitions have become increasingly
difficult.
The Xxxxxxxxxxxxx family interests have concluded that there is no
advantage to them or the public shareholders to continue as a public company in
light of the expenses of doing so and the inability to expand the ownership base
and increase the size of the Company, especially in light of the worsening
outlook for the global economy and the shipping industry in particular.
At a meeting held by Xxxxxxx's Board of Directors in New York City on
December 5, 2001, Xx. Xxxx Xxxxxxxxxxxxx advised the Board that due to the
prospects of both the dry cargo and oil tanker markets, there was little
prospect that further initiatives to increase shareholder value would be any
more successful than the initiatives already taken. It therefore made little
sense for Anangel to continue to shoulder the burden and expense of being a
public company, and therefore he was prepared to have a company controlled by
his family interests make a tender offer for all of Xxxxxxx's outstanding Shares
in an effort to take the Company private.
The Board inquired about Xxxxxxx's current market, net asset and book
value, as well as the contemplated going private procedure. Upon ascertaining
that the contemplated purchase price offered a substantial premium over the
market and net asset values, the Board endorsed Xx. Xxxxxxxxxxxxx' proposal,
subject to obtaining a fairness opinion from an independent source. The Board
authorized the independent directors to obtain the fairness opinion.
On December 6, 2001, Xxxxxxx issued a press release announcing that it had
been notified that the Offeror intended to tender for the Shares on the terms of
this Offer.
On February 1, 2002, Poseidon Financial Corp., the investment adviser
engaged by the independent directors, delivered its opinion that the proposed
offer price of $5.00 per Share was fair to the public shareholders.
PURPOSE OF THE OFFER; PLANS FOR THE COMPANY
Purpose of the Offer. The Offeror is making the Offer because the Offeror
believes the Offer is a way to take Anangel private while affording the public
shareholders the opportunity to sell their Shares at a fair price. The
Xxxxxxxxxxxxx family interests have endeavored for many years to increase the
interests of others in Anangel and to expand the public ownership of the
Company. These efforts have included the rights offering in 1999 (in which only
approximately 10.31% of the Shares were purchased by shareholders other than
Xxxxxxxxxxxxx and Kanellakis family interests), various efforts to sell Shares
to the public or merge with others, and the purchase of 25% of ACOL, an oil
tanker company. The Xxxxxxxxxxxxx family interests have concluded that it is not
possible to increase the size or public ownership in the Company without
unacceptable dilution, in light of current and projected world economic
conditions and the markets for dry cargo carrying and oil tanker vessels and for
equity interests in dry cargo and oil tanker owning and operating companies. The
family interests have concluded that for the foreseeable future the number of
publicly held Xxxxxxx Xxxxxx would likely remain relatively small and the market
for those Shares would likely continue to be relatively illiquid. They believe
the expense of providing for and maintaining a public market for the Shares does
not and likely will not produce commensurate benefits either for the public
holders or the family interests. The family interests have therefore concluded
that a going private transaction should be undertaken through Superior
Navigation, which is controlled by the Xxxxxxxxxxxxx family interests, at a fair
price, and Superior Navigation is undertaking the Offer to accomplish this
result.
The Compulsory Acquisition. If at least 90% of the Shares are tendered and
accepted in the Offer, then, subject to and in accordance with Cayman Islands
Companies Law, the Offeror intends, not later than two months following
expiration of four months from the date of making the Offer, to give each
shareholder that has not tendered pursuant to the Offer (a "Dissenting
Shareholder") notice that the Offeror desires to acquire the Dissenting
Shareholder's Shares pursuant to the procedure set out in Section 88 of the
Cayman Islands Companies Law relating to a Compulsory Acquisition. A Compulsory
Acquisition will not require any shareholder approval and will result in each
Dissenting Shareholder receiving the same price paid for Shares in
12
the Offer. This process is described in greater detail under "Appraisal Rights"
below. Schedule II sets forth Section 88 of the Companies Law and the prescribed
manner of notice to Dissenting Shareholders.
Other. If the Offeror is not able to acquire all remaining ADSs and
Ordinary Shares pursuant to a Compulsory Acquisition, the Offeror will explore
other alternatives to acquire the entire equity interest in Anangel. The Offeror
may seek to acquire additional ADSs and Ordinary Shares from holders or may
pursue other transactions such as a reorganization, liquidation, reincorporation
to a jurisdiction that permits squeeze out mergers, reverse stock split, or sale
of the Company's assets and a liquidation. Although the Offeror currently has no
plans with respect to such other means, future Share acquisitions may be by open
market or privately negotiated purchases or otherwise. Such transactions might
involve the exchange of cash or securities of the Offeror or some combination of
cash and securities, and may be on terms and at prices more or less favorable
than those of the Offer.
The decision to enter into such future transactions and the forms they
might take will depend upon relevant legal considerations and business and
economic circumstances then existing, including the financial resources, the
business, tax and accounting objectives of the Offeror, the performance of the
Shares in the market, if any, the availability and alternative uses of funds,
money market and stock market conditions and general economic conditions.
Appraisal Rights. None of the Cayman Islands Companies Law, the Company's
Articles of Association, the Company's Memorandum of Association or the Offer
provides for appraisal or other similar rights.
Under Section 88(1) of the Companies Law, if the Offeror acquires (or
receives unconditional acceptances of the Offer in respect of) at least 90% in
value of the Shares within four months after the commencement of the Offer, then
it may give notice ("Notice") at any time within two months following the
expiration of the four-month period to any Dissenting Shareholder that it
desires to acquire the Shares held by such Dissenting Shareholder on the terms
of the Offer. Each Dissenting Shareholder will then have one month from the date
the Notice has been given to make an application to the Court for an order (an
"Order") preventing the Offeror from so acquiring his or her Shares. If the
application is not timely made, upon the Offeror transmitting a copy of the
Notice to the Company and paying the applicable per Share price to the Company,
the Company will be required to register the Offeror as the holder of those
Shares. Any sums paid to the Company in respect of Shares to be acquired from
Dissenting Shareholders are required to be held by the Company in trust for and,
upon proof of identity and entitlement, paid over to the Dissenting
Shareholders.
THE FOREGOING SUMMARY OF THE RIGHTS OF OBJECTING HOLDERS DOES NOT PURPORT TO BE
A COMPLETE STATEMENT OF THE PROCEDURES THAT MAY BE FOLLOWED BY HOLDERS IN
RESPECT OF A COMPULSORY ACQUISITION.
The provisions of the Companies Law are complex and technical in nature.
Holders may wish to consult their own counsel in respect of these matters.
Plans for Anangel After Completion of the Offer. Subject to certain matters
described below, the Offeror currently expects that following the Offer the
business and operations of Anangel will continue as currently conducted.
Superior Navigation intends that Xxxxxxx's operations will continue to be
managed by its existing executive officers.
Upon completion of the Offer, the interest of Superior Navigation in
Xxxxxxx's net book value and net earnings will be in proportion to the number of
Shares owned by Superior Navigation. If the Compulsory Acquisition is
successfully consummated, Superior Navigation's interest in such items and in
Anangel's equity will equal 100%, and Superior Navigation will be entitled to
all benefits resulting from such interest, including all income generated by
Xxxxxxx's operations and any future increase in Xxxxxxx's value. Similarly,
after completion of the Offer and/or a Compulsory Acquisition, Superior
Navigation will bear its proportionate share of any losses generated by Anangel
and any future decrease in the value of Anangel. Based on Xxxxxxx's results for
the fiscal year ended December 31, 2000, upon successful completion of the Offer
and Compulsory
13
Acquisition, the Xxxxxxxxxxxxx family interests beneficial share in Xxxxxxx's
net book value and net earnings would increase from approximately 81% to 100% or
by approximately $51,619,200 and $5,397,710, respectively. Subsequent to a
successful consummation of a Compulsory Acquisition, current shareholders of
Anangel not controlled by Xxxxxxxxxxxxx family interests will cease to have any
equity interest in Anangel, will not have the opportunity to participate in the
earnings and growth of Anangel and will not have any right to vote on corporate
matters. Similarly, current shareholders will not face the risk of losses
generated by Xxxxxxx's operations or decline in Anangel's value after the
consummation of the Compulsory Acquisition. If the Offer is completed but a
Compulsory Acquisition is not undertaken or completed, the current shareholders
of Anangel who have not tendered their Shares in the Offer will have a
proportionate share of the equity interests in Anangel and a proportionate
participation in the earnings and growth of Anangel and in its losses or
declines in value.
The ADSs are currently traded on the Nasdaq and the Class A Shares on the
Luxembourg Stock Exchange. Following consummation of the Offer and the
Compulsory Acquisition, the ADSs will no longer be listed on the Nasdaq or the
Ordinary Shares on the Luxembourg Stock Exchange, and the registration of the
ADSs under the Exchange Act will likely be terminated. Accordingly, there will
be no publicly traded equity securities of Anangel outstanding and Anangel will
no longer be required to file periodic reports with the SEC. See "The Offer -
Effect of the Offer on the Market for the ADSs and Ordinary Shares" in this
Offer.
Except as otherwise discussed in this Offer, Superior Navigation has no
plans that would result in any extraordinary corporate transaction, such as an
amalgamation, reorganization, liquidation involving Anangel or any of its
subsidiaries, or purchase, sale or transfer of a material amount of assets of
Anangel or any of its subsidiaries or in any other material changes to Anangel's
capitalization, dividend policy, indebtedness corporate structure, business or
composition of the Board of Directors of Anangel or the management of Anangel.
CERTAIN OTHER RIGHTS OF HOLDERS
Position of Xxxxxxx Xxxxxxxxx the Offer. Anangel is required by the
Exchange Act to file with the SEC a Tender Offer Solicitation/Recommendation
Statement on Schedule 14D-9 within 10 business days after commencement of the
Offer containing a statement of Xxxxxxx's position with respect to the Offer.
Superior understands that Xxxxxxx will state that in the view of its independent
directors the Offer is fair to the public shareholders and will recommend that
the shareholders accept the Offer and that the opinion of an independent
investment adviser to the effect that the Offer is fair to the public
shareholders will be filed with the Schedule 14D-9.
POSITION OF THE OFFEROR REGARDING FAIRNESS OF THE OFFER
Fairness. Superior Navigation believes that the price Superior Navigation
is offering for the Shares is fair, based on the premium implicit in the Offer
Price, the $3.00 per share dividend on May 4, 2001, the market price of the
Shares since that date, the results of the rights offering in 1999, the book and
market value of Anangel's assets, the unlikely prospects of increasing the size
and the liquidity of the markets for the Shares, the outlook for the world
economy and the stock markets generally and the shipping business specifically,
and the failure to find appropriate mergers or acquisitions for Anangel at
acceptable prices.
Certain Factors Considered in Determining Fairness:
o The average daily last sale prices on the Nasdaq over the 30, 60 and 90 day
periods ending December 5, 2001, were $2.50, $2.55 and $2.99, respectively;
o the most recently reported sales price of the Shares prior to the public
announcement of the Offer on December 5, 2001 was $3.351;
o the small and relatively illiquid trading market for the Shares;
o Anangel has been unsuccessful in its efforts to engage in acquisitions, one
of the advantages of being a public company upon which the decision to
undertake Xxxxxxx's initial public offering was predicated;
o the unfavorable near and medium term prospects of increasing shareholder
value in light of current and projected market conditions; and
o the Offer will provide consideration to the public shareholders entirely in
cash.
14
The principal financial issues taken into account prior to making the Offer
and fixing the consideration offered to the holders of the Shares are discussed
below.
Current Market Price. The low market price of the Shares has reduced
Xxxxxxx's ability to conduct placements, whether private or public, of its
securities to raise capital and to perform acquisitions with its securities.
The low volume of trading has resulted in an illiquid market for the
Shares.
