Table of Contents
| England and Wales | 6029 | None | ||
|
(State or other jurisdiction
of incorporation or organization) |
(Primary Standard Industrial Classification Code Number) |
(IRS Employer Identification Number) |
|
George H. White Sullivan & Cromwell LLP 1 New Fetter Lane London EC4A 1AN United Kingdom Tel. No.: 011-44-20-7959-8900 |
Margaret E. Tahyar Davis Polk & Wardwell 121 avenue des Champs-Elysees 75008 Paris France Tel. No.: 011-33-1-56-59-36-70 |
| Proposed Maximum | Proposed Maximum | ||||||||||||
| Title of Each Class of | Amount to be | Offering Price | Aggregate | Amount of | |||||||||
| Securities to be Registered | Registered(1) | Per Unit(2) | Offering Price(2) | Registration Fee(3) | |||||||||
|
Ordinary Shares, nominal value 25p
per share
|
1,222,905,869 | $14.93 | $18,208,225,822 | $558,993 | |||||||||
| (1) | A portion of the ordinary shares, nominal value 25p per share, of the registrant (“Barclays ordinary shares”) may be represented by the Registrant’s American Depositary Shares (“Barclays ADSs”), evidenced by American Depositary Receipts, each of which represents four Barclays ordinary shares to be issued to holders of American Depositary Shares of ABN AMRO Holding N.V. (“ABN AMRO” and such American Depositary Shares, “ABN AMRO ADSs”), evidenced by American Depositary Receipts, each of which represents one ordinary share of ABN AMRO Holding (“ABN AMRO ordinary share”). |
| (2) | Computed solely for purposes of calculating the registration fee. The registration fee has been computed pursuant to Rule 457(f)(1) under the Securities Act of 1933, as amended, based on the average of the high and low prices for ABN AMRO ordinary shares as reported on EurolistTM of Euronext Amsterdam N.V. on June 6, 2007 ($48.02) and the noon buying rate in New York City for cable transfers in euros as certified for customer purposes by the Federal Reserve Bank of New York on June 6, 2007, which was $1.3492 per €1.00. |
| (3) | Computed in accordance with Rule 457(f) under the Securities Act to be $558,993, which is equal to $30.70 per $1,000,000 of securities registered multiplied by the proposed maximum aggregate offering price of $18,208,225,822. |
Table of Contents
The information
in this document may change. A registration statement relating
to these securities has been filed with the US Securities and
Exchange Commission. Barclays may not complete the exchange
offer and issue these securities until the registration
statement becomes effective. This document is not an offer to
sell these securities and Barclays is not soliciting offers to
buy these securities, nor shall there be any sale of these
securities, in any jurisdiction in which such offer,
solicitation or sale is not permitted or would be unlawful prior
to registration or qualification under the securities laws of
any such jurisdiction.
Offer to Exchange
Each Ordinary Share
Each American Depositary Share
3.225 Ordinary Shares
0.80625 American Depositary Shares
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Table of Contents
i
Table of Contents
Q-1
Q:
What is the purpose of this exchange offer?
A:
The purpose of the exchange offer is to enable Barclays to
acquire all of the outstanding ABN AMRO ordinary shares and ABN
AMRO ADSs. The proposed combination of ABN AMRO and Barclays
will create one of the world’s leading universal banks.
Both ABN AMRO and Barclays operate in a sector which is still
fragmented in comparison to other global industries. The ABN
AMRO Managing Board and the ABN AMRO Supervisory Board and the
board of directors of Barclays (the “Barclays Board”)
believe that universal banking is the model best equipped for
success in an industry where customer needs are converging and
where demand-led growth will be significant across the globe.
Harmonization of customer needs is already well advanced in
investment banking and investment management and is increasingly
apparent in retail and commercial banking.
The proposed combination brings together two sets of high
quality product capabilities and brands, which are well placed
to create growth for shareholders from the relationship
extension opportunities that exist in a combined base of
46 million personal and 1.4 million commercial
customers.
Q:
What would I receive in exchange for my ABN AMRO ordinary
shares or ABN AMRO ADSs?
A:
Barclays is offering to exchange 3.225 Barclays ordinary shares
for each outstanding ordinary share of ABN AMRO, and 0.80625
Barclays ADSs for each ABN AMRO ADS, that is validly tendered
(or defectively tendered provided that such defect has been
waived by Barclays) and not properly withdrawn.
Q:
Does ABN AMRO support the exchange offer and the proposed
combination?
A:
Yes, the ABN AMRO Managing Board and the ABN AMRO Supervisory
Board consider that the exchange offer is in the best interests
of ABN AMRO and all of its shareholders and have each
unanimously resolved to recommend the exchange offer for
acceptance by the holders of ABN AMRO ordinary shares and ABN
AMRO ADSs.
Q:
Will ABN AMRO’s senior management participate in the
exchange offer?
A:
The members of the ABN AMRO Managing Board and the ABN AMRO
Supervisory Board have each undertaken to tender all ABN AMRO
ordinary shares and ABN AMRO ADSs held or to be held by them
under the exchange offer. These undertakings are revocable
jointly with the recommendations of the exchange offer by the
ABN AMRO Supervisory Board and the ABN AMRO Managing Board.
Q:
How long do I have to decide whether to tender and can the
exchange offer be extended?
A:
You may tender your ABN AMRO ordinary shares or ABN AMRO ADSs
into the exchange offer until
[ l ]
New York City time
([ l ]
Central European Time) on
[ l ],
2007, which is the scheduled expiration date of the exchange
offer, unless Barclays decides to extend the exchange offer. In
accordance with Dutch law, Barclays may extend the period of
time for which the exchange offer is open for a period of
between two and ten weeks.
Table of Contents
Q-2
Q:
Under what circumstances will there be a subsequent offering
period?
A:
If the minimum acceptance condition is satisfied or waived and
the exchange offer is successful, Barclays may elect to provide
a “subsequent offering period”. A subsequent offering
period, if one is provided, will be an additional period of time
after Barclays has acquired ABN AMRO ordinary shares and ABN
AMRO ADSs in the exchange offer, during which holders of ABN
AMRO ordinary shares and ABN AMRO ADSs may tender, but not
withdraw, their ABN AMRO ordinary shares and ABN AMRO ADSs.
Q:
Will holders of ABN AMRO ordinary shares or ABN AMRO ADSs
receive the same consideration if they tender in the subsequent
offering period as if they tender during the initial offering
period?
A:
In the event of a subsequent offering period, the exchange
ratios will be the same as in the initial offering period.
Because the exchange ratios are fixed, however, the market value
of the consideration paid in the subsequent offering period may
differ from the consideration paid in the initial offering
period.
Q:
How will I be notified if the exchange offer is extended or
if there will be a subsequent offering period?
A:
Barclays will announce by press release any extension of the
exchange offer no later than
[ l ]
New York City time
([ l ]
Central European Time) on the third day on which Euronext is
open for trading (each day on which Euronext is open for trading
is referred to as a “Euronext trading day”) after the
previously scheduled expiration date. If Barclays determines to
provide a subsequent offering period, it will publicly disclose
its intentions by issuing a press release no later than
[ l ]
New York City time
([ l ]
Central European Time) on the next Euronext trading day after
the expiration of the initial offering period and will
immediately begin the subsequent offering period.
Q:
How long will it take to complete the combination?
A:
Barclays expects to complete the proposed combination as soon as
possible after completion of the exchange offer.
Q:
What are the most significant conditions to the exchange
offer?
A:
The exchange offer is subject to the satisfaction or waiver of a
number of conditions, including, among others:
•
At least 80% of the issued ABN AMRO ordinary shares (including
ABN AMRO ordinary shares underlying ABN AMRO ADSs) have been
tendered under the exchange offer or are otherwise held by
Barclays;
•
No material adverse change in respect of Barclays or ABN AMRO;
•
No third party has indicated an intention to take any
frustrating action (as defined in the Merger Protocol);
•
All necessary filings, notifications, and applications in
connection with the exchange offer have been made and all
authorizations and consents have been obtained and relevant
waiting periods have expired;
•
The agreement (the “LaSalle Agreement”) between ABN
AMRO Bank N.V. (“ABN AMRO Bank”) and Bank of America
Corporation (“Bank of America”) for the sale of ABN
AMRO North America Holding Company (and certain of its
subsidiaries, including LaSalle Bank Corporation) (collectively,
“LaSalle”), but excluding ABN AMRO WCS Holding Company
and its subsidiaries, has been completed in accordance with its
terms or a purchase and sale agreement with another party with
respect to sale of LaSalle has been completed in accordance with
its terms;
•
The competent regulatory authorities in the Netherlands have
given their declaration of no objection and the Financial
Services Authority (the “FSA”) in the United Kingdom
has notified its approval of each person who will acquire
control over any United Kingdom authorized per-
Table of Contents
Q-3
son which is a member of the combined group or the relevant
waiting period has expired;
•
Barclays and ABN AMRO have received confirmation from the Dutch
Central Bank (De Nederlandsche Bank N.V.) that it has no
objection to the parties’ proposal for the composition of
the managing board and supervisory board of ABN AMRO Bank N.V.
and the FSA has approved the appointment of the proposed
directors to the Barclays Board and the board of directors of
Barclays Bank PLC;
•
All approvals have been received or notices have been filed
under US federal or state banking laws that are necessary for
completion of the exchange offer, and all required waiting
periods have expired;
•
The European Commission has declared the exchange offer
compatible with the common market or has granted its approval to
the exchange offer and the applicable waiting period under the
US Hart-Scott-Rodino Antitrust Improvement Act of 1976, as
amended (the “HSR Act”) in relation to the exchange
offer has expired or been terminated;
•
Neither Barclays nor ABN AMRO has received any notification from
the Dutch Central Bank or the FSA that there is likely to be a
change in the supervisory, reporting or regulatory capital
arrangements that will apply to the combined group;
•
The tax clearances from the relevant United Kingdom and Dutch
tax authorities have not been withdrawn or amended;
•
Confirmation has been given that the Barclays ordinary shares
being offered will be admitted to the Official List of the UKLA,
admitted to trading on the main market for listed securities on
the LSE, authorized for listing on Euronext and the TSE and the
Barclays ordinary shares being offered and the Barclays ADSs
representing such shares or a portion thereof have been approved
for listing on the NYSE;
•
The general meetings of shareholders of ABN AMRO and Barclays
have passed all agreed or required resolutions;
•
There has been no event, circumstance or series of linked events
or circumstances that was not fairly disclosed in the 2006
annual reports and the annual accounts of either ABN AMRO or
Barclays, respectively, or otherwise disclosed and that can
reasonably be expected to have a negative impact of 5% or more
on the respective 2006 consolidated operating income of ABN AMRO
or Barclays; and
•
The Merger Protocol has not been terminated.
These and other conditions to the exchange offer are discussed
in this document under “The Exchange Offer —
Conditions”.
Q:
What percentage of Barclays ordinary shares and Barclays ADSs
will former holders of ABN AMRO ordinary shares or ABN AMRO ADSs
own after the exchange offer?
A:
After completion of the exchange offer, and assuming that all of
the outstanding ABN AMRO ordinary shares and ABN AMRO ADSs are
validly tendered and not withdrawn, former holders of ABN AMRO
ordinary shares and ABN AMRO ADSs would own approximately 48% of
the outstanding Barclays ordinary shares (including Barclays
ordinary shares underlying Barclays ADSs).
Q:
How do I participate in the exchange offer?
A:
Holders of ABN AMRO ordinary shares who hold their ABN AMRO
ordinary shares through an institution admitted to Euronext
(“Admitted Institution”) should make their acceptance
of the offer known to the Dutch listing and exchange agent, ABN
AMRO Bank, via their respective Admitted Institutions during the
period beginning on
[ l ],
2007 and ending on the expiration date of the exchange offer.
The bank or stockbroker may set an earlier deadline for
communication by holders of ABN AMRO ordinary shares in order to
permit the bank or stockbroker to communicate their acceptances
to the Dutch listing and exchange agent, ABN AMRO Bank, in a
timely manner.
Holders of ABN AMRO ordinary shares in registered form
registered in the name of the
Table of Contents
Q-4
relevant holders will receive an application form to make their
acceptance of the offer known. The application form should be
completed, signed and returned so as to reach the Dutch listing
and exchange agent not later than
[ l ]
New York City time
([ l ]
Central European Time) on the expiration date of the exchange
offer.
If you hold your ABN AMRO ADSs in the form of an ABN AMRO
American Depositary Receipt (“ADR”), you may tender
your ABN AMRO ADSs to the US exchange agent, The Bank of New
York, by delivering to the US exchange agent a properly
completed and duly executed letter of transmittal, with all
applicable signature guarantees from an eligible guarantor
institution, together with the ABN AMRO ADR evidencing your ABN
AMRO ADSs specified on the face of the letter of transmittal,
prior to the expiration date for the exchange offer.
If you hold your ABN AMRO ADSs in a brokerage account, you
should instruct your broker, dealer, commercial bank, trust
company or other entity through which you hold your ABN AMRO
ADSs to arrange for The Depository Trust Company
(“DTC”) participant holding the ABN AMRO ADSs in its
DTC account to tender your ABN AMRO ADSs in the exchange offer
to the US exchange agent by means of delivery through the
book-entry confirmation facilities of DTC of your ABN AMRO ADSs
to the DTC account of the US exchange agent, together with
an agent’s message acknowledging that the tendering
participant has received and agrees to be bound by the letter of
transmittal, prior to the expiration date of the exchange offer.
See “The Exchange Offer — Procedure for
Tendering” for more information on the procedures for
tendering your ABN AMRO ordinary shares or ABN AMRO ADSs.
Q:
Will I have to pay any fees or commissions?
A:
It is expected that you will not have to pay any brokerage
commissions if:
•
your ABN AMRO ordinary shares are registered in your name and
you tender them to the Dutch listing and exchange agent, ABN
AMRO Bank,
•
you instruct an Admitted Institution to tender your ABN AMRO
ordinary shares, subject to policies of such Admitted
Institution, or
•
you hold ABN AMRO ADSs and you tender them directly to the US
exchange agent.
Q:
Until what time may I withdraw previously tendered ABN AMRO
ordinary shares or ABN AMRO ADSs?
A:
The tender of your ABN AMRO ordinary shares or ABN AMRO ADSs may
generally be withdrawn at any time prior to the expiration of
the exchange offer, which is
[ l ]
New York City time
([ l ]
Central European Time) on
[ l ],
2007 (unless Barclays decides to extend the exchange offer). In
accordance with Dutch law, Barclays may extend the period of
time for which the exchange offer is open for a period of
between two and ten weeks. In addition, ABN AMRO ordinary shares
or ABN AMRO ADSs which have been tendered but not accepted for
exchange may be withdrawn at any time after 60 calendar days
from the date of this document. However, there will be no
withdrawal rights during any subsequent offering period. See
“The Exchange Offer — Withdrawal Rights” for
more information.
Q:
How do I withdraw previously tendered ABN AMRO ordinary
shares or ABN AMRO ADSs?
A:
Holders of ABN AMRO ordinary shares who hold their shares
through an Admitted Institution and make their acceptance known
through their bank or stockbroker to the Dutch listing and
exchange agent may withdraw by making a withdrawal request
Table of Contents
Q-5
through their bank or stockbroker to the Dutch listing and
exchange agent prior to the expiration of the exchange offer.
Holders of ABN AMRO ordinary shares in registered form
registered in the name of the relevant holders who tender their
ABN AMRO ordinary shares in registered form by means of
application form sent to the Dutch listing and exchange agent,
may withdraw by delivery to the Dutch listing and exchange agent
a properly completed and duly executed notice of withdrawal
prior to the expiration of the exchange offer.
If you tendered your ABN AMRO ADSs to the US exchange agent by
means of delivery of a letter of transmittal together with the
ABN AMRO ADR evidencing your ABN AMRO ADSs, you may withdraw
your tender by delivering to the US exchange agent a
properly completed and duly executed notice of withdrawal,
guaranteed by an eligible guarantor institution (if the letter
of transmittal required a signature guarantee), prior to the
expiration of the exchange offer period in the United States.
If you tendered your ABN AMRO ADSs by means of the book-entry
confirmation procedures of DTC, you may withdraw your tender by
instructing your broker, dealer, commercial bank, trust company
or other entity to cause the DTC participant through which your
ABN AMRO ADSs were tendered to deliver a notice of withdrawal to
the US exchange agent through the book-entry confirmation
facilities of DTC, prior to the expiration of the exchange offer
period in the United States.
See “The Exchange Offer — Withdrawal Rights”
for more information about the procedures for withdrawing your
previously tendered ABN AMRO ordinary shares or ABN AMRO ADSs.
Q:
Will US holders be taxed on the Barclays ordinary shares or
Barclays ADSs that they receive?
US holders of ABN AMRO ordinary shares or ABN AMRO ADSs
will likely recognize gain or loss for United States federal
income tax purposes on the surrender of their ABN AMRO ordinary
shares or ABN AMRO ADSs pursuant to the exchange offer equal to
the difference between the fair market value of Barclays
ordinary shares or Barclays ADSs (and any cash in lieu of
fractional Barclays ordinary shares or Barclays ADSs) they
receive on the surrender and their tax basis in their ABN AMRO
ordinary shares or ABN AMRO ADSs. See
“Taxation — Material United States Federal
Income Tax Considerations”.
US holders of ABN AMRO ordinary shares or ABN AMRO ADSs who
realise capital gains pursuant to the exchange offer will
generally not be subject to Dutch taxation on such capital gains
unless the capital gains are attributable to an enterprise or
part thereof that is either (a) effectively managed in The
Netherlands or (b) carried on through a permanent
establishment or a permanent representative in The Netherlands.
However, other exceptions may apply which may result in US
holders becoming subject to Dutch taxation on the capital gains
concerned. See “Taxation — Material Dutch
Tax Consequences”.
US holders of ABN AMRO ordinary shares or ABN AMRO ADSs, who are
neither resident nor ordinarily resident in the UK for tax
purposes, should not be subject to tax in the United Kingdom in
respect of the exchange of their ABN AMRO ordinary shares or ABN
AMRO ADSs pursuant to the exchange offer, unless such holder of
ABN AMRO ordinary shares or ABN AMRO ADSs carries on a trade,
profession or vocation in the UK through a permanent
establishment (where the holder of ABN AMRO ordinary shares or
ABN AMRO ADSs is a company) or through a branch or agency (where
the holder of ABN AMRO ordinary shares or ABN AMRO ADSs is not a
company) and has used, held or acquired the ABN AMRO ordinary
shares or ABN AMRO ADSs for the purposes of such trade,
profession or vocation or such permanent establishment, branch
or agency (as appropriate) in which case such holder may be
subject to UK tax. See “Taxation — Material
United Kingdom Tax Consequences”.
Table of Contents
Q-6
Q:
Is Barclays financial condition relevant to my decision to
tender my ABN AMRO ordinary shares or ABN AMRO ADSs in the
exchange offer?
A:
Yes, ABN AMRO ordinary shares or ABN AMRO ADSs accepted in the
exchange offer will be exchanged for Barclays ordinary shares or
Barclays ADSs, so you should consider Barclays financial
condition before you decide to become a holder of Barclays
ordinary shares or Barclays ADSs through the exchange offer. In
considering Barclays financial condition, you should review the
documents incorporated by reference in this document because
they contain detailed business, financial and other information
about Barclays.
Q:
Will there be transfer restrictions on the Barclays ordinary
shares or Barclays ADSs that are delivered in respect of
tendered ABN AMRO ordinary shares or ABN AMRO ADSs?
A:
No, the Barclays ordinary shares and Barclays ADSs issued in the
exchange offer will not be subject to transfer restrictions.
Q:
What happens if the exchange offer is terminated or not
successful?
A:
If the exchange offer is not completed:
•
if you hold ABN AMRO ordinary shares through an Admitted
Institution, your shares tendered to Barclays will be returned
to the relevant Admitted Institution;
•
if you hold ABN AMRO ordinary shares in registered form, your
acceptance communicated to the Dutch listing and exchange agent
will be considered withdrawn; and
•
your tendered ABN AMRO ADSs will be returned to you without
interest or any other payment being due. This should occur
several business days following the announcement that the
exchange offer has terminated.
Q:
If I decide not to tender, how will the exchange offer affect
my ABN AMRO ordinary shares and ABN AMRO ADSs?
A:
The acquisition by Barclays of ABN AMRO ordinary shares and ABN
AMRO ADSs in the exchange offer will reduce the number of ABN
AMRO ordinary shares and ABN AMRO ADSs that might otherwise
trade publicly and may reduce the number of holders of ABN AMRO
ordinary shares and ABN AMRO ADSs, which could adversely affect
the liquidity and market value of the remaining ordinary shares
and ABN AMRO ADSs held by the public. It is also intended that
the ABN AMRO ordinary shares and ABN AMRO ADSs cease to be
listed on the stock exchanges on which they currently trade. In
addition, ABN AMRO may cease to make filings with the SEC or
otherwise cease to be required to comply with the SEC’s
rules relating to publicly held companies.
In addition, after the successful completion of the exchange
offer, Barclays and ABN AMRO may implement a restructuring of
ABN AMRO and its subsidiaries that is intended to result in the
business of ABN AMRO being held in direct or indirect wholly
owned subsidiaries of Barclays.
The consideration that holders of ABN AMRO ordinary shares and
ABN AMRO ADSs will receive on implementation of the post-closing
restructuring measures may be different than the consideration
that they would have received had they tendered their ABN AMRO
ordinary shares and ABN AMRO ADSs in the exchange offer.
If 95% or more of the issued and outstanding share capital of
ABN AMRO is tendered in the exchange offer or are otherwise held
by Barclays, Barclays may initiate a compulsory squeeze-out
procedure in accordance with section 2-92a of the Dutch Civil
Code. Barclays may also use any other compulsory squeeze-out
procedure available to it under any applicable jurisdiction
permitted by law in respect of the ABN AMRO ordinary shares
including those underlying ABN AMRO ADSs or one or more classes
thereof from time to time if and when it meets the statutory
threshold and other requirements applicable to such procedures.
Table of Contents
Q-7
Barclays and ABN AMRO may initiate and seek the implementation
of a legal merger between Barclays, or any of its affiliates,
and ABN AMRO in which case ABN AMRO would cease to exist and the
ABN AMRO Shares and ABN AMRO ADSs would be exchanged into
shares, of a class to be determined, of the surviving company
(subject to any cash or other alternative available under
applicable law and the terms of the merger proposal).
At any time after the settlement date, Barclays and ABN AMRO may
take steps to implement a sale and/or transfer of ABN AMRO Bank
(and/or other assets and liabilities of ABN AMRO and/or ABN AMRO
Bank) to Barclays or any of its affiliates against a
consideration which may consist of cash, cash equivalents or
securities or other financial instruments (i) whose equity
and dividend entitlements are limited and/or (ii) whose
value depends on the value of the business of the combined group
or any part thereof, or shares in the capital of Barclays or any
affiliate thereof.
Barclays and ABN AMRO may — as an alternative to or in
combination with the foregoing steps — initiate and
implement a number of other post-closing restructuring steps
including but not limited to the creation of separate classes of
shares through an amendment of ABN AMRO’s articles of
association and the distribution of dividends or repayment of
capital on ABN AMRO shares.
Barclays reserves the right to use any other method permitted by
applicable law to obtain the entire issued and outstanding
capital of ABN AMRO, as well as to align the corporate,
governance and capital structure of ABN AMRO with the combined
group’s new holding and financing structure that will exist
after the settlement date. See “Post-Closing
Restructuring” below.
Q:
Are appraisal rights available to holders of ABN AMRO
ordinary shares or ABN AMRO ADSs?
You are not entitled to appraisal rights or dissenters’
rights in connection with the exchange offer. However, if 95% of
the issued and outstanding capital of ABN AMRO is tendered in
the exchange offer and Barclays elects to initiate a compulsory
squeeze-out procedure under Dutch law, the consideration to be
paid to the holders of ABN AMRO ordinary shares including those
underlying ABN AMRO ADSs in such circumstances would be
determined by the Enterprise Chamber of the Amsterdam Court of
Appeals. See “The Exchange Offer — Appraisal
Rights” below.
Q:
Where can I find out more information about Barclays and ABN
AMRO?
A:
You can find out information about Barclays and ABN AMRO from
the sources described under “Where You Can Find More
Information”.
Q:
Who can I call with questions about the exchange offer?
A:
You can contact Barclays information agent in the United States,
[ l ],
at
[ l ]
or
[ l ],
or the dealer manager in the United States,
[ l ],
at
[ l ]
or
[ l ].