Historical Market Prices. The historical market prices, whatever be the
period examined (see, e.g., xxxx://xxxxxxxxxxx.xxx), have declined over a
sustained period, despite the fact that Xxxxxxx's revenues and net income have
been cyclical, reflecting its business. Superior Navigation sees little reason
to believe that Xxxxxxx's future results will be other than reflections of the
cyclical nature of its business.
Measures Taken. In 1999, Xxxxxxx made a rights offering to its shareholders
in an effort to provide funds for capital investments and increase to the size
of the trading market in its Shares. To ensure that the offering was fully
subscribed and that Anangel would receive funding for its capital investment
program, the Xxxxxxxxxxxxx and Kanellakis family interests agreed to purchase
the Shares offered to them and any Shares offered but not purchased by other
shareholders. As a result of the offering, Xxxxxxx issued a total of 7,991,285
additional Shares, 7,167,148 (or approximately 89.69%) of which were purchased
by the Xxxxxxxxxxxxx and Kanellakis family interests.
In 2001 Xxxxxxx paid a cash dividend of $3.00 per Share to facilitate the
removal of the Kanellakis family interests in Anangel from Xxxxxxx's activities
within the shipping industry. Anangel later in 2001 acquired a 25% stake in ACOL
Tankers Limited and an option to purchase a further 26% of ACOL before December
31, 2001. However, due to the worsening outlook in the global economy generally
and in the shipping industry in particular, these initiatives failed to improve
Xxxxxxx's share price, which continued to decline during this period and made
further expansion or acquisitions increasingly difficult.
The Xxxxxxxxxxxxx family interests did not consider soliciting a
third-party offer for the publicly held shares in any depth, not believing that
any such offer would be seriously undertaken in that (1) the Xxxxxxxxxxxxx
family interests have no present intention of selling their Shares and (2) there
is a minimal market for acquiring minority positions in companies of this size
with an already existing controlling interest. Consequently, the issue of
soliciting third party offers was never considered a viable option by the
Xxxxxxxxxxxxx family interests, and was accordingly never factored into the
consideration offered to the shareholders as a variable in determining the Offer
Price. Superior Navigation, the Xxxxxxxxxxxxx family interests, the independent
committee of Xxxxxxx's Board and Xxxxxxx's Board all believe the Offer Price to
be fair to Xxxxxxx's unaffiliated shareholders.
No unaffiliated representative was hired to negotiate on behalf of the
unaffiliated shareholders. The aggregate market value of the 4,523,307 Shares
held by the unaffiliated shareholders was approximately $15,157,602 immediately
prior to public notification of the Offer (whereas the purchase of the Shares
held by the unaffiliated shareholders at the Share Offer Price will cost
Superior Navigation approximately $22,616,535).
In summary, the Offeror believes that its analysis of the factors
considered in determining fairness as set forth in this section and the rights
afforded to non-tendering shareholders by Cayman Islands law establish a
reasonable basis for its determination that the Offer is substantively fair to
unaffiliated shareholders, despite the fact that the Offeror did not structure
the transaction so as to require the approval of unaffiliated shareholders or
retain a representative to negotiate on their behalf.
Independent Committee. When informed by Xxxx Xxxxxxxxxxxxx, the Chairman of
Xxxxxxx's Board, of the decision of the Xxxxxxxxxxxxx family interests to have a
company controlled by Xxxxxxxxxxxxx family interests make a tender offer for all
of Xxxxxxx's outstanding Shares, the Board formed a committee comprised of its
independent directors, Xxxxx Xxxxxxx, Xxxxxxx Xxxxxx and Xxxxxx Xxxxxx (the
"Independent Committee"). The Independent Committee endorsed the proposal,
subject to receiving an opinion of an independent investment adviser to the
effect that the transaction is fair to the shareholders not affiliated with
Xxxxxxxxxxxxx family interests.
15
The Independent Committee retained Poseidon Capital Corp. ("Poseidon"), an
independent investment adviser, to provide its opinion on the fairness of the
Offer. Xxxxxxxx provided its opinion that the Offer is fair to the unaffiliated
shareholders.
On November 5, 2001, Xxxxx Xxxxxxx, one of Xxxxxxx's independent directors,
resigned from the board of directors of Maran Holdings Ltd., a company
controlled by Xxxxxxxxxxxxx family interests and an affiliate of the Offeror.
Upon review of the facts, the other independent directors of Xxxxxxx concluded
that Xx. Xxxxxxx had maintained his standing as an independent director.
RELATED PARTY TRANSACTIONS
By 2001, ASGL, a company controlled by Xxxxxxxxxxxxx and Kanellakis family
interests, and its wholly-owned subsidiary, Anangel Integrity, owned
approximately 78% of the Shares. Both Xx. Xxxx Xxxxxxxxxxxxx and Xx. Xxxxxxxx
Xxxxxxxxxx, the husband of Xxxx Xxxxxxxxxxxxx sister, Xxxx Xxxxxxxxxx, were
directors of Xxxxxxx. The Kanellakis family interests were developing their own
direct involvement in shipping and intended to continue to develop this
involvement in the future. In order to avoid any possible future conflicts of
interest with Xxxxxxx, the Kanellakis and Xxxxxxxxxxxxx family interests agreed
that their interests in Anangel should be re-organized so that the Xxxxxxxxxxxxx
family interests would become the sole beneficial owners of the shares in
Anangel owned by ASGL and Anangel Integrity. To facilitate this reorganization,
on May 4, 2001, Xxxxxxx declared and paid a cash dividend of $3.00 per share to
all shareholders of record on April 30, 2001. Anangel Integrity then acquired
all the share capital of Anangel previously owned by ASGL, and ownership of
Anangel Integrity was transferred to Xxxxxxxxxxxxx family interests. Xxxxxxx
Xxxxxxxxx also acquired shares in Anangel owned directly by Kanellakis family
interests as of that date. All such transactions were at $6.00 per Anangel
share.
In connection with the above arrangements, Xxxxxxx also granted the
Kanellakis family interests a thirty day option commencing on April 1, 2001 to
purchase one or more of the following four vessels/newbuilding contracts: the
Capesizes "Anangel Millennium" and "Anangel Century," both built in 2000, the
Panamax "Anangel Afovos," which had been delivered to Anangel in March 2001, and
Hull No. 1144. The option was exercised and the three vessels and one
newbuilding contract, which had an aggregate carrying value of approximately
$91.9 million at the time of sale, were purchased by the Kanellakis family
interests effective May 1, 2001, at a price of $97.5 million, representing their
fair market value as determined by independent shipbrokers as of March 31, 2001.
On May 30, 2001, Xxxxxxx announced that it had acquired from Xxxxxxxxxxxxx
family interests a 25% stake in ACOL and an option to acquire an additional 26%
of that company prior to December 31, 2001. ACOL is a privately owned
owner/operator of modern crude oil tankers then controlled by Xxxxxxxxxxxxx
family interests to the extent of 78%. Xxxxxxx paid US$47,404,000 for the 25%
ACOL stake, which was based on ACOL's net asset value as of May 1, 2001. The
option for the additional 26% expired without exercise. Net asset value was per
books adjusted by the market value of ships owned as established by five
independent ship valuers.
On May 30, 2001, Xxxxxxx announced the cancellation of its Panamax order
with Daewoo Shipping and Marine Engineering and ordered a 300,000 DWT VLCC for
delivery in the second quarter 2003, which order Xxxxxxx assigned to
Xxxxxxxxxxxxx family interests for US$4,200,000, an arm's length price.
INTERESTS OF CERTAIN PERSONS IN THE OFFER
Holders of Shares should be aware that the same Xxxxxxxxxxxxx family
interests which control approximately 81% of the outstanding Shares of Anangel
also control the Offeror. The interests of the Xxxxxxxxxxxxx family interests
conflict with those of the other holders of Shares. The Xxxxxxxxxxxxx family
interests intend to tender their Shares in the Offer and invest the proceeds in
Superior Navigation shares.
BENEFICIAL OWNERSHIP OF SHARES
As of the date of this Offer, Xxxxxxxxxxxxx family interests beneficially
owned, as defined by Rule 13d-3 of the Exchange Act, 19,435,207 Shares or
approximately 81% of the outstanding Shares.
16
THE OFFER
GENERAL
Superior Navigation, the Offeror, is offering to acquire all outstanding
Shares on the terms and conditions set forth in this Offer. The Offer is being
made to (i) all holders of record of ADSs and (ii) to all holders of record of
Ordinary Shares.
TERMS OF THE OFFER
The Offer is conditioned on at least 90% of the ADSs and Ordinary Shares
being validly tendered and not withdrawn under the Offer prior to the expiration
of the Offer.
Subject to rules of the SEC, the Offeror reserves the right (but is not
obligated) at any time and from time to time to extend the period during which
the Offer is open or to amend the Offer, by giving oral or written notice of the
extension to the Depositary, the Luxembourg Receiving Agent and the Information
Agent and by making a public announcement of the extension, as described below.
UNDER NO CIRCUMSTANCES WILL INTEREST BE PAID ON THE PURCHASE PRICE FOR TENDERED
ADSS OR ORDINARY SHARES, WHETHER OR NOT THE OFFER IS EXTENDED.
The Offer is conditioned on, among other things, satisfaction of the
Minimum Condition that Shares which represent at least 90% of the outstanding
Shares are validly tendered and not validly withdrawn prior to the Expiration
Time of the Offer. The Offer is also subject to certain other conditions set
forth in "The Offer - Conditions of the Offer." If the Minimum Condition or any
of the other conditions referred to in "The Offer - Conditions of the Offer" are
not satisfied or any of the events specified in "The Offer - Conditions of the
Offer" have occurred or are determined by the Offeror to have occurred prior to
the Expiration Time, the Offeror reserves the right (but is not obligated) to
(i) decline to purchase any of the Shares tendered in the Offer and terminate
the Offer, and return all tendered Shares to the tendering Holders or (ii) waive
or amend any or all conditions to the Offer and, to the extent permitted by
applicable law and applicable rules and regulations of the SEC, purchase all
Shares validly tendered and not validly withdrawn.
Any extension, amendment or termination of the Offer will be followed as
promptly as practicable by a public announcement. In the case of an extension,
the announcement will be issued no later than 9:00 a.m., New York City time, on
the next New York business day after the previously scheduled Expiration Time.
Superior Navigation will make any public announcement by a press release through
PR Newswire. "New York business day" means any day, other than Saturday, Sunday
or a US federal holiday.
Subject to the rights of holders to withdraw tendered ADSs or Ordinary
Shares before the Expiration Time, the Offeror also reserves the right to retain
until the Expiration Time, all ADSs and Ordinary Shares that have been tendered
during the period or periods for which the Offer is extended. During any such
extension, all ADSs and Ordinary Shares previously tendered and not withdrawn
will remain subject to the terms and conditions of the Offer, subject to the
rights of a tendering holder to withdraw any tendered ADSs or Ordinary Shares
before the Expiration Time. See "The Offer - Withdrawal Rights" in this Offer.
If the Offeror materially changes the terms of the Offer or the information
concerning the Offer, the Offeror will disseminate additional tender offer
materials and extend the Offer to the extent required by the Exchange Act. If
the Offeror should before the Expiration Time increase the consideration offered
in the Offer, the increase will be applicable to all Shares accepted pursuant to
the Offer. If the Offer is scheduled to expire earlier than the tenth business
day from and including the date notice of any increase is first published, sent
or given to holders of Shares, the Offer will be extended at least until the
expiration of the tenth business day.
The Offeror, subject to certain conditions, may make available a subsequent
offering period (the "Subsequent Offering Period") by extending the Offer
immediately upon expiration of the original Offer period on one occasion for a
period of not less than three and not more than 20 business days.
17
If the Offeror commences a Subsequent Offering Period, the Offeror may
accept immediately for payment all tenders of Shares during the Subsequent
Offering Period and to pay promptly for all Shares so tendered, at the same
$5.00 per Share with the Offer.
During a Subsequent Offering Period, tendering shareholders will not have
withdrawal rights, and the Offer will be subject to the same conditions to which
the Offer is subject prior to the Subsequent Offering Period to the extent of
Shares not previously accepted for payment.