Table of Contents
| Event | Calendar Date | |
| Beginning of exchange offer period | [ l ], 2007 | |
| Expected date of publication of interim results for the six months ending June 30, 2007 by ABN AMRO | [ l ], 2007 | |
| Expected date of publication of interim results for the six months ending June 30, 2007 by Barclays | [ l ], 2007 | |
| Extraordinary general meeting of ABN AMRO shareholders | [ l ], 2007 | |
| Extraordinary general meeting of Barclays shareholders | [ l ], 2007 | |
| Expiration of initial exchange offer period | [ l ], 2007 | |
| Announcement by Barclays of the results of the exchange offer | [ l ], 2007 | |
| ABN AMRO ADSs suspended from trading on the NYSE | [ l ], 2007(a) | |
| ABN AMRO ordinary shares suspended from trading on Euronext | [ l ], 2007(a) | |
| Settlement Date | [ l ], 2007(a)(b) | |
| Barclays ordinary shares to be issued in the exchange offer begin trading on the LSE | [ l ], 2007(a) | |
| Barclays ADSs to be issued in the exchange offer begin trading on the NYSE | [ l ], 2007(a) | |
| Barclays ordinary shares begin trading on Euronext | [ l ], 2007(a) | |
| Barclays ordinary shares begin trading on the TSE | [ l ], 2007(a) |
| (a) | The date will change if Barclays extends the initial exchange offer period. If Barclays extends, terminates, withdraws or declares the exchange offer unconditional (in accordance with applicable law), Barclays will notify the US exchange agent and the Dutch listing and exchange agent by written notice or oral notice confirmed in writing. If Barclays decides to extend the exchange offer or to declare the exchange offer unconditional, it will also make an announcement to that effect no later than [ l ] New York City time ([ l ] Central European time) on the third Euronext trading day after the previously scheduled expiration date of the exchange offer. If the exchange offer is declared unconditional, Barclays reserves the right to provide a subsequent offer period of not less than three US business days and up to 15 Euronext trading days but, in no event, more than 20 US business days in length, following the date that the exchange offer is declared unconditional. |
| (b) | In the event that Barclays announces that the exchange offer is declared unconditional, holders of ABN AMRO ordinary shares who have tendered and delivered their ABN AMRO ordinary shares to Barclays will receive, within five Euronext trading days following the date on which the exchange offer became unconditional, Barclays ordinary shares for ABN AMRO ordinary shares at the ordinary share exchange ratio. Tendering holders of ABN AMRO ADSs will receive Barclays ADSs as soon as practicable after the Barclays ordinary shares have been delivered to the Depositary’s custodian. |
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6
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| • | the continued employment of some members of the ABN AMRO Managing Board by the combined group; | |
| • | the continued positions of certain members of the ABN AMRO Managing Board and the ABN AMRO Supervisory Board as directors of the combined group; | |
| • | employment agreements with certain members of the ABN AMRO Managing Board, which include terms regarding severance payments in accordance with Dutch labor laws in the event of termination of those agreements; and | |
| • | the indemnification of former members of the ABN AMRO Managing Board and the ABN AMRO Supervisory Board by the combined company. |
7
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8
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| • | The competent regulatory authorities in the Netherlands shall have given their declaration of no objection and the FSA shall have notified its approval of each person who will acquire control over any United Kingdom authorized person which is a member of the combined group or the relevant waiting period has expired; | |
| • | Barclays and ABN AMRO shall have received confirmation from the Dutch Central Bank that it has no objection to the parties, proposal for the composition of the managing board and supervisory board of ABN AMRO Bank, and the FSA shall have approved the nomination of the proposed directors to the board of the combined group (the “Group Board of Directors”); | |
| • | Neither Barclays nor ABN AMRO shall have received any notification from the Dutch Central Bank or the FSA that there is likely to be a change in the supervisory, reporting or regulatory capital arrangements that will apply to the combined group and; | |
| • | Confirmation has been given that the Barclays ordinary shares being offered will be admitted to the Official List of the UKLA, admitted to trading on the main market for listed securities of the LSE, authorized for listing on Euronext and the TSE, and the Barclays ordinary shares and the Barclays ADSs have been approved for listing on the NYSE. |
9
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| • | The general meetings of shareholders of ABN AMRO and Barclays shall have passed all agreed or required resolutions; | |
| • | No material adverse change in respect of Barclays or ABN AMRO; | |
| • | No third party shall have indicated an intention to take any frustrating action (as defined in the Merger Protocol); | |
| • | The LaSalle Agreement shall have been completed in accordance with its terms or a purchase and sale agreement with another party with respect to the sale of LaSalle shall have been completed in accordance with its terms; and | |
| • | There shall have been no event, circumstance or series of linked events or circumstances that was not fairly disclosed in the 2006 annual reports and annual accounts of either ABN AMRO or Barclays, respectively, or otherwise disclosed and that can reasonably be expected to have a negative impact of 5% or more on the respective 2006 consolidated operating income of ABN AMRO or Barclays. |
10
Table of Contents
| Group Executive Committee Member | Position as from the effective date of the combination | |
|
Mr. Varley
|
Group Chief Executive | |
|
Mr. Diamond
|
Barclays President and CEO of IBIM | |
|
Mr. Seegers
|
CEO of GRCB | |
|
Mr. Overmars
|
CEO of Continental Europe and Asia, GRCB | |
|
Mr. Teerlink
|
Chief Operating Officer of GRCB | |
|
Mr. Idzik
|
Group Chief Operating Officer | |
|
Mr. Lucas
|
Group Finance Director | |
|
Mr. Boumeester
|
Group Chief Administrative Officer |
11
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12
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13
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| For the year ended December 31, | ||||||||||||
| 2006 | 2005 | 2004(a) | ||||||||||
| £m | £m | £m | ||||||||||
|
(IFRS)
|
||||||||||||
|
Continuing operations
|
||||||||||||
|
Net interest income
|
9,143 | 8,075 | 6,833 | |||||||||
|
Net fee and commission income
|
7,177 | 5,705 | 4,847 | |||||||||
|
Principal transactions
|
4,576 | 3,179 | 2,514 | |||||||||
|
Net premiums from insurance
contracts
|
1,060 | 872 | 1,042 | |||||||||
|
Other income
|
214 | 147 | 131 | |||||||||
|
Total income
|
22,170 | 17,978 | 15,367 | |||||||||
|
Net claims and benefits paid on
insurance contracts
|
(575 | ) | (645 | ) | (1,259 | ) | ||||||
|
Total income net of insurance claims
|
21,595 | 17,333 | 14,108 | |||||||||
|
Impairment charges
|
(2,154 | ) | (1,571 | ) | (1,093 | ) | ||||||
|
Net income
|
19,441 | 15,762 | 13,015 | |||||||||
|
Operating expenses
|
(12,674 | ) | (10,527 | ) | (8,536 | ) | ||||||
|
Share of post-tax results of
associates and joint ventures
|
46 | 45 | 56 | |||||||||
|
Profit on disposal of subsidiaries,
associates and joint ventures
|
323 | — | 45 | |||||||||
|
Profit before tax
|
7,136 | 5,280 | 4,580 | |||||||||
|
Tax
|
(1,941 | ) | (1,439 | ) | (1,279 | ) | ||||||
|
Profit after tax
|
5,195 | 3,841 | 3,301 | |||||||||
|
Profit attributable to minority
interests
|
624 | 394 | 47 | |||||||||
|
Profit attributable to equity
holders of the parent
|
4,571 | 3,447 | 3,254 | |||||||||
| 5,195 | 3,841 | 3,301 | ||||||||||
| (a) | Does not reflect the application of IAS 32, IAS 39 and IFRS 4 which Barclays adopted January 1, 2005. |
|
Basic earnings per share
|
71.9 | p | 54.4 | p | 51.0 | p | |||||||
|
Diluted earnings per share
|
69.8 | p | 52.6 | p | 49.8 | p | |||||||
|
Dividends per ordinary share
|
31.0 | p | 26.6 | p | 24.0 | p | |||||||
|
Dividend payout ratio
|
43.1 | % | 48.9 | % | 47.1 | % | |||||||
|
Profit attributable to the equity
holders of the parent as a percentage of:
|
|||||||||||||
|
average shareholders’ equity
|
24.7 | % | 21.1 | % | 21.7 | % | |||||||
|
average total assets
|
0.4 | % | 0.4 | % | 0.5 | % | |||||||
|
Cost: income ratio
|
59 | % | 61 | % | 61 | % | |||||||
|
Cost: net income ratio
|
65 | % | 67 | % | 66 | % | |||||||
|
Average US dollar exchange rate
used in preparing the accounts
|
1.84 | 1.82 | 1.83 | ||||||||||
|
Average euro exchange rate used in
preparing the accounts
|
1.47 | 1.46 | 1.47 | ||||||||||
|
Average rand exchange rate used in
preparing the accounts
|
12.47 | 11.57 | 11.83 | ||||||||||
| (a) | Does not reflect the application of IAS 32, IAS 39 and IFRS 4 which Barclays adopted January 1, 2005. |
14
Table of Contents
| For the year ended | ||||||||
| December 31, | ||||||||
| 2003 | 2002 | |||||||
| £m | £m | |||||||
|
(UK GAAP)
|
||||||||
|
Interest receivable
|
12,427 | 12,044 | ||||||
|
Interest payable
|
(5,823 | ) | (5,839 | ) | ||||
|
Net interest income
|
6,604 | 6,205 | ||||||
|
Fees and commissions receivable
|
4,896 | 4,454 | ||||||
|
Less: fees and commissions payable
|
(633 | ) | (529 | ) | ||||
|
Dealing profits
|
1,054 | 833 | ||||||
|
Other operating income
|
490 | 364 | ||||||
|
Operating income
|
12,411 | 11,327 | ||||||
|
Administration expenses— staff
costs
|
(4,295 | ) | (3,755 | ) | ||||
|
Administration expenses— other
|
(2,404 | ) | (2,312 | ) | ||||
|
Depreciation
|
(289 | ) | (303 | ) | ||||
|
Goodwill amortization
|
(265 | ) | (254 | ) | ||||
|
Operating expenses
|
(7,253 | ) | (6,624 | ) | ||||
|
Operating profit before provisions
|
5,158 | 4,703 | ||||||
|
Provisions for bad and doubtful
debts
|
(1,347 | ) | (1,484 | ) | ||||
|
Provisions for contingent
liabilities and commitments
|
1 | (1 | ) | |||||
|
Provisions
|
(1,346 | ) | (1,485 | ) | ||||
|
Operating profit
|
3,812 | 3,218 | ||||||
|
Profit/(loss) from joint ventures
|
1 | (5 | ) | |||||
|
Profit/(loss) from associates
|
28 | (5 | ) | |||||
|
Exceptional items
|
4 | (3 | ) | |||||
|
Profit on ordinary activities
before tax
|
3,845 | 3,205 | ||||||
|
Tax on profit on ordinary activities
|
(1,076 | ) | (955 | ) | ||||
|
Profit on ordinary activities
after tax
|
2,769 | 2,250 | ||||||
|
Minority interests (including
non-equity interests)
|
(25 | ) | (20 | ) | ||||
|
Profit for the financial year
attributable to the members of Barclays PLC
|
2,744 | 2,230 | ||||||
|
Dividends
|
(1,340 | ) | (1,206 | ) | ||||
|
Profit retained for the
financial year
|
1,404 | 1,024 | ||||||
|
(UK GAAP)
|
|||||||||
|
Basic earnings per share
|
42.3 | p | 33.7 | p | |||||
|
Diluted earnings per share
|
42.1 | p | 33.4 | p | |||||
|
Dividends per ordinary share
|
20.50 | p | 18.35 | p | |||||
|
Dividend payout ratio
|
48.5 | % | 54.5 | % | |||||
|
Attributable profit as a percentage
of:
|
|||||||||
|
average shareholders’ funds
|
17.0 | % | 14.7 | % | |||||
|
average total assets
|
0.6 | % | 0.5 | % | |||||
|
Average US dollar exchange rate
used in preparing the accounts
|
1.64 | 1.50 | |||||||
|
Average euro exchange rate used in
preparing the accounts
|
1.45 | 1.59 | |||||||
15
Table of Contents
| As at December 31, | ||||||||||||
| 2006 | 2005 | 2004(a) | ||||||||||
| £m | £m | £m | ||||||||||
|
(IFRS)
|
||||||||||||
|
Assets
|
||||||||||||
|
Cash and other short-term funds
|
9,753 | 5,807 | 3,525 | |||||||||
|
Treasury bills and other eligible
bills
|
n/a | n/a | 6,658 | |||||||||
|
Trading and financial assets
designated at fair value
|
292,464 | 251,820 | n/a | |||||||||
|
Derivative financial instruments
|
138,353 | 136,823 | n/a | |||||||||
|
Debt securities and equity shares
|
n/a | n/a | 141,710 | |||||||||
|
Loans and advances to banks
|
30,926 | 31,105 | 80,632 | |||||||||
|
Loans and advances to customers
|
282,300 | 268,896 | 262,409 | |||||||||
|
Available for sale investments
|
51,703 | 53,497 | n/a | |||||||||
|
Reverse repurchase agreements and
cash collateral on securities borrowed
|
174,090 | 160,398 | n/a | |||||||||
|
Property, plant and equipment
|
2,492 | 2,754 | 2,282 | |||||||||
|
Other assets
|
14,706 | 13,257 | 40,965 | |||||||||
|
Total Assets
|
996,787 | 924,357 | 538,181 | |||||||||
|
Liabilities
|
||||||||||||
|
Deposits and items in the course of
collection due to banks
|
81,783 | 77,468 | 112,229 | |||||||||
|
Customer accounts
|
256,754 | 238,684 | 217,492 | |||||||||
|
Trading and financial liabilities
designated at fair value
|
125,861 | 104,949 | n/a | |||||||||
|
Liabilities to customers under
investment contracts
|
84,637 | 85,201 | n/a | |||||||||
|
Derivative financial instruments
|
140,697 | 137,971 | n/a | |||||||||
|
Debt securities in issue
|
111,137 | 103,328 | 83,842 | |||||||||
|
Repurchase agreements and cash
collateral on securities lent
|
136,956 | 121,178 | n/a | |||||||||
|
Insurance contract liabilities,
including unit-linked liabilities
|
3,878 | 3,767 | 8,377 | |||||||||
|
Subordinated liabilities
|
13,786 | 12,463 | 12,277 | |||||||||
|
Other liabilities
|
13,908 | 14,918 | 87,200 | |||||||||
|
Total liabilities
|
969,397 | 899,927 | 521,417 | |||||||||
|
Shareholders’
equity
|
||||||||||||
|
Shareholders’ equity excluding
minority interests
|
19,799 | 17,426 | 15,870 | |||||||||
|
Minority interests
|
7,591 | 7,004 | 894 | |||||||||
|
Total shareholders’
equity
|
27,390 | 24,430 | 16,764 | |||||||||
|
Total liabilities and
shareholders’ equity
|
996,787 | 924,357 | 538,181 | |||||||||
|
Risk weighted assets and capital
ratios
|
||||||||||||
|
Risk weighted assets
|
297,833 | 269,148 | 218,601 | |||||||||
|
Tier 1
ratio(b)
|
7.7 | % | 7.0 | % | 7.6 | % | ||||||
|
Risk asset
ratio(b)
|
11.7 | % | 11.3 | % | 11.5 | % | ||||||
|
Selected financial
statistics
|
||||||||||||
|
Net asset value per ordinary share
|
303 | p | 269 | p | 246 | p | ||||||
|
Year-end US dollar exchange rate
used in preparing the accounts
|
1.96 | 1.72 | 1.92 | |||||||||
|
Year-end euro exchange rate used in
preparing the accounts
|
1.49 | 1.46 | 1.41 | |||||||||
|
Year-end rand exchange rate used in
preparing the accounts
|
13.71 | 10.87 | 10.86 | |||||||||
| (a) | Does not reflect the application of IAS 32, IAS 39 and IFRS 4 which Barclays adopted January 1, 2005. | |
| (b) | Capital ratios for 2004 are based on UK GAAP and have not been restated as these remain as reported to the Financial Services Authority (FSA). As at January 1, 2005 the tier 1 ratio was 7.1% and the risk asset ratio was 11.8% reflecting the impact of IFRS, including the adoption of IAS 32, IAS 39 and IFRS 4 at this date. |
16
Table of Contents
| As at December 31, | ||||||||
| 2003 | 2002 | |||||||
| £m | £m | |||||||
|
(UK GAAP)
|
||||||||
|
Assets
|
||||||||
|
Loans and advances to banks and
customers
|
288,743 | 260,572 | ||||||
|
Other assets
|
139,818 | 129,136 | ||||||
| 428,561 | 389,708 | |||||||
|
Infrastructure
|
6,624 | 6,015 | ||||||
| 435,185 | 395,723 | |||||||
|
Retail life-fund assets
attributable to policyholders
|
8,077 | 7,284 | ||||||
|
Total assets
|
443,262 | 403,007 | ||||||
|
Liabilities
|
||||||||
|
Deposits by banks, customer
accounts and debt securities in issue
|
328,529 | 304,817 | ||||||
|
Other liabilities
|
77,660 | 64,067 | ||||||
| 406,189 | 368,884 | |||||||
|
Capital resources
|
||||||||
|
Undated loan capital
|
6,310 | 6,678 | ||||||
|
Dated loan capital
|
6,029 | 4,859 | ||||||
|
Total subordinated liabilities
|
12,339 | 11,537 | ||||||
|
Minority interests
|
283 | 156 | ||||||
|
Shareholders’ equity excluding
minority interests
|
16,374 | 15,146 | ||||||
|
Total shareholders’ equity
|
16,657 | 15,302 | ||||||
|
Total capital resources
|
28,996 | 26,839 | ||||||
| 435,185 | 395,723 | |||||||
|
Retail life-fund liabilities
attributable to policyholders
|
8,077 | 7,284 | ||||||
|
Total liabilities and
shareholders’ equity
|
443,262 | 403,007 | ||||||
|
Risk weighted assets and capital
ratios
|
||||||||
|
Risk weighted assets
|
188,997 | 172,748 | ||||||
|
Tier 1 ratio
|
7.9 | % | 8.2 | % | ||||
|
Risk asset ratio
|
12.8 | % | 12.8 | % | ||||
|
Selected financial
statistics
|
||||||||
|
Net asset value per ordinary share
|
250 | p | 230 | p | ||||
|
Year-end US dollar exchange rate
used in preparing the accounts
|
1.78 | 1.61 | ||||||
|
Year-end euro exchange rate used in
preparing the accounts
|
1.41 | 1.54 | ||||||
17
Table of Contents
| 2006(a) | 2006 | 2005 | 2004 | 2003 | 2002 | ||||||||||||||||||||
| ¢ | p | p | p | p | p | ||||||||||||||||||||
|
(US GAAP)
|
|||||||||||||||||||||||||
|
Barclays PLC Group
|
|||||||||||||||||||||||||
|
Earnings per 25p ordinary share
(basic)
|
132.4 | 67.9 | 46.3 | 47.5 | 26.8 | 37.4 | |||||||||||||||||||
|
Dividends per 25p ordinary share
|
54.2 | 27.8 | 25.0 | 21.7 | 19.1 | 17.2 | |||||||||||||||||||
|
Book value per 25p ordinary share
|
599 | 307 | 291 | 266 | 260 | 242 | |||||||||||||||||||
| % | % | % | % | % | |||||||||||||||||||||
|
Net income as a percentage of:
|
|||||||||||||||||||||||||
|
— average total assets
|
0.5 | 0.4 | 0.5 | 0.3 | 0.5 | ||||||||||||||||||||
|
— average shareholders’
equity
|
23.4 | 16.8 | 18.0 | 10.6 | 16.6 | ||||||||||||||||||||
|
Dividends as a percentage of net
income
|
42.0 | 54.0 | 46.5 | 71.5 | 44.7 | ||||||||||||||||||||
|
Average shareholders’ equity
as a percentage of average total assets
|
2.3 | 2.6 | 2.5 | 3.2 | 3.1 | ||||||||||||||||||||
|
Barclays Bank PLC
Group
|
|||||||||||||||||||||||||
|
Net income as a percentage of:
|
|||||||||||||||||||||||||
|
— average total assets
|
0.6 | 0.5 | 0.5 | 0.4 | 0.5 | ||||||||||||||||||||
|
— average shareholders’
equity
|
20.6 | 13.8 | 17.2 | 10.1 | 15.6 | ||||||||||||||||||||
|
Average shareholders’ equity
as a percentage of average total assets
|
2.8 | 3.0 | 2.7 | 3.5 | 3.4 | ||||||||||||||||||||
| (a) | The US dollar financial information has been translated for convenience at the rate of $1.95 to £1, the Noon Buying Rate for cable transfers in New York City, payable in pound sterling, at December 31, 2006. |
| 2006(a) | 2006 | 2005 | 2004 | 2003 | 2002 | |||||||||||||||||||
| $m | £m | £m | £m | £m | £m | |||||||||||||||||||
|
(US GAAP)
|
||||||||||||||||||||||||
|
Net income:
|
||||||||||||||||||||||||
|
Barclays PLC Group
|
8,420 | 4,318 | 2,932 | 3,032 | 1,740 | 2,476 | ||||||||||||||||||
|
Barclays Bank PLC Group
|
9,068 | 4,650 | 3,164 | 3,137 | 1,842 | 2,578 | ||||||||||||||||||
|
Shareholders’ equity:
|
||||||||||||||||||||||||
|
Barclays PLC Group
|
39,062 | 20,032 | 18,461 | 16,953 | 16,830 | 16,015 | ||||||||||||||||||
|
Barclays Bank PLC Group
|
48,883 | 25,068 | 23,114 | 19,594 | 18,646 | 17,846 | ||||||||||||||||||
|
Total assets:
|
||||||||||||||||||||||||
|
Barclays PLC Group
|
1,809,711 | 928,057 | 840,657 | 654,580 | 541,969 | 491,466 | ||||||||||||||||||
|
Barclays Bank PLC Group
|
1,809,157 | 927,773 | 840,470 | 654,699 | 542,080 | 491,586 | ||||||||||||||||||
| (a) | The US dollar financial information has been translated for convenience at the rate of $1.95 to £1, the Noon Buying Rate for cable transfers in New York City, payable in pound sterling, at December 31, 2006. |
18
Table of Contents
| For the year ended December 31, | ||||||||||||||||
| 2006(a) | 2006 | 2005 | 2004 | |||||||||||||
| $m | €m | €m | €m | |||||||||||||
|
(IFRS)
|
||||||||||||||||
|
Net interest income
|
13,371 | 10,575 | 8,785 | 8,525 | ||||||||||||
|
Net fee and commission income
|
7,665 | 6,062 | 4,691 | 4,485 | ||||||||||||
|
Net trading income
|
3,767 | 2,979 | 2,621 | 1,309 | ||||||||||||
|
Results from financial transactions
|
1,374 | 1,087 | 1,281 | 905 | ||||||||||||
|
Share of result in equity accounted
investments
|
307 | 243 | 263 | 206 | ||||||||||||
|
Other operating income
|
1,747 | 1,382 | 1,056 | 745 | ||||||||||||
|
Income of consolidated private
equity holdings
|
6,718 | 5,313 | 3,637 | 2,616 | ||||||||||||
|
Operating income
|
34,948 | 27,641 | 22,334 | 18,791 | ||||||||||||
|
Operating expenses
|
26,189 | 20,713 | 16,301 | 15,180 | ||||||||||||
|
Loan impairment and other credit
risk provisions
|
2,345 | 1,855 | 635 | 607 | ||||||||||||
|
Total expenses
|
28,534 | 22,568 | 16,936 | 15,787 | ||||||||||||
|
Operating profit before tax
|
6,414 | 5,073 | 5,398 | 3,004 | ||||||||||||
|
Income tax expense
|
1,140 | 902 | 1,142 | 715 | ||||||||||||
|
Profit from continuing operations
|
5,274 | 4,171 | 4,256 | 2,289 | ||||||||||||
|
Profit from discontinued
|
||||||||||||||||
|
operations net of tax
|
770 | 609 | 187 | 1,651 | ||||||||||||
|
Profit for the year
|
6,044 | 4,780 | 4,443 | 3,940 | ||||||||||||
|
Attributable to shareholders of the
parent company
|
5,961 | 4,715 | 4,382 | 3,865 | ||||||||||||
|
Dividends on ordinary shares
|
2,722 | 2,153 | 2,050 | 1,665 | ||||||||||||
|
Per share financial
data
|
||||||||||||||||
|
Average number of ordinary shares
outstanding (in millions)
|
— | 1,882.5 | 1,804.1 | 1,657.6 | ||||||||||||
|
Basic earning per shares
(in €)
|
— | 2.50 | 2.43 | 2.33 | ||||||||||||
|
Fully diluted earnings per share
(in €)
|
— | 2.49 | 2.42 | 2.33 | ||||||||||||
|
Net profit per ordinary share from
continuing operations
(in €)(b)
|
— | 2.18 | 2.33 | 1.34 | ||||||||||||
|
Fully diluted net profit per
ordinary share from continuing operations
(in €)(b)
|
— | 2.17 | 2.32 | 1.34 | ||||||||||||
|
Dividend per ordinary share (in
€)(b)
|
— | 1.15 | 1.10 | 1.00 | ||||||||||||
|
Net profit per American Depositary
|
||||||||||||||||
|
Share (in US
dollars)(b)(c)
|
— | 3.16 | 3.01 | 2.91 | ||||||||||||
|
Dividend per American Depositary
Share (in US dollars)
(b)(d)
|
— | 1.50 | 1.34 | 1.27 | ||||||||||||
| (a) | Solely for your convenience, euro amounts have been translated into US dollars at an exchange rate of $1 = € 0.7909, which is the rate equal to the average of the month-end rates for 2006. | |
| (b) | Adjusted for increases in share capital, as applicable. See Note 13 to ABN AMRO’s consolidated financial statements for a description of the computation of earnings per ordinary share. | |
| (c) | Solely for your convenience, this item has been translated into US dollars at the rate equal to the average of the month-end rates for the applicable year. | |
| (d) | Solely for your convenience, this item has been translated into US dollars at the applicable rate on the date of payment, other than for the 2006 final dividend, which has been translated into US dollars at the March 16, 2006 exchange rate of $1 = € 0.7515, the latest practicable date for which information is available. |
19
Table of Contents
| For the Year Ended | ||||||||
| December 31, | ||||||||
| 2003 | 2002 | |||||||
| €m | €m | |||||||
| (except per share data) | ||||||||
|
(Dutch GAAP)
|
||||||||
|
Net interest revenue
|
9,723 | 9,845 | ||||||
|
Net commissions
|
4,464 | 4,639 | ||||||
|
Results from financial transactions
|
1,993 | 1,477 | ||||||
|
Other revenue
|
2,613 | 2,319 | ||||||
|
Total revenue
|
18,793 | 18,280 | ||||||
|
Operating expenses
|
12,585 | 13,148 | ||||||
|
Provision for loan losses
|
1,274 | 1,695 | ||||||
|
Operating profit before taxes
|
4,918 | 3,388 | ||||||
|
Net profit
|
3,161 | 2,207 | ||||||
|
Net profit attributable to Ordinary
Shares
|
3,116 | 2,161 | ||||||
|
Dividends on Ordinary Shares
|
1,589 | 1,462 | ||||||
|
Per Share Financial
Data
|
||||||||
|
Average number of Ordinary Shares
outstanding (in millions)
|
1,610.2 | 1,559.3 | ||||||
|
Net profit per Ordinary Share (in
€)(a)
|
1.94 | 1.39 | ||||||
|
Fully diluted net profit per
Ordinary Share (in
€)(a)
|
1.93 | 1.38 | ||||||
|
Dividend per Ordinary Share (in
€)(a)
|
0.95 | 0.90 | ||||||
|
Net profit per American Depositary
Share (in
US$)(a)(b)
|
2.21 | 1.48 | ||||||
|
Dividend per American Depositary
Share (in
US$)(a)(c)
|
1.09 | 0.92 | ||||||
| (a) | Adjusted for increases in share capital, as applicable. |
| (b) | This item has been translated into US dollars at the rate equal to the average of the month-end rates for the applicable year. |
| (c) | Solely for your convenience, this item has been translated into US dollars at the applicable rate on the date of payment. |
20
Table of Contents
| At December 31, | ||||||||||||||||
| 2006(a) | 2006 | 2005 | 2004 | |||||||||||||
| $m | €m | €m | €m | |||||||||||||
|
(IFRS)
|
||||||||||||||||
|
Assets
|
||||||||||||||||
|
Financial assets held for trading
|
271,283 | 205,736 | 202,055 | 167,035 | ||||||||||||
|
Financial investments
|
165,327 | 125,381 | 123,774 | 102,948 | ||||||||||||
|
Loans and receivables —
banks
|
177,772 | 134,819 | 108,635 | 83,858 | ||||||||||||
|
Loans, and receivables —
customers
|
584,476 | 443,255 | 380,248 | 320,022 | ||||||||||||
|
Total Assets
|
1,301,543 | 987,064 | 880,804 | 727,454 | ||||||||||||
|
Liabilities
|
||||||||||||||||
|
Financial liabilities held for
trading
|
191,677 | 145,364 | 148,588 | 129,506 | ||||||||||||
|
Due to banks
|
247,882 | 187,989 | 167,821 | 133,529 | ||||||||||||
|
Due to customers
|
477,838 | 362,383 | 317,083 | 281,379 | ||||||||||||
|
Issued debt securities
|
266,418 | 202,046 | 170,619 | 121,232 | ||||||||||||
|
Capitalization
|
||||||||||||||||
|
Equity attributable to shareholders
of the parent
company(c)
|
31,115 | 23,597 | 22,221 | 14,815 | ||||||||||||
|
Equity attributable to minority
interests
|
3,030 | 2,298 | 1,931 | 1,737 | ||||||||||||
|
Subordinated liabilities
|
25,334 | 19,213 | 19,072 | 16,687 | ||||||||||||
|
Group
capital(c)
|
59,479 | 45,108 | 43,224 | 33,239 | ||||||||||||
|
Per Share Financial
data
|
||||||||||||||||
|
Ordinary shares outstanding (in
millions)
|
— | 1,853.8 | 1,877.9 | 1,669.2 | ||||||||||||
|
Equity attributable to shareholders
of the parent company per ordinary share (in
€)(c)
|
— | 12.73 | 11.83 | 8.88 | ||||||||||||
|
Equity attributable to shareholders
of the parent company per American Depositary Share (in
$)(b)(c)
|
— | 16.78 | 14.00 | 12.11 | ||||||||||||
| (a) | Solely for your convenience, euro amounts have been translated into US dollars at an exchange rate of $1 = € 0.75838, which is the year-end rate for 2006. | |
| (b) | This item has been translated into US dollars at the applicable year-end rate. | |
| (c) | Pursuant to a directive of the Dutch “Raad voor de Jaarverslaggeving” (Council for Annual Reporting), from January 1, 2003, ABN AMRO calculates shareholders’ equity before profit appropriation instead of after profit appropriation, which is how ABN AMRO used to present its financials. The consequence of this new directive is that the profit during the year will be added to shareholders’ equity for the full amount until shareholders have approved the proposed profit appropriation. To be able to compare on a like for like basis, ABN AMRO has re-presented shareholders’ equity, group capital and shareholders’ equity per ABN AMRO ordinary share and per ABN AMRO ADS as at December 31, 2002 before profit appropriation. |
21
Table of Contents
| At December 31, | ||||||||
| 2003 | 2002 | |||||||
| €m | €m | |||||||
| (except per share data) | ||||||||
|
(Dutch GAAP)
|
||||||||
|
Assets
|
||||||||
|
Banks
|
58,800 | 41,924 | ||||||
|
Loans
|
296,843 | 310,903 | ||||||
|
Interest-bearing securities
|
132,041 | 141,494 | ||||||
|
Total assets
|
560,437 | 556,018 | ||||||
|
Liabilities
|
||||||||
|
Banks
|
110,887 | 95,884 | ||||||
|
Total customer accounts
|
289,866 | 289,461 | ||||||
|
Debt securities
|
71,688 | 71,209 | ||||||
|
Capitalization
|
||||||||
|
Fund for general banking risks
|
1,143 | 1,255 | ||||||
|
Shareholders’
equity(a)
|
13,047 | 11,081 | ||||||
|
Minority interests
|
3,713 | 3,810 | ||||||
|
Subordinated debt
|
13,900 | 14,278 | ||||||
|
Group
capital(a)
|
31,803 | 30,424 | ||||||
|
Per Share Financial
Data
|
||||||||
|
Ordinary Shares outstanding (in
millions)
|
1,637.9 | 1,585.6 | ||||||
|
Shareholders’ equity per
Ordinary Share (in
€)(a)
|
7.47 | 6.47 | ||||||
|
Shareholders’ equity per
American Depositary Share (in
US$)(a)(b)
|
9.42 | 6.79 | ||||||
| (a) | Pursuant to a directive of the Dutch “Raad voor de Jaarverslaggeving” (Council for Annual Reporting), from January 1, 2003, ABN AMRO calculated shareholders’ equity before profit appropriation instead of after profit appropriation, which is how ABN AMRO used to present its financials. The consequence of this new directive is that the profit during the year will be added to shareholders’ equity for the full amount until shareholders have approved the proposed profit appropriation. To be able to compare on a like for like basis, ABN AMRO has re-presented shareholders’ equity, group capital and shareholders’ equity per ABN AMRO ordinary share and per ABN AMRO ADS as at December 31, 2002 before profit appropriation. |