THE OFFEROR MAY INCLUDE A SUBSEQUENT OFFERING PERIOD IN THE OFFER IN THE
CIRCUMSTANCES SET FORTH ABOVE. PURSUANT TO RULE 14D-11 UNDER THE EXCHANGE ACT,
NO WITHDRAWAL RIGHTS APPLY TO SHARES TENDERED DURING A SUBSEQUENT OFFERING
PERIOD WITH RESPECT TO SHARES TENDERED IN THE OFFER AND ACCEPTED FOR PAYMENT.
THE SAME CONSIDERATION, THE OFFER PRICE OF $5.00 PER SHARE, WILL BE PAID TO
SHAREHOLDERS TENDERING SHARES IN THE OFFER AND IN A SUBSEQUENT OFFERING PERIOD,
IF ONE IS INCLUDED.
The Bank of New York, the depositary under Xxxxxxx's ADR program, has
provided the Offeror with a list of ADR holders and Xxxxxxx's Luxembourg
registry of Ordinary Shares, First European Transfer Agent ("FETA"), has
provided the Offeror with a list of registered holders of Ordinary Shares for
the purpose of disseminating the Offer to holders of Shares subject to the
Offer. This Offer and the related materials are being mailed by the Offeror to
holders of record of the Shares and are being furnished by the Offeror to
brokers, dealers, commercial banks, trust companies and similar persons whose
names, or the names of whose nominees, appear on the stockholder lists or who
are listed as participants in a clearing agency's security position listing, for
transmittal to beneficial owners of the Shares.
PROCEDURES FOR TENDERING ADSS AND ORDINARY SHARES
Valid Tender of ADSs. This section should be read together with the
instructions in the Letter of Transmittal. The provisions of this section shall
be deemed to be incorporated in and form a part of the Letter of Transmittal.
The instructions printed on the Letter of Transmittal form a part of the terms
of the Offer with respect to the ADSs.
In order to avoid "backup withholding" of US federal income tax at a rate
of 30% and other related tax penalties, each holder of ADSs participating in the
Offer is urged to provide the Offeror with such holder's correct taxpayer
identification number on Form W-9, or if appropriate, a certificate of such
holder's non-US status on a Form W-8BEN, W-8IMY or other appropriate Form W-8. A
substitute Form W-9 and a Form W-8BEN have been included as part of the Offer
materials and a Form W-8IMY may be obtained from the Depositary. For more
information, see "The Offer - Certain Tax Consequences" in this Offer.
In order for ADSs to be validly tendered (i) a properly completed and duly
executed Letter of Transmittal, with any required signature guarantees, or an
Agent's Message (as defined below) in connection with a book-entry delivery of
ADSs, and any other required documents, must be received by the Depositary at
one of its addresses set forth on the back cover page of this Offer before the
Expiration Time and either (A) the ADR certificates evidencing the tendered ADSs
must be received by the Depositary along with the Letter of Transmittal or (B)
the ADSs must be tendered by book-entry transfer described below and a
Book-Entry Confirmation (as defined below) must be received by the Depositary,
in each case before the Expiration Time, or (ii) the tendering holder must
comply with the guaranteed delivery procedures described below.
The Offer in respect of ADSs shall be validly accepted by the tendering
holder upon delivery of a Letter of Transmittal, the relevant ADR certificates
evidencing ADSs (or, in the case of a book-entry transfer, an Agent's Message
and Book-Entry Confirmation (each as defined below)) and other required
documents to the Depositary by holders of ADSs (without any further action by
the Depositary), subject to the terms and conditions herein and in the Letter of
Transmittal. The acceptance of the Offer by a tendering holder of ADSs pursuant
to the procedures described above will be deemed to constitute a binding
agreement between such tendering holder of ADSs and the Offeror upon the terms
of the Offer.
18
IF ADR CERTIFICATES EVIDENCING ADSS HAVE BEEN TENDERED BY A HOLDER OF ADSS,
THEN THE SHARES REPRESENTED BY SUCH ADSS MAY NOT ALSO BE TENDERED.
WE ADVISE EACH HOLDER OF ADSS THAT THE METHOD THE HOLDER CHOOSES TO SEND
ADR CERTIFICATES AND THE PROPER COMPLETION OF AND DELIVERY OF THE LETTER OF
TRANSMITTAL AND OTHER DOCUMENTS, INCLUDING DELIVERY THROUGH THE DEPOSITORY TRUST
COMPANY ("BOOK-ENTRY TRANSFER FACILITY"), IS AT THE OPTION AND RISK OF HOLDER,
AND THAT DELIVERY WILL BE DEEMED MADE ONLY WHEN THE PROPER MATERIALS ARE
ACTUALLY RECEIVED BY THE DEPOSITARY (INCLUDING, IN THE CASE OF A BOOK-ENTRY
TRANSFER, BY BOOK ENTRY CONFIRMATION (AS DEFINED BELOW)). IF DELIVERY IS MADE BY
MAIL, WE RECOMMEND REGISTERED MAIL WITH RETURN RECEIPT REQUESTED, PROPERLY
INSURED. IN ALL CASES, YOU SHOULD ALLOW SUFFICIENT TIME TO ENSURE DELIVERY
BEFORE THE EXPIRATION TIME.
Book-Entry Transfer. The Depositary will establish an account with respect
to interests in ADSs held in book-entry form at the Book-Entry Transfer Facility
for purposes of the Offer within two New York business days after the date of
this Offer. Any financial institution that is a participant in the Book-Entry
Transfer Facility's system may make book-entry delivery of ADSs by causing the
Book-Entry Transfer Facility to transfer such ADSs into the Depositary's account
at the Book-Entry Transfer Facility in accordance with the Book-Entry Transfer
Facility's procedures for transfer.
Although delivery of interests in ADSs evidenced by ADRs may be effected
through book-entry transfer at the Book-Entry Transfer Facility, the Letter of
Transmittal (or a copy thereof), properly completed and duly executed with any
required signature guarantees, or an Agent's Message (as defined below) in
connection with a book-entry delivery of interests in ADSs, and any other
required documents, must, in any case, be transmitted to and received by the
Depositary at one of its addresses set forth on the back cover page of this
Offer before the Expiration Time for ADSs evidenced by ADRs to be validly
tendered, or the guaranteed delivery procedures described below must be complied
with.
The term "Agent's Message" means a message transmitted by the Book-Entry
Transfer Facility to, and received by, the Depositary, and forming a part of the
Book-Entry Confirmation, which states that such Book-Entry Transfer Facility has
received an express acknowledgment from the participant in the Book-Entry
Transfer Facility tendering the ADSs, that such participant has received and
agrees to be bound by the terms of the Letter of Transmittal and that the
Offeror may enforce such agreement against the participant.
The term "Book-Entry Confirmation" means the confirmation of a book-entry
transfer of ADSs into the Depositary's account at the Book-Entry Transfer
Facility.
REQUIRED DOCUMENTS MUST BE TRANSMITTED TO AND RECEIVED BY THE DEPOSITARY AT
ONE OF ITS ADDRESSES SET FORTH ON THE BACK COVER PAGE OF THIS OFFER. DELIVERY OF
DOCUMENTS TO THE BOOK-ENTRY TRANSFER FACILITY ACCORDING TO THE BOOK-ENTRY
TRANSFER FACILITY'S PROCEDURES DOES NOT CONSTITUTE DELIVERY TO THE DEPOSITARY.
Signature Guarantees. Signatures on all Letters of Transmittal must be
guaranteed by a financial institution (most commercial banks, savings and loan
associations and brokerage houses) which is a participant in the Securities
Transfer Agents Medallion Program, the New York Stock Exchange Medallion Program
or the Stock Exchanges Medallion Program (each of the foregoing being referred
to as an "Eligible Institution") unless the ADSs tendered thereby are tendered:
(i) by a registered holder of ADSs who has not completed either the box entitled
"Special Delivery Instructions" or the box entitled "Special Payment
Instructions" in the Letter of Transmittal, or (ii) for the account of an
Eligible Institution. See Instruction 1 of the Letter of Transmittal.
If an ADR certificate is registered in the name of a person other than the
signer of the Letter of Transmittal, then the ADR certificate must be endorsed
or accompanied by appropriate stock powers, signed exactly as the name(s) of the
registered holder(s) appear on the ADR certificate, with the signature(s) on
such ADR certificate or stock powers guaranteed by an Eligible Institution.
Evidence of the payment of any applicable stock transfer tax must also be
presented. See Instructions 1 and 5 of the Letter of Transmittal.
19
If the ADRs are forwarded separately to the Depositary, a properly
completed and duly executed Letter of Transmittal (or a copy thereof) must
accompany each such delivery.
Guaranteed Delivery Procedures. If a holder of ADSs desires to tender ADSs
pursuant to the Offer and such holder's ADRs are not immediately available, or
such holder cannot deliver the ADRs and all other required documents to the
Depositary or complete the procedures for book-entry transfer before the
Expiration Time, as the case may be, such ADSs may nevertheless be tendered if
all of the following conditions are satisfied:
(1) the tender is made by or through an Eligible Institution;
(2) a properly completed and duly executed Notice of Guaranteed Delivery,
substantially in the form provided by the Offeror herewith or, in the case of a
book-entry transfer, a message transmitted through the Book-Entry Transfer
Facility pursuant to which the participant agrees to be bound by the Notice of
Guaranteed Delivery, is received by the Depositary as provided below before the
Expiration Time; and
(3) the ADRs representing all tendered ADSs, in proper form for transfer
together with a properly completed and duly executed Letter of Transmittal (or
copy thereof), with any required signature guarantees (or, in the case of a
book-entry transfer, Book-Entry Confirmation and an Agent's Message) and any
other documents required by the Letter of Transmittal are received by the
Depositary within three Nasdaq trading days after the date of execution of such
Notice of Guaranteed Delivery. A "Nasdaq trading day" means any day on which the
Nasdaq is open for business.
Any Notice of Guaranteed Delivery may be delivered by hand or mail to the
Depositary and must include a signature guarantee by an Eligible Institution in
the form set forth in the Notice of Guaranteed Delivery.
Notwithstanding any other provisions hereof, payment for ADSs accepted for
payment pursuant to the Offer will in all cases be made only after receipt by
the Depositary within the permitted period of time of ADRs evidencing such ADSs,
or of Book-Entry Confirmation, and a properly completed and duly executed Letter
of Transmittal (or copy thereof), together with any required signature
guarantees (or, in the case of a book-entry transfer, an Agent's Message) and
any other documents required by the Letter of Transmittal.
The guaranteed delivery procedures will not be available to holders
tendering Ordinary Shares.
Partial Tenders. If fewer than all the ADSs evidenced by any ADRs delivered
to the Depositary are to be tendered, the holder thereof should so indicate in
the Letter of Transmittal by filling in the number of ADSs that are to be
tendered in the box entitled "Number of ADSs Tendered." In such case, a new ADR
for the remainder of the ADSs represented by the surrendered ADR will be sent to
the person(s) signing such Letter of Transmittal (or delivered as such person
properly indicates thereon) as promptly as practicable following the Expiration
Time.
Appointment as Proxy and Attorney. By tendering ADSs, a holder irrevocably
appoints the Offeror and each of its directors and officers from time to time
jointly, and each of them severally, such holder's true and lawful agents,
attorneys-in-fact and proxies in the manner set forth in the Letter of
Transmittal, each with full power of substitution, to receive all benefits and
otherwise exercise all rights of beneficial ownership of the ADSs tendered by
such holder and accepted for payment by the Offeror and with respect to any and
all other securities issued or issuable in respect of such ADSs on or after the
date of this Offer. All such appointments will be considered coupled with an
interest in the tendered ADSs. Any such appointment will be effective when, and
only to the extent that, the Offeror accepts for payment ADSs tendered by such
holder as provided herein. Upon the effectiveness of such appointment, all prior
powers of attorney, proxies and consents given by such holder with respect to
the ADSs will, without further action, be revoked and no subsequent powers of
attorney, proxies, consents or revocations may be given by such holder (and, if
given, will not be deemed effective). The designees of the Offeror will thereby
be empowered to exercise all voting and other rights with respect to such ADSs
(and any such other securities or rights issued or issuable in respect of such
securities) in respect of any annual, special or adjourned meeting of otherwise,
as they in their sole discretion deem proper. The Offeror reserves the right to
require that, in order for ADSs to be deemed validly tendered, immediately upon
the Offeror's acceptance for payment of such ADSs, the Offeror must be able to
exercise full voting, consent and other rights with respect to such ADSs (and
any such other securities or rights issued or issuable in respect of such
securities) including voting at any meeting of Holders.
20
As set forth in "The Offer - Withdrawal Rights," the Offer will not be
deemed to be validly accepted in respect of any ADSs and Ordinary Shares which
have been validly withdrawn, and accordingly, the foregoing proxy and power of
attorney will cease to be effective in respect of any ADSs that are validly
withdrawn. If such ADSs and Ordinary Shares are subsequently re-tendered, the
appointment of proxies and attorneys-in-fact with respect to those ADSs and the
effectiveness of the appointment as described above will apply.
Valid Tender of Ordinary Shares. This section should be read together with
the instructions on the Acceptance Form. The provisions of this section shall be
deemed to be incorporated in and form a part of the Acceptance Form. The
instructions printed on the Acceptance Form form a part of the terms of the
Offer with respect to the Ordinary Shares.
In order to avoid possible "backup withholding" of US federal income tax at
a rate of 30% and other related tax penalties, each US Holder of Ordinary Shares
participating in the Offer is urged to provide the Offeror with such holder's
correct taxpayer identification number on Form W-9. Non-US Holders of Ordinary
Shares with accounts maintained at locations outside the United States into
which payment will be transferred are not requested or required to submit a
certificate to prevent backup withholding. Other non-US Holders of Ordinary
Shares, including non-US Holders with accounts maintained at locations inside
the United States or its possessions into which payment will be transferred, may
be requested to complete and submit an appropriate US Form W-8BEN, W-8IMY, or
other appropriate Form W-8. A substitute Form W-9 and a Form W-8BEN have been
included as part of the Offer materials and a Form W-8IMY may be obtained from
the Luxembourg Receiving Agent. For more information, see "The Offer - Certain
Tax Consequences" in this Offer.
For a holder of Ordinary Shares to validly tender such Ordinary Shares, an
Acceptance Form, completed and duly executed, together with any other required
documents, must be received before the Expiration Time by the Luxembourg
Receiving Agent at its address set forth on the back cover page of this Offer.
The Acceptance Form must be completed and signed by the Shareholder or an
authorized representative of such Shareholder (and accompanied by proper
evidence satisfactory to the Luxembourg Receiving Agent of such representative's
authority) and delivered to the Luxembourg Receiving Agent by mail, hand
delivery or by facsimile transmission. If the FETA account to which such
Ordinary Shares are credited has been encumbered, the person in whose favor such
encumbrance has been granted must consent to the transfer of the Ordinary Shares
free of any encumbrances by endorsing the Acceptance Form.
By executing and delivering the Acceptance Form, a holder of Ordinary
Shares authorizes the Luxembourg Receiving Agent to transfer such Ordinary
Shares to a special blocked FETA account opened in the name of the accepting
Shareholder, with the Luxembourg Receiving Agent as trustee. The Offeror has the
right to accept or reject tendered Ordinary Shares which are not available in
the tendering Shareholder's FETA account when the Luxembourg Receiving Agent
receives the Acceptance Form.
The Luxembourg Receiving Agent will also be irrevocably authorized, on
behalf of the trustee of such accounts, to debit the tendered Ordinary Shares
from the new FETA account. Accordingly, at the time of settlement FETA will,
upon instruction from the Luxembourg Receiving Agent, transfer the Ordinary
Shares to the Offeror and, in a continuous transaction, effect a cash settlement
on behalf of the Offeror. The Offer Price is expected to be available to account
holders within seven Luxembourg business days after the Expiration Time.
Shareholders tendering their Ordinary Shares in response to the Offer will
retain their shareholder rights until settlement has taken place.
Acceptance of the Offer pursuant to the procedures described above
constitutes a binding agreement between the accepting holder of Ordinary Shares
and the Offeror according to the terms and conditions set forth herein and in
the Acceptance Form.
21
WE ADVISE EACH HOLDER OF ORDINARY SHARES THAT THE METHOD THE HOLDER CHOOSES
TO SEND THE ACCEPTANCE FORM AND OTHER REQUIRED DOCUMENTS, AND THE PROPER
COMPLETION OF AND DELIVERY OF THE ACCEPTANCE FORM AND SUCH DOCUMENTS, IS AT THE
OPTION AND RISK OF THE HOLDER, AND THAT DELIVERY WILL BE DEEMED MADE ONLY WHEN
ACTUALLY RECEIVED BY THE LUXEMBOURG RECEIVING AGENT. IF DELIVERY IS MADE BY
MAIL, WE RECOMMEND REGISTERED MAIL WITH RETURN RECEIPT REQUESTED, PROPERLY
INSURED, IN ALL CASES, YOU SHOULD ALLOW SUFFICIENT TIME TO ENSURE DELIVERY
BEFORE THE EXPIRATION TIME.
Notwithstanding the foregoing, the Offeror may in its discretion treat any
Acceptance Form received by the Luxembourg Receiving Agent as valid or waive any
requirement of this section, but the payment of the consideration in the Offer
will not be made until any irregularity has been resolved or waived and all
documents have been received by the Luxembourg Receiving Agent.
If fewer than all of the Shares registered to an Anangel shareholder's FETA
account are to be tendered, the holder thereof should so indicate in the
Acceptance Form by filling in the number of Ordinary Shares to be tendered in
paragraph 2 of the Acceptance Form. In such case, the Luxembourg Receiving Agent
will transfer only the number of Ordinary Shares so indicated in paragraph 2 of
the Acceptance Form.
Determination of Validity of the Tender of ADSs and Ordinary Shares. All
questions as to the validity, form, eligibility (including time of receipt) and
acceptance for payment of any tendered ADSs and Ordinary Shares pursuant to any
of the procedures described above will be determined by the Offeror in its sole
discretion and in accordance with Cayman law.
The Offeror reserves the absolute right to reject any and all tenders of
ADSs and Ordinary Shares determined by it not to be properly tendered. The
Offeror reserves the right to reject any and all tenders of any ADSs and
Ordinary Shares if their acceptance may, in the opinion of the Offeror's
counsel, be unlawful. The Offeror also reserves the right to waive any defects,
irregularities or conditions in any tender of ADSs and Ordinary Shares by any
particular holder of ADSs and Ordinary Shares whether or not similar defects or
irregularities are waived in respect of other holders of ADSs and Ordinary
Shares. If any tendered ADSs are not purchased because of an invalid tender, the
ADR certificates evidencing such ADSs and other documents relating to such ADSs,
if any, will be returned, without expense to, but at the risk of, the tendering
Holder (or, in the case of ADSs delivered by book-entry transfer, by transfer of
such ADSs to an account maintained at the Book-Entry Transfer Facility), as
promptly as practicable. Any tendered Ordinary Shares not purchased because of
an invalid tender will similarly be returned by transfer of such Ordinary Shares
to the holder's FETA account.
Neither the Offeror, nor the Depositary, nor the Luxembourg Receiving
Agent, nor any other person shall be under any duty to give or incur any
liability for failure to give any notification of defects or irregularities.
Tenders of ADSs and Ordinary Shares will not be deemed to have been made until
all such defects or irregularities have been cured or waived or satisfied before
the Expiration Time.
WITHDRAWAL RIGHTS
Except as otherwise provided in this section, tenders of ADSs and Ordinary
Shares are irrevocable. Tenders of ADSs and Ordinary Shares pursuant to the
Offer may be withdrawn in accordance with the procedures set forth below at any
time before the Expiration Time, and unless previously accepted for payment and
paid for by the Offeror pursuant to the Offer, may be withdrawn at any time
after April 13, 2002.
Withdrawals of tenders of ADSs and Ordinary Shares may not be rescinded,
and any ADSs and Ordinary Shares properly withdrawn will thereafter be deemed
not validly tendered for purposes of the Offer. However, the Offer may be
accepted again in respect of the withdrawn ADSs and Ordinary Shares by the
holder re-tendering those ADSs and Ordinary Shares by following one of the
procedures described in "The Offer - Procedures For Tendering ADSs and Ordinary
Shares" at any time before the Expiration Time.
22
For purposes of the Offer, a withdrawal of ADSs is considered to be a
withdrawal of the underlying Ordinary Shares. Withdrawals may be made in whole
or in part.
Withdrawal of ADSs. For a withdrawal of ADSs to be effective, a written or
facsimile notice of withdrawal of such ADSs must be received by the Depositary
before the Expiration Time at one of its addresses set forth on the back cover
page of this Offer. Any such notice must specify the name of the person who
tendered the ADSs to be withdrawn and (if ADRs have been tendered) the name of
the registered holder, if different from that of the person who tendered the
ADSs evidenced by such ADRs. If ADRs evidencing ADSs to be withdrawn have been
delivered or otherwise identified to the Depositary, then before the physical
release of such ADRs, the certificate numbers shown on the particular ADRs
evidencing the ADSs to be withdrawn must be submitted to the Depositary, and the
signature(s) on the form of withdrawal must be guaranteed by an Eligible
Institution, unless interests in ADSs evidenced by ADRs have been tendered for
the account of an Eligible Institution. If ADSs evidenced by ADRs to be
withdrawn have been tendered pursuant to the procedure for book-entry transfer
as set forth in "The Offer - Procedures For Tendering ADSs and Shares," any such
notice of withdrawal must also specify the name and number of the account at the
Book- Entry Transfer Facility to be credited with the withdrawn ADSs, in which
case a notice of withdrawal will be effective if delivered to the Depositary as
provided herein prior to the Expiration Time.
Withdrawal of Ordinary Shares. For a withdrawal of Ordinary Shares to be
effective, a written or facsimile notice of withdrawal of such Ordinary Shares
must be received by the Luxembourg Receiving Agent before the Expiration Time at
its address set forth on the back cover page of this Offer. Any such notice must
specify the name of the shareholder whose Ordinary Shares are to be withdrawn,
the number of Ordinary Shares to be withdrawn and the FETA account to which the
withdrawn Ordinary Shares are to be transferred. With respect to withdrawn
Ordinary Shares, the Luxembourg Receiving Agent will credit the withdrawing
holder's FETA account with such withdrawn Ordinary Shares.
Determination of Validity of Withdrawal of ADSs and Ordinary Shares. All
questions as to the form and validity (including time of receipt) of any notice
of withdrawal will be determined by the Offeror, in its sole discretion, which
determination shall be final and binding. No withdrawal of ADSs and Ordinary
Shares shall be deemed to have been properly made until all defects and
irregularities have been cured or waived. None of the Offeror, Anangel, the
Depositary, the Luxembourg Receiving Agent, the Information Agent, the
International Offer Manager or any other person will be under any duty to give
notification of any defects or irregularities in any notice of withdrawal or
incur any liability for failure to give such notification.
ACCEPTANCE FOR PAYMENT AND PAYMENT FOR ADSS AND ORDINARY SHARES
Payment. Upon the terms and subject to the conditions of the Offer, the
Offeror will accept for payment and will pay for all ADSs and Ordinary Shares
validly tendered prior to the Expiration Time and not properly withdrawn in
accordance with "The Offer - Withdrawal Rights" promptly after the later to
occur of (i) the Expiration Time (ii) the satisfaction or waiver of the Minimum
Condition and (iii) the satisfaction or waiver of the conditions set forth in
"The Offer - Conditions of the Offer," including, but not limited to, but not
limited to, the regulatory conditions specified in "The Offer - Legal Matters;
Regulatory Approvals." The currency of payment will be US dollars.