| (b) | This item has been translated into US dollars at the applicable year-end rate. |
22
Table of Contents
| For the year ended December 31, | ||||||||||||||||
| 2006(a) | 2006 | 2005 | 2004 | |||||||||||||
| $m | €m | €m | €m | |||||||||||||
| (except per share data) | ||||||||||||||||
|
(US GAAP)
|
||||||||||||||||
|
Income Statement Data
|
||||||||||||||||
|
Net interest income
|
11,430 | 9,040 | 8,565 | 8,886 | ||||||||||||
|
Non-interest income
|
15,224 | 12,041 | 8,247 | 5,995 | ||||||||||||
|
Total revenue
|
26,654 | 21,081 | 16,812 | 14,881 | ||||||||||||
|
Operating profit before tax
|
6,345 | 5,018 | 3,246 | 2,447 | ||||||||||||
|
Net profit
|
5,640 | 4,461 | 2,870 | 2,824 | ||||||||||||
|
Balance Sheet Data
|
||||||||||||||||
|
Shareholders’ equity
|
37,026 | 28,080 | 28,494 | 21,537 | ||||||||||||
|
Minority interests
|
3,030 | 2,298 | 1,931 | 1,737 | ||||||||||||
|
Total assets
|
1,289,731 | 978,106 | 876,366 | 725,172 | ||||||||||||
|
Share Information
|
||||||||||||||||
|
Basic earnings per Ordinary Share
(in €)
|
2.35 | 1.57 | 1.68 | |||||||||||||
|
Diluted earnings per Ordinary Share
(in €)
|
2.34 | 1.56 | 1.67 | |||||||||||||
|
Basic earnings per American
Depositary Share (in
$)(b)
|
2.97 | 1.94 | 2.09 | |||||||||||||
|
Shareholders’ equity per
Ordinary Share (in €)
|
14.73 | 14.76 | 12.44 | |||||||||||||
|
Shareholders’ equity per
American Depositary Share (in
$)(c)
|
19.43 | 17.47 | 16.97 | |||||||||||||
| (a) | Solely for your convenience, euro amounts have been translated into US dollars for income statement items at an exchange rate of $1 = € 0.7909, the rate equal to the average of the month-end rates for 2006, and for balance sheet items at an exchange rate of $1 = € 0.75838, the exchange rate on December 31, 2006. | |
| (b) | This item has been translated into US dollars at the rate equal to the average of the month-end rates for the applicable year. | |
| (c) | This item has been translated into US dollars at the applicable year-end rate. |
23
Table of Contents
| At or for the Year Ended | ||||||||
| December 31, | ||||||||
| 2003 | 2002 | |||||||
| €m | €m | |||||||
| (except per share data) | ||||||||
|
(US GAAP)
|
||||||||
|
Income Statement Data
|
||||||||
|
Net interest revenue
|
8,052 | 7,879 | ||||||
|
Non-interest revenue
|
9,472 | 10,057 | ||||||
|
Total revenue
|
17,524 | 17,936 | ||||||
|
Pre-tax profit
|
4,967 | 3,711 | ||||||
|
Net profit
|
3,119 | 2,110 | ||||||
|
Balance Sheet Data
|
||||||||
|
Shareholders’ equity
|
20,143 | 19,013 | ||||||
|
Minority interests
|
3,713 | 3,810 | ||||||
|
Total assets
|
565,039 | 562,478 | ||||||
|
Share Information
|
||||||||
|
Basic earnings per ordinary share
(in €)
|
1.91 | 1.32 | ||||||
|
Diluted earnings per ordinary share
(in €)
|
1.90 | 1.32 | ||||||
|
Basic earnings per American
Depositary Share (in
$)(a)
|
2.17 | 1.25 | ||||||
|
Shareholders’ equity per
ordinary share (in €)
|
11.80 | 11.47 | ||||||
|
Shareholders’ equity per
American Depositary Share (in $)
(b)
|
14.87 | 12.03 | ||||||
| (a) | This item has been translated into US dollars at the rate equal to the average of the month-end rates for the applicable year. |
| (b) | This item has been translated into US dollars at the applicable year-end rate. |
24
Table of Contents
| Year Ended | |||||
| December 31, | |||||
| 2006 | |||||
| £m | |||||
|
Total income net of insurance claims
|
36,888 | ||||
|
Earnings per share data (pence)
|
|||||
|
— Basic
|
40.0 | ||||
|
— Diluted
|
39.3 | ||||
|
Total assets
|
1,635,512 | ||||
|
Total liabilities
|
1,560,951 | ||||
|
Total shareholders’ equity
|
74,561 | ||||
| Year Ended | |||||
| December 31, | |||||
| 2006 | |||||
|
Barclays—
Historical
|
|||||
|
Historical per ordinary share:
|
|||||
|
Basic earnings per ordinary share
|
£ 0.72 | ||||
|
Dividend per ordinary share
|
£ 0.31 | ||||
|
Book value per share
|
£ 3.03 | ||||
|
ABN AMRO—
Historical
|
|||||
|
Historical per ordinary share:
|
|||||
|
Basic earnings per ordinary share
|
€2.50 | ||||
|
Dividend per ordinary share
|
€1.15 | ||||
|
Book value per share
|
€12.73 | ||||
|
Unaudited Pro Forma on a
combined basis per ordinary share
|
|||||
|
Unaudited pro forma on a combined
basis per ordinary share:
|
|||||
|
Basic earnings per ordinary share
|
€0.59 | ||||
|
Dividends declared per ordinary
share
|
€0.41 | ||||
|
Book value per share
|
€7.73 | ||||
|
Unaudited Pro Forma per ABN AMRO
Ordinary Share Equivalents
|
|||||
|
Unaudited pro forma per share of
ABN AMRO ordinary shares:
|
|||||
|
Basic earnings per ordinary share
|
€1.90 | ||||
|
Dividend per ordinary share
|
€1.31 | ||||
|
Book value per share
|
€24.93 | ||||
25
Table of Contents
| Barclays Ordinary Shares | ABN AMRO Ordinary Shares | |||||||
|
March 16, 2007
|
£6.825 | €27.29 | ||||||
|
April 20, 2007
|
£7.50 | €36.29 | ||||||
|
June [ l ],
2007
|
£[ l ] | €[ l ] | ||||||
| Barclays ADSs | ABN AMRO ADSs | |||||||
|
March 16, 2007
|
$ | 53.50 | $ | 36.24 | ||||
|
April 20, 2007
|
$ | 60.00 | $ | 49.29 | ||||
|
June
[ l ],
2007
|
$ | [ l ] | $ | [ l ] | ||||
| Barclays Ordinary Shares | ABN AMRO Equivalent per Share | |||||||
|
March 16, 2007
|
£6.825 | €32.13 | (a) | |||||
|
April 20, 2007
|
£7.50 | €35.65 | (b) | |||||
|
June
[ l ],
2007
|
£[ l ] | €[ l ] | (c) | |||||
| (a) | Based on the Barclays ordinary share closing price of £6.825 on March 16, 2007 and an exchange rate of £1.00 = €1.4597, as published by the Financial Times on March 17, 2007. The amount excludes the €0.60 ABN AMRO final 2006 dividend. |
| (b) | Based on the Barclays ordinary share closing price of £7.50 on April 20, 2007 and an exchange rate of £1.00 = €1.4739, as published by the Financial Times on April 21, 2007. The amount excludes the €0.60 ABN AMRO final 2006 dividend. |
| (c) | Based on the Barclays ordinary share closing price of £[ l ] on June [ l ], 2007 and the exchange rate of £1 = €[ l ], as published by [ l ] on June [ l ], 2007. The amount excludes the €0.60 ABN AMRO final 2006 dividend. |
| Barclays ADSs | ABN AMRO Equivalent per ADS | |||||||
|
March 16, 2007
|
$ | 53.50 | $ | 43.13(a | ) | |||
|
April 20, 2007
|
$ | 60.00 | $ | 48.38(a | ) | |||
|
June
[ l ],
2007
|
$ | [ l ] | [ l ](a | ) | ||||
| (a) | The amounts exclude the €0.60 ABN AMRO final 2006 dividend. |
| Barclays Ordinary Shares | ABN AMRO Ordinary Shares | |||||||||||||||||||||||
| High | Low | Dividends | High | Low | Dividends | |||||||||||||||||||
|
2002
|
£6.24 | £3.55 | £0.1835 | €22.78 | €10.45 | €0.90 | ||||||||||||||||||
|
2003
|
£5.27 | £3.11 | £0.205 | €18.88 | €11.93 | €0.95 | ||||||||||||||||||
|
2004
|
£5.86 | £4.43 | £0.24 | €19.79 | €16.47 | €1.00 | ||||||||||||||||||
|
2005
|
£6.15 | £5.20 | £0.266 | €22.34 | €18.27 | €1.10 | ||||||||||||||||||
|
2006
|
£7.37 | £5.86 | £0.31 | €25.92 | €20.46 | €1.15 | ||||||||||||||||||
26
Table of Contents
| Barclays ADSs | ABN AMRO ADSs | |||||||||||||||||||||||
| High | Low | Dividends | High | Low | Dividends | |||||||||||||||||||
|
2002
|
$ | 36.80 | $ | 22.30 | $ | 1.16 | $ | 20.32 | $ | 10.54 | $ | 0.92 | ||||||||||||
|
2003
|
$ | 36.35 | $ | 20.60 | $ | 1.43 | $ | 23.48 | $ | 13.39 | $ | 1.09 | ||||||||||||
|
2004
|
$ | 45.68 | $ | 33.06 | $ | 1.80 | $ | 26.65 | $ | 19.67 | $ | 1.27 | ||||||||||||
|
2005
|
$ | 46.76 | $ | 37.57 | $ | 1.89 | $ | 27.86 | $ | 22.95 | $ | 1.34 | ||||||||||||
|
2006
|
$ | 58.38 | $ | 42.03 | $ | 2.41 | $ | 32.60 | $ | 25.57 | $ | 1.50 | ||||||||||||
27
Table of Contents
28
Table of Contents
29
•
the monetary, interest rate and other policies of central banks
and regulatory authorities;
•
general changes in government or regulatory policy that may
significantly influence investor decisions in particular markets
in which Barclays operates;
•
general changes in the regulatory requirements, for example,
prudential rules relating to the capital adequacy framework;
•
changes in competition and pricing environments;
•
further developments in the financial reporting environment;
•
expropriation, nationalization, confiscation of assets and
changes in legislation relating to foreign ownership; and
•
other unfavorable political, military or diplomatic developments
producing social instability or legal uncertainty which, in
turn, may affect demand for Barclays products and services.
Table of Contents
30
Table of Contents
31
Table of Contents
32
•
any post-closing restructuring may require a consideration
taking a form (cash or securities) other than that proposed
under the exchange offer;
•
the consideration issued in certain post-closing reorganization
steps may be determined by a court;
•
the tax consequences to the holders of ABN AMRO ordinary shares
or ABN AMRO ADSs of receiving consideration in any post-closing
reorganization may be different than they would be if the
holders of ABN AMRO ordinary shares or ABN AMRO ADSs had
tendered their ABN AMRO ordinary shares or ABN AMRO ADSs in the
exchange offer;
•
the Barclays ordinary shares received as part of the
consideration may have a different value at the time of
completion of any post-closing reorganization than at the time
of the completion of the exchange offer and also the value of
the ABN AMRO ordinary shares or ABN AMRO ADSs may have changed
since; and
•
the legal rights of holders of ABN AMRO ordinary shares or ABN
AMRO ADSs may change as a result of post-closing restructuring
measures or vary depending on the form of post-closing
restructuring measures used.
Table of Contents
33
•
some current and prospective employees may experience
uncertainty about their future roles within the combined group,
which might adversely affect Barclays and ABN AMRO’s
ability to retain or recruit key managers and other employees;
•
such uncertainty as to whether or not the proposed combination
will be completed may affect Barclays and ABN AMRO’s
ability to retain current, and attract prospective customers; and
•
the attention of management of each of Barclays and ABN AMRO may
be diverted from the operation of the businesses toward the
completion of the proposed combination.
Table of Contents
34
Table of Contents
35
•
the continued employment of some members of the ABN AMRO
Managing Board by the combined group;
•
the continued positions of certain members of the ABN AMRO
Managing Board and the ABN AMRO Supervisory Board as members of
the Group Board of Directors;
•
employment agreements with certain members of the ABN AMRO
Managing Board, which include terms regarding severance payments
in accordance with Dutch labor law in the event of termination
of those agreements; and
•
the indemnification of former members of the ABN AMRO Managing
Board and the ABN AMRO Supervisory Board by the combined group.
Table of Contents
36
Table of Contents
37
Table of Contents
38
Table of Contents
39
•
3.225 Barclays ordinary shares for every 1 ABN AMRO ordinary
share; or
•
0.80625 Barclays ADSs for every 1 ABN AMRO ADS.
•
[ l ]%
to the share price of ABN AMRO ordinary shares on Euronext on
March 16, 2007, the last trading day prior to the
announcement that ABN AMRO and Barclays were in talks; and
•
[ l ]%
over the average share price of ABN AMRO ordinary shares in the
six months up to and including March 16, 2007.
Table of Contents
40
Table of Contents
41
Table of Contents
42
Table of Contents
43
Table of Contents
44
Table of Contents
45
Table of Contents
46
Table of Contents
47
Table of Contents
48
•
the expectation that the proposed combination of ABN AMRO and
Barclays would create one of the world’s leading universal
banks in a sector which is still fragmented in comparison to
other global industries;
•
the belief that universal banking is the model best equipped for
success in an industry where customer needs are converging and
where demand-led growth will be significant across the globe;
•
the belief that harmonization of customer needs is already well
advanced in investment banking and investment management and is
increasingly apparent in retail and commercial banking;
•
the belief that the proposed combination brings together two
sets of high quality product capabilities and brands, which are
well placed to create growth for shareholders from the
relationship extension opportunities that exist in a combined
base of approximately 46 million personal and
1.4 million commercial customers;
•
the belief that, in global retail and commercial banking, ABN
AMRO and Barclays bring together two sets of highly
complementary geographies. Approximately 90% of the combined
group’s branches will be in seven countries. In Europe the
combination will have leading franchises in the UK and the
Netherlands and attractive positions in the Italian, Spanish and
Portuguese markets. Additionally, the combination will have
significant exposure to the high growth developing economies of
Brazil and South Africa offering substantial revenue and profit
growth opportunities. The combined group will also leverage ABN
AMRO’s fast growing Asian business;
•
the expectation that customers will benefit from the enhanced
retail and commercial product capabilities of the combined group
drawing on, for example, ABN AMRO’s global cash and
payments infrastructure and Barclays expertise in credit cards;
•
the fact that ABN AMRO and Barclays are both recognized leaders
in commercial banking and both have relevant presence in the
mid-market segment. The combination is expected to accelerate
Barclays ambition to develop its business banking activities
globally. The franchise should be further strengthened by the
linkage between a strong investment banking product range and
the track record of both ABN AMRO and Barclays in selling
investment banking products to
mid-market clients
across the combined group’s broad geographic footprint;
•
the belief that there is significant opportunity for increased
cost efficiency through the optimization of the operating
infrastructure and processes;
•
the belief that the combination of ABN AMRO and Barclays will
support the ambition to be a leading global investment bank in
risk management and financing through enhanced product expertise
and broader geographic exposure;
•
the expectation that Barclays existing investment banking
product capabilities will be considerably enhanced, particularly
in commodities, FX, equities, M&A, corporate broking,
structured credit and private equity and its geographic and
client reach will also be extended significantly into Asia,
Latin America and Continental Europe;
•
the fact that the combined group will be the world’s
largest institutional asset manager and that Barclays Global
Investors’ index-based, exchange-traded fund and
quantitative active capabilities will be complemented by ABN
AMRO’s active fundamental based capabilities;
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•
the expectation that there are expanded opportunities for retail
distribution of the current product set including Barclays
Global Investors’ rapidly growing iShares exchange-traded
funds; and
•
the fact that the combined group will be the world’s eighth
largest wealth manager and that the expanded distribution
network will position the merged business well to benefit from
favorable demographic trends and increasing demand-led client
volumes.
| Pre-Tax Annual Cost Synergies and Revenue Benefits | 2008e | 2009e | 2010e | |||||||||
| (€m) | (€m) | (€m) | ||||||||||
|
Cost Synergies
|
870 | 2,080 | 2,800 | |||||||||
|
Revenue Benefits
|
(470 | ) | — | 700 | ||||||||
|
Total
|
400 | 2,080 | 3,500 | |||||||||
| • | best practice off-shoring, improved procurement and real estate rationalization; | |
| • | the consolidation of data centers and supporting IT networks; | |
| • | the use of ABN AMRO’s trade and payments back office operations in the Barclays network and integration of card operations under Barclaycard; and | |
| • | the reduction of overlaps in management structures and the retail and commercial operations in the eight overlapping countries. |
49
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50
•
the 3.225 Barclays ordinary shares that ABN AMRO ordinary
shareholders would receive in the exchange offer for each of
their ABN AMRO ordinary shares or the 0.80625 Barclays ADSs that
ABN AMRO ADS holders would receive in the exchange offer for
each of their ABN AMRO ADSs;
•
the fact that the exchange offer represented, at that time, a
premium of 33% over the closing price of ABN AMRO ordinary
shares on Euronext on March 16, 2007, the last trading day
prior to the announcement that ABN AMRO and Barclays were having
discussions, and a premium of 49% over the average share price
of ABN AMRO ordinary shares in the six months up to and
including March 16, 2007;
•
the earnings, cash flow and balance sheet impact of the proposed
combination based on public information and third-party analyst
forecasts, as well as the historical financial performance of
Barclays and the historical trading price of Barclays ordinary
shares and Barclays ADSs and ABN AMRO ordinary shares and ABN
AMRO ADSs;
•
the expectation that Barclays ordinary shareholders will hold
approximately 52% and ABN AMRO ordinary shareholders will hold
approximately 48% of the outstanding shares of the combined
group immediately after the combination and will have the
opportunity to share in the future growth and expected synergies
of the combined group; and
•
the expectation that the proposed combination will lead to 5%
accretion in Barclays adjusted earnings per
share(a)
in
2010(b)
and that the return on investment will be approximately 13% in
2010, and significant accretion in ABN AMRO’s 2008
adjusted earnings per
share(a)
in 2008 for accepting holders of ABN AMRO ordinary shares
(including ABN AMRO ordinary shares represented by ABN AMRO
ADSs).
(a)
Adjusted earnings per share is the profit attributable to
ordinary shareholders adjusted to exclude the amortization of
identifiable intangible assets, and fair value adjustments and
integration costs related to the combination, divided by the
weighted average number of ordinary shares.
(b)
This statement is not intended to be and should not be
interpreted to mean that the future adjusted earnings per share
of Barclays will necessarily match or exceed its historical
published adjusted earnings per share.
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51
•
the UK corporate governance structure of the combined group with
a unitary board;
•
the fact that the head office of the combined group will be
located in Amsterdam with management of the combined group the
responsibility of a group executive committee;
•
the fact that the Dutch Central Bank and the FSA have agreed
that the FSA will be lead supervisor of the combined group and
that the Dutch Central Bank and FSA will be the consolidated
supervisors of the ABN AMRO and Barclays groups, respectively;
•
the fact that the holding company for the combined group,
Barclays, will remain UK incorporated and is expected to remain
a UK tax resident; and
•
the fact that the holding company for the combined group will
remain UK listed and is expected to qualify for a inclusion with
a full weighting in the FTSE 100 index and in the AEX index
(subject to a maximum weighting cap of 15%).
•
the value of the Barclays ordinary shares and Barclays ADSs at
the time of the closing of the combination could be lower than
the price of Barclays ordinary shares and Barclays ADSs as of
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52
the date of the Merger Protocol as a result of, among other
things, a change in the value of the assets and liabilities of
Barclays and ABN AMRO;
•
the risk that the amount of cost savings and revenue synergies
that are actually achieved by the combination may turn out to be
less than originally projected;
•
the possibility that regulatory or governmental authorities in
the United States, Europe or elsewhere might seek to impose
conditions on or otherwise prevent or delay the combination;
•
the risks and costs to Barclays and ABN AMRO if the combination
is not completed, including the potential diversion of
management and employee attention, potential employee attrition
and the potential effect on business and customer relationships;
•
the risk that the potential benefits of the combination may not
be fully or partially realized, recognizing the many potential
management and regulatory challenges associated with
successfully combining the businesses of Barclays and ABN AMRO;
•
the risk of diverting management focus and resources from other
strategic opportunities and from operational matters, and
potential disruption associated with combining and integrating
the companies;
•
the risk that certain members of Barclays and ABN AMRO senior
management who have been selected to hold senior management
positions in the combined company might not choose to remain
with the combined company;
•
the potential challenges and difficulties relating to
integrating the operations of Barclays and ABN AMRO;
•
the risk that holders of Barclays ordinary shares or Barclays
ADSs may fail to approve the combination or that an insufficient
number of holders of ABN AMRO ordinary shares or ABN AMRO ADSs
tender their ABN AMRO ordinary shares or ABN AMRO ADSs into the
exchange offer;
•
that some officers and directors of Barclays and ABN AMRO have
interests in the combination as individuals in addition to, and
that may be different from, the interests of holders of Barclays
ordinary shares or Barclays ADSs or ABN AMRO ordinary shares or
ABN AMRO ADSs;
•
the fees and expenses associated with completing the
combination; and
•
various other risks associated with the combination and the
business of the Barclays, ABN AMRO and the combined company
described under “Risk Factors”.
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53
•
reviewed certain publicly available earnings forecasts,
financial statements and other business and financial
information of or relating to ABN AMRO and Barclays,
respectively;
•
reviewed certain internal financial statements and other
financial and operating data concerning ABN AMRO and Barclays
including certain internal estimates as to potential cost
savings and other synergies expected to result from the exchange
offer that were prepared and provided to Morgan Stanley by
management of ABN AMRO and Barclays and not publicly available;
•
reviewed certain financial projections prepared by, and which
were provided to or discussed with Morgan Stanley by, the
management of ABN AMRO;
•
reviewed certain other financial information and data relating
to ABN AMRO and Barclays which were provided to or discussed
with Morgan Stanley by the respective managements of ABN AMRO
and Barclays, including information relating to the potential
strategic implications and operational benefits (including the
amount, timing and achievability thereof) anticipated by the
managements of ABN AMRO and Barclays to result from the exchange
offer;
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54
•
discussed the past and current operations and financial
condition and the prospects of ABN AMRO with senior executives
of ABN AMRO and analysed the potential pro forma impact of the
exchange offer;
•
reviewed the prices and trading activity for the ordinary shares
of ABN AMRO and Barclays, respectively;
•
compared the financial performance of ABN AMRO and Barclays with
that of certain other publicly-traded companies comparable with
ABN AMRO and Barclays;
•
reviewed the financial terms, to the extent publicly available,
of certain comparable acquisition transactions;
•
participated in discussions and negotiations among
representatives of ABN AMRO and Barclays and their respective
financial and legal advisors;
•
reviewed the draft, dated April 22, 2007, of the Merger
Protocol;
•
reviewed the draft, dated April 22, 2007, of the LaSalle
Agreement;
•
reviewed the financial impact of the LaSalle Agreement on the
exchange ratio and the conditionality of the exchange offer with
the LaSalle Agreement; and
•
reviewed such other information and performed such other
analyses that Morgan Stanley deemed appropriate.
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| Period Ending February 19, 2007 | Range of Closing Prices | |||
|
Spot
|
€25.9 | |||
|
Prior 3 Calendar Months
|
€22.5 - €25.9 | |||
|
Prior 6 Calendar Months
|
€21.2 - €25.9 | |||
|
Prior 12 Calendar Months
|
€20.5 - €25.9 | |||
|
Prior 24 Calendar Months
|
€18.3 - €25.9 | |||
| Period Ending April 20, 2007 | Range of Closing Prices | |||
|
Spot
|
£7.5 | |||
|
Last 3 Calendar Months
|
£6.7-£7.9 | |||
|
Last 6 Calendar Months
|
£6.7-£7.9 | |||
|
Last 12 Calendar Months
|
£5.9-£7.9 | |||
|
Last 24 Calendar Months
|
£5.2-£7.9 | |||
55
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•
With respect to ABN AMRO: Société Générale
SA, BNP Paribas SA, Deutsche Bank AG, Nordea Bank AB, Banco
Santander Central Hispano SA, Banco Bilbao Vizcaya Argentaria
Group SA, Unicredit Group SpA, Intesa San Paolo SpA,
Barclays PLC, HBOS plc, Royal Bank of Scotland Group plc,
Lloyds TSB Group plc;
•
With respect to Barclays: HBOS plc, Lloyds TSB Group plc
and Royal Bank of Scotland Group plc;
•
For purposes of this analysis, Morgan Stanley analysed the ratio
of price to estimated earnings for calendar year 2008 (based on
publicly available estimates) of each of these companies for
comparison purposes.
| Comparable | ||||||||||||
| 2008 Earnings | Company | |||||||||||
| Per Share | Price/ Earnings | Implied Value Per | ||||||||||
| Price to Estimated 2008 Earnings | Estimate | Range | Share Range | |||||||||
|
ABN AMRO
|
€2.56 | 9.1x - 11.5 | x | €23.2 - €29.5 | ||||||||
|
Barclays
|
£0.80 | 8.6x - 10.4 | x | £6.9 - £8.3 | ||||||||
| • | With respect to ABN AMRO and Barclays: Société Générale SA, BNP Paribas SA, Deutsche Bank AG, Nordea Bank AB, Banco Santander Central Hispano SA, Banco Bilbao Vizcaya Argentaria Group SA, Barclays PLC, HBOS plc, Royal Bank of Scotland Group plc, Lloyds TSB Group plc. |
56
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57
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58
•
Using ABN AMRO’s preceding
30-day trading average
share price as of April 20, 2007, and Barclays preceding
30-day trading average
share price prior to speculation as to a potential combination
involving ABN AMRO and Barclays which appeared in the press on
March 18, 2007, Morgan Stanley noted that the exchange
ratio was 2.92x
•
Using ABN AMRO’s and Barclays share prices as of
April 20, 2007, Morgan Stanley noted that the exchange
ratio was 3.28x
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59
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60
•
reviewed certain publicly available business and historical
financial information relating to ABN AMRO and Barclays;
•
reviewed certain internal financial information, estimates and
other data relating to the business and financial prospects of
ABN AMRO (both including and excluding LaSalle) that were
prepared and provided to UBS by the management of ABN AMRO and
not publicly available, including financial forecasts and
estimates prepared by the management of ABN AMRO (the
“Company Estimates”);
•
reviewed publicly available research analysts’ estimates as
compiled by the Institutional Brokers’ Estimate System,
referred to as IBES consensus estimates, relating to the future
financial performance of ABN AMRO and Barclays (in the case of
Barclays, the “Barclays IBES Estimates”);
•
reviewed publicly available broker estimates of future
risk-weighted assets for Barclays (the “Barclays RWA
Estimates”); and growth rates for Barclays dividends for
the period between the period covered by the Barclays IBES
Estimates and 2014, interpolated based on the average growth
rate for Barclays dividends in such Barclays IBES Estimates and
the long term inflation rate (the “Barclays Medium-Term
Growth Rate Estimates”);
•
reviewed certain internal estimates as to potential cost savings
and other synergies expected to result from the offer that were
prepared and provided to UBS by the managements of ABN AMRO and
Barclays and not publicly available (the “Synergies
Estimates”);
•
conducted discussions with members of the senior managements of
ABN AMRO and Barclays concerning the business and financial
prospects of ABN AMRO and Barclays;
•
reviewed current and historical market prices of ABN AMRO
ordinary shares and Barclays ordinary shares;
•
reviewed publicly available financial and stock market data with
respect to certain other companies UBS believed to be generally
relevant;
•
compared the financial terms of the offer with the publicly
available financial terms of certain other transactions UBS
believed to be generally relevant;
•
considered certain potential pro forma effects of the offer on
Barclays financial statements and Barclays capital position
resulting from the offer (the “Pro Forma Effects”);
•
reviewed a draft of the Merger Protocol, dated April 22,
2007, and a draft of the LaSalle Agreement, dated April 22,
2007; and
•
conducted such other financial studies, analyses and
investigations, and considered such other information, as UBS
deemed necessary or appropriate.