Acceptance for Payment of ADSs. In all cases, payment for ADSs tendered and
accepted for payment pursuant to the Offer will be made only after receipt by
the Depositary within the permitted period of time of (i) either (A) the ADR
certificates which evidence such ADSs, or (B) Book-Entry Confirmation of
transfer of such ADSs into the Book-Entry Transfer Facility pursuant to the
procedure set forth in "The Offer - Procedures for Tendering ADSs and Ordinary
Shares," (ii) either (A) the Letter of Transmittal, properly completed and duly
executed with any required signature guarantees, or (B) an Agent's Message in
connection with a book-entry transfer, and (iii) any other documents required by
the Letter of Transmittal.
For purposes of the Offer, the Offeror will be deemed to have accepted for
payment, and thereby purchased, ADSs properly tendered to the Offeror and not
withdrawn if and when the Offeror gives oral or written notice to the Depositary
of the Offeror's acceptance of such ADSs for payment. Payment for ADSs accepted
pursuant to
23
the Offer will be made by deposit of the aggregate purchase price therefor with
the Depositary, which pursuant to the Letter of Transmittal will be appointed
and will act as agent for tendering holders for the purpose of receiving payment
from the Offeror and transmitting payment in accordance with such tendering
holder's instructions in the Letter of Transmittal. The Offeror's acceptance for
payment of ADSs tendered pursuant to the Offer will constitute a binding
agreement between the tendering holder and the Offeror upon the terms and
subject to the conditions of the Offer.
Upon the deposit of funds with the Depositary for the purpose of making
payments to tendering holders of ADSs, the Offeror's obligation to make such
payment shall be satisfied and tendering holders must thereafter look solely to
the Depositary for payment of amounts owed to them by reason of the acceptance
for payment of ADSs pursuant to the Offer.
Acceptance for Payment of Ordinary Shares. In all cases, payment for
Ordinary Shares tendered and accepted for payment pursuant to the Offer will be
made only after receipt before the Expiration Time by the Luxembourg Receiving
Agent of a properly completed and duly executed Acceptance Form and any other
required documents.
For purposes of the Offer, the Offeror will be deemed to have accepted for
payment, and thereby purchased, Ordinary Shares validly tendered to the Offeror
and not properly withdrawn if and when the Offeror gives oral or written notice
to the Luxembourg Receiving Agent of the Offeror's acceptance of such Ordinary
Shares for payment. Payment for Ordinary Shares accepted pursuant to the Offer
will be made by deposit of the aggregate purchase price therefor with the
Luxembourg Receiving Agent, which pursuant to the Acceptance Form will be
appointed and will act as agent for tendering holders for the purpose of
receiving payment from the Offeror and transmitting payment to such tendering
holders. The Offeror's acceptance for payment of Ordinary Shares tendered
pursuant to the Offer will constitute a binding agreement between the tendering
holder and the Offeror upon the terms and subject to the conditions of the
Offer.
Upon the deposit of funds with the Luxembourg Receiving Agent for the
purpose of making payments to tendering holders of Ordinary Shares, the
Offeror's obligation to make such payments shall be satisfied and tendering
holders must thereafter look solely to the Luxembourg Receiving Agent for
payment of amounts owed to them by reason of the acceptance for payment of
Ordinary Shares pursuant to the Offer.
General. The Offeror will pay any stock transfer taxes (including stamp
duty) incident to the transfer to it of validly tendered ADSs and Ordinary
Shares, except as otherwise provided in Instruction 6 of the Letter of
Transmittal and in the Acceptance Form, as well as any charges and expenses of
the Depositary and Luxembourg Receiving Agent.
If any tendered ADSs are not purchased pursuant to the Offer for any reason
or if ADRs are submitted evidencing more ADSs than are tendered, then ADRs
evidencing unpurchased or untendered ADSs will be returned, without expense to
the tendering holder (or, in the case of ADSs tendered by book-entry transfer,
into the Depositary's account at the Book-Entry Transfer Facility), as promptly
as practicable following the expiration of the Offer. If any tendered Ordinary
Shares are not purchased pursuant to the Offer for any reason, those tendered
Ordinary Shares will be credited to the holder's FETA account as promptly as
practicable following the expiration of the Offer.
CERTAIN TAX CONSEQUENCES
Certain US Federal Income Tax Consequences of the Offer and Compulsory
Acquisition. The following is a discussion of certain US federal income tax
consequences of the Offer and Compulsory Acquisition to holders of ADSs and
Ordinary Shares without regard to the particular facts and circumstances of each
holder. This discussion is based on the provisions of the Internal Revenue Code
of 1986, as amended ("the Code"), Treasury Department Regulations issued
pursuant to the Code and published rulings and court decisions in effect as of
the date hereof, all of which are subject to change, possibly with retroactive
effect. This discussion does not
24
discuss all aspects of US federal income taxation which may be important to
particular holders in light of their individual circumstances, such as holders
who acquired their ADSs and Ordinary Shares through the exercise of options or
otherwise as compensation, holders who are deemed by the application of Sections
304(c) and 318(a) to constructively own shares of the Offeror as a result of a
relationship with any of the Xxxxxxxxxxxxx family interests, or to holders
subject to special tax rules (e.g., financial institutions, broker-dealers,
mutual funds, insurance companies, persons that hold their shares as part of a
straddle, constructive sale or conversion transaction and tax-exempt
organizations). In addition, this discussion does not address state, local or
foreign tax consequences. Holders of ADSs and Ordinary Shares are urged to
consult their tax advisers regarding the specific US federal, state, local and
foreign income and other tax consequences of the Offer.
For purposes of this discussion, a beneficial holder of ADSs and Ordinary
Shares is a "United States Person," for US federal income tax purposes, if the
holder is (i) a citizen or resident of the United States, (ii) a corporation,
partnership, or other entity created or organized in the United States or under
the laws of the United States or of any political subdivision thereof, (iii) an
estate whose income is includible in gross income for US federal income tax
purposes regardless of its source, or (iv) a trust whose administration is
subject to the primary supervision of a US court and which has one or more
United States persons who have the authority to control all substantial
decisions of the trust. A beneficial holder of Shares and ADSs that is a United
States person is a "US Holder" and a beneficial holder of Shares and ADSs that
is not a US Holder is a "Non-US Holder."
US Holders. In general, a US Holder will recognize gain or loss upon the
receipt of payment in exchange for ADSs and Ordinary Shares pursuant to the
Offer and Compulsory Acquisition in an amount equal to the difference between
the amount realized and the holder's adjusted tax basis in the ADSs and Ordinary
Shares tendered or sold. For these purposes, the "amount realized" will be the
US dollar value of the payment received for the ADSs and Ordinary Shares on the
date such payment is received, whether or not such payment is actually converted
into US dollars. Such gain or loss generally will be capital gain or loss if the
ADSs and Ordinary Shares disposed of are held as capital assets. Capital gains
recognized by an individual US Holder generally are subject to tax at a maximum
rate of 20% in respect of property held for more than one year.
The Company has stated in its Form 20-F, which has been incorporated by
reference into the Schedule TO filed with the SEC, that it is of the view that
the Company is not a passive foreign investment company ("PFIC"). A PFIC is any
foreign corporation if, for any taxable year, either (i) 75% or more of its
gross income consists of "passive" income or (ii) at least 50% of the average
value of its assets produce, or are held to produce, passive income. If the
Company were a PFIC, then generally the US tax consequences to a United States
person who directly or indirectly disposes of an interest in a PFIC are that (i)
such person is not entitled to capital gain treatment upon such disposition,
(ii) a non-deductible interest charge is imposed to reflect the person's
deferral of tax and (iii) gain on shares acquired from a decedent may be
determined without the full step-up in basis that can otherwise apply in the
case of property acquired from a decedent.
Non-US Holders. A non-US Holder will generally not be subject to US federal
income tax on gain recognized upon the exchange of ADSs and Ordinary Shares for
cash pursuant to the Offer and Compulsory Acquisition unless (i) the gain is
effectively connected with the conduct of a trade or business within the United
States by the non-US Holder or (ii) in the case of a non-US Holder who is a
non-resident alien individual, such holder is present in the United States for
183 days or more and either (A) such gain or income is attributable to an office
or other fixed place of business maintained in the United States by such holder
or (B) such holder has a tax home in the United States. Non-US Holders should
also consult applicable treaties, if any, which may exempt them from US taxation
on any such gain.
Information Reporting And Backup Withholding. Payments made to holders of
ADSs and Ordinary Shares pursuant to the Offer and Compulsory Acquisition may be
subject to information reporting to the US Internal Revenue Service and to US
backup withholding at the rate of 30% on the gross amount of such payments.
Backup withholding will not apply to a holder who furnishes a correct taxpayer
identification number or a certificate of foreign status and makes certain other
required certifications, or who is otherwise exempt from backup withholding
(e.g., a US corporation). To avoid information reporting and backup withholding,
holders
25
of the ADSs and US Holders of Ordinary Shares who tender their Shares
pursuant to the Offer may provide the Depositary or the Luxembourg Receiving
Agent, as the case may be, with a properly executed substitute Form W-9
("Request for Taxpayer Identification Number and Certification"), in the case of
a US Holder, or a properly executed Form W-8BEN, W-8IMY (together with all
appropriate attachments) or other appropriate Form W-8, in the case of a non-US
Holder. Non-US Holders of Ordinary Shares with accounts maintained at locations
outside the United States into which payment will be transferred are not
requested or required to submit a certificate to prevent backup withholding.
Other non-US Holders of Ordinary Shares, including non-US Holders with accounts
maintained at locations inside the United States or its possessions into which
payment will be transferred, may be requested to complete and submit an
appropriate US Form W-8BEN, W-8IMY, or other appropriate Form W-8. Any amounts
withheld under the backup withholding rules are not an additional tax and may be
refunded or credited against a holder's US federal income tax liability,
provided the required information is furnished to the US Internal Revenue
Service. A substitute Form W-9 and Form W-8BEN are included with the Offer
materials for your convenience. Additional Forms W-9, additional Forms W-8BEN,
and Form W-8IMY, may be obtained upon request from the Depositary or the
Luxembourg Receiving Agent.
PRICE RANGE OF SHARES; DIVIDENDS
ADSs. Xxxxxxx's ADSs trade on the Nasdaq under the symbol "ASIPY." The
following table sets forth, for the quarter indicated, the actual high and low
sales prices per ADS (each representing one Class A Share) on the Nasdaq.
Class A Shares. The Company's Class A Shares are listed on the Luxembourg
Stock Exchange. Since January 1, 2001, only two trades were made in the
Company's Class A Shares. Both trades were made on March 6, 2001, one was for
24,000 shares at a price of $6.00 and the other one for 1,000 shares at $6.00.
NASDAQ NATIONAL MARKET SYSTEM
PRICE OF ADSS
---------------
HIGH LOW
----- -----
(US$) (US$)
Fiscal Year Ended December 31,
2000
First Quarter......... 5.438 4.875
Second Quarter........ 6.250 4.375
Third Quarter......... 7.250 4.625
Fourth Quarter........ 7.125 5.000
Fiscal Year Ended December 31,
2001
First Quarter......... 7.750* 5.031
Second Quarter........ 8.040* 3.500
Third Quarter......... 4.600 2.300
Fourth Quarter........ 4.900 1.860
Fiscal Year Ending December 31,
2002
First Quarter (through February
8, 2002)............. 4.690 4.500
* Extraordinary dividend of $3.00 was announced on February 23, 2001,
and paid on May 4, 2001.
On December 5, 2001, the last full trading day prior to the public
announcement of the Offer, the last reported sales price of the ADSs on the
Nasdaq was $3.351 per share. On February 8, 2002, the most recent practicable
date prior to printing of this Offer to Purchase, the last reported sales price
of the ADSs was $4.69 per Share. HOLDERS ARE URGED TO OBTAIN CURRENT AND
HISTORICAL MARKET QUOTATIONS FOR THE ADSS AND ORDINARY SHARES.
Class B Shares. Xxxxxxx's Class B Shares are not listed or traded on any
securities exchange, and no trading market exists for the Class B Shares.
26
Dividends. Anangel has no fixed dividend policy at present. On May 4, 2001
the Company paid a special dividend of $3.00 per share, or a total of
$71,921,562, to its shareholders. $29,508,000 of this dividend was paid out of
Retained Earnings, with the balance paid out of Surplus Paid-in Capital. Anangel
funded the dividend payment out of its cash reserves and the balance through a
facility made available by Xxxxxxx's bankers.
EFFECT OF THE OFFER ON THE MARKET FOR THE ADSS AND ORDINARY SHARES
Market For the ADSs and Ordinary Shares. The purchase of Shares pursuant to
the Offer will reduce the number of holders of Shares and the number of Shares
that might otherwise trade publicly. Depending upon the number of Shares so
purchased, the purchase will likely adversely affect the liquidity and market
value of any Shares held by the public after the Offer is completed.
Stock Quotation. Depending on the number of ADSs and Ordinary Shares
purchased in the Offer and assuming the prerequisites for such actions are
satisfied, Superior Navigation intends to seek to cause Anangel to delist the
ADSs and Ordinary Shares from the Nasdaq and the Luxembourg Stock Exchange,
respectively, following consummation of the Offer.
In the event that the ADSs are no longer listed on the Nasdaq or the Class
A Shares on the Luxembourg Stock Exchange, quotations may still be available
from other sources. The extent of the public market for the ADSs and Ordinary
Shares and the availability of such quotations would, however, depend upon the
number of holders of such ADSs and Ordinary Shares remaining at such time, the
interest in maintaining a market in such ADSs and Ordinary Shares on the part of
securities firms and other factors, including the possible termination of
registration under the Exchange Act as described below.
Exchange Act Registration. The Shares are currently registered under the
Exchange Act. Such registration may be terminated upon application by Xxxxxxx to
the SEC if the ADSs are not listed on a national securities exchange and there
are fewer than 300 record holders of ADSs and Ordinary Shares in the United
States. The termination of the registration of the ADSs under the Exchange Act
would substantially reduce the information required to be furnished by Anangel
to holders of ADSs and to the SEC and would make certain provisions of the
Exchange Act and the requirements of Rule 13e-3 under the Exchange Act with
respect to the "going private" transactions no longer applicable to the ADSs and
Ordinary Shares. In addition, "affiliates" of Anangel and persons holding
"restricted securities" of Anangel may be deprived of the ability to dispose of
such securities pursuant to Rule 144 promulgated under the Securities Act of
1933, as amended. If registration of the ADSs under the Exchange Act were
terminated, the ADSs would no longer be "margin securities" or be eligible for
Nasdaq National Market System reporting.
THE OFFEROR CURRENTLY INTENDS TO SEEK TO CAUSE ANANGEL TO TERMINATE THE
REGISTRATION OF THE ADSS AND THE ORDINARY SHARES UNDER THE EXCHANGE ACT AS SOON
AS PRACTICABLE AFTER CONSUMMATION OF THE OFFER IF THE REQUIREMENTS FOR
TERMINATION OF REGISTRATION ARE MET.
Margin Regulations. The ADSs are currently "margin securities" under the
regulations of the Board of Governors of the Federal Reserve System ("Federal
Reserve Board"), which status has the effect, among other things, of allowing
brokers to extend credit on the collateral of the ADSs. Depending upon factors
similar to those described above regarding listing and market quotation,
following the Offer, it is possible that the ADSs might no longer constitute
"margin securities" for purposes of the margin regulations of the Federal
Reserve Board in which event the ADSs would be ineligible as collateral for
margin loans made by brokers.
CERTAIN INFORMATION CONCERNING THE COMPANY
Anangel-American Shipholdings Limited. Anangel was incorporated in the
Cayman Islands on April 14, 1987 under the Companies Law of 1960 of the Cayman
Islands (as amended) as the holding company of subsidiaries engaged in the
business of owning and operating ocean-going dry cargo vessels. The Company's
principal objectives were to achieve (i) operating profits from chartering of
ocean-going dry cargo vessels and (ii) capital gains through market value
appreciation from the selective and timely acquisition and disposal of such
27
vessels. In the spring of 2001, the Company announced that it would focus the
Company's operations in such a manner as to service the demands of energy
related transportation, and on May 29, 2000 announced its acquisition of 25% of
the outstanding shares of ACOL, an owner/operator of modern crude oil tankers.
As of January 31, 2002, following the delivery of one Panamax vessel of
75,000 dead weight tonnes ("DWT"), the Company owned and operated 22 dry cargo
vessels, with an aggregate capacity of 1,840,811 DWT. The Company's fleet is
managed by Anangel Maritime Services, Inc. (the "Manager"). The Company's
principal office is that of the Manager, which is located at Xxxxxx Xxxxxx 000,
Xxxxxxxxx, Xxxxxx, XX 000-00, Xxxxxx, and its telephone number is x00 00 000
7200.
The Company was established with two classes of Ordinary Shares, nominal
value $1.00 each, outstanding, consisting of Class A and Class B Shares. All of
the Class B Shares, which from inception have accounted for approximately 51% of
the total ordinary share capital in issue, were acquired by Anangel Integrity,
which until May 1, 2001 was a wholly owned subsidiary of ASGL (which together
with its subsidiaries and its affiliates is collectively referred to herein as
the "Xxxxxxxxxxxxx Group"). On May 1, 2001, Anangel Integrity acquired all of
the Company's Shares held by XXXX in a reorganization of the ownership structure
of the Company. For further discussion of the reorganization see "Special
Factors - Background of the Offer" and "Special Factors - Position of the
Offeror Regarding Fairness of the Offer."
28
Selected Historical Financial Data of Anangel. Set forth below is certain
summary consolidated financial information for Anangel for the fiscal years
ended December 31, 2000, 1999 and 1998 as contained in the Anangel Form 20-F
filed with the SEC. More comprehensive financial information is included in the
Anangel Form 20-F and in the other reports and documents filed by Xxxxxxx with
the SEC. This information should be read in conjunction with the audited
consolidated financial statements of the Company and Management's Discussion and
Analysis of Financial Condition and Results of Operations included in the Form
20-F. The Company's financial statements are prepared in accordance with
generally accepted accounting principles in the United States. The following
summary information is qualified in its entirety by reference to such reports
and other documents and all of the financial information and notes contained
therein. Copies of such reports and other documents may be examined at or
obtained from the SEC in the manner set forth above under "Available
Information." Also set forth below is certain summary consolidated unaudited
interim financial information for Anangel for the nine months ended September
30, 2001, and 2000, as published by Xxxxxxx on December 6, 2001 and filed with
the SEC on Form 6-K. The above mentioned documents are incorporated by reference
into this Offer to Purchase.
ANANGEL-AMERICAN SHIPHOLDINGS LIMITED SELECTED FINANCIAL DATA
NINE MONTHS ENDED
YEAR ENDED DECEMBER 31, SEPTEMBER 30,
----------------------------------- ----------------------
2000 1999 1998 2001 2000
---------- ---------- ---------- ---------- ----------
(UNAUDITED)
(IN THOUSANDS OF US DOLLARS, EXCEPT PER SHARE DATA)
KEY FIGURES FROM
CONSOLIDATED
STATEMENTS OF INCOME:
---------------------
Revenue from voyages 97,514 63,660 61,521 69,012 72,552
Operating 30,569 (1,672) (3,108) 23,106 21,042
Profit/(Loss)
Realization of 1,455 -- -- -- 1,029
shipping investments
Net Income/(Loss) 28,409 (17,324) (5,666) 21,278 18,146
AMOUNTS PER ORDINARY
SHARE :
Earnings (basic and $1.18 ($1.07) ($0.35) $0.89 $0.76
diluted)
Dividends Ordinary -- -- -- -- --
KEY FIGURES FROM
CONSOLIDATED CASH
FLOW:
Net cash provided by 87,418 13,289 7,191 --** --**
operating activities
Vessel acquisitions (68,622) (53,006) (9,215) --** --**
Proceeds from 1,455 -- -- --** --**
realization of
shipping investments
Proceeds of issue of -- 45,406 -- --** --**
ordinary shares
Issue/(repayment) of (12,803) 15,378 (7,963) --** --**
long term debt
/capital lease
creditor
Repurchase agreements (27,644) 3,264 15,047 --** --**
Funds provided by (193) 12 759 --** --**
bank overdrafts
Dividends paid -- -- -- --** --**
Increase/(Decrease) (5,058) 127 1,300 --** --**
in Restricted cash
(*)
Increase/(Decrease) (21,242) 24,470 7,119 --** --**
in cash and cash
equivalents (*)
KEY FIGURES FROM
CONSOLIDATED
BALANCE SHEETS :
Vessels at cost 600,208 525,719 481,525 529,412 599,729
Depreciation (196,151) (173,606) (152,453) (210,008) (190,251)
Total assets 514,824 517,991 462,035 467,480 534,291
Long term debt 208,048 208,318 185,557 208,572 208,205
Total Shareholders' 271,680 243,271 215,189 226,914 261,364
Equity
Ordinary Shares 23,973,854 23,973,854 15,982,569 23,973,854 23,973,854
Outstanding
----------------------
(*) Reclassifications have been made in the above Table in order to conform the
1999 and 1998 figures to the treatment of these items in the 2000 financial
statements.
(**) Not published by the Company in its unaudited interim financial
information. The Company historically has not reported a ratio of earnings
to fixed charges.
The Company historically has not reported a ratio of earnings to fixed
charges.
29
CERTAIN INFORMATION CONCERNING THE OFFEROR
Superior Navigation Ltd. Superior Navigation, the Offeror, was incorporated
in the Republic of Liberia on July 25, 2001, and is controlled by the
Xxxxxxxxxxxxx family interests that control 81% of the Shares. Its principal
office is located at Xxxxxx Xxxxxx 000, Xxxxxxxxx, Xxxxxx, XX-000-00, Xxxxxx.
Its telephone number is x00 00 000 0000.
INTEREST OF DIRECTORS AND EXECUTIVE OFFICERS AND PRINCIPAL SHAREHOLDERS;
TRANSACTIONS AND ARRANGEMENTS CONCERNING SHARES
Shareholders also should be aware that the Offeror is controlled by the
same Xxxxxxxxxxxxx family interests that control approximately 81% of Anangel
and therefore has actual or potential conflicts of interest in connection with
the Offer.
As of October 9, 2001, no director or executive officer of Anangel and its
subsidiaries had beneficial ownership of more than 1% of the outstanding shares.
As of October 9, 2001, Xxxxxxxxx X. Xxxxxxxxx, Director and Treasurer of
Anangel, owned 10,000 Class A Shares, and Xxxxxxxxxxxx Xxxxxxxxxxxx, Director
and Assistant Secretary of Anangel, owned 4,000 Class A Shares, an aggregate of
14,000 Class A Shares constituted approximately 0.21% of the outstanding Class A
Shares. Xxxxxxx's directors and executive officers have advised Superior
Navigation they will tender all their Shares in the Offer. If the Offeror
purchases all Shares under the Offer and assuming the directors and executive
officers tender their Shares, then after the purchase, all directors and
executive officers of Anangel and its subsidiaries as a group would beneficially
own no Shares.
Based on Xxxxxxx's advice to Superior Navigation and representations
Anangel obtained from its directors, executive officers, associates and
subsidiaries, neither Anangel, nor any associate or subsidiary of Anangel nor,
to the best of Superior Navigation's knowledge, any of the directors or
executive officers of Anangel or any of its subsidiaries, nor any associates or
subsidiaries of any of the foregoing, has effected any transactions in the
Shares during the 60 days before the date hereof.