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61
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62
•
BNP Paribas S.A.
•
Banco Bilbao Vizcaya Argentaria S.A.
•
Fortis SA/ NV
•
ING Groep N.V.
•
Intesa Sanpaolo S.p.A.
•
KBC Groupe S.A.
•
Société Générale S.A.
•
Banco Santander Central Hispano, S.A.
•
UniCredit S.p.A.
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| Implied Multiples | |||||||||||||||||
| for ABN AMRO | |||||||||||||||||
| (both excluding and | |||||||||||||||||
| Implied Multiples for | including LaSalle) | ||||||||||||||||
| Selected Companies | based on both | ||||||||||||||||
| Company Estimates | |||||||||||||||||
| High | Mean | Low | and IBES | ||||||||||||||
|
Closing Stock Price as Multiple of
EPS:
|
|||||||||||||||||
|
2008E
|
12.2x | 10.4x | 9.4x | 13.4x-14.2x | |||||||||||||
|
2009E
|
10.7x | 9.4x | 8.6x | 11.1x-13.9x | |||||||||||||
|
Closing Stock Price as Multiple of
BVPS:
|
|||||||||||||||||
|
December 31, 2006A
|
2.98x | 2.08x | 1.36x | 2.79x-3.03x | |||||||||||||
|
December 31, 2007E
|
2.59x | 1.88x | 1.30x | 2.56x-2.75x | |||||||||||||
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Table of Contents
| Announcement Date | Acquiror | Target | |||
|
Cross-border
transactions
|
|||||
|
February 4, 2006
|
BNP Paribas S.A. | Banca Nazionale del Lavoro S.p.A. | |||
|
June 12, 2005
|
UniCredit S.p.A. | Bayerische Hypo- und Vereinsbank AG | |||
|
March 30, 2005
|
ABN AMRO Holding N.V. | Banca Antoniana Popolare Veneta S.p.A. | |||
|
July 26, 2004
|
Banco Santander Central Hispano, S.A. | Abbey National plc | |||
|
May 8, 2003
|
Barclays PLC | Banco Zaragozano S.A. | |||
|
July 22, 2000
|
Bayerische Hypo- und Vereinsbank AG | Bank Austria Creditanstalt AG | |||
|
April 1, 2000
|
HSBC Holdings plc | Crédit Commercial de France S.A. | |||
|
March 6, 2000
|
Nordic Baltic Holding (NBH) AB | Unidanmark A/S | |||
|
Domestic transactions
|
|||||
|
August 28, 2006
|
Banca Intesa S.p.A. | Sanpaolo IMI S.p.A. | |||
|
December 16, 2002
|
Crédit Agricole S.A. | Crédit Lyonnais S.A. | |||
|
May 4, 2001
|
Halifax Group plc | Bank of Scotland | |||
|
April 1, 2001
|
Allianz AG | Dresdner Bank AG | |||
| Implied Multiples | ||||||||||||||||||||
| Implied Multiples for Selected | for ABN AMRO | |||||||||||||||||||
| Cross-Border Transactions | (both excluding | |||||||||||||||||||
| and including | ||||||||||||||||||||
| Mean | LaSalle) based on | |||||||||||||||||||
| (>50% | both Company | |||||||||||||||||||
| Transaction Value as Multiple of: | High | Mean | shares)(a) | Low | Estimates and IBES | |||||||||||||||
|
Historical EPS
|
27.2x | 18.6x | 11.2x | 7.8x | 13.4x-14.0x | |||||||||||||||
|
1-year Forward EPS
|
24.9x | 17.3x | 13.5x | 11.5x | 15.1x-15.5x | |||||||||||||||
|
BVPS (last reported)
|
3.5x | 2.2x | 1.6x | 1.2x | 2.8x-3.0x | |||||||||||||||
| (a) | The mean where the percentage of offer consideration in the form of equity was greater than 50%. |
64
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65
•
the long-term growth rate applied to ABN AMRO’s calendar
year 2013 estimated dividends; and
•
the discount rate applied to determine the present value of the
dividends.
•
the Company Estimates, as discussed with the management of ABN
AMRO, adjusted to assume no buy-back of shares from 2007 (and
therefore a constant number of shares);
•
a long-term dividend growth rate range of 1.8% to 2.2%;
•
a target Core Tier I ratio range of 5.5% to 6.5%; and
•
a discount rate range of 10.2% to 10.6% (based on Capital Asset
Pricing Model formula, assuming a risk-free rate of 4.5%
(average of US, Brazilian and Euro area (Germany) risk free
rates, respectively weighted for the contribution of
BU North America, BU Latin America and other
activities to ABN AMRO’s 2006 net income), a beta
range of 1.13-1.22 and a market risk premium of 5.0%).
•
BNP Paribas S.A.
•
HBOS plc
•
HSBC Holdings plc
•
Lloyds TSB Group plc
•
The Royal Bank of Scotland Group PLC
•
Société Générale S.A.
Table of Contents
| Implied Multiples for | |||||||||||||||||
| Selected Companies | Implied Multiples for | ||||||||||||||||
| Barclays | |||||||||||||||||
| High | Mean | Low | based on IBES Estimates | ||||||||||||||
|
Closing Stock Price as Multiple of EPS: |
|||||||||||||||||
|
2008E
|
11.5x | 10.0x | 8.7x | 9.6x | |||||||||||||
|
2009E
|
10.6x | 9.2x | 7.9x | 8.7x | |||||||||||||
|
Closing Stock Price as Multiple of BVPS: |
|||||||||||||||||
|
December 31, 2006A
|
2.99x | 2.10x | 1.59x | 2.48x | |||||||||||||
|
December 31, 2007E
|
2.76x | 1.92x | 1.46x | 2.20x | |||||||||||||
| • | the long-term growth rate applied to Barclays calendar year 2014 estimated dividend; and | |
| • | the discount rate applied to determine the present value of the dividends. |
| • | the growth rates for Barclays dividends for the period between the period covered by the Barclays IBES Estimates (2007–2009) and 2014 were determined assuming a linear decrease from the 2007–2009 compound annual growth rate of Barclays earnings to a long-term growth rate of 2%; | |
| • | a long-term dividend growth rate range of 1.8% to 2.2%; | |
| • | a target Core Tier I ratio range of 5.0% to 6.0%; and | |
| • | a discount rate range of 10.9% to 11.0% (based on Capital Asset Pricing Model formula, assuming a risk-free rate of 5.1% (UK 10 year government bond), a beta range of 1.15-1.18 and a market risk premium of 5.0%). |
66
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67
•
a closing date for the merger of December 31, 2007;
•
pre-tax cost and revenue synergies of
€3.5 billion,
phased as follows: 0% in 2007, 11% in 2008, 59% in 2009, 100% in
2010; and
•
a pre-tax restructuring charge of
€3.6 billion,
phased as follows: 0% in 2007, 60% in 2008, 30% in 2009, 10% in
2010.
•
the offer price implied for ABN AMRO in the offer based on the
ordinary share exchange ratio (including and excluding LaSalle)
relative to the:
°
closing price of ABN AMRO ordinary shares the last trading day
prior to the announcement that ABN AMRO and Barclays entered
into the Merger Protocol;
°
the last 1 month average closing price of ABN AMRO ordinary
shares prior to February 21, 2007 (the date of disclosure
of The Children’s Investment Fund letter to
Mr. Martinez and Mr. Groenink); and
°
the last 1 month average closing price of ABN AMRO ordinary
shares prior to March 19, 2007 (the date of press reports
indicating that Barclays and ABN AMRO were in merger
discussions);
•
the share prices for ABN AMRO and Barclays for the period
January 1, 2006 to April 20, 2007, relative to the Dow
Jones Eurostoxx index;
•
the net present value of the Synergies Estimates per ABN AMRO
ordinary share, valued at 100% and 48% (the latter being ABN
AMRO’s contribution to the combined market capitalization,
based on the fully diluted number of shares and the ordinary
share exchange ratio); and
•
the value of the internally estimated cost and revenue synergies
as a percentage of ABN AMRO’s historical cost and revenue
base respectively, and the estimated restructuring costs as a
percentage of one year’s fully phased-in cost synergies.
These ratios were compared with the corresponding implied
synergy ratios, based on the respective company’s
announcements, for the precedent European cross-border
transactions listed earlier in this section.
Table of Contents
68
•
the Merger Protocol;
•
annual reports to shareholders and the ABN AMRO 2006
Form 20-F and the
Barclays 2006 Form 20-F;
•
certain quarterly and interim reports to shareholders of ABN
AMRO;
•
certain interim reports to shareholders of Barclays;
•
certain other communications from ABN AMRO and Barclays to their
respective shareholders;
•
certain publicly available research analyst reports with respect
to the future financial performance of ABN AMRO and Barclays;
•
certain internal analyses and budgets for 2007 for Barclays
prepared by the senior management of Barclays;
Table of Contents
69
•
certain financial analyses and forecasts for ABN AMRO reviewed
and approved by the Management Board of ABN AMRO: and
•
certain cost savings and operating synergies projected by the
managements of ABN AMRO and Barclays to result from the proposed
exchange offer.
Table of Contents
| Value per | ||||||||
| Share | ||||||||
| ABN AMRO (€) | Low | High | ||||||
|
April 20, 2007
|
36.3 | 36.3 | ||||||
|
February 20, 2007
|
25.9 | 25.9 | ||||||
|
1-Month (period ended
February 20, 2007)
|
24.5 | 25.9 | ||||||
|
3-Month (period ended
February 20, 2007)
|
22.5 | 25.9 | ||||||
|
6-Month (period ended
February 20, 2007)
|
21.2 | 25.9 | ||||||
|
12-Month (period ended
February 20, 2007)
|
20.5 | 25.9 | ||||||
|
Barclays (p)
|
||||||||
|
April 20, 2007
|
750 | 750 | ||||||
|
February 20, 2007
|
785 | 785 | ||||||
|
1-Month (period ended
February 20, 2007)
|
740 | 785 | ||||||
|
3-Month (period ended
February 20, 2007)
|
676 | 785 | ||||||
|
6-Month (period ended
February 20, 2007)
|
644 | 785 | ||||||
|
12-Month (period ended
February 20, 2007)
|
586 | 785 | ||||||
| • | Banco Bilbao Vizcaya Argentaria S.A. | |
| • | BNP Paribas S.A. | |
| • | Crédit Agricole S.A. | |
| • | Credit Suisse Group | |
| • | Deutsche Bank AG | |
| • | Fortis N.V. | |
| • | Halifax Bank of Scotland plc | |
| • | HSBC Holdings plc | |
| • | ING Groep N.V. | |
| • | Intesa Sanpaolo S.p.A. | |
| • | KBC Groupe S.A. |
70
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•
Lloyds TSB Group plc
•
Nordea Bank AB
•
Royal Bank of Scotland Group plc
•
Banco Santander Central Hispano SA
•
Société Générale SA
•
Union Bank of Switzerland AG
•
UniCredit S.p.A.
| Value per | ||||||||
| Share | ||||||||
| ABN AMRO (€) | Low | High | ||||||
|
P/ E 2008E and 2009E
|
24.4 | 28.1 | ||||||
|
Regression Analysis (2006A P/ BV
vs. 2008/09E RoAE)
|
25.0 | 29.1 | ||||||
|
Barclays (p)
|
||||||||
|
P/ E 2008E and 2009E
|
836 | 836 | ||||||
|
Regression Analysis (2006A P/ BV
vs. 2008E/09E RoAE)
|
827 | 844 | ||||||
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| Value per | ||||||||
| Share | ||||||||
| Low | High | |||||||
|
ABN AMRO
(€)
|
25.2 | 30.6 | ||||||
|
Barclays (p)
|
768 | 998 | ||||||
| Value per | ||||||||
| Share | ||||||||
| Low | High | |||||||
|
ABN AMRO
(€)
|
27.7 | 33.5 | ||||||
|
Barclays (p)
|
840 | 931 | ||||||
|
SHV Holdings NV
|
NPM Capital NV | |
|
Fortis(NL)NV
|
ASR Verzekeringsgroep | |
|
Dexia SA
|
Kempen & Co NV | |
|
Westfield Holdings Ltd
|
Rodamco North America NV | |
|
Brack Capital Real Estate BV
|
Haslemere NV | |
|
VDXK Acquisition BV
|
Koninklijke Vendex KBB NV | |
|
AP Moller Maersk A/ S
|
Koninklijke P&O Nedlloyd NV | |
|
Tele2 AB
|
Versatel Telecom Intl | |
|
BAM NBM NV
|
AM NV | |
|
Valcon Acquisition BV
|
VNU NV | |
|
Unibail S.A.
|
Rodamco N.V. |
72
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|
Royal Bank of Scotland Group plc
|
National Westminster Bank plc | |
|
Banca Intesa S.p.A.
|
SanPaolo IMI S.p.A. | |
|
UniCredit S.p.A.
|
Bayerische Hypo und Vereinsbank (HVB) AG | |
|
Crédit Agricole S.A.
|
Crédit Lyonnais S.A. | |
|
Banco Santander Central Hispano SA
|
Abbey National plc | |
|
Halifax Group plc
|
Bank of Scotland plc | |
|
Banque Nationale de Paris S.A.
|
Paribas S.A. | |
|
Banca Intesa S.p.A.
|
Banca Commerciale Italiana S.p.A. | |
|
Banco Santander SA
|
Banco Central Hispano SA |
| Value per ABN | ||||||||
| AMRO Share | ||||||||
| (€) | ||||||||
| Low | High | |||||||
|
Cross-border Banking Transactions
|
34.1 | 35.5 | ||||||
|
Premia Analysis
|
30.0 | 33.2 | ||||||
| Value per ABN | ||||||||
| AMRO Share | ||||||||
| (€) | ||||||||
| Low | High | |||||||
|
Synergy Analysis
|
29.4 | 34.4 | ||||||
73
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74
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76
•
Mr. Varley, Group Chief Executive
•
Mr. Diamond, Barclays President and CEO of IBIM
•
Mr. Seegers, CEO of GRCB
•
Mr. Overmars, CEO of Continental Europe and Asia, GRCB
•
Mr. Teerlink, Chief Operating Officer of GRCB
•
Mr. Idzik, Group Chief Operating Officer
•
Mr. Lucas, Group Finance Director
•
Mr. Boumeester, Group Chief Administrative Officer
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77
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| Number of ABN AMRO | Number of options for ABN | |||||||
| ABN AMRO Managing Board | ordinary shares | AMRO ordinary shares | ||||||
|
Mr. Groenink
|
77,012 | 486,567 | ||||||
|
Mr. Jiskoot
|
62,377 | 285,567 | ||||||
|
Mr. Kuiper(a)
|
65,315 | 285,567 | ||||||
|
Mr. Scott-Barrett(b)
|
51,577 | 376,000 | ||||||
|
Mr. Boumeester
|
47,465 | 114,375 | ||||||
|
Mr. Overmars
|
16,842 | 199,375 | ||||||
|
Mr. Teerlink
|
20,766 | 208,406 | ||||||
|
Total
|
341,354 | 1,955,857 | ||||||
| (a) | Mr. Kuiper will retire upon the effective date of the combination. |
| (b) | The resignation of Mr. Scott-Barrett has been announced on May 10, 2007. He will step down by August 1, 2007. |
| ABN AMRO Supervisory Board | Number of ABN AMRO ordinary shares | |||
|
Mr. Martinez
|
3,000 | |||
|
Mr. Olijslager
|
3,221 | |||
|
Mr. Pratini de Moreas
|
5,384 | |||
|
Mr. Van den Bergh
|
13,112 | |||
|
Mr. Ruys
|
2,850 | |||
|
Mr. Scaroni
|
18,311 | |||
|
Total
|
45,878 | |||
78
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80
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81
•
3.225 Barclays ordinary shares for every 1 ABN AMRO
ordinary share; or
•
0.80625 Barclays ADSs for every 1 ABN AMRO ADS.
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82
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| (A × B × C) + (D - E) | (B × G) + (H - I) | |||
| ÷ |
|
|||
| F | J | |||
| A is the ordinary share exchange ratio of 3.225 Barclays ordinary shares for each ABN AMRO ordinary share on the calculation date; | |
| B is the Barclays share price of 750 pence per Barclays ordinary share on April 20, 2007 being the last business day prior to the announcement date; | |
| C is the number of ABN AMRO ordinary shares in issue (excluding treasury shares) of 1,895,978,092 on a fully diluted basis on April 20, 2007; | |
| D is the aggregate value of Capital Raising(s) by ABN AMRO between April 20, 2007 and the settlement date (in pound sterling); | |
| E is the aggregate value of Capital Return(s) by ABN AMRO between April 20, 2007 and the settlement date (in pound sterling); | |
| F is the number of ABN AMRO ordinary shares in issue (excluding treasury shares) on a fully diluted basis on the settlement date plus all ordinary shares repurchased on April 20, 2007 to the settlement date; | |
| G is the number of Barclays ordinary shares in issue (excluding treasury shares) of 6,646,524,779 on a fully diluted basis on April 20, 2007; | |
| H is the aggregate value of Capital Raising(s) by Barclays between April 20, 2007 and the settlement date (in pound sterling); | |
| I is the aggregate value of Capital Return(s) by Barclays between April 20, 2007 and the settlement date (in pound sterling); and | |
| J is the number of Barclays ordinary shares in issue (excluding treasury shares) on a fully diluted basis on the settlement date plus all Barclays ordinary shares repurchased on April 20, 2007 to the settlement date. |
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84
•
At least 80% (or such lower percentage as Barclays in its
discretion may decide) of the issued ABN AMRO ordinary shares
(including ABN AMRO ordinary shares represented by ADSs) have
been tendered under the exchange offer or are otherwise held by
Barclays;
•
No material adverse change in respect of Barclays or ABN AMRO;
•
No circumstance, occurrence or development has occurred since
the date of the Merger Protocol that will constitute or
constitutes: (i) suspension of or limitation in trading in the
ABN AMRO ordinary shares or ABN AMRO’s convertible shares
(other than on a temporary basis in the ordinary course of
trading); or (ii) suspension of or limitation in trading in
Barclays ordinary shares (other than on a temporary basis in the
ordinary course of trading);
•
No third party has indicated an intention to take any
frustrating action (as defined in the Merger Protocol);
•
All necessary filings, notifications, and applications in
connection with the exchange offer have been made and all
authorizations and consents have been obtained and relevant
waiting periods have expired;
•
The LaSalle Agreement with Bank of America for the sale of
LaSalle has been completed in accordance with its terms or a
purchase and sale agreement with another party with respect to
sale of LaSalle has been completed in accordance with its terms;
•
The competent regulatory authorities in the Netherlands have
given their declaration of no objection and the FSA in the
United Kingdom has notified its approval of each person who will
acquire control over any United Kingdom authorized person which
is a member of the combined group or the relevant waiting period
has expired;
•
ABN AMRO and Barclays have received confirmation from the Dutch
Central Bank that it has no objection to the parties proposal
for the composition of the managing board and supervisory board
of ABN AMRO Bank and the FSA has approved the appointment of the
proposed directors to the Barclays Board;
•
All approvals have been received or notices have been filed
under US federal or state banking laws that are necessary for
completion of the exchange offer and merger and all required
waiting periods have expired;
•
The European Commission has declared the exchange offer
compatible with the common market or has granted its approval to
the exchange offer and the applicable waiting period under the
HSR Act in relation to the exchange offer has expired or been
terminated;
•
Neither Barclays nor ABN AMRO has received any notification from
the Dutch Central Bank or the FSA that there is likely to be a
change in the supervisory, reporting or regulatory capital
arrangements that will apply to the combined group;
•
The tax clearances from the relevant UK and Dutch tax
authorities have not been withdrawn or amended;
•
Confirmation has been given that the Barclays ordinary shares
being offered will be admitted to the Official List of the UKLA,
admitted to trading on the main market for listed securities on
the LSE, authorized for listing on Euronext and the TSE and the
Barclays ordinary shares being offered
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85
hereby and the Barclays ADSs representing such shares have been
approved for listing on the NYSE;
•
The general meetings of shareholders of ABN AMRO and Barclays
have passed all agreed or required resolutions;
•
There has been no event, circumstance or series of linked events
or circumstances that was not fairly disclosed in the annual
reports and the annual accounts for 2006 of ABN AMRO and
Barclays respectively or otherwise disclosed and that can
reasonably be expected to have a negative impact on the
consolidated operating income in 2006 of ABN AMRO or Barclays of
respectively 5% or more; and
•
The Merger Protocol has not been terminated.
•
receipt of approval of the Federal Reserve Board and the
expiration of any waiting periods under the Bank Holding Company
Act of 1956, as amended, and the HSR Act;
•
accuracy of the other party’s representations and
warranties, except, (1) in the case of ABN AMRO Bank, for
inaccuracies that, in the aggregate, would not have a material
adverse effect on LaSalle, and that do not constitute material
inaccuracies in ABN AMRO Bank’s capitalization and
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86
authority representations, and (2) in the case of Bank of
America, for inaccuracies that, in the aggregate, would not
materially impede Bank of America’s ability to consummate
the transaction;
•
material compliance by each party with its obligations and
covenants under the LaSalle Agreement; and
•
the absence of any order, injunction, decree or judgment issued
by a governmental entity prohibiting the completion of the
transaction, and the absence of any action by or settlement with
the US Department of Justice or any US Attorney’s Office
imposing a material restriction, condition or burden on LaSalle
or Bank of America (including any of its subsidiaries).
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87
•
if any required regulatory approval is denied, and such denial
is final and non-appealable, or any governmental entity of
competent jurisdiction has issued a final, non-appealable
injunction permanently enjoining or otherwise prohibiting the
consummation of the sale of LaSalle to Bank of America;
•
if the closing of the sale of LaSalle to Bank of America has not
occurred on or before May 1, 2008 (provided that the right
to terminate the LaSalle Agreement for this reason is not
available to any party whose action or failure to act was the
cause of or resulted in the failure of the closing to occur on
or before such date and such action or failure to act
constituted a breach of the LaSalle Agreement); or
•
if there is a breach by the other party that would cause the
failure of the closing conditions described above, unless the
breaching party is using all commercially reasonable efforts to
cure such breach.
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90
•
makes a material change to the terms of the exchange offer,
other than a change in the consideration being offered in the
offer; or
•
makes a material change in the information concerning the
exchange offer.
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91
•
The accepting Admitted Institution has the tendered ABN AMRO
ordinary shares in its administration;
•
Each accepting holder of ABN AMRO ordinary shares irrevocably
represents and warrants that he or she has full power and
authority to tender, sell and deliver, and has not entered into
any other agreement to tender, sell or deliver the ABN AMRO
ordinary shares to any party other than Barclays;
•
Each accepting holder of ABN AMRO ordinary shares irrevocably
represents and warrants that he or she complies with the
restrictions outlined in this document and those pursuant to
securities and other applicable laws or regulations of the
jurisdiction in which the holder of the ABN AMRO ordinary shares
is located, and no registration, approval or filing with any
regulatory authority of such jurisdiction is required in
connection with the tendering of such ABN AMRO ordinary shares;
and
•
Each accepting holder of ABN AMRO ordinary shares undertakes to
transfer the tendered ABN AMRO ordinary shares free and clear of
any rights of pledge or usufruct, liens or attachments or
similar charges to Barclays via the Dutch listing and exchange
agent prior to the expiration date of the exchange offer.
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•
your tender is made by or through an eligible institution;
•
a properly completed and duly executed notice of guaranteed
delivery, substantially in the form provided with this document,
is received by the US exchange agent as provided below
prior to the expiration date; and
•
ABN AMRO ADSs in proper form for transfer, together with, in the
case of ABN AMRO ADSs evidenced by ADR certificates properly
completed and duly executed letter of transmittal, together with
any required signature guarantees or, in the case of a
book-entry transfer, a book-entry confirmation along with an
agent’s message and any other required documents, are
received by the US exchange agent within three NYSE trading days
after the date of execution of the notice of guaranteed
delivery. A NYSE trading day is a day on which the NYSE is open
for business.
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95
•
If you tendered your ABN AMRO ADSs to the US exchange agent by
means of delivery of a letter of transmittal together with the
ABN AMRO ADR(s) evidencing your ABN AMRO ADSs, the US exchange
agent will register the applicable number of uncertificated
Barclays ADSs in the holders name and mail to the holder a
confirmation of such registration, together with a check in US
dollars for any cash in lieu of fractional entitlements to
Barclays ADSs according to the issuance and delivery
instructions of the tendering ABN AMRO ADS holder provided in
the letter of transmittal; or
•
If you tendered your ABN AMRO ADSs by means of DTC’s
book-entry confirmation system, the US exchange agent will
deliver the applicable whole number of Barclays ADSs, together
with any cash in lieu of fractional entitlements to Barclays
ADSs in US dollars, to the account of the DTC participant who
tendered the ABN AMRO ADSs on your behalf in the US exchange
offer.
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98
•
The competent regulatory authorities in the Netherlands shall
have given their declaration of no objection and the FSA shall
have notified its approval of each person who will acquire
control over any United Kingdom authorized person which is a
member of the combined group or the relevant waiting period has
expired;
•
ABN AMRO and Barclays shall have received confirmation from the
Dutch Central Bank that it has no objection to the parties
proposal for the composition of the managing board and
supervisory board of ABN AMRO Bank and the FSA shall have
approved the nomination of the proposed directors to the Group
Board of Directors;
•
Neither Barclays nor ABN AMRO shall have received any
notification from the Dutch Central Bank or the FSA that there
is likely to be a change in the supervisory, reporting or
regulatory capital arrangements that will apply to the combined
group;
•
The tax clearances from the relevant UK and Dutch tax
authorities have not been withdrawn or amended; and
•
Confirmation has been given that the Barclays ordinary shares
being offered will be admitted to the Official List of the UKLA,
admitted to trading on the main market for listed securities on
the LSE, authorized for listing on Euronext and the TSE, and the
Barclays ADSs representing such shares or a portion thereof have
been approved for listing on the NYSE.