Except as otherwise described herein, neither the Offeror nor, to the best
of the Offeror's knowledge, any of its affiliates, directors or executive
officers, is a party to any contract, agreement, arrangement, understanding or
relationship with any other person relating, directly or indirectly, to the
Offer or with respect to any securities of Anangel, including, but not limited
to, any contract, agreement, arrangement, understanding or relationship
concerning the transfer or the voting of the Shares of Anangel, joint ventures,
loan or option arrangements, puts or calls, guaranties of loans, guaranties
against loss or the giving or withholding of proxies, consents or
authorizations.
SOURCE AND AMOUNT OF FUNDS
The Offeror estimates that the total amount of funds required to purchase
all outstanding ADSs and Ordinary Shares tendered by other than Xxxxxxxxxxxxx
family interests and to pay the fees and expenses related to the Offer will be
approximately US$24 million. The Offeror intends to pay for the Shares tendered
by the Xxxxxxxxxxxxx family interests by a note which the Offeror will
repurchase from the noteholder by issuing Shares of the Offeror. The Offeror has
the necessary funds from cash on hand.
CONDITIONS OF THE OFFER
Notwithstanding any other provision of the Offer, and in addition to (and
not in limitation of) the Offeror's rights to extend and amend the Offer at any
time in its sole discretion, the Offeror shall not be required to accept for
payment, purchase or pay for, subject to any applicable rules and regulations of
the SEC, including Rule 14e-1(c) under the Exchange Act, and may delay the
acceptance for payment of or the payment for, any tendered Shares (whether or
not any Shares have previously been accepted for payment or paid for pursuant to
the Offer), and may amend or terminate the Offer, if (1) at the Expiration Time
the Minimum Condition (90% the
30
Shares tendered and not withdrawn) is not satisfied or (2) at any time on or
after February 12, 2002 and prior to the time of payment for any such Shares,
any of the following events occur:
(a) any change (or development involving a prospective change) has
occurred or is threatened in the business, properties, assets,
liabilities, capitalization, shareholders' equity, condition
(financial or otherwise), cash flows, operations, licenses,
franchises, permits, authorizations, results of operations or
prospects of the Company or any of its subsidiaries which has or might
reasonably be expected to have a material adverse effect on the
Company and its subsidiaries taken as a whole (a "Material Adverse
Effect"), or results or might reasonably be expected to result in a
material diminution in the value of the Shares or the benefits
expected to be derived by the Offeror as a result of the Offer or the
Compulsory Acquisition (a "Diminution in Value"); or
(b) any government or governmental authority or agency, domestic, foreign
or supranational, or any industry self-regulatory organization (a
"Governmental Entity") has instituted or threatened any action,
proceeding, application, claim or counterclaim, sought or obtained any
judgment, order or injunction, or taken any other action which (i)
challenges the acquisition by the Offeror (or any affiliate of the
Offeror) of any Shares pursuant to the Offer or the Compulsory
Acquisition, restrains, prohibits or materially delays the making or
consummation of the Offer or the Compulsory Acquisition, prohibits the
performance of any contracts or other arrangements entered into by the
Offeror in connection with the acquisition of the Shares, seeks to
obtain any material amount of damages, or otherwise directly or
indirectly materially and adversely affects the Offer or the
Compulsory Acquisition, (ii) seeks to prohibit or limit materially the
ownership or operation by the Company or the Offeror of all or any
material portion of the business or assets of the Company and its
subsidiaries taken as a whole or of the Offeror and any of its
affiliates and its subsidiaries taken as a whole, or to compel the
Company or the Offeror (or any affiliate of the Offeror) to dispose of
or to hold separate all or any material portion of the business or
assets of the Offeror and any of its affiliates and its subsidiaries
taken as a whole or of the Company and its subsidiaries taken as a
whole as a result of the transactions contemplated by the Offer or the
Compulsory Acquisition, (iii) seeks to impose any material limitation
on the ability of the Company or the Offeror to conduct the Company's
business or own the Company's assets, (iv) seeks to impose or confirm
any material limitation on the ability of the Offeror to acquire or
hold, or to exercise full rights of ownership of, any Shares,
including the right to vote such Shares on all matters properly
presented to the shareholders of the Company, (v) seeks to require
divestiture by the Offeror of all or any of the Shares, (vi) otherwise
has or might reasonably be expected to have a Material Adverse Effect
or results or might reasonably be expected to result in a Diminution
in Value or (vii) seeks to impose any condition to the Offer
unacceptable to the Offeror; or
(c) there has been entered or issued any preliminary or permanent
judgment, order, decree, ruling or injunction or any other action
taken by any Governmental Entity or court, whether on its own
initiative or the initiative of any other person, which (i) restrains,
prohibits or materially delays the making or consummation of the Offer
or the Compulsory Acquisition, prohibits the performance of any
contracts or other arrangements entered into by the Offeror in
connection with the acquisition of the Shares or the Company or
otherwise directly or indirectly materially and adversely affects the
Offer or the Compulsory Acquisition, (ii) prohibits or limits
materially the ownership or operation by the Company or the Offeror of
all or any material portion of the business or assets of the Company
and its subsidiaries or of the Offeror and any of its affiliates, or
compels the Company or the Offeror (or any affiliate of either) to
dispose of or to hold separate all or any material portion of its
business or assets as a result of the transactions contemplated by the
Offer or the Compulsory Acquisition, (iii) imposes any material
limitation on the ability of the Company or the Offeror to conduct the
Company's business or own its assets, (iv) imposes or confirms any
material limitation on the ability of the Offeror to acquire or hold,
or to exercise full rights of ownership of, any Shares, including the
right to vote such Shares on all matters properly presented to the
shareholders of the Company, (v) requires divestiture by the Offeror
of all or any of the Shares, (vi) otherwise has or might reasonably be
expected to have a
31
Material Adverse Effect or results or might reasonably be expected to
result in a Diminution in Value, or (vii) imposes any condition to the
Offer unacceptable to the Offeror in its reasonable discretion; or
(d) there has been instituted or be pending before any Governmental Entity
or court any action, proceeding, application, claim or counterclaim or
any judgment, order or injunction sought or any other action taken by
any person or entity (other than a Governmental Entity) which (i)
challenges the acquisition by the Offeror of any Shares pursuant to
the Offer or the Compulsory Acquisition, seeks to restrain, prohibit
or materially delay the making or consummation of the Offer or the
Compulsory Acquisition, seeks to prohibit the performance of any
contracts or other arrangements entered into by the Offeror in
connection with the acquisition of the Shares or the Company, seeks to
obtain any material amount of damages, or otherwise directly or
indirectly materially and adversely affects the Offer or the
Compulsory Acquisition, (ii) seeks to prohibit or limit materially the
ownership or operation by the Company or the Offeror (or any affiliate
of the Offeror) of all or any material portion of the business or
assets of the Company and its subsidiaries taken as a whole or of the
Offeror and its affiliates taken as a whole, or to compel the Company
or the Offeror (or any affiliate of the Offeror) to dispose of or to
hold separate all or any material portion of the business or assets of
the Offeror and its affiliates taken as a whole or of the Company and
its subsidiaries taken as a whole as a result of the transactions
contemplated by the Offer or the Compulsory Acquisition, (iii) seeks
to impose any material limitation on the ability of the Company or the
Offeror (or any affiliate of the Offeror) to conduct the Company's or
any subsidiary's business or own such assets, (iv) seeks to impose or
confirm any material limitation on the ability of the Offeror (or any
affiliate of the Offeror) to acquire or hold, or to exercise full
rights of ownership of, any Shares, including the right to vote such
Shares on all matters properly presented to the shareholders of the
Company, (v) seeks to require divestiture by the Offeror (or any
affiliate of the Offeror) of all or any of the Shares, (vi) otherwise
has or might reasonably be expected to have a Material Adverse Effect
or results or might reasonably be expected to result in a Diminution
in Value, or (vii) seeks to impose any condition to the Offer
unacceptable to the Offeror in its reasonable discretion; and which in
the case of clause (i), (ii), (iii), (iv), (v), (vi) or (vii) is
successful or the Offeror determines, in its reasonable discretion,
has a reasonable possibility of being successful; or
(e) a statute, rule or regulation is enacted or asserted to be applicable
to the Offer or the Compulsory Acquisition, or any other action is
taken by any Governmental Entity or court, that results in, directly
or indirectly, any of the consequences referred to in clauses (i)
through (vii) of paragraph (b) above; or
(f) there has occurred (i) any general suspension of trading in, or
limitation on prices for, securities on any US national securities
exchange or the Luxembourg Stock Exchange or in the over-the-counter
market in the United States or Luxembourg, (ii) any declaration of a
banking moratorium by United States federal, New York, European Union
or Luxembourg authorities, (iii) any material limitation by any
federal, state, local or foreign government or any court,
administrative or regulatory agency or commission or other
governmental authority or agency in the United States that materially
affects the extension of credit generally by lenders that regularly
participate in the United States or Luxembourg market in loans, (iv)
any commencement or escalation of a war (including the current war on
terrorism conducted by the United States and others), armed
hostilities or other national or international calamity directly or
indirectly involving the United States or Luxembourg, (v) a suspension
of or limitation (whether or not mandatory) on the currency exchange
markets or the imposition of, or material changes in, any currency or
exchange control laws in the United States or Luxembourg or (vi) in
the case of any of the foregoing occurrences existing on or at the
time of the commencement of the Offer, a material acceleration or
worsening thereof;
which in the reasonable judgment of the Offeror, in any such case, and
regardless of the circumstances giving rise to such condition, makes it
inadvisable to proceed with the Offer, the Compulsory Acquisition and/or with
acceptance for payment of Shares.
32
The foregoing conditions are for the sole benefit of the Offeror and may be
asserted by the Offeror, in whole or in part, at any time and from time to time
in the reasonable discretion of the Offeror. The failure by the Offeror at any
time to exercise its rights under any of the foregoing conditions shall not be
deemed a waiver of any such rights and each such right shall be deemed an
ongoing right which may be asserted at any time or from time to time. If the
Offer is terminated under any of the foregoing provisions, all tendered Shares
that have not previously been accepted for payment will be returned to the
tendering shareholder.
LEGAL MATTERS; REGULATORY APPROVALS
Except as described above, the Offeror is not aware of any license or
regulatory permit that appears material to Xxxxxxx's business that might be
adversely affected by Superior Navigation's acquisition of the Shares as
contemplated by the Offer or of any approval or other action by any government
or governmental, administrative or regulatory authority or agency, domestic,
foreign or supranational, that would be required for the acquisition or
ownership of Shares by Superior Navigation as contemplated by the Offer. Should
any such approval or other action be required, the Offeror presently
contemplates that the Offeror will seek that approval or other action. The
Offeror is unable to predict whether the Offeror would be required to delay the
acceptance for payment of or payment for Shares tendered under the Offer pending
the outcome of any such matter. There can be no assurance that any such approval
or other action, if needed, would be obtained or would be obtained without
substantial cost or conditions or that the failure to obtain the approval or
other action might not result in adverse consequences to Xxxxxxx's business and
financial condition. Our obligations under the Offer to accept for payment and
pay for Shares is subject to conditions. See "The Offer - Conditions of the
Offer."