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100
•
Certain post-closing restructuring measures may provide for a
consideration taking a form (cash or non-cash) other than
proposed under the exchange offer;
•
The consideration issued in certain post-closing restructuring
measures may be determined by a court;
•
The tax consequences to holders of ABN AMRO ordinary shares or
ABN AMRO ADSs of receiving consideration in the post-closing
restructuring may be different than they would be if the holders
of ABN AMRO ordinary shares or ABN AMRO ADSs had tendered their
ABN AMRO ordinary shares or ABN AMRO ADSs in the exchange offer;
•
The Barclays ordinary shares or Barclays ADSs received under the
exchange offer may have a different value at the time of
completion of the post-closing restructuring than at the time of
the closing, and also, the value of the ABN AMRO ordinary shares
or ABN AMRO ADSs (or substitute instruments resulting from
intermediate steps) may have changed since; and
•
The legal rights of the holders of ABN AMRO ordinary shares or
ABN AMRO ADSs may change as a result of restructuring steps or
vary depending on the form of the post-closing restructuring
measures applied.
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101
•
an amendment of the ABN AMRO articles of association, to permit
the creation of separate classes of shares and/or other
securities and/or to alter the rights attaching to one or more
classes of ABN AMRO ordinary shares or ABN AMRO ADSs;
•
the issue of shares in the capital of ABN AMRO of one or more
classes to Barclays or any of its affiliates (with the exclusion
of pre-emptive rights, if any, of other ABN AMRO shareholders,
all in accordance with applicable law), which shares can be paid
up in cash and/or in kind;
•
the distribution of an extraordinary dividend or other
distribution or repayment of capital on ABN AMRO ordinary shares
or ABN AMRO ADSs or a particular class or classes of ABN AMRO
ordinary shares or ABN AMRO ADSs, whether in cash or in kind.
Any distributions made may take the form of a distribution out
of reserves, an interim dividend, a final dividend, payment upon
cancellation or, in case ABN AMRO is liquidated, a liquidation
distribution.
•
the sale and transfer by ABN AMRO, or any of its subsidiaries,
to Barclays or any of its affiliates, of all or a portion of the
assets of ABN AMRO or its subsidiaries;
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102
•
the implementation by ABN AMRO and one or more subsidiaries of
Barclays of a legal merger within the meaning of
Article 2:309 of the Dutch Civil Code and/or the laws of
any other jurisdiction applicable from time to time;
•
the implementation by ABN AMRO and/or one or more subsidiaries
of Barclays of a legal de-merger within the meaning of
Article 2:334a and/or 2:334cc of the Dutch Civil Code
and/or the laws of any other jurisdiction applicable from time
to time;
•
a cancellation of one or more classes of ABN AMRO ordinary
shares or ABN AMRO ADSs;
•
a dissolution and liquidation of ABN AMRO;
•
a transformation of ABN AMRO into another legal form;
•
the incorporation of and/or merger into or with a European
company (Societas Europaea); and/or
•
a conversion of ABN AMRO ordinary shares or ABN AMRO ordinary
shares underlying ABN AMRO ADSs held from time to time by
Barclays or its subsidiaries from one class into another.
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104
•
the combined group will have a UK-style unitary board operating
in accordance with UK corporate governance principles and best
practices prevailing at the time;
•
the Group Board of Directors will be composed of
19 directors, including the chairman, deputy chairman,
chief executive officer, four other executive directors and
twelve other non-executive directors;
•
Barclays will select the board of directors of Subco N.V.;
•
the chairman of the board and seven other non-executive
directors will be nominated by ABN AMRO, while the deputy
chairman, five non-executive directors and the next chief
executive officer will be nominated by Barclays, each of them to
be appointed with effect from the time the exchange offer is
declared unconditional;
•
in addition to the executive committee, the board will have a
nomination committee, an audit committee and a remuneration
committee, which will be chosen following a consultation process
by the next chairman of the board with the other individual
members of the board; the members of each such committee will
include non-executive directors with suitable experience and
qualifications;
•
Barclays and ABN AMRO will establish an integration planning
committee, comprising senior management from Barclays and ABN
AMRO, which committee will be responsible for preparatory work
and planning activities in relation to the integration of the
two businesses following the merger;
•
Barclays registered office will remain in England, while its
head office will be located in Amsterdam, the Netherlands; thus,
the majority of the members of the executive committee (i.e.,
the chief executive officer, chief financial officer, chief
operating officer, group chief administrative officer and three
executive officers responsible for global retail and commercial
banking) and the global head office of retail and commercial
banking will be based in the Netherlands; the meetings of the
executive committee of Barclays will be held primarily in the
Netherlands; and the heads, senior management and appropriate
core staff of all relevant group functions (including risk,
compliance, legal, audit, human resources and finance) will be
based in the Netherlands;
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105
•
Barclays ordinary shares will have a primary listing on the LSE,
maintaining the inclusion of Barclays ordinary shares in the
FTSE 100 Index, and a secondary listing on Eurolist by
Euronext;
•
the supervisory board and the management board of ABN AMRO Bank,
and the board of directors of Barclays Bank PLC, will initially
comprise members nominated by the Group Board of Directors;
•
the FSA is expected to be lead supervisor of the consolidated
combined group and DNB and FSA are expected to be the
consolidated supervisors of the ABN AMRO group and the Barclays
group, respectively;
•
Barclays has agreed to respect and work within the Dutch
employee co-determination regulations as applied by ABN AMRO as
well as the covenant with the central works council of ABN AMRO;
and
•
Barclays is intended to remain a UK tax resident following
completion of the exchange offer.
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107
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108
•
all notifications, filings and applications necessary or
appropriate in connection with the merger or exchange offer and
their implementation and the satisfaction of other conditions to
the exchange offer or merger have been made (other than those
notifications, filings or applications that cannot be made until
after the commencement of the exchange offer);
•
all authorizations (other than with respect to the disclosure
documentation) required for making the exchange offer have been
obtained where the failure to obtain those authorizations
(a) would result in Barclays violating any law, (b)
reasonably could materially and adversely affect ABN AMRO,
Barclays or the combined group, or (c) would otherwise mean
that Barclays cannot reasonably be expected to continue with the
exchange offer or merger;
•
Barclays and ABN AMRO have received written notification from
the DNB and FSA confirming that the FSA will be lead supervisor
of the consolidated combined group and act as the coordinator in
relation to the combined group following completion of the
exchange offer and the other arrangements and/or requirements
that the DNB or FSA will implement or require in relation to the
combined group, and neither party has received any notification
from the DNB or FSA indicating there is likely to be any change
with respect to the matters set out in such notifications;
•
clearances and confirmations from the relevant tax authorities
in the Netherlands and the United Kingdom that, after the
completion of the exchange offer Barclays will be considered to
be resident for tax purposes in the United Kingdom, that, after
consummation of the exchange offer, have been obtained in terms
reasonably satisfactory to Barclays and ABN AMRO and that none
of such clearances or confirmations has been withdrawn or
modified;
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109
•
all requisite employee consultations and information procedures
with employee representative bodies of ABN AMRO and Barclays
have been completed;
•
the AFM and UKLA have approved, or declared they have no further
comments on, the relevant disclosure documentation, and the
registration statement on
Form F-4 has
become effective under the Securities Act and no stop order
suspending the effectiveness of the registration statement shall
have been issued and be in effect and no proceedings for that
purpose shall have been initiated by the SEC and not withdrawn;
•
there is no indication that the Barclays ordinary shares issued
pursuant to the exchange offer will not be admitted to the
Official List of the UKLA, admitted to trading on the LSE,
authorized for listing on the LSE, Euronext and the TSE, nor
that the Barclays ordinary shares or Barclays ADSs issued
pursuant to the exchange offer will not be approved for listing
on the NYSE;
•
Euronext has confirmed it has no further comments on the
proposed amendments to the articles of association of ABN AMRO;
•
the FTSE 100 Committee has provided written confirmation to the
effect that Barclays ordinary shares will continue to be
included in the FTSE 100 Index following the exchange offer
being declared unconditional and the issue of new Barclays
shares;
•
the parties have not received notification from the AFM that the
preparations of the exchange offer are in breach of Netherlands
law pursuant to which securities institutions would not be
permitted to cooperate with the execution and completion of the
exchange offer;
•
no condition to the merger has become permanently incapable of
fulfillment and not been waived; and
•
the Merger Protocol has not been terminated.
•
no ABN AMRO Material Adverse Change has occurred prior to the
closing of the exchange offer;
•
there has been no event, circumstance or series of linked events
or circumstances not fairly disclosed in ABN AMRO’s 2006
annual report or annual accounts or otherwise disclosed that can
be expected to have a negative impact of 5% or more on ABN
AMRO’s 2006 consolidated operating income;
•
Barclays has reasonably determined that the conditions to the
merger pertaining to regulatory approvals will be fulfilled as
of the anticipated closing date of the exchange offer;
•
if required, at least 60 (sixty) calendar days have passed
following the date on which Barclays application, if required,
under Section 3 of the United States Bank Holding Company
Act of 1956, as amended, has been accepted for processing by the
Board of Governors of the US Federal Reserve System;
•
no governmental or similar body, court or agency in any
jurisdiction has decided to, or indicated any intention to,
implement or threaten any frustrating action, as defined in the
Merger Protocol, such that the parties cannot reasonably be
expected to continue with the merger;
•
Barclays and ABN AMRO have received copies of resignation
letters from those members of the ABN AMRO Managing Board, the
ABN AMRO Supervisory Board and the ABN AMRO Bank management and
supervisory boards who, it has been agreed, shall resign subject
to the exchange offer being declared unconditional;
•
all necessary corporate action has been taken in connection with
the appointment of the nominated individuals to the supervisory
board and management board of ABN AMRO Bank and Subco N.V.
subject to and with effect as of the time the exchange offer has
been declared unconditional;
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110
•
Barclays has received satisfactory irrevocable undertakings from
the members of the ABN AMRO Managing Board and ABN AMRO
Supervisory Board to tender all the ABN AMRO ordinary shares
held by them;
•
no circumstance, occurrence or development has occurred since
the date of the Merger Protocol that will constitute or
constitutes suspension or limitation of trading in ABN AMRO
ordinary shares or convertible shares (other than on a temporary
basis in the ordinary course of trading);
•
The Stichting Administratiekantoor Preferente
Financieringsaandelen ABN AMRO which acts as depository for
ABN AMRO’s convertible preference financing shares
— for which depositary receipts have been issued (the
“DR Prefs”), with a nominal value of
€0.56 each (the
“underlying preference shares”) has irrevocably
agreed with Barclays and ABN AMRO that, subject to:
(i)
the exchange offer being declared unconditional;
(ii)
an undertaking of Barclays not to exercise more voting rights on
the underlying preference shares than it could exercise as
holder of ABN AMRO’s DR Prefs as long as the ABN AMRO
ordinary shares are listed on Euronext; and
(iii)
the amendment of the terms of ABN AMRO’s DR Prefs necessary
for an exchange by Barclays of DR Prefs for underlying
preference shares and any other actions as may be legally
required to enable such exchange,
it will take all necessary action to exchange any ABN AMRO DR
Prefs for underlying preference shares, if and when requested by
Barclays; and
•
all regulatory approvals required for completion of the LaSalle
Agreement (or a purchase and sale agreement with another party)
in accordance with its terms have been obtained.
•
no Barclays Material Adverse Change has occurred prior to the
closing of the exchange offer;
•
there has been no event, circumstance or series of linked events
or circumstances not fairly disclosed in Barclays 2006 annual
report or annual accounts or otherwise disclosed that can be
expected to have a negative impact of 5% or more on Barclays
2006 consolidated operating income;
•
ABN AMRO has reasonably determined that the conditions to the
merger pertaining to regulatory approvals will be fulfilled as
of the anticipated closing date of the exchange offer;
•
no governmental or similar body, court or agency in any
jurisdiction has decided to, or indicated any intention to,
implement or threaten any frustrating action as defined in the
Merger Protocol, such that the parties cannot reasonably be
expected to continue with the merger;
•
Barclays and ABN AMRO have received copies of resignation
letters from those members of the Barclays Board and board of
Barclays Bank PLC who, it has been agreed, shall resign subject
to the exchange offer being declared unconditional; and
•
no circumstance, occurrence or development has occurred since
the date of the Merger Protocol that will constitute or
constitutes suspension or limitation of trading in Barclays
ordinary shares (other than on a temporary basis in the ordinary
course of trading).
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•
all notifications, filings and applications necessary or
appropriate in connection with the exchange offer or merger have
been made, all applicable statutory or regulatory obligations
have been complied with, all authorizations and consents have
been obtained, and relevant waiting periods have expired;
•
the competent regulatory authorities in the Netherlands have
given their declaration of no objection and the FSA has granted
its approval of each person who will acquire control over any UK
authorized person which is a member of the combined group, or
the relevant waiting period has expired;
•
Barclays and ABN AMRO have received confirmation from the DNB
that it has no objection to the parties’ proposal for the
composition of the managing and supervisory boards of ABN AMRO
Bank, and the FSA has approved the nomination of the proposed
directors to the Barclays Board;
•
all approvals have been received or notices have been filed
under US federal or state banking laws that are necessary for
completion of the exchange offer and merger, and all required
waiting periods have expired;
•
the European Commission has declared the exchange offer
compatible with the common market or has granted its approval to
the exchange offer, and the applicable waiting period under the
HSR Act has expired or been terminated;
•
all the above remain in full force and effect, and none is
subject to any material term or conditions not fulfilled or
satisfied;
•
neither Barclays nor ABN AMRO has received any notification from
the DNB or FSA that there is likely to be a change in the
supervisory, reporting or regulatory capital arrangements that
will apply to the combined group;
•
the tax clearances from the relevant UK and Dutch tax
authorities have not been withdrawn or amended;
•
the registration statement on
Form F-4 has
become effective under the Securities Act and no stop order
suspending the effectiveness of such registration statement has
been issued or is in effect and no proceedings for that purpose
has been initiated by the SEC nor withdrawn;
•
prior to the closing date of the exchange offer and subject to
the exchange offer being declared unconditional, the Barclays
general meeting of shareholders shall have unconditionally
passed all appropriate resolutions or such resolutions have
otherwise been effected. See “— Barclays
Shareholder Meeting”;
•
confirmation has been given that the Barclays ordinary shares
issued pursuant to the exchange offer will be admitted to the
Official List of the UKLA and admitted to trading on the LSE,
authorized for listing on the LSE, Euronext and the TSE, and the
Barclays ordinary shares and Barclays ADSs issued pursuant to
the exchange offer will be approved for listing on the NYSE;
•
neither Barclays nor ABN AMRO has received notification from the
FTSE 100 Committee that it intends to withdraw or modify its
confirmation provided to Barclays before the making of the
exchange offer;
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•
the parties have not received notification from the AFM that the
preparations of the exchange offer are in breach of Netherlands
law pursuant to which securities institutions would not be
permitted to cooperate with the execution and completion of the
exchange offer; and
•
the Merger Protocol has not been terminated.
•
at least 80% (or such lower percentage as Barclays may in its
discretion decide) of the issued ABN AMRO ordinary shares have
been tendered and not withdrawn under the exchange offer or are
otherwise held by Barclays; if such percentage represents less
than 50% plus one of the voting rights represented by the
outstanding share capital of ABN AMRO and less than 50% of the
ABN AMRO ordinary shares in ABN AMRO’s issued and
outstanding ordinary share capital, this condition may not be
waived except with the approval of the ABN AMRO Supervisory
Board;
•
no ABN AMRO Material Adverse Change has occurred prior to the
closing of the exchange offer;
•
the irrevocable agreement between the depositary of the ABN AMRO
convertible preference shares, Barclays and ABN AMRO in relation
to such shares continues to be in full force and effect;
•
there has been no event, circumstance or series of linked events
or circumstances not fairly disclosed in ABN AMRO’s 2006
annual report or annual accounts or otherwise disclosed that can
be expected to have a negative impact of 5% or more on ABN
AMRO’s 2006 consolidated operating income;
•
prior to the closing date of the exchange offer and subject to
the exchange offer being declared unconditional, the general
meeting of shareholders of ABN AMRO having unconditionally
passed all appropriate resolutions or such resolutions having
been otherwise effected. See “— ABN AMRO
Shareholder Meeting”;
•
no third party has decided, or indicated an intention, to
implement or threaten any frustrating action, as defined in the
Merger Protocol, such that the parties cannot be expected to
continue with the merger or declare the exchange offer
unconditional;
•
no circumstance, occurrence or development has occurred since
the date of the Merger Protocol that will constitute or
constitutes suspension or limitation of trading in ABN AMRO
ordinary shares or convertible shares (other than on a temporary
basis in the ordinary course of trading); and
•
the LaSalle Agreement has completed in accordance with its
terms, or a purchase and sale agreement with another party with
respect to the sale of LaSalle has completed in accordance with
its terms.
•
no Barclays Material Adverse Change has occurred prior to the
closing of the exchange offer;
•
there has been no event, circumstance or series of linked events
or circumstances not fairly disclosed in Barclays 2006 annual
report or annual accounts or otherwise disclosed that can be
expected to have a negative impact of 5% or more on Barclays
2006 consolidated operating income;
•
no third party has decided, or indicated an intention, to
implement or threaten any frustrating action, as defined in the
Merger Protocol, such that the parties cannot be expected to
continue with the merger or declare the exchange offer
unconditional; and
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•
no circumstance, occurrence or development has occurred since
the date of the Merger Protocol that will constitute or
constitutes suspension of or limitation in trading in Barclays
ordinary shares (other than on a temporary basis in the ordinary
course of trading).
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•
ABN AMRO shall promptly notify Barclays, including in such
notice confirmation that the ABN AMRO boards intend, in the
absence of a Barclays revised offer, to withdraw their
recommendation of the exchange offer and recommend the Competing
Offer for ABN AMRO and the most current version of such
Competing Offer;
•
Barclays shall have five business days following the date on
which it receives such notice to communicate to the ABN AMRO
boards a Barclays revised offer;
•
in the event that either (a) Barclays fails to communicate
a revised offer within five business days after having received
such notice or (b) the ABN AMRO boards reaffirm to Barclays
in writing at the end of such period, after taking into account
any Barclays revised offer, that the ABN AMRO boards intend to
recommend the Competing Offer, each of ABN AMRO and Barclays
shall be entitled to terminate the Merger Protocol with
immediate effect, subject to compensatory amounts or rights to
otherwise terminate, and the ABN AMRO boards may withdraw their
recommendation of the exchange offer and subsequently recommend
the Competing Offer;
•
neither ABN AMRO nor its representatives shall be permitted,
except as required, to disclose or announce to any third party
any intention on the part of the ABN AMRO boards to withdraw
their
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recommendation of the exchange offer and/or to recommend a
Competing Offer unless and until Barclays has failed to
communicate to the ABN AMRO boards a revised offer or has
communicated its intention not to do so, and the Merger Protocol
has been terminated; and
•
if Barclays communicates a revised offer to the ABN AMRO boards
which the ABN AMRO boards decide to recommend, ABN AMRO shall
notify the third party proposing the Competing Offer that it
does not intend to recommend such Competing Offer and publicly
announce the terms of Barclays revised offer to be publicly
recommended by the ABN AMRO boards. ABN AMRO and Barclays shall
not therefore be permitted to terminate the Merger Protocol, and
ABN AMRO and Barclays and their applicable representatives shall
continue to enjoy and be bound by their respective rights and
obligations under the Merger Protocol, including in relation to
any other Competing Offer.
•
if not all the conditions to the commencement of the exchange
offer have been fulfilled or duly waived, as permitted, on or
before November 1, 2007;
•
if, upon expiration of the offer period, including any such
extension thereof, the exchange offer has not been declared
unconditional on or before March 1, 2008;
•
if, upon expiration of the offer period, including any such
extension thereof, not all of the conditions to the completion
of the exchange offer are fulfilled and the exchange offer is
not declared unconditional or extended; or
•
if the Merger Protocol is otherwise terminated by Barclays or
ABN AMRO.
•
if the other party materially breaches any provision of the
Merger Protocol or laws applicable to either party in connection
with the transactions described herein;
•
if the board of the other party determines, after having
considered the advice of outside legal and financial advisors,
acting in good faith and observing its applicable fiduciary
duties, that it intends to withdraw its recommendation and
informs the terminating party that it intends to do so; or
•
if any member of the other party’s board qualifies his or
her unanimous recommendation of the exchange offer or makes any
contradictory public statements unless the party’s board
reaffirms its recommendation by way of public announcement as
soon as possible within 24 hours of becoming aware of such
contradictory public statement.
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•
ABN AMRO receives a Competing Offer;
•
ABN AMRO promptly informs Barclays in writing of the Competing
Offer pursuant to and in compliance with the Merger Protocol; and
•
either (a) Barclays fails to communicate a revised offer
within five business days after having received notice of the
Competing Offer or (b) the ABN AMRO boards reaffirm to
Barclays in writing at the end of such five-day period, after
taking into account any revised offer from Barclays, that the
ABN AMRO boards intend to recommend the Competing Offer.
•
if ABN AMRO or Barclays terminates the Merger Protocol
•
as a result of the ABN AMRO board recommending a competing offer;
•
as a result of a revocation of the recommendation by the ABN
AMRO board; or
•
following non-fulfillment of any condition to the exchange offer
or merger where the main cause of such non-fulfillment is ABN
AMRO’s breach of the Merger Protocol; or
•
if Barclays terminates the Merger Protocol
•
as a result of a material breach of the Merger Protocol by ABN
AMRO; or
•
as a result of a contradictory public statement by ABN AMRO,
•
if ABN AMRO or Barclays terminates the Merger Protocol
•
as a result of a revocation of the recommendation by the
Barclays board; or
•
following non-fulfillment of any condition to the exchange offer
or merger where the main cause of such non-fulfillment is
Barclays breach of the Merger Protocol; or
•
if ABN AMRO terminates the Merger Protocol
•
as a result of a material breach of the Merger Protocol by
Barclays; or
•
as a result of a contradictory public statement by Barclays,
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•
not to make any material changes to its corporate or group
structure;
•
not to merge, demerge or consolidate with or into any other
company or business, except for any such transaction solely
among its subsidiaries, or change its or its business identity
or character;
•
not to enter into any capital commitment or investment that
individually (or taken with other such commitments or
investments which could be regarded as constituting a single
commitment or investment) amounts to
€250 million or
more and has not been provided for in such party’s 2007
budget or fairly disclosed to the other party before the date of
the Merger Protocol, other than (a) intra-group capital
investments and (b) loans and investments in the ordinary
course of business consistent with past practice, including
private equity investments;
•
not to create, extend, grant, issue or allow any third-party
rights over any of its material assets, except in the ordinary
course of business;
•
not to amend its articles of association or equivalent or
similar constitutional documents, except for changes to the
constitutional documents of its direct and indirect subsidiaries
not material to the relevant group taken as a whole, or to the
rights attaching to any shares in any member of its group;
•
not to propose to nominate any new members to any of the ABN
AMRO boards, except that ABN AMRO may propose to nominate a new
member of its supervisory board to its general meeting of
shareholders held on April 26, 2007;
•
not to agree to declare or pay any dividend or any distribution
in kind except for (a) the proposed dividends relating to
the financial year ended December 31, 2006 and any interim
dividends in respect of the financial year commencing
January 1, 2007, provided that any such interim dividend is
consistent with such party’s dividend policy prevailing as
at the date of the Merger Protocol and does not exceed
reasonable market expectations as on April 20, 2007 and
(b) any distributions due under the terms of preference
shares and hybrid capital instruments issued or agreed to be
issued as at the date of the Merger Protocol;
•
to the extent in the best interest of the relevant group
company, to maintain the services of its directors, officers and
key employees, and its business relationships with key customers
and others having material business dealings with its group;
•
in relation to employees and consultants, to make no material
change to any contract term or compensation or benefits
arrangements unless the change is (a) consistent with
existing policies and governance processes in operation at the
time of execution of the Merger Protocol, (b) commercially
necessary or reasonably desired and (c) would not
materially adversely affect any of the agreed planned synergy
savings;
•
except in the ordinary course of the party’s private equity
or merchant bank business, not to acquire or dispose of any
material legal entities or businesses or a material part of its
assets (including strategic stakes) or engage in a series of
such acquisitions or disposals, with legal entities, businesses
or parts of assets material if having a book value of or being
bought or sold for
€500 million or
more;
•
not to settle or initiate any litigation or arbitration or
similar proceedings involving an amount of
€250 million or
more after announcement of the offer (with any series of
proceedings (or claims)
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arising out of the same or substantially the same originating
cause to be treated as one proceeding (or claim));
•
not to make any changes with respect to accounting policies or
procedures, except as (a) required by applicable law or
changes in applicable generally accepted accounting principles
or (b) as either party, after consulting the advice of its
regulated public accounting firm and with the other party,
determines in good faith advisable to conform to best accounting
practices;
•
not to make or alter any material tax election or take any
material position on any material tax return filed on or after
the date hereof or adopt any tax method therefore that is
inconsistent with elections made, positions taken, or methods
used in preparing or filing any tax return in prior periods or
settle or otherwise finally resolve any dispute with respect to
an amount of tax of
€250 million or
more;
•
to procure that neither it nor any other member of its group:
•
issues, authorizes or proposes the issue of additional shares of
any class or securities in its capital or similar securities or
transfer or sells or authorizes or proposes the transfer or sale
of shares out of treasury (save as between such party and its
subsidiaries and save for the issue or transfer out of treasury
of shares on the exercise of options granted before the date of
the Merger Protocol in the ordinary course of business);
•
enters into, varies, authorizes or proposes to enter into or
vary any contract, transaction, arrangement or commitment
(whether in respect of capital expenditure or otherwise) of a
long-term, unusual or onerous nature and which may be material
in the context of its group or which is likely to be restrictive
on the business of any member of the combined group;
•
proposes, agrees to provide or modifies in material respect the
terms of any share option or incentive scheme;
•
makes, agrees or consents to any significant change to the terms
or benefits of any pension scheme established for directors,
employees or dependents of such, or carries out any act which
may lead to the commencement of the winding up of the pension
scheme or which could give rise to a liability arising pursuant
to any law or regulation applicable to the scheme, or agrees to
make any additional funding to the pension scheme as part of any
negotiations with the trustees of the pension scheme other than
as required by applicable law or under the terms or rules of the
pension scheme or as has been fairly disclosed to the other
party prior to the date of the Merger Protocol;
•
implements, effects or authorizes any merger, demerger, or
liquidation or apply for bankruptcy or suspension of payments or
enters into negotiations with any one or more of its creditors
with a view to the readjustment or rescheduling of its debts, or
enters into any similar transaction or arrangement, otherwise
than in the ordinary course of business and except for any such
transaction solely among subsidiaries provided it does not
involve any insolvent liquidation, application for bankruptcy or
suspension of payment or entering into negotiations with any one
or more creditors with a view to the readjustment or
rescheduling of its debt or similar actions; nor
•
purchases, redeems or repays any of its own shares or other
securities or reduces or makes any other change to any part of
its share capital to an extent which is material in the context
of its group (save that ABN AMRO is permitted to repurchase any
of its ordinary shares at a price not exceeding, at the time of
the repurchase, the ordinary exchange ratio multiplied by a
short-term average Barclays ordinary share price converted to
euro and Barclays is permitted to repurchase any of its ordinary
shares at a price not exceeding the market price of such shares
at the time of repurchase);
•
generally not to do anything that could be expected to
compromise the proposed synergy plans as discussed between the
parties and delivery of the underlying savings;
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•
not to trade in or encourage any other party to trade in any
shares or other securities of the other party, as long as it has
price sensitive information except for any actions in the
ordinary course of each party’s respective businesses,
provided that such actions could not result in a breach of any
applicable law or regulations with respect to the use of price
sensitive information;
•
ABN AMRO has agreed that all risk transfers for capital and risk
management purposes in respect of subordinated capital
instruments including either or both tier one or two securities
must comply with the rules of the FSA;
•
ABN AMRO has agreed that no member of its group shall tender any
ABN AMRO ordinary shares held by it into the exchange offer; and
•
ABN AMRO is prohibited from distributing by any means proceeds
received under the LaSalle Agreement on a sale of LaSalle.
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•
a dealer in securities or currencies;
•
a trader in securities that elects to use a mark-to-market
method of accounting for their securities holdings;
•
a bank;
•
a life insurance company;
•
a tax-exempt organization;
•
a person that actually or constructively owns 10% or more of
Barclays voting stock;
•
a person that owns ordinary shares or ADSs as part of a straddle
or conversion transaction for tax purposes; or
•
a United States person whose functional currency for tax
purposes is not the US dollar.
•
a citizen or resident of the United States;
•
a US corporation organized under the laws of the United States
or other entity taxable as a corporation for US federal income
tax purposes, created or organized in or under the laws of the
United States or any political subdivision thereof;
•
an estate whose income is subject to United States federal
income taxation regardless of its source; or
•
a trust if a United States court is able to exercise primary
supervision over the trust’s administration and one or more
United States persons are authorized to control all substantial
decisions of the trust.
•
you are not and have not been a citizen of any other
jurisdiction (including, without limitation, The Netherlands and
UK); or
•
you are not and have not been resident or ordinarily resident
for tax purposes in any other jurisdiction (including, without
limitation, The Netherlands and UK).
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•
you have or will have a substantial interest or a deemed
substantial interest in ABN AMRO or Barclays (Netherlands); or
•
capital gains you derive from the ABN AMRO ordinary shares or
ABN AMRO ADSs constitute income from miscellaneous
activities (resultaat uit overige werkzaamheden) in The
Netherlands as defined in the Income Tax Act 2001 (Wet
inkomstenbelasting 2001), which include activities that
exceed normal active portfolio management (normaal
vermogensbeheer).
•
the Primary Exchange and the Alternative Exchange qualify as a
share-for-share merger (aandelenfusie) as defined in
article 3.55 of the Income Tax Act 2001 (Wet
inkomstenbelasting 2001); and
•
if you claim the exemption, you record and continue to record
the Barclays (Netherlands) shares and Barclays ordinary shares
or Barclays ADSs at the same tax book value as that of the ABN
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AMRO ordinary shares or ABN AMRO ADSs at the moment immediately
preceding acceptance of the exchange offer.
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•
Mr. Martinez (Chairman)
•
Mr. Agius (Deputy Chairman)
•
Mr. Varley (Group Chief Executive Officer)
•
Mr. Diamond (Barclays President and Chief Executive Officer
of Investment Banking and Investment Management)
•
Mr. Seegers (Chief Executive Officer of Global Retail and
Commercial Banking)
•
Mr. Boumeester (Group Chief Administrative Officer)
•
Mr. Lucas (Group Finance Director)
•
Mr. Groenink (Non-executive Director)
Director
Biographical Information
Arthur Martinez,
Chairman (age 67)
Mr. Arthur Martinez joined the ABN AMRO Supervisory Board
in 2002 and became Chairman of the ABN AMRO Supervisory Board in
April 2006. He has extensive experience as a CEO in the US and
broad knowledge of US financial markets. Mr. Martinez is a
former chairman and CEO of Sears, Roebuck & Co., Inc.
and a former chairman of the Board of Directors of the Federal
Reserve Bank in Chicago. Between 1992 and 1995 he served as
Chairman and Chief Executive at Sears Merchandise Group, after a
career at Saks Fifth Avenue, New York, starting in 1980 as
Senior Vice President and Chief Financial Officer.
Mr. Martinez is a
non-executive director
of International Flavors and Fragrances, Inc., Liz Claiborne
Inc., PepsiCo, Inc. and IAC/ Interactive Corp.
Marcus Agius,
Deputy Chairman (age 60)
Mr. Marcus Agius joined the Barclays Board on
September 1, 2006 and succeeded Matthew Barrett as Chairman
from January 1, 2007. Mr. Agius is the senior
non-executive director of the BBC and was Chairman of Lazard in
London and a Deputy Chairman of Lazard LLC until
December 31, 2006. He was formerly Chairman of BAA PLC, a
position he held from 2002 until December 20, 2006.
Mr. Agius is Trustee to the Board of the Royal Botanic
Gardens, Kew and Chairman of The Foundation and Friends of the
Royal Botanic Gardens, Kew.
John Varley,
Executive Director and member of Executive Committee (age
51)
Mr. John Varley was appointed as Group Chief Executive of
Barclays on September 1, 2004, prior to which he had been
Group Deputy Chief Executive from January 1, 2004. He held
the position of Group Finance Director of Barclays from 2000
until
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132
the end of 2003. Mr. Varley joined the Executive Committee
in September 1996 and was appointed to the Barclays Board in
June 1998. He was Chief Executive of Retail Financial Services
from 1998 to 2000 and Chairman of the Asset Management Division
from 1995 to 1998. He is Chairman of Business Action on
Homelessness and President of the Employer’s Forum on
Disability and member of the International Advisory Panel of the
Monetary Authority of Singapore. Mr. Varley is also a
non-executive Director of AstraZeneca PLC and a Director of
Ascot Racecourse.
Robert E. Diamond, Jr.
Executive Director and member of Executive Committee (age
55)
Mr. Robert E. Diamond was appointed President of
Barclays and became an executive director on June 1, 2005.
He is responsible for the Investment Banking and Investment
Management business for the Group. He has been a member of the
Executive Committee of Barclays since September 1997. He joined
Barclays in July 1996 from CSFB where he was Vice-Chairman and
Head of Global Fixed Income and Foreign Exchange.
Frederik Seegers,
Executive Director and member of Executive Committee (age
48)
Mr. Frederik Seegers was appointed as Chief Executive of
Global Retail and Commercial Banking of Barclays and became an
executive director of Barclays on July 10, 2006. He is
responsible for all Barclays retail and commercial banking
operations globally, including UK Banking (Retail and Business),
International Retail and Commercial Banking and Barclaycard. He
is also a non-executive Director of Absa Group Limited.
Mr. Seegers joined the Board from Citigroup, where he
previously held a number of senior positions, most recently CEO
Global Consumer Group with a remit covering all retail
operations in Europe, Middle East and Africa. He was also a
member of the Citigroup Operating Committee and the Citigroup
Management Committee.
Huibert Boumeester,
Executive Director and member of Executive Committee (age
47)
Mr. Huibert Boumeester was appointed to the ABN AMRO
Managing Board in January 2006 with responsibility for Corporate
Development, Group M&A Portfolio, Group Risk Management and
Antonveneta. As of July 1, 2007, Mr. Boumeester will
replace Hugh
Scott-Barrett as CFO of
ABN AMRO. Prior to his appointment to the ABN AMRO Managing
Board Mr. Boumeester was Chief Executive Officer of ABN
AMRO Asset Management. From 2000 to 2002 he was Managing
Director Global Financial Markets, responsible for Leveraged
Finance, Emerging Markets Debt Origination and Asset
Securitization. Subsequently Mr. Boumeester was appointed
Global head of Integrated Energy. Mr. Boumeester is
director of the Rembrandt association.
Chris Lucas,
Executive Director and member of Executive Committee (age
46)
Mr. Chris Lucas joined the Barclays Board on April 1,
2007. Mr. Lucas came from PricewaterhouseCoopers, where he
was UK Head of Financial Services and Global Head of Banking and
Capital Markets. He was Global Relationship Partner for Barclays
for the 1999— 2004 financial years and subsequently held
similar roles for other global financial services organizations.
Mr. Lucas has worked across financial services for most of
his
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career, including three years in New York as Head of the US
Banking Audit Practice of PricewaterhouseCoopers.
Rijkman Groenink,
Non-Executive Director (age 57)
Mr. Rijkman Groenink was appointed Chairman of the ABN AMRO
Managing Board in May 2000. In 1974 Mr. Groenink joined
Amro Bank. In 1988 he was appointed to the Managing Board of
Amro Bank and following the merger of ABN and Amro Bank in 1990
he was appointed to the Managing Board of ABN AMRO with
responsibility within the Investment Banking division for Global
Clients and later for the Netherlands division.
Mr. Groenink is a member of the United Nations Advisors
Group on Inclusive Financial Sectors, member of the European
Financial Services Round Table, member of the Institut
International d’Etudes Bancaires and member of the
Supervisory Board of SHV, member of Advisors of Struik Holding,
Chairman of the Supervisory Board of the Stedelijk Museum
Amsterdam and board member of the Amsterdam Society for City
Restoration.
•
Mr. Varley, Group Chief Executive
•
Mr. Diamond, Barclays President and CEO of Investment
Banking and Investment Management
•
Mr. Seegers, CEO of Global Retail and Commercial Banking
•
Mr. Overmars, CEO of Continental Europe and Asia, Global
Retail and Commercial Banking
•
Mr. Teerlink, Chief Operating Officer of Global Retail and
Commercial Banking
•
Mr. Idzik, Group Chief Operating Officer
•
Mr. Lucas, Group Finance Director
•
Mr. Boumeester, Group Chief Administrative Officer
Director
Biographical Information
Paul Idzik, Group Chief Operating Officer
(age 46)
Mr. Paul Idzik became a member of the Executive Committee of
Barclays and the Chief Operating Officer in November 2004. He is
also the Chairman of Barclays Group Operating Committee.
Mr. Idzik was formerly the Chief Operating Officer of
Barclays Capital. He joined Barclays Capital in August 1999
following a career with Booz Allen & Hamilton, where he was
a partner and senior member of the Financial Institutions
Practice.
Piero Overmars, CEO of Continental Europe and Asia,
Global Retail and Commercial Banking (age 43)
Mr. Piero Overmars was appointed to the ABN AMRO Managing
Board in January 2006 and is responsible for BU Asia, BU Europe,
and BU Global Markets and is also Chairman of the Commercial
Client Segment. Prior to his appointment to the ABN AMRO
Managing Board, he was Chief Executive Officer of Wholesale
Clients. He was appointed head of Global Markets in 2004 and he
was head of Financial Markets during 2002-2004.
Table of Contents
134
Mr. Overmars is a member of the Supervisory Board of
Aronsohn Consulting Engineers, Rotterdam, effective on per
July 1, 2007, and a director of a charitable foundation.
Ron Teerlink, Chief Operating Officer of Global Retail and
Commercial Banking (age 46)
Mr. Ron Teerlink was appointed to the ABN AMRO Managing
Board in January 2006 and is responsible for BU Latin America,
BU Transaction Banking, Services and Market Infrastructures and
is also Chairman of the Consumer Client Segment. Prior to his
appointment to the ABN AMRO Managing Board, Mr. Teerlink
was Chief Executive Officer of Group Shared Services. In 2002 he
was appointed Chief Operating Officer, Wholesale Client Business
and Senior Executive Vice President. In 2001 he was named
Managing Director, Wholesale Clients Business Operations Europe.
Mr. Teerlink is a member of the Supervisory Board of
Equens N.V., member of the Board of Directors of ICC
Nederland and member of the Advisory Board of EPC.nl.
Table of Contents
135
Table of Contents
| For the year ended December 31, | ||||||||||||
| 2006 | 2005 | 2004(a) | ||||||||||
| £m | £m | £m | ||||||||||
|
(IFRS)
|
||||||||||||
|
Continuing operations
|
||||||||||||
|
Net interest income
|
9,143 | 8,075 | 6,833 | |||||||||
|
Net fee and commission income
|
7,177 | 5,705 | 4,847 | |||||||||
|
Principal transactions
|
4,576 | 3,179 | 2,514 | |||||||||
|
Net premiums from insurance
contracts
|
1,060 | 872 | 1,042 | |||||||||
|
Other income
|
214 | 147 | 131 | |||||||||
|
Total income
|
22,170 | 17,978 | 15,367 | |||||||||
|
Net claims and benefits paid on
insurance contracts
|
(575 | ) | (645 | ) | (1,259 | ) | ||||||
|
Total income net of insurance claims
|
21,595 | 17,333 | 14,108 | |||||||||
|
Impairment charges
|
(2,154 | ) | (1,571 | ) | (1,093 | ) | ||||||
|
Net income
|
19,441 | 15,762 | 13,015 | |||||||||
|
Operating expenses
|
(12,674 | ) | (10,527 | ) | (8,536 | ) | ||||||
|
Share of post-tax results of
associates and joint ventures
|
46 | 45 | 56 | |||||||||
|
Profit on disposal of subsidiaries,
associates and joint ventures
|
323 | — | 45 | |||||||||
|
Profit before tax
|
7,136 | 5,280 | 4,580 | |||||||||
|
Tax
|
(1,941 | ) | (1,439 | ) | (1,279 | ) | ||||||
|
Profit after tax
|
5,195 | 3,841 | 3,301 | |||||||||
|
Profit attributable to minority
interests
|
624 | 394 | 47 | |||||||||
|
Profit attributable to equity
holders of the parent
|
4,571 | 3,447 | 3,254 | |||||||||
| 5,195 | 3,841 | 3,301 | ||||||||||
| (a) | Does not reflect the application of IAS 32, IAS 39 and IFRS 4 which Barclays adopted January 1, 2005. |
|
Basic earnings per share
|
71.9 | p | 54.4 | p | 51.0 | p | |||||||
|
Diluted earnings per share
|
69.8 | p | 52.6 | p | 49.8 | p | |||||||
|
Dividends per ordinary share
|
31.0 | p | 26.6 | p | 24.0 | p | |||||||
|
Dividend payout ratio
|
43.1 | % | 48.9 | % | 47.1 | % | |||||||
|
Profit attributable to the equity
holders of the parent as a percentage of:
|
|||||||||||||
|
average shareholders’ equity
|
24.7 | % | 21.1 | % | 21.7 | % | |||||||
|
average total assets
|
0.4 | % | 0.4 | % | 0.5 | % | |||||||
|
Cost: income ratio
|
59 | % | 61 | % | 61 | % | |||||||
|
Cost: net income ratio
|
65 | % | 67 | % | 66 | % | |||||||
|
Average US dollar exchange rate
used in preparing the accounts
|
1.84 | 1.82 | 1.83 | ||||||||||
|
Average euro exchange rate used in
preparing the accounts
|
1.47 | 1.46 | 1.47 | ||||||||||
|
Average rand exchange rate used in
preparing the accounts
|
12.47 | 11.57 | 11.83 | ||||||||||
| (a) | Does not reflect the application of IAS 32, IAS 39 and IFRS 4 which Barclays adopted January 1, 2005. |
136
Table of Contents
| For the year ended | ||||||||
| December 31, | ||||||||
| 2003 | 2002 | |||||||
| £m | £m | |||||||
|
(UK GAAP)
|
||||||||
|
Interest receivable
|
12,427 | 12,044 | ||||||
|
Interest payable
|
(5,823 | ) | (5,839 | ) | ||||
|
Net interest income
|
6,604 | 6,205 | ||||||
|
Fees and commissions receivable
|
4,896 | 4,454 | ||||||
|
Less: fees and commissions payable
|
(633 | ) | (529 | ) | ||||
|
Dealing profits
|
1,054 | 833 | ||||||
|
Other operating income
|
490 | 364 | ||||||
|
Operating income
|
12,411 | 11,327 | ||||||
|
Administration expenses— staff
costs
|
(4,295 | ) | (3,755 | ) | ||||
|
Administration expenses— other
|
(2,404 | ) | (2,312 | ) | ||||
|
Depreciation
|
(289 | ) | (303 | ) | ||||
|
Goodwill amortization
|
(265 | ) | (254 | ) | ||||
|
Operating expenses
|
(7,253 | ) | (6,624 | ) | ||||
|
Operating profit before provisions
|
5,158 | 4,703 | ||||||
|
Provisions for bad and doubtful
debts
|
(1,347 | ) | (1,484 | ) | ||||
|
Provisions for contingent
liabilities and commitments
|
1 | (1 | ) | |||||
|
Provisions
|
(1,346 | ) | (1,485 | ) | ||||
|
Operating profit
|
3,812 | 3,218 | ||||||
|
Profit/(loss) from joint ventures
|
1 | (5 | ) | |||||
|
Profit/(loss) from associates
|
28 | (5 | ) | |||||
|
Exceptional items
|
4 | (3 | ) | |||||
|
Profit on ordinary activities
before tax
|
3,845 | 3,205 | ||||||
|
Tax on profit on ordinary activities
|
(1,076 | ) | (955 | ) | ||||
|
Profit on ordinary activities
after tax
|
2,769 | 2,250 | ||||||
|
Minority interests (including
non-equity interests)
|
(25 | ) | (20 | ) | ||||
|
Profit for the financial year
attributable to the members of Barclays PLC
|
2,744 | 2,230 | ||||||
|
Dividends
|
(1,340 | ) | (1,206 | ) | ||||
|
Profit retained for the
financial year
|
1,404 | 1,024 | ||||||
|
(UK GAAP)
|
|||||||||
|
Basic earnings per share
|
42.3 | p | 33.7 | p | |||||
|
Diluted earnings per share
|
42.1 | p | 33.4 | p | |||||
|
Dividends per ordinary share
|
20.50 | p | 18.35 | p | |||||
|
Dividend payout ratio
|
48.5 | % | 54.5 | % | |||||
|
Attributable profit as a percentage
of:
|
|||||||||
|
average shareholders’ funds
|
17.0 | % | 14.7 | % | |||||
|
average total assets
|
0.6 | % | 0.5 | % | |||||
|
Average US dollar exchange rate
used in preparing the accounts
|
1.64 | 1.50 | |||||||
|
Average euro exchange rate used in
preparing the accounts
|
1.45 | 1.59 | |||||||
137
Table of Contents
| As at December 31, | ||||||||||||
| 2006 | 2005 | 2004(a) | ||||||||||
| £m | £m | £m | ||||||||||
|
(IFRS)
|
||||||||||||
|
Assets
|
||||||||||||
|
Cash and other short-term funds
|
9,753 | 5,807 | 3,525 | |||||||||
|
Treasury bills and other eligible
bills
|
n/a | n/a | 6,658 | |||||||||
|
Trading and financial assets
designated at fair value
|
292,464 | 251,820 | n/a | |||||||||
|
Derivative financial instruments
|
138,353 | 136,823 | n/a | |||||||||
|
Debt securities and equity shares
|
n/a | n/a | 141,710 | |||||||||
|
Loans and advances to banks
|
30,926 | 31,105 | 80,632 | |||||||||
|
Loans and advances to customers
|
282,300 | 268,896 | 262,409 | |||||||||
|
Available for sale investments
|
51,703 | 53,497 | n/a | |||||||||
|
Reverse repurchase agreements and
cash collateral on securities borrowed
|
174,090 | 160,398 | n/a | |||||||||
|
Property, plant and equipment
|
2,492 | 2,754 | 2,282 | |||||||||
|
Other assets
|
14,706 | 13,257 | 40,965 | |||||||||
|
Total Assets
|
996,787 | 924,357 | 538,181 | |||||||||
|
Liabilities
|
||||||||||||
|
Deposits and items in the course of
collection due to banks
|
81,783 | 77,468 | 112,229 | |||||||||
|
Customer accounts
|
256,754 | 238,684 | 217,492 | |||||||||
|
Trading and financial liabilities
designated at fair value
|
125,861 | 104,949 | n/a | |||||||||
|
Liabilities to customers under
investment contracts
|
84,637 | 85,201 | n/a | |||||||||
|
Derivative financial instruments
|
140,697 | 137,971 | n/a | |||||||||
|
Debt securities in issue
|
111,137 | 103,328 | 83,842 | |||||||||
|
Repurchase agreements and cash
collateral on securities lent
|
136,956 | 121,178 | n/a | |||||||||
|
Insurance contract liabilities,
including unit-linked liabilities
|
3,878 | 3,767 | 8,377 | |||||||||
|
Subordinated liabilities
|
13,786 | 12,463 | 12,277 | |||||||||
|
Other liabilities
|
13,908 | 14,918 | 87,200 | |||||||||
|
Total liabilities
|
969,397 | 899,927 | 521,417 | |||||||||
|
Shareholders’
equity
|
||||||||||||
|
Shareholders’ equity excluding
minority interests
|
19,799 | 17,426 | 15,870 | |||||||||
|
Minority interests
|
7,591 | 7,004 | 894 | |||||||||
|
Total shareholders’
equity
|
27,390 | 24,430 | 16,764 | |||||||||
|
Total liabilities and
shareholders’ equity
|
996,787 | 924,357 | 538,181 | |||||||||
|
Risk weighted assets and capital
ratios
|
||||||||||||
|
Risk weighted assets
|
297,833 | 269,148 | 218,601 | |||||||||
|
Tier 1
ratio(b)
|
7.7 | % | 7.0 | % | 7.6 | % | ||||||
|
Risk asset
ratio(b)
|
11.7 | % | 11.3 | % | 11.5 | % | ||||||
|
Selected financial
statistics
|
||||||||||||
|
Net asset value per ordinary share
|
303 | p | 269 | p | 246 | p | ||||||
|
Year-end US dollar exchange rate
used in preparing the accounts
|
1.96 | 1.72 | 1.92 | |||||||||
|
Year-end euro exchange rate used in
preparing the accounts
|
1.49 | 1.46 | 1.41 | |||||||||
|
Year-end rand exchange rate used in
preparing the accounts
|
13.71 | 10.87 | 10.86 | |||||||||
| (a) | Does not reflect the application of IAS 32, IAS 39 and IFRS 4 which Barclays adopted January 1, 2005. | |
| (b) | Capital ratios for 2004 are based on UK GAAP and have not been restated as these remain as reported to the Financial Services Authority (FSA). As at January 1, 2005 the tier 1 ratio was 7.1% and the risk asset ratio was 11.8% reflecting the impact of IFRS, including the adoption of IAS 32, IAS 39 and IFRS 4 at this date. |
138
Table of Contents
| As at December 31, | ||||||||
| 2003 | 2002 | |||||||
| £m | £m | |||||||
|
(UK GAAP)
|
||||||||
|
Assets
|
||||||||
|
Loans and advances to banks and
customers
|
288,743 | 260,572 | ||||||
|
Other assets
|
139,818 | 129,136 | ||||||
| 428,561 | 389,708 | |||||||
|
Infrastructure
|
6,624 | 6,015 | ||||||
| 435,185 | 395,723 | |||||||
|
Retail life-fund assets
attributable to policyholders
|
8,077 | 7,284 | ||||||
|
Total assets
|
443,262 | 403,007 | ||||||
|
Liabilities
|
||||||||
|
Deposits by banks, customer
accounts and debt securities in issue
|
328,529 | 304,817 | ||||||
|
Other liabilities
|
77,660 | 64,067 | ||||||
| 406,189 | 368,884 | |||||||
|
Capital resources
|
||||||||
|
Undated loan capital
|
6,310 | 6,678 | ||||||
|
Dated loan capital
|
6,029 | 4,859 | ||||||
|
Total subordinated liabilities
|
12,339 | 11,537 | ||||||
|
Minority interests
|
283 | 156 | ||||||
|
Shareholders’ equity excluding
minority interests
|
16,374 | 15,146 | ||||||
|
Total shareholders’ equity
|
16,657 | 15,302 | ||||||
|
Total capital resources
|
28,996 | 26,839 | ||||||
| 435,185 | 395,723 | |||||||
|
Retail life-fund liabilities
attributable to policyholders
|
8,077 | 7,284 | ||||||
|
Total liabilities and
shareholders’ equity
|
443,262 | 403,007 | ||||||
|
Risk weighted assets and capital
ratios
|
||||||||
|
Risk weighted assets
|
188,997 | 172,748 | ||||||
|
Tier 1 ratio
|
7.9 | % | 8.2 | % | ||||
|
Risk asset ratio
|
12.8 | % | 12.8 | % | ||||
|
Selected financial
statistics
|
||||||||
|
Net asset value per ordinary share
|
250 | p | 230 | p | ||||
|
Year-end US dollar exchange rate
used in preparing the accounts
|
1.78 | 1.61 | ||||||
|
Year-end euro exchange rate used in
preparing the accounts
|
1.41 | 1.54 | ||||||
139
Table of Contents
| 2006(a) | 2006 | 2005 | 2004 | 2003 | 2002 | ||||||||||||||||||||
| ¢ | p | p | p | p | p | ||||||||||||||||||||
|
(US GAAP)
|
|||||||||||||||||||||||||
|
Barclays PLC Group
|
|||||||||||||||||||||||||
|
Earnings per 25p ordinary share
(basic)
|
132.4 | 67.9 | 46.3 | 47.5 | 26.8 | 37.4 | |||||||||||||||||||
|
Dividends per 25p ordinary share
|
54.2 | 27.8 | 25.0 | 21.7 | 19.1 | 17.2 | |||||||||||||||||||
|
Book value per 25p ordinary share
|
599 | 307 | 291 | 266 | 260 | 242 | |||||||||||||||||||
| % | % | % | % | % | |||||||||||||||||||||
|
Net income as a percentage of:
|
|||||||||||||||||||||||||
|
— average total assets
|
0.5 | 0.4 | 0.5 | 0.3 | 0.5 | ||||||||||||||||||||
|
— average shareholders’
equity
|
23.4 | 16.8 | 18.0 | 10.6 | 16.6 | ||||||||||||||||||||
|
Dividends as a percentage of net
income
|
42.0 | 54.0 | 46.5 | 71.5 | 44.7 | ||||||||||||||||||||
|
Average shareholders’ equity
as a percentage of average total assets
|
2.3 | 2.6 | 2.5 | 3.2 | 3.1 | ||||||||||||||||||||
|
Barclays Bank PLC
Group
|
|||||||||||||||||||||||||
|
Net income as a percentage of:
|
|||||||||||||||||||||||||
|
— average total assets
|
0.6 | 0.5 | 0.5 | 0.4 | 0.5 | ||||||||||||||||||||
|
— average shareholders’
equity
|
20.6 | 13.8 | 17.2 | 10.1 | 15.6 | ||||||||||||||||||||
|
Average shareholders’ equity
as a percentage of average total assets
|
2.8 | 3.0 | 2.7 | 3.5 | 3.4 | ||||||||||||||||||||
| (a) | The US dollar financial information has been translated for convenience at the rate of $1.95 to £1, the Noon Buying Rate for cable transfers in New York City, payable in pound sterling, at December 31, 2006. |
| 2006(a) | 2006 | 2005 | 2004 | 2003 | 2002 | |||||||||||||||||||
| $m | £m | £m | £m | £m | £m | |||||||||||||||||||
|
(US GAAP)
|
||||||||||||||||||||||||
|
Net income:
|
||||||||||||||||||||||||
|
Barclays PLC Group
|
8,420 | 4,318 | 2,932 | 3,032 | 1,740 | 2,476 | ||||||||||||||||||
|
Barclays Bank PLC Group
|
9,068 | 4,650 | 3,164 | 3,137 | 1,842 | 2,578 | ||||||||||||||||||
|
Shareholders’ equity:
|
||||||||||||||||||||||||
|
Barclays PLC Group
|
39,062 | 20,032 | 18,461 | 16,953 | 16,830 | 16,015 | ||||||||||||||||||
|
Barclays Bank PLC Group
|
48,883 | 25,068 | 23,114 | 19,594 | 18,646 | 17,846 | ||||||||||||||||||
|
Total assets:
|
||||||||||||||||||||||||
|
Barclays PLC Group
|
1,809,711 | 928,057 | 840,657 | 654,580 | 541,969 | 491,466 | ||||||||||||||||||
|
Barclays Bank PLC Group
|
1,809,157 | 927,773 | 840,470 | 654,699 | 542,080 | 491,586 | ||||||||||||||||||