EXTENSION OF THE TENDER OFFER; TERMINATION; AMENDMENT
Superior Navigation expressly reserves the right, in its sole discretion,
at any time and from time to time, and regardless of whether or not any of the
events set forth in "The Offer - Conditions of the Offer" have occurred or are
deemed by the Offeror to have occurred, to extend the period of time during
which the Offer is open and thereby delay acceptance for payment of, and payment
for, any Shares by giving oral or written notice of the extension to the
Depositary and the Luxembourg Receiving Agent and making a public announcement
of the extension. Superior Navigation also expressly reserves the right, in its
sole discretion, to terminate the Offer and not accept for payment or pay for
any Shares not theretofore accepted for payment or paid for or, subject to
applicable law, to postpone payment for Shares upon the occurrence of any of the
conditions specified in "The Offer - Conditions of the Offer" herein by giving
oral or written notice of such termination or postponement to the Depositary,
the Luxembourg Receiving Agent and making a public announcement of such
termination or postponement. Superior Navigation's reservation of the right to
delay payment for Shares which it has accepted for payment is limited by rules
under the Exchange Act, which require that Superior Navigation pay the
consideration offered or return the Shares tendered promptly after termination
or withdrawal of a tender offer. Subject to compliance with applicable law,
Superior Navigation further reserves the right, in its sole discretion, and
regardless of whether any of the events set forth in "The Offer - Conditions of
the Offer" shall have occurred or shall be deemed by Superior Navigation to have
occurred, to amend the Offer in any respect, including, without limitation, by
decreasing or increasing the consideration offered to holders of Shares or by
decreasing or increasing the number of Shares being sought. Amendments to the
Offer may be made at any time and effected by public announcement, in the case
of an extension, to be issued no later than 9:00 a.m., New York City time, on
the next business day after the last previously scheduled or announced
Expiration Time. Any public announcement will be disseminated promptly to
shareholders in a manner reasonably designed to inform shareholders of such
change. Without limiting the manner in which Superior Navigation may choose to
make a public announcement, except as required by applicable law, Superior
Navigation shall have no obligation to publish, advertise or otherwise
communicate any such public announcement other than by making a release through
PR Newswire.
If Superior Navigation materially changes the terms of the Offer or the
information concerning the tender offer, Superior Navigation will extend the
Offer to the extent required by the Exchange Act. These rules provide that the
minimum period during which a tender offer must remain open following material
changes in the terms
33
of the tender offer or information concerning the tender
offer (other than a change in price or a change in percentage of ADSs and
Ordinary Shares sought) will depend on the facts and circumstances, including
the relative materiality of such terms or information. If (1) Superior
Navigation increases or decreases the price to be paid for shares and (2) the
tender offer is scheduled to expire at any time earlier than the expiration of a
period ending on the tenth business day from, and including, the date that such
notice of an increase or decrease is first published, sent or given to security
holders, the Offer will be extended until the expiration of such period of ten
business days. If the Offeror increases or decreases the consideration to be
paid for Shares in the Offer, the increase or decrease will be applicable to all
holders whose Shares are accepted for payment pursuant to the Offer.
FEES AND EXPENSES
Xxxxxxx's independent directors engaged Poseidon Capital Corp. to provide a
fairness opinion. Poseidon Capital Corp. will receive compensation from Anangel.
The Bank of New York, the depositary for Xxxxxxx's ADR program, is the
Depositary in the Offer and Dexia Banque Internationale a Luxembourg, societe
anonyme, its listing agent in Luxembourg, is the Luxembourg Receiving Agent.
Mellon Investor Services LLC is the Information Agent and may contact holders of
Shares by mail, telephone, telegraph and personal interviews and may request
brokers, dealers, commercial banks, trust companies and other nominee
shareholders to forward materials relating to the tender offer to beneficial
owners. First European Transfer Agent S.A. is the International Offer Manager.
The International Offer Manager, Information Agent, Luxembourg Receiving Agent
and Depositary will each receive reasonable and customary compensation for their
respective services from the Offeror, will be reimbursed by the Offeror for
specified reasonable out-of-pocket expenses and will be indemnified against
certain liabilities in connection with the Offer, including certain liabilities
under the federal securities laws.
It is estimated that the expenses incurred in connection with the Offer to
be paid by the Offeror will be approximately as set forth below:
Luxembourg Receiving Agent Fees ........................... $ 10,000
Depositary Fees ........................................... 30,000
Information Agent Fees .................................... 15,000
Filing Fees ............................................... 12,000
Legal Fees and Expenses ................................... 300,000
ADR Program Termination Fee ............................... 250,000
Printing and Mailing Costs,
Miscellaneous............................................ 100,000
No fees or commissions will be payable by Superior Navigation to brokers,
dealers, commercial banks or trust companies (other than fees to the Depositary,
the Luxembourg Receiving Agent, the Information Agent and the International
Offer Manager as described above) for soliciting tenders of Shares under the
Offer. Shareholders holding Shares through brokers or banks are urged to consult
the brokers or banks to determine whether transaction costs are applicable if
shareholders tender Shares through such brokers or banks and not directly to the
Depositary or the Luxembourg Receiving Agent. Superior Navigation, however, upon
request, will reimburse brokers, dealers, commercial banks and trust companies
for customary mailing and handling expenses incurred by them in forwarding the
Offer and related materials to the beneficial owners of Shares held by them as a
nominee or in a fiduciary capacity. No broker, dealer, commercial bank or trust
company has been authorized to act as the agent of Superior Navigation, the
dealer manager, the Information Agent or the Depositary for purposes of the
Offer. Superior Navigation will pay or cause to be paid all stock transfer
taxes, if any, on its purchase of Shares except as otherwise provided in this
document and Instruction 6 in the related Letter of Transmittal and Acceptance
Form.
MISCELLANEOUS
Superior Navigation is not aware of any jurisdiction where the making of
the Offer is not in compliance with applicable law. If Superior Navigation
becomes aware of any jurisdiction where the making of the Offer or the
acceptance of Shares pursuant thereto is not in compliance with applicable law,
Superior Navigation will
34
make a good faith effort to comply with the applicable law. If, after such good
faith effort, Superior Navigation cannot comply with the applicable law, the
Offer will not be made to (nor will tenders be accepted from or on behalf of)
the holders of Shares in such jurisdiction. In any jurisdiction where the
securities, blue sky or other laws require the tender offer to be made by a
licensed broker or dealer, the tender offer shall be deemed to be made on behalf
of Superior Navigation by the dealer manager or one or more registered brokers
or dealers licensed under the laws of that jurisdiction.
Superior Navigation has filed with the SEC a Tender Offer Statement on
Schedule TO which contains additional information with respect to the tender
offer. The Schedule TO, including the exhibits and any amendments and
supplements thereto, may be examined, and copies may be obtained, at the same
places and in the same manner as is set forth in "Available Information" with
respect to information concerning Anangel.
The results of the Offer will be announced by filing a final amendment to
the Schedule TO with the SEC and by publishing a notice in the Luxemburger Wort
in Luxembourg.
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR MAKE ANY
REPRESENTATION ON BEHALF OF SUPERIOR NAVIGATION NOT CONTAINED IN THIS OFFER, THE
LETTER OF TRANSMITTAL OR THE ACCEPTANCE FORM. IF GIVEN OR MADE, SUCH INFORMATION
OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY SUPERIOR
NAVIGATION. THE DELIVERY OF THIS OFFER SHALL NOT, UNDER ANY CIRCUMSTANCES,
CREATE ANY IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF ANANGEL
OR SUPERIOR NAVIGATION SINCE THE DATE OF THIS OFFER OR THAT THE INFORMATION IN
THIS OFFER IS CORRECT AS OF ANY TIME SUBSEQUENT TO THE DATE OF THIS OFFER. TO
THE BEST OF THE OFFEROR'S KNOWLEDGE, THE INFORMATION HEREIN IS TRUE AND CORRECT
IN ALL MATERIAL RESPECTS.
SUPERIOR NAVIGATION LTD.
Febrary 12. 2002
35
SCHEDULE I
INFORMATION CONCERNING THE DIRECTORS AND
EXECUTIVE OFFICERS OF SUPERIOR NAVIGATION LTD.
Directors and Executive Officers the Offeror. Set forth below is the name,
current business address, citizenship and the present principal occupation or
employment and material occupations, positions, offices or employment for the
past five years of each director and executive officer of the Offeror.
The principal address of the Offeror and the business address of the
directors and executive officers listed below is Xxxxxx Xxxxxx 000, Xxxxxxxxx,
Xxxxxx, XX 000-00, Xxxxxx.
NAME/CITIZENSHIP POSITION PRINCIPAL OCCUPATION
------------------------ ------------------------- ---------------------------
Xxxxxxxxx X. Xxxxxxxxx Director and President Director and Treasurer,
Greece Anangel-American
Shipholdings Limited
Xxxxxx Xxxxxxxx Director Attorney at Law, Anangel
Greece Maritime Services, Inc.
Xxxx Xxxxxxx Director and Treasurer Chief Accounting
Greece Officer, Anangel
Maritime Services, Inc.
SCHEDULE II
CAYMAN ISLANDS COMPANIES LAW (2001 SECOND REVISION)
EXTRACT OF RELEVANT PROVISIONS APPLICABLE TO THE COMPULSORY ACQUISITION
SECTION 88 POWER TO ACQUIRE SHARES OF DISSENTIENT SHAREHOLDERS (Companies Law)
(1) Where a scheme or contract involving the transfer of shares or any class of
shares in a company (in this section referred to as "the transferor company") to
another company, whether a company within the meaning of this Law or not (in
this section referred to as "the transferee company") has, within four months
after the making of the offer in that behalf by the transferee company, been
approved by the holders of not less than ninety percent in value of the shares
affected, the transferee company may, at any time within two months after the
expiration of the said four months, give notice in the prescribed manner to any
dissenting shareholder that it desires to acquire his shares, and where such
notice is given the transferee company shall, unless on an application made by
the dissenting shareholder within one month from the date on which the notice
was given, the Court thinks fit to order otherwise, be entitled and bound to
acquire those shares on the terms on which under the scheme or contract the
shares of the approving shareholders are to be transferred to the transferee
company.
(2) Where a notice has been given by the transferee company under this section
and the Court has not, on an application made by the dissenting shareholder,
ordered to the contrary, the transferee company shall, on the expiration of one
month from the date on which the notice has been given or, if an application to
the Court by the dissenting shareholder is then pending, after that application
has been disposed of, transmit a copy of the notice to the transferor company
and pay or transfer to the transferor company the amount or other consideration
representing the price payable by the transferee company for the shares which by
virtue of this section that company is entitled to acquire, and the transferor
company shall thereupon register the transferee company as the holder of those
shares.
(3) Any sums received by the transferor company under this section shall be paid
into a separate bank account, and any such sums and any other consideration so
received shall be held by that company on trust for the several persons entitled
to the shares in respect of which the said sum or other consideration were
respectively received.
(4) In this section:
"dissenting shareholder" includes a shareholder who has not assented to the
scheme or contract and any shareholder who has failed or refused to transfer his
shares to the transferee company in accordance with the scheme or contract.
The Luxembourg Receiving Agent for the Offer is:
DEXIA BANQUE INTERNATIONALE A LUXEMBOURG
SOCIETE ANONYME
00, xxxxx d'Xxxx
XX 0000
X-0000 Xxxxxxxxxx
Telephone: x000 0000 0000, x000 0000 0000
Facsimile: x000 0000 0000
The Depositary for the Offer is:
THE BANK OF NEW YORK
By Mail: By Hand: By Overnight Delivery:
THE BANK OF NEW YORK THE BANK OF NEW YORK THE BANK OF NEW YORK
Tender & Exchange Tender & Exchange Tender & Exchange Department
Department Department 000 Xxxxx Xxxx Xxxx, 0xx
X.X. Box 00000 0 Xxxx Xxxxxx, 3rd Floor Floor
Church Xxxxxx Xxxxxxx Xxx Xxxx, Xxx Xxxx 00000 Xxxx Xxxxxxxx, Xxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
10286-1248
By Xxxxxxxxx:
(For Eligible
Institutions only)
x0 (000) 000-0000
For Confirmation Only
Telephone:
x0 (000) 000-0000
The International Manager for the Offer is:
FIRST EUROPEAN TRANSFER AGENT S.A.
0, xxx Xxxxxx Xxxxxx
X-0000 Xxxxxxxx
X-X Xxxxxxxxxx
Telephone: x000 0000 00 0000
Telefax: x000 0000 00 0000
The Information Agent for the Offer is:
MELLON INVESTOR SERVICES LLC
00 Xxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Call Toll-Free in the US: x0 (000) 000-0000
Call Collect if Outside the US: x0 (000) 000-0000