| (a) | The US dollar financial information has been translated for convenience at the rate of $1.95 to £1, the Noon Buying Rate for cable transfers in New York City, payable in pound sterling, at December 31, 2006. |
140
Table of Contents
141
Table of Contents
| For the year ended December 31, | ||||||||||||||||
| 2006(a) | 2006 | 2005 | 2004 | |||||||||||||
| $m | €m | €m | €m | |||||||||||||
|
(IFRS)
|
||||||||||||||||
|
Net interest income
|
13,371 | 10,575 | 8,785 | 8,525 | ||||||||||||
|
Net fee and commission income
|
7,665 | 6,062 | 4,691 | 4,485 | ||||||||||||
|
Net trading income
|
3,767 | 2,979 | 2,621 | 1,309 | ||||||||||||
|
Results from financial transactions
|
1,374 | 1,087 | 1,281 | 905 | ||||||||||||
|
Share of result in equity accounted
investments
|
307 | 243 | 263 | 206 | ||||||||||||
|
Other operating income
|
1,747 | 1,382 | 1,056 | 745 | ||||||||||||
|
Income of consolidated private
equity holdings
|
6,718 | 5,313 | 3,637 | 2,616 | ||||||||||||
|
Operating income
|
34,948 | 27,641 | 22,334 | 18,791 | ||||||||||||
|
Operating expenses
|
26,189 | 20,713 | 16,301 | 15,180 | ||||||||||||
|
Loan impairment and other credit
risk provisions
|
2,345 | 1,855 | 635 | 607 | ||||||||||||
|
Total expenses
|
28,534 | 22,568 | 16,936 | 15,787 | ||||||||||||
|
Operating profit before tax
|
6,414 | 5,073 | 5,398 | 3,004 | ||||||||||||
|
Income tax expense
|
1,140 | 902 | 1,142 | 715 | ||||||||||||
|
Profit from continuing operations
|
5,274 | 4,171 | 4,256 | 2,289 | ||||||||||||
|
Profit from discontinued
|
||||||||||||||||
|
operations net of tax
|
770 | 609 | 187 | 1,651 | ||||||||||||
|
Profit for the year
|
6,044 | 4,780 | 4,443 | 3,940 | ||||||||||||
|
Attributable to shareholders of the
parent company
|
5,961 | 4,715 | 4,382 | 3,865 | ||||||||||||
|
Dividends on ordinary shares
|
2,722 | 2,153 | 2,050 | 1,665 | ||||||||||||
|
Per share financial
data
|
||||||||||||||||
|
Average number of ordinary shares
outstanding (in millions)
|
— | 1,882.5 | 1,804.1 | 1,657.6 | ||||||||||||
|
Basic earning per shares
(in €)
|
— | 2.50 | 2.43 | 2.33 | ||||||||||||
|
Fully diluted earnings per share
(in €)
|
— | 2.49 | 2.42 | 2.33 | ||||||||||||
|
Net profit per ordinary share from
continuing operations
(in €)(b)
|
— | 2.18 | 2.33 | 1.34 | ||||||||||||
|
Fully diluted net profit per
ordinary share from continuing operations
(in €)(b)
|
— | 2.17 | 2.32 | 1.34 | ||||||||||||
|
Dividend per ordinary share (in
€)(b)
|
— | 1.15 | 1.10 | 1.00 | ||||||||||||
|
Net profit per American Depositary
|
||||||||||||||||
|
Share (in US
dollars)(b)(c)
|
— | 3.16 | 3.01 | 2.91 | ||||||||||||
|
Dividend per American Depositary
Share (in US dollars)
(b)(d)
|
— | 1.50 | 1.34 | 1.27 | ||||||||||||
| (a) | Solely for your convenience, euro amounts have been translated into US dollars at an exchange rate of $1 = € 0.7909, which is the rate equal to the average of the month-end rates for 2006. | |
| (b) | Adjusted for increases in share capital, as applicable. See Note 13 to ABN AMRO’s consolidated financial statements for a description of the computation of earnings per ordinary share. | |
| (c) | Solely for your convenience, this item has been translated into US dollars at the rate equal to the average of the month-end rates for the applicable year. | |
| (d) | Solely for your convenience, this item has been translated into US dollars at the applicable rate on the date of payment, other than for the 2006 final dividend, which has been translated into US dollars at the March 16, 2006 exchange rate of $1 = € 0.7515, the latest practicable date for which information is available. |
142
Table of Contents
| For the Year Ended | ||||||||
| December 31, | ||||||||
| 2003 | 2002 | |||||||
| €m | €m | |||||||
| (except per share data) | ||||||||
|
(Dutch GAAP)
|
||||||||
|
Net interest revenue
|
9,723 | 9,845 | ||||||
|
Net commissions
|
4,464 | 4,639 | ||||||
|
Results from financial transactions
|
1,993 | 1,477 | ||||||
|
Other revenue
|
2,613 | 2,319 | ||||||
|
Total revenue
|
18,793 | 18,280 | ||||||
|
Operating expenses
|
12,585 | 13,148 | ||||||
|
Provision for loan losses
|
1,274 | 1,695 | ||||||
|
Operating profit before taxes
|
4,918 | 3,388 | ||||||
|
Net profit
|
3,161 | 2,207 | ||||||
|
Net profit attributable to Ordinary
Shares
|
3,116 | 2,161 | ||||||
|
Dividends on Ordinary Shares
|
1,589 | 1,462 | ||||||
|
Per Share Financial
Data
|
||||||||
|
Average number of Ordinary Shares
outstanding (in millions)
|
1,610.2 | 1,559.3 | ||||||
|
Net profit per Ordinary Share (in
€)(a)
|
1.94 | 1.39 | ||||||
|
Fully diluted net profit per
Ordinary Share (in
€)(a)
|
1.93 | 1.38 | ||||||
|
Dividend per Ordinary Share (in
€)(a)
|
0.95 | 0.90 | ||||||
|
Net profit per American Depositary
Share (in
US$)(a)(b)
|
2.21 | 1.48 | ||||||
|
Dividend per American Depositary
Share (in
US$)(a)(c)
|
1.09 | 0.92 | ||||||
| (a) | Adjusted for increases in share capital, as applicable. |
| (b) | This item has been translated into US dollars at the rate equal to the average of the month-end rates for the applicable year. |
| (c) | Solely for your convenience, this item has been translated into US dollars at the applicable rate on the date of payment. |
143
Table of Contents
| At December 31, | ||||||||||||||||
| 2006(a) | 2006 | 2005 | 2004 | |||||||||||||
| $m | €m | €m | €m | |||||||||||||
|
(IFRS)
|
||||||||||||||||
|
Assets
|
||||||||||||||||
|
Financial assets held for trading
|
271,283 | 205,736 | 202,055 | 167,035 | ||||||||||||
|
Financial investments
|
165,327 | 125,381 | 123,774 | 102,948 | ||||||||||||
|
Loans and receivables —
banks
|
177,772 | 134,819 | 108,635 | 83,858 | ||||||||||||
|
Loans, and receivables —
customers
|
584,476 | 443,255 | 380,248 | 320,022 | ||||||||||||
|
Total Assets
|
1,301,543 | 987,064 | 880,804 | 727,454 | ||||||||||||
|
Liabilities
|
||||||||||||||||
|
Financial liabilities held for
trading
|
191,677 | 145,364 | 148,588 | 129,506 | ||||||||||||
|
Due to banks
|
247,882 | 187,989 | 167,821 | 133,529 | ||||||||||||
|
Due to customers
|
477,838 | 362,383 | 317,083 | 281,379 | ||||||||||||
|
Issued debt securities
|
266,418 | 202,046 | 170,619 | 121,232 | ||||||||||||
|
Capitalization
|
||||||||||||||||
|
Equity attributable to shareholders
of the parent
company(c)
|
31,115 | 23,597 | 22,221 | 14,815 | ||||||||||||
|
Equity attributable to minority
interests
|
3,030 | 2,298 | 1,931 | 1,737 | ||||||||||||
|
Subordinated liabilities
|
25,334 | 19,213 | 19,072 | 16,687 | ||||||||||||
|
Group
capital(c)
|
59,479 | 45,108 | 43,224 | 33,239 | ||||||||||||
|
Per Share Financial
data
|
||||||||||||||||
|
Ordinary shares outstanding (in
millions)
|
— | 1,853.8 | 1,877.9 | 1,669.2 | ||||||||||||
|
Equity attributable to shareholders
of the parent company per ordinary share (in
€)(c)
|
— | 12.73 | 11.83 | 8.88 | ||||||||||||
|
Equity attributable to shareholders
of the parent company per American Depositary Share (in
$)(b)(c)
|
— | 16.78 | 14.00 | 12.11 | ||||||||||||
| (a) | Solely for your convenience, euro amounts have been translated into US dollars at an exchange rate of $1 = € 0.75838, which is the year-end rate for 2006. | |
| (b) | This item has been translated into US dollars at the applicable year-end rate. | |
| (c) | Pursuant to a directive of the Dutch “Raad voor de Jaarverslaggeving” (Council for Annual Reporting), from January 1, 2003, ABN AMRO calculates shareholders’ equity before profit appropriation instead of after profit appropriation, which is how ABN AMRO used to present its financials. The consequence of this new directive is that the profit during the year will be added to shareholders’ equity for the full amount until shareholders have approved the proposed profit appropriation. To be able to compare on a like for like basis, ABN AMRO has re-presented shareholders’ equity, group capital and shareholders’ equity per ABN AMRO ordinary share and per ABN AMRO ADS as at December 31, 2002 before profit appropriation. |
144
Table of Contents
| At December 31, | ||||||||
| 2003 | 2002 | |||||||
| €m | €m | |||||||
| (except per share data) | ||||||||
|
(Dutch GAAP)
|
||||||||
|
Assets
|
||||||||
|
Banks
|
58,800 | 41,924 | ||||||
|
Loans
|
296,843 | 310,903 | ||||||
|
Interest-bearing securities
|
132,041 | 141,494 | ||||||
|
Total assets
|
560,437 | 556,018 | ||||||
|
Liabilities
|
||||||||
|
Banks
|
110,887 | 95,884 | ||||||
|
Total customer accounts
|
289,866 | 289,461 | ||||||
|
Debt securities
|
71,688 | 71,209 | ||||||
|
Capitalization
|
||||||||
|
Fund for general banking risks
|
1,143 | 1,255 | ||||||
|
Shareholders’
equity(a)
|
13,047 | 11,081 | ||||||
|
Minority interests
|
3,713 | 3,810 | ||||||
|
Subordinated debt
|
13,900 | 14,278 | ||||||
|
Group
capital(a)
|
31,803 | 30,424 | ||||||
|
Per Share Financial
Data
|
||||||||
|
Ordinary Shares outstanding (in
millions)
|
1,637.9 | 1,585.6 | ||||||
|
Shareholders’ equity per
Ordinary Share (in
€)(a)
|
7.47 | 6.47 | ||||||
|
Shareholders’ equity per
American Depositary Share (in
US$)(a)(b)
|
9.42 | 6.79 | ||||||
| (a) | Pursuant to a directive of the Dutch “Raad voor de Jaarverslaggeving” (Council for Annual Reporting), from January 1, 2003, ABN AMRO calculated shareholders’ equity before profit appropriation instead of after profit appropriation, which is how ABN AMRO used to present its financials. The consequence of this new directive is that the profit during the year will be added to shareholders’ equity for the full amount until shareholders have approved the proposed profit appropriation. To be able to compare on a like for like basis, ABN AMRO has re-presented shareholders’ equity, group capital and shareholders’ equity per ABN AMRO ordinary share and per ABN AMRO ADS as at December 31, 2002 before profit appropriation. |
| (b) | This item has been translated into US dollars at the applicable year-end rate. |
145
Table of Contents
| For the year ended December 31, | ||||||||||||||||
| 2006(a) | 2006 | 2005 | 2004 | |||||||||||||
| $m | €m | €m | €m | |||||||||||||
| (except per share data) | ||||||||||||||||
|
(US GAAP)
|
||||||||||||||||
|
Income Statement Data
|
||||||||||||||||
|
Net interest income
|
11,430 | 9,040 | 8,565 | 8,886 | ||||||||||||
|
Non-interest income
|
15,224 | 12,041 | 8,247 | 5,995 | ||||||||||||
|
Total revenue
|
26,654 | 21,081 | 16,812 | 14,881 | ||||||||||||
|
Operating profit before tax
|
6,345 | 5,018 | 3,246 | 2,447 | ||||||||||||
|
Net profit
|
5,640 | 4,461 | 2,870 | 2,824 | ||||||||||||
|
Balance Sheet Data
|
||||||||||||||||
|
Shareholders’ equity
|
37,026 | 28,080 | 28,494 | 21,537 | ||||||||||||
|
Minority interests
|
3,030 | 2,298 | 1,931 | 1,737 | ||||||||||||
|
Total assets
|
1,289,731 | 978,106 | 876,366 | 725,172 | ||||||||||||
|
Share Information
|
||||||||||||||||
|
Basic earnings per Ordinary Share
(in €)
|
2.35 | 1.57 | 1.68 | |||||||||||||
|
Diluted earnings per Ordinary Share
(in €)
|
2.34 | 1.56 | 1.67 | |||||||||||||
|
Basic earnings per American
Depositary Share (in
$)(b)
|
2.97 | 1.94 | 2.09 | |||||||||||||
|
Shareholders’ equity per
Ordinary Share (in €)
|
14.73 | 14.76 | 12.44 | |||||||||||||
|
Shareholders’ equity per
American Depositary Share (in
$)(c)
|
19.43 | 17.47 | 16.97 | |||||||||||||
| (a) | Solely for your convenience, euro amounts have been translated into US dollars for income statement items at an exchange rate of $1 = € 0.7909, the rate equal to the average of the month-end rates for 2006, and for balance sheet items at an exchange rate of $1 = € 0.75838, the exchange rate on December 31, 2006. | |
| (b) | This item has been translated into US dollars at the rate equal to the average of the month-end rates for the applicable year. | |
| (c) | This item has been translated into US dollars at the applicable year-end rate. |
146
Table of Contents
| At or for the Year Ended | ||||||||
| December 31, | ||||||||
| 2003 | 2002 | |||||||
| €m | €m | |||||||
| (except per share data) | ||||||||
|
(US GAAP)
|
||||||||
|
Income Statement Data
|
||||||||
|
Net interest revenue
|
8,052 | 7,879 | ||||||
|
Non-interest revenue
|
9,472 | 10,057 | ||||||
|
Total revenue
|
17,524 | 17,936 | ||||||
|
Pre-tax profit
|
4,967 | 3,711 | ||||||
|
Net profit
|
3,119 | 2,110 | ||||||
|
Balance Sheet Data
|
||||||||
|
Shareholders’ equity
|
20,143 | 19,013 | ||||||
|
Minority interests
|
3,713 | 3,810 | ||||||
|
Total assets
|
565,039 | 562,478 | ||||||
|
Share Information
|
||||||||
|
Basic earnings per ordinary share
(in €)
|
1.91 | 1.32 | ||||||
|
Diluted earnings per ordinary share
(in €)
|
1.90 | 1.32 | ||||||
|
Basic earnings per American
Depositary Share (in
$)(a)
|
2.17 | 1.25 | ||||||
|
Shareholders’ equity per
ordinary share (in €)
|
11.80 | 11.47 | ||||||
|
Shareholders’ equity per
American Depositary Share (in $)
(b)
|
14.87 | 12.03 | ||||||
| (a) | This item has been translated into US dollars at the rate equal to the average of the month-end rates for the applicable year. |
| (b) | This item has been translated into US dollars at the applicable year-end rate. |
147
Table of Contents
148
•
The consolidated balance sheet of Barclays at December 31,
2006 has been combined with the consolidated balance sheet of
ABN AMRO at December 31, 2006, both of which are prepared
in accordance with IFRS and reconciled to US GAAP, as if the
proposed combination giving effect to the sale of LaSalle had
occurred on December 31, 2006;
•
The consolidated income statement of Barclays for the year ended
December 31, 2006 has been combined with the consolidated
income statement of ABN AMRO for the year ended
December 31, 2006, both of which are prepared in accordance
with IFRS and reconciled to US GAAP, as if the proposed
combination giving effect to the sale of LaSalle had occurred on
January 1, 2006; and
•
The presentation currency of the combined group is pound
sterling as this is consistent with the presentation currency of
the Barclays 2006
Form 20-F. The
presentation currency of the combined group will be euro should
the proposed combination occur.
Table of Contents
149
•
ABN AMRO financial statements and related notes thereto for the
year ended December 31, 2006 which are incorporated herein
by reference to the ABN AMRO 2006
Form 20-F; and
•
The consolidated IFRS balance sheet of LaSalle as at
December 31, 2006 published by ABN AMRO within the ABN AMRO
Holding N.V. Unaudited Pro Forma Condensed Financial Statements
filed by ABN AMRO with the SEC on a Current Report on Form 6-K
on April 25, 2007.
Table of Contents
| Pre | ||||||||||||||||||||||||
| Acquisition | Other | Notes to | Pro forma | |||||||||||||||||||||
| Barclays | ABN AMRO(1) | Disposal(2) | Adjustments(3) | adjustments | combined | |||||||||||||||||||
| £m | £m | £m | £m | £m | ||||||||||||||||||||
|
Assets
|
||||||||||||||||||||||||
|
Cash and other short-term funds
|
9,753 | 8,266 | 9,760 | 521 | (a | ) | 28,300 | |||||||||||||||||
|
Trading and financial assets
designated at fair value
|
292,464 | 72,767 | (870 | ) | — | 364,361 | ||||||||||||||||||
|
Derivative financial instruments
|
138,353 | 72,851 | — | — | 211,204 | |||||||||||||||||||
|
Loans and advances to banks
|
30,926 | 19,362 | (3,004 | ) | — | 47,284 | ||||||||||||||||||
|
Loans and advances to customers
|
282,300 | 234,590 | (32,477 | ) | 2,260 | (b | ) | 486,673 | ||||||||||||||||
|
Available for sale financial
investments
|
51,703 | 80,150 | (16,250 | ) | — | 115,603 | ||||||||||||||||||
|
Reverse repurchase agreements and
cash collateral on securities borrowed
|
174,090 | 134,017 | — | — | 308,107 | |||||||||||||||||||
|
Property, plant and equipment
|
2,492 | 4,208 | (632 | ) | — | 6,068 | ||||||||||||||||||
|
Other assets
|
14,706 | 36,248 | (3,846 | ) | 20,804 | (c | ) | 67,912 | ||||||||||||||||
|
Total assets
|
996,787 | 662,459 | (47,319 | ) | 23,585 | 1,635,512 | ||||||||||||||||||
|
Liabilities
|
||||||||||||||||||||||||
|
Deposits and items in the course of
collection due to banks
|
81,783 | 67,266 | (8,122 | ) | (5 | ) | (b | ) | 140,922 | |||||||||||||||
|
Customer accounts
|
256,754 | 204,399 | (30,189 | ) | (54 | ) | (b | ) | 430,910 | |||||||||||||||
|
Trading and financial liabilities
designated at fair value
|
125,861 | 32,484 | (142 | ) | — | 158,203 | ||||||||||||||||||
|
Liabilities to customers under
investment contracts
|
84,637 | 3,666 | — | — | 88,303 | |||||||||||||||||||
|
Derivative financial instruments
|
140,697 | 69,442 | — | — | 210,139 | |||||||||||||||||||
|
Debt securities in issue
|
111,137 | 133,897 | (11,637 | ) | (654 | ) | (b | ) | 232,743 | |||||||||||||||
|
Repurchase agreements and cash
collateral on securities lent
|
136,956 | 97,711 | — | — | 234,667 | |||||||||||||||||||
|
Insurance contract liabilities,
including unit linked liabilities
|
3,878 | 2,738 | — | — | 6,616 | |||||||||||||||||||
|
Subordinated liabilities
|
13,786 | 12,895 | (3,913 | ) | 127 | (d | ) | 22,895 | ||||||||||||||||
|
Other liabilities
|
13,908 | 20,582 | (2,107 | ) | 3,170 | (e | ) | 35,553 | ||||||||||||||||
|
Total liabilities
|
969,397 | 645,080 | (56,110 | ) | 2,584 | 1,560,951 | ||||||||||||||||||
|
Net assets
|
27,390 | 17,379 | 8,791 | 21,001 | 74,561 | |||||||||||||||||||
|
Shareholders’
equity
|
||||||||||||||||||||||||
|
Shareholders’ equity excluding
minority interests
|
19,799 | 15,837 | 8,990 | 21,001 | 65,627 | |||||||||||||||||||
|
Minority interests
|
7,591 | 1,542 | (199 | ) | — | 8,934 | ||||||||||||||||||
|
Total shareholders’
equity
|
27,390 | 17,379 | 8,791 | 21,001 | 74,561 | |||||||||||||||||||
| (1) | The financial information of ABN AMRO in this unaudited combined condensed balance sheet reflects the IFRS financial information for continuing operations presented in the financial statements for the year ended December 31, 2006 published by ABN AMRO within the ABN AMRO 2006 Form 20-F. Such information does not reflect any comments that the management of Barclays might make had they performed a detailed review. ABN AMRO financial statements have been reformatted to be consistent with Barclays line item presentation. |
| (2) | See Note 2 to the pro forma financial information. |
| (3) | See Note 3 to the pro forma financial information. |
150
Table of Contents
| Pre | ||||||||||||||||||||||||
| ABN | Acquisition | Other | Notes to | Pro forma | ||||||||||||||||||||
| Barclays | AMRO(1) | Disposal(2) | Adjustments(3) | adjustments | combined | |||||||||||||||||||
| £m | £m | £m | £m | £m | ||||||||||||||||||||
|
Continuing operations
|
||||||||||||||||||||||||
|
Net interest income
|
9,143 | 6,681 | (1,439 | ) | (1,145 | ) | (f) | 13,240 | ||||||||||||||||
|
Net fee and commission income
|
7,177 | 4,124 | (427 | ) | — | 10,874 | ||||||||||||||||||
|
Principal transactions
|
4,576 | 3,279 | (140 | ) | — | 7,715 | ||||||||||||||||||
|
Net premiums from insurance
contracts
|
1,060 | 1,076 | — | — | 2,136 | |||||||||||||||||||
|
Other income
|
214 | 4,484 | (195 | ) | — | 4,503 | ||||||||||||||||||
|
Total income
|
22,170 | 19,644 | (2,201 | ) | (1,145 | ) | 38,468 | |||||||||||||||||
|
Net claims and benefits incurred on
insurance contracts
|
(575 | ) | (1,005 | ) | — | — | (1,580 | ) | ||||||||||||||||
|
Total income net of insurance
claims
|
21,595 | 18,639 | (2,201 | ) | (1,145 | ) | 36,888 | |||||||||||||||||
|
Impairment charges
|
(2,154 | ) | (1,262 | ) | 42 | — | (3,374 | ) | ||||||||||||||||
|
Net income
|
19,441 | 17,377 | (2,159 | ) | (1,145 | ) | 33,514 | |||||||||||||||||
|
Operating expenses
|
(12,674 | ) | (14,090 | ) | 1,393 | (1,267 | ) | (g) | (26,638 | ) | ||||||||||||||
|
Share of post-tax results of
associates and joint ventures
|
46 | 165 | (3 | ) | — | 208 | ||||||||||||||||||
|
Profit on disposal of subsidiaries,
associates and joint ventures
|
323 | — | — | — | 323 | |||||||||||||||||||
|
Profit before tax
|
7,136 | 3,452 | (769 | ) | (2,412 | ) | 7,407 | |||||||||||||||||
|
Tax
|
(1,941 | ) | (614 | ) | 158 | 652 | (h) | (1,745 | ) | |||||||||||||||
|
Profit after tax
|
5,195 | 2,838 | (611 | ) | (1,760 | ) | 5,662 | |||||||||||||||||
|
Profit attributable to minority
interests
|
624 | 44 | — | — | 668 | |||||||||||||||||||
|
Profit attributable to equity
holders of the parent
|
4,571 | 2,794 | (611 | ) | (1,760 | ) | 4,994 | |||||||||||||||||
| 5,195 | 2,838 | (611 | ) | (1,760 | ) | 5,662 | ||||||||||||||||||
|
Earnings per share data
(pence)
|
||||||||||||||||||||||||
|
— Basic
|
71.9 | 148.3 | 40.0 | |||||||||||||||||||||
|
— Diluted
|
69.8 | 147.6 | 39.3 | |||||||||||||||||||||
|
Number of shares
(million)
|
||||||||||||||||||||||||
|
Weighted average ordinary shares
|
6,357 | 1,883 | 12,472 | |||||||||||||||||||||
|
Weighted average dilutive shares
|
6,507 | 1,896 | 12,622 | |||||||||||||||||||||
| (1) | The financial information of ABN AMRO in this unaudited combined condensed income statement reflects the IFRS financial information for continuing operations presented in the financial statements for the year ended December 31, 2006 published by ABN AMRO within the ABN AMRO 2006 Form 20-F. Such information does not reflect any comments that the management of Barclays might make had they performed a detailed review. ABN AMRO financial statements have been reformatted to be consistent with Barclays line item presentation. |
| (2) | See Note 2 to the pro forma financial information. |
| (3) | See Note 3 to the pro forma financial information. |
151
Table of Contents
152
1.
Description of proposed combination and estimated pro forma
purchase price
•
Potential cost synergy, revenue benefits and associated
restructuring costs are not included within the pro forma
financial information;
•
Only costs which are expected to be directly incurred as part of
the proposed combination have been included within the pro forma
financial information;
•
The presentation currency of the combined group is pound
sterling as this is consistent with the presentation currency of
Barclays 2006
Form 20-F and the
Barclays Bank PLC 2006 combined Annual Report on
Form 20-F filed
with the SEC. The presentation currency of the combined group
will be euro should the proposed combination occur;
•
On April 22, 2007, the Barclays Board unanimously resolved
to make an exchange offer for 100% of ABN AMRO ordinary shares.
Payment would be in Barclays ordinary shares with 3.225 of
Barclays ordinary shares to be exchanged for each ordinary share
in ABN AMRO. Therefore, the estimated purchase price of the
proposed combination for pro forma purposes will be based on the
issue of 6,115 million Barclays ordinary shares;
•
The pro forma financial information reflects the purchase price
of the proposed combination to be £45,995m consisting of
Barclays ordinary shares and direct transaction costs;
•
The ABN AMRO income statement has been translated at a 2006
average exchange rate of 1.47
(€/£) and the ABN
AMRO balance sheet has been translated at the December 31,
2006 closing exchange rate of 1.49
(€/£) in line with
the exchange rates used in the published financial statements of
Barclays for the year ended December 31, 2006;
•
Fair value adjustments of financial assets and liabilities have
been made in line with publicly available information and are
amortised on a straight line basis over the appropriate maturity;
•
Remaining ABN AMRO employee share options will be exercised as
part of the combination at a weighted average strike price of
€19.35 per share;
•
The fair value of property, plant & equipment and other
non-financial instruments are not materially different to the
balance sheet carrying values disclosed in the ABN AMRO 2006
Form 20-F;
•
Calculation of goodwill is based on the closing price of
Barclays ordinary shares of £7.50 as listed on the LSE
Daily Official List on April 20, 2007;
•
The split of goodwill and intangible assets arising from the
proposed combination has been based on a ratio of 70 : 30 in
line with historical combinations within the financial services
industry;
•
Intangible assets have been amortised on a straight line basis
over the estimated useful economic life of 5 years; and
•
Different tax rates have been applied to individual adjustments
by reference to the nature of the adjustment.
Table of Contents
| £m | |||||||||
| Cash and other short-term funds | 18,715 | ||||||||
| Trading and financial assets designated at fair value | 71,897 | ||||||||
| Derivative financial instruments | 72,851 | ||||||||
| Loans and advances to banks | 16,358 | ||||||||
| Loans and advances to customers | 204,373 | ||||||||
| Available for sale financial investments | 63,900 | ||||||||
| Reverse repurchase agreements and cash collateral on securities borrowed | 134,017 | ||||||||
| Property, plant and equipment | 3,576 | ||||||||
| Other assets (including intangible assets) | 34,011 | ||||||||
| Total assets | 619,698 | ||||||||
| Deposits and items in the course of collection due to banks | 59,139 | ||||||||
| Customer accounts | 174,156 | ||||||||
| Trading and financial liabilities designated at fair value | 32,342 | ||||||||
| Liabilities to customers under investment contracts | 3,666 | ||||||||
| Derivative financial instruments | 69,442 | ||||||||
| Debt securities in issue | 121,606 | ||||||||
| Repurchase agreements and cash collateral on securities lent | 97,711 | ||||||||
| Insurance contract liabilities, including unit linked liabilities | 2,738 | ||||||||
| Subordinated liabilities | 9,109 | ||||||||
| Other liabilities | 21,645 | ||||||||
| Total liabilities | 591,554 | ||||||||
| Net Assets | 28,144 | ||||||||
| Estimated purchase consideration | 45,995 | ||||||||
| Less: Estimated fair value of net assets | 28,144 | ||||||||
|
Minority interests of ABN AMRO not
acquired
|
(1,343 | ) | |||||||
|
Estimated fair value of net assets
excluding minority interests
|
(26,801 | ) | |||||||
| Goodwill | 19,194 | ||||||||
153
Table of Contents
154
2.
Pre-acquisition
disposal
•
The potential transaction is subject to an offer condition that
prior to completion of the exchange offer, the LaSalle Agreement
has been completed in accordance with its terms, or a purchase
and sale agreement with another party with respect to the sale
of LaSalle has been completed in accordance with its terms.
•
The adjustment represents the effect of the disposal of LaSalle
and is based upon the consolidated IFRS balance sheet of LaSalle
as at December 31, 2006 published by ABN AMRO within the
ABN AMRO Unaudited Pro Forma Condensed Financial Statements,
filed by ABN AMRO with the SEC on a Current Report on
Form 6-K on
April 25, 2007.
•
A closing exchange rate of 1.49
(€/£) has been
used to convert the LaSalle balance sheet and an average
exchange rate of 1.47
(€/£) has been
used to convert the LaSalle income statement for presentational
purposes within the pro forma financial statements in line with
the exchange rates used in the published financial statements of
Barclays for the year ended December 31, 2006.
3.
Other adjustments
(a)
Cash outflows in respect of stamp duty and transaction costs;
and cash inflows in relation to the exercise of ABN AMRO
employee share options;
(b)
Adjustments required to fair value ABN AMRO financial assets and
liabilities. These adjustments are disclosed in ABN AMRO 2006
Form 20-F;
(c)
Removal of remaining existing goodwill, intangible assets and
related deferred tax assets in ABN AMRO (£6,725m) as
disclosed in ABN AMRO 2006
Form 20-F. The
recognition of estimated purchased goodwill and intangible
assets of £27,420m arising from the proposed combination
and the deferred tax asset (£109m) in relation to the
recognition of the post retirement employee benefit liabilities
at the balance sheet date (see adjustment (e) below);
(d)
Adjustment required to fair value ABN AMRO subordinated
liabilities at the balance sheet date; and
(e)
The present value of the ABN AMRO net post retirement employee
benefits obligations, and the deferred tax liability associated
with the recognition of intangible assets and fair value
adjustments to financial assets and liabilities. The net post
retirement employee benefits obligation adjustment is disclosed
in ABN AMRO 2006
Form 20-F.
(f)
Amortization of the fair value adjustment applied to the assets
and liabilities of ABN AMRO;
(g)
Removal of the amortization of existing intangible assets and
the amortization of the estimated purchased intangible assets
recognised as a result of the proposed combination; and
(h)
Current and deferred tax charges and credits relating to the
adjustments above at the tax rates appropriate to the nature of
such adjustments.
Table of Contents
4.
Post-combination effects on income statement
| 2006 | 2007 | 2008 | 2009 | 2010 | ||||||||||||||||
| £m | £m | £m | £m | £m | ||||||||||||||||
|
Amortization of fair value
adjustments on financial assets and liabilities
|
(1,145 | ) | (432 | ) | (432 | ) | (432 | ) | (431 | ) | ||||||||||
|
Amortization of purchased
intangible assets recognised as a result of the combination
|
(1,646 | ) | (1,645 | ) | (1,645 | ) | (1,645 | ) | (1,645 | ) | ||||||||||
|
Total amortization relating to
the proposed combination
|
(2,791 | ) | (2,077 | ) | (2,077 | ) | (2,077 | ) | (2,076 | ) | ||||||||||
| 5. | Unaudited comparative historical and pro forma earnings per share data |
| 2006 | ||||
| £m | ||||
|
Profit attributable to equity
holders of parent
|
4,994 | |||
|
Dilutive impact of convertible
options
|
(30 | ) | ||
|
Profit attributable to equity
holders of parent including dilutive impact of convertible
options
|
4,964 | |||
| (in millions) | ||||
|
Basic weighted average number of
shares in issue
|
6,357 | |||
|
Share issuance under proposed
combination
|
6,115 | |||
|
Basic weighted average number of
shares in issue following the proposed combination
|
12,472 | |||
|
Number of potential ordinary shares
|
150 | |||
|
Diluted weighted average number
of shares
|
12,622 | |||
155
Table of Contents
| 2006 | ||||
| £m | ||||
|
Profit attributable to equity
holders of parent
|
5,134 | |||
|
Dilutive impact of convertible
options
|
(21 | ) | ||
|
Profit attributable to equity
holders of parent including dilutive impact of convertible
options
|
5,113 | |||
| (in millions) | ||||
|
Basic weighted average number of
shares in issue
|
6,357 | |||
|
Share issuance under proposed
combination
|
6,115 | |||
|
Basic weighted average number of
shares in issue following the proposed combination
|
12,472 | |||
|
Number of potential ordinary shares
|
106 | |||
|
Diluted weighted average number
of shares
|
12,578 | |||
156
Table of Contents
| 2006 | |||||
| £m | |||||
|
Total pro forma profit
attributed to equity holders of the parent under IFRS
|
4,994 | ||||
|
US adjustments:
|
|||||
|
Goodwill
|
(8 | ) | |||
|
Intangible assets
|
(127 | ) | |||
|
Pensions
|
(267 | ) | |||
|
Post-retirement benefits
|
(17 | ) | |||
|
Leasing
|
(342 | ) | |||
|
Other compensation arrangements
|
66 | ||||
|
Insurance
|
(96 | ) | |||
|
Revaluation of property
|
85 | ||||
|
Hedging
|
655 | ||||
|
Financial instruments
|
(71 | ) | |||
|
Foreign exchange on available for
sale securities
|
320 | ||||
|
Fee and cost recognition
|
31 | ||||
|
Consolidation
|
(33 | ) | |||
|
Securitisation
|
(48 | ) | |||
|
Guarantees
|
(9 | ) | |||
|
Classification of debt and equity
|
58 | ||||
|
Loans held for sale
|
(11 | ) | |||
|
Non-financial instruments
|
1 | ||||
|
Disposal of foreign subsidiaries,
associates and joint ventures
|
(34 | ) | |||
|
Restructuring provisions
|
(109 | ) | |||
|
Other
|
43 | ||||
|
Tax effect of the above items
|
53 | ||||
|
Total pro forma net income
attributed to the parent company under US GAAP
|
5,134 | ||||
|
Pro forma combined basic
earnings per share
|
41.2 | ||||
|
Pro forma combined diluted
earnings per share
|
40.6 | ||||
157
Table of Contents
| 2006 | ||||
| £m | ||||
|
Total pro forma
shareholders’ equity excluding minority interests under
IFRS US adjustments:
|
65,627 | |||
|
Goodwill
|
533 | |||
|
Intangible assets
|
(694 | ) | ||
|
Pensions
|
324 | |||
|
Post-retirement benefits
|
(32 | ) | ||
|
Leasing
|
(342 | ) | ||
|
Compensation arrangements
|
176 | |||
|
Life assurance
|
(33 | ) | ||
|
Revaluation of property
|
(136 | ) | ||
|
Hedging
|
295 | |||
|
Financial instruments
|
(91 | ) | ||
|
Fee and cost recognition
|
62 | |||
|
Consolidation
|
9 | |||
|
Securitisation
|
307 | |||
|
Guarantees
|
(3 | ) | ||
|
Classification of debt and equity
|
179 | |||
|
Loans held for sale
|
(11 | ) | ||
|
Non-financial instruments
|
(3 | ) | ||
|
Tax effect of the above items
|
(307 | ) | ||
|
Total pro forma
shareholders’ equity excluding minority interests under US
GAAP
|
65,860 | |||
158
Table of Contents
| Year Ended | |||||
| December 31, | |||||
| 2006 | |||||
|
Barclays—
Historical
|
|||||
|
Historical per ordinary share:
|
|||||
|
Basic earnings per ordinary share
|
£ 0.72 | ||||
|
Dividend per ordinary share
|
£ 0.31 | ||||
|
Book value per share
|
£ 3.03 | ||||
|
ABN AMRO—
Historical
|
|||||
|
Historical per ordinary share:
|
|||||
|
Basic earnings per ordinary share
|
€2.50 | ||||
|
Dividend per ordinary share
|
€1.15 | ||||
|
Book value per share
|
€12.73 | ||||
|
Unaudited Pro Forma on a
combined basis per ordinary share
|
|||||
|
Unaudited pro forma on a combined
basis per ordinary share:
|
|||||
|
Basic earnings per ordinary share
|
€0.59 | ||||
|
Dividends declared per ordinary
share
|
€0.41 | ||||
|
Book value per share
|
€7.73 | ||||
|
Unaudited Pro Forma per ABN AMRO
Ordinary Share Equivalents
|
|||||
|
Unaudited pro forma per share of
ABN AMRO ordinary shares:
|
|||||
|
Basic earnings per ordinary share
|
€1.90 | ||||
|
Dividend per ordinary share
|
€1.31 | ||||
|
Book value per share
|
€24.93 | ||||
159
Table of Contents
| Barclays Ordinary Shares | ABN AMRO Ordinary Shares | |||||||
|
March 16, 2007
|
£6.825 | €27.29 | ||||||
|
April 20, 2007
|
£7.50 | €36.29 | ||||||
|
June [ l ],
2007
|
£[ l ] | €[ l ] | ||||||
| Barclays ADSs | ABN AMRO ADSs | |||||||
|
March 16, 2007
|
$ | 53.50 | $ | 36.24 | ||||
|
April 20, 2007
|
$ | 60.00 | $ | 49.29 | ||||
|
June
[ l ],
2007
|
$ | [ l ] | $ | [ l ] | ||||
| Barclays Ordinary Shares | ABN AMRO Equivalent per Share | |||||||
|
March 16, 2007
|
£6.825 | €32.13 | (a) | |||||
|
April 20, 2007
|
£7.50 | €35.65 | (b) | |||||
|
June
[ l ],
2007
|
£[ l ] | €[ l ] | (c) | |||||
| (a) | Based on the Barclays ordinary share closing price of £6.825 on March 16, 2007 and an exchange rate of £1.00 = €1.4597, as published by the Financial Times on March 17, 2007. The amount excludes the €0.60 ABN AMRO final 2006 dividend. |
| (b) | Based on the Barclays ordinary share closing price of £7.50 on April 20, 2007 and an exchange rate of £1.00 = €1.4739, as published by the Financial Times on April 21, 2007. The amount excludes the €0.60 ABN AMRO final 2006 dividend. |
| (c) | Based on the Barclays ordinary share closing price of £[ l ] on June [ l ], 2007 and the exchange rate of £1 = €[ l ], as published by [ l ] on June [ l ], 2007. The amount excludes the €0.60 ABN AMRO final 2006 dividend. |
| Barclays ADSs | ABN AMRO Equivalent per ADS | |||||||
|
March 16, 2007
|
$ | 53.50 | $ | 43.13(a | ) | |||
|
April 20, 2007
|
$ | 60.00 | $ | 48.38(a | ) | |||
|
June
[ l ],
2007
|
$ | [ l ] | $ | [ l ](a | ) | |||
| (a) | The amounts exclude the €0.60 ABN AMRO Final 2006 dividend. |
| Barclays Ordinary Shares | ABN AMRO Ordinary Shares | |||||||||||||||||||||||
| High | Low | Dividends | High | Low | Dividends | |||||||||||||||||||
|
2002
|
£6.24 | £3.55 | £0.1835 | €22.78 | €10.45 | €0.90 | ||||||||||||||||||
|
2003
|
£5.27 | £3.11 | £0.205 | €18.88 | €11.93 | €0.95 | ||||||||||||||||||
|
2004
|
£5.86 | £4.43 | £0.24 | €19.79 | €16.47 | €1.00 | ||||||||||||||||||
|
2005
|
£6.15 | £5.20 | £0.266 | €22.34 | €18.27 | €1.10 | ||||||||||||||||||
|
2006
|
£7.37 | £5.86 | £0.31 | €25.92 | €20.46 | €1.15 | ||||||||||||||||||
160
Table of Contents
| Barclays | ABN AMRO | |||||||||||||||
| Ordinary | Ordinary | |||||||||||||||
| Shares | Shares | |||||||||||||||
| High | Low | High | Low | |||||||||||||
|
First Quarter 2005
|
£6.14 | £5.41 | € | 21.40 | € | 18.80 | ||||||||||
|
Second Quarter 2005
|
£5.70 | £5.20 | € | 20.35 | € | 18.27 | ||||||||||
|
Third Quarter 2005
|
£5.90 | £5.49 | € | 21.24 | € | 19.14 | ||||||||||
|
Fourth Quarter 2005
|
£6.15 | £5.29 | € | 22.34 | € | 19.10 | ||||||||||
|
First Quarter 2006
|
£6.84 | £5.875 | € | 25.92 | € | 21.62 | ||||||||||
|
Second Quarter 2006
|
£7.01 | £5.88 | € | 24.98 | € | 20.56 | ||||||||||
|
Third Quarter 2006
|
£6.80 | £5.86 | € | 23.00 | € | 20.46 | ||||||||||
|
Fourth Quarter 2006
|
£7.37 | £6.76 | € | 24.72 | € | 22.53 | ||||||||||
|
First Quarter 2007
|
£7.90 | £6.735 | € | 32.75 | € | 24.20 | ||||||||||
|
December 2006
|
£7.37 | £6.76 | € | 24.72 | € | 22.53 | ||||||||||
|
January 2007
|
£7.68 | £7.40 | € | 25.06 | € | 24.20 | ||||||||||
|
February 2007
|
£7.90 | £7.40 | € | 27.94 | € | 24.66 | ||||||||||
|
March 2007
|
£7.58 | £6.735 | € | 32.75 | € | 26.34 | ||||||||||
|
April 2007
|
£7.56 | £7.125 | € | 36.75 | € | 32.10 | ||||||||||
|
May 2007
|
£7.445 | £7.12 | € | 36.70 | € | 34.78 | ||||||||||
|
June 2007 (through June
[ l ], 2007)
|
£[ l ] | £[ l ] | € | [ l ] | € | [ l ] | ||||||||||
| Barclays ADSs | ABN AMRO ADSs | |||||||||||||||||||||||
| High | Low | Dividends | High | Low | Dividends | |||||||||||||||||||
|
2002
|
$ | 36.80 | $ | 22.30 | $ | 1.16 | $ | 20.32 | $ | 10.54 | $ | 0.92 | ||||||||||||
|
2003
|
$ | 36.35 | $ | 20.60 | $ | 1.43 | $ | 23.48 | $ | 13.39 | $ | 1.09 | ||||||||||||
|
2004
|
$ | 45.68 | $ | 33.06 | $ | 1.80 | $ | 26.65 | $ | 19.67 | $ | 1.27 | ||||||||||||
|
2005
|
$ | 46.76 | $ | 37.57 | $ | 1.89 | $ | 27.86 | $ | 22.95 | $ | 1.34 | ||||||||||||
|
2006
|
$ | 58.38 | $ | 42.03 | $ | 2.41 | $ | 32.60 | $ | 25.57 | $ | 1.50 | ||||||||||||
| Barclays ADSs | ABN AMRO ADSs | |||||||||||||||
| High | Low | High | Low | |||||||||||||
|
First Quarter 2005
|
$ | 47.00 | $ | 40.50 | $ | 27.94 | $ | 24.21 | ||||||||
|
Second Quarter 2005
|
$ | 43.41 | $ | 37.80 | $ | 25.53 | $ | 23.16 | ||||||||
|
Third Quarter 2005
|
$ | 42.80 | $ | 38.27 | $ | 26.00 | $ | 23.30 | ||||||||
|
Fourth Quarter 2005
|
$ | 42.85 | $ | 37.159 | $ | 26.64 | $ | 22.7001 | ||||||||
|
First Quarter 2006
|
$ | 48.00 | $ | 41.80 | $ | 31.34 | $ | 26.15 | ||||||||
|
Second Quarter 2006
|
$ | 51.03 | $ | 43.20 | $ | 30.96 | $ | 25.56 | ||||||||
|
Third Quarter 2006
|
$ | 51.75 | $ | 42.90 | $ | 29.28 | $ | 25.43 | ||||||||
|
Fourth Quarter 2006
|
$ | 61.52 | $ | 51.02 | $ | 32.85 | $ | 28.76 | ||||||||
|
First Quarter 2007
|
$ | 62.68 | $ | 52.24 | $ | 44.06 | $ | 31.22 | ||||||||
|
December 2006
|
$ | 61.52 | $ | 53.27 | $ | 32.85 | $ | 29.91 | ||||||||
|
January 2007
|
$ | 60.56 | $ | 58.00 | $ | 32.95 | $ | 31.22 | ||||||||
|
February 2007
|
$ | 62.68 | $ | 58.22 | $ | 36.91 | $ | 31.90 | ||||||||
|
March 2007
|
$ | 59.98 | $ | 52.24 | $ | 44.06 | $ | 34.71 | ||||||||
|
April 2007
|
$ | 60.99 | $ | 56.69 | $ | 50.33 | $ | 42.73 | ||||||||
|
May 2007
|
$ | 59.86 | $ | 55.89 | $ | 50.19 | $ | 46.42 | ||||||||
|
June 2007 (through June
[ l ], 2007)
|
$ | [ l ] | $ | [ l ] | $ | [ l ] | $ | [ l ] | ||||||||
161
Table of Contents
| Year ended December 31, | Low | High | Average | Period End | ||||||||||||
|
2002
|
0.8594 | 1.0485 | 0.9495 | 1.0485 | ||||||||||||
|
2003
|
1.0361 | 1.2597 | 1.1411 | 1.2597 | ||||||||||||
|
2004
|
1.1801 | 1.3625 | 1.2478 | 1.3625 | ||||||||||||
|
2005
|
1.1667 | 1.3476 | 1.2400 | 1.1842 | ||||||||||||
|
2006
|
1.1860 | 1.3327 | 1.2661 | 1.3197 | ||||||||||||
|
2007 (through June
[ l ],
2007)
|
[ l ] | [ l ] | [ l ] | [ l ] | ||||||||||||
| Year ended December 31, | Low | High | Average | Period End | ||||||||||||
|
2002
|
1.4074 | 1.6095 | 1.5084 | 1.6095 | ||||||||||||
|
2003
|
1.5500 | 1.7842 | 1.6450 | 1.7842 | ||||||||||||
|
2004
|
1.7544 | 1.9482 | 1.8356 | 1.9160 | ||||||||||||
|
2005
|
1.7138 | 1.9292 | 1.8147 | 1.7188 | ||||||||||||
|
2006
|
1.7256 | 1.9794 | 1.8582 | 1.9586 | ||||||||||||
|
2007 (through June
[ l ],
2007)
|
[ l ] | [ l ] | [ l ] | [ l ] | ||||||||||||
| Month | Low | High | ||||||
|
December 2006
|
1.3073 | 1.3327 | ||||||
|
January 2007
|
1.2904 | 1.3286 | ||||||
|
February 2007
|
1.2933 | 1.3246 | ||||||
|
March 2007
|
1.3094 | 1.3374 | ||||||
|
April 2007
|
1.3363 | 1.3660 | ||||||
|
May 2007
|
1.3419 | 1.3616 | ||||||
|
June 2007 (through June
[ l ],
2007)
|
[ l ] | [ l ] | ||||||
| Month | Low | High | ||||||
|
December 2006
|
1.9458 | 1.9794 | ||||||
|
January 2007
|
1.9305 | 1.9847 | ||||||
|
February 2007
|
1.9443 | 1.9699 | ||||||
|
March 2007
|
1.9235 | 1.9694 | ||||||
|
April 2007
|
1.9608 | 2.0061 | ||||||
|
May 2007
|
1.9695 | 1.9993 | ||||||
|
June 2007 (through June
[ l ],
2007)
|
[ l ] | [ l ] | ||||||
162
Table of Contents
163
Table of Contents
164
Table of Contents
165
Table of Contents
166
Table of Contents
167
•
the information contained in the notice of meeting;
•
a statement that the record holders of Barclays ADRs at the
close of business on a specified record date will be entitled,
subject to any applicable provision of English law, to instruct
the Depositary as to the exercise of any voting rights
pertaining to the Barclays ordinary shares represented by their
Barclays ADSs; and
•
a brief explanation of how the record holders of Barclays ADRs
may give instructions, including an express indication that the
record holders of Barclays ADRs may instruct the Depositary to
give a discretionary proxy to a designated member or members of
the Barclays Board if no such instruction is received.
Table of Contents
168
•
Barclays does not wish the proxy to be given;
•
substantial opposition exists; or
•
the rights of holders of the Barclays ordinary shares may be
materially affected.
•
any meeting of holders of Barclays ordinary shares;
•
any adjourned meeting of holders of Barclays ordinary
shares; or
•
the taking of any action in respect of any cash or other
distributions or the offering of any rights in respect of,
Barclays ordinary shares.
Table of Contents
169
•
discontinue the registration of transfers of those Barclays ADRs;
•
suspend the distribution of dividends to holders of those
Barclays ADRs; and
•
not give any further notices or perform any further acts under
the Barclays Deposit Agreement, except those listed below, with
respect to those Barclays ADRs.
•
taxes, including issue or transfer taxes, U.K. stamp duty or
U.K. stamp duty reserve tax other than that payable on the issue
of Barclays ordinary shares to the custodian, and other
governmental charges;
•
any applicable share transfer or registration fees on deposits
or withdrawals of Barclays ordinary shares;
•
cable, telex, facsimile transmission and delivery charges which
the Deposit Agreement provides are at the expense of the holders
of Barclays ADRs or persons depositing or withdrawing Barclays
ordinary shares; or
•
expenses incurred or paid by the Depositary in conversion of
foreign currency into U.S. dollars.
Table of Contents
170
Table of Contents
•
the current rights of holders of ABN AMRO ordinary shares
under the laws of the Netherlands and ABN AMRO’s
articles of association; and
•
the rights that holders of ABN AMRO ordinary shares will have as
holders of Barclays ordinary shares under English law and
Barclays memorandum and articles of association upon the
completion of the exchange offer.
| Provisions applicable to | Provisions applicable to | |
| Holders of ABN AMRO Ordinary Shares | Holders of Barclays Ordinary Shares | |
| Share Capital | ||
| The authorized share capital of ABN AMRO amounts to €4,704,000,224 nominal value. ABN AMRO has three classes of shares, consisting of (i) four billion and four hundred ordinary shares, nominal value € 0.56 each, (ii) 4 billion underlying preference shares, nominal value € 0.56 each, subdivided into one series of 1.6 billion shares and six series of 400 million shares, and (iii) 100 million convertible shares, nominal value € 2.24 each, subdivided into one series of 20 million shares and eight series of 10 million shares. As of December 31, 2006, there were 1,853,786,791 ordinary shares (adjusted for treasury shares) 1,369,815,864 underlying preference shares and 44,998 convertible shares outstanding. | The authorized share capital of Barclays amounts to £2,500 million. Barclays has two classes of shares, ordinary shares and staff shares. There are 9,996 million ordinary shares of 25 pence each and 1 million staff shares of £1 each. As of December 31, 2006, there were 6,534,698,021 ordinary shares and options to purchase 346,547,000 Barclays ordinary shares and 875,000 staff shares, outstanding. | |
171
Table of Contents
| Provisions applicable to | Provisions applicable to | |
| Holders of ABN AMRO Ordinary Shares | Holders of Barclays Ordinary Shares | |
| Issuance of Shares | ||
| By resolution at the 2007 annual General Meeting of Shareholders and after approval of the ABN AMRO Supervisory Board, the ABN AMRO Managing Board may issue ordinary shares, underlying preference shares and convertible shares (or grant rights to take up such classes of shares), subject to maximum of 10% of the issued capital of ABN AMRO in issue as of April 26, 2007. Such authority of the ABN AMRO Managing Board is to be for a period of 18 months, starting April 27, 2007. In the event that the authority of the ABN AMRO Managing Board to issue shares of capital stock terminates, the issuance of shares of capital stock would require a resolution of the ABN AMRO Shareholders’ Meeting, upon a proposal of the Managing Board, which is subject to the prior approval of the ABN AMRO Supervisory Board. The ABN AMRO Managing Board is also currently authorized by the ABN AMRO Shareholders’ Meeting to restrict or exclude pre-emptive rights with respect to ordinary shares and convertible shares and the granting of rights to acquire such shares. Only holders of ordinary shares are entitled to pre-emptive rights. |
The Barclays articles of
association provide that Barclays may issue shares with
preferred, deferred or other rights or restrictions attached to
them. These rights or restrictions can be decided whether by way
of an ordinary resolution passed by the Barclays shareholders
or, failing such determination, by the Barclays Board. The Barclays articles of association provide that the directors can decide how to deal with any shares which have not been issued, provided they have appropriate shareholders’ authority and provided that pre-emptive rights, the articles of association and the rights attaching to any existing shares are complied with. At the 2007 annual general meeting held on April 26, 2007 the Barclays Board was authorized to allot securities up to an amount equal to approximately one-third of the issued ordinary share capital of Barclays as at February 27, 2007 (excluding treasury shares). The authorization is effective until the next Barclays annual general meeting in 2008 or July 26, 2008, if earlier, unless previously renewed, varied or revoked by the company in general meeting. The general meeting also authorized the Barclays Board to allot equity securities (or sell treasury shares) pursuant to a rights issue, or for cash up to an amount representing approximately 5% of the ordinary share capital of Barclays, without the need to first offer the shares to existing shareholders. The renewed authority would remain in force until the annual general meeting in 2008 or July 26, 2008, whichever is the earlier (unless previously renewed, varied or revoked by Barclays in general meeting). |
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| Provisions applicable to | Provisions applicable to | |
| Holders of ABN AMRO Ordinary Shares | Holders of Barclays Ordinary Shares | |
| Ordinary Shares | ||
| Holders of ordinary shares are entitled to one vote per ordinary share. | Holders of ordinary shares are entitled to one vote per ordinary share. | |
| Neither Dutch law nor the ABN AMRO articles of association limits the right of non-residents of the Netherlands to hold or vote ordinary shares. | If any sum remains unpaid in relation to a Barclays member’s holding, that member is not entitled to vote in relation to that holding unless the Barclays Board or Barclays determines otherwise. | |
| The holders of ordinary shares are entitled to dividends as declared by ABN AMRO. Cash dividends payable in euro on ordinary shares may be officially transferred from the Netherlands and converted into any other convertible currency. | The holders of ordinary shares are entitled to dividends at such times as may be declared by Barclays out of the profits available for distribution (see “— Dividends” below). | |
| Ordinary shares have certain pre-emptive rights. See “— Shareholders’ Pre-emptive Rights”, below. | Ordinary shares have certain pre-emptive rights (see “— Shareholders’ Pre-emptive Rights” below). | |
| Ordinary shares are issued in registered or bearer form. Ordinary shares in bearer form may be represented by a global certificate. Bearer shares are not issued share certificates. | Ordinary shares may be issued in certificated or uncertificated form. | |
| No share certificates are to be issued for registered ordinary shares. Holders of registered ordinary shares are entered in the shareholders’ register, which is maintained by ABN AMRO. In cases where the registered shares are held by a custodian, the shares may be registered in the name of a central depositary institution or a custodian linked to the central depositary institution on behalf of the shareholders. Nearly all ordinary shares are registered in the name of Euroclear Netherlands, the Dutch central depository institution. The shares may be held by individual shareholders through their securities accounts with a custodian linked to Euroclear Netherlands. These shares are held and transferred by book-entry. ABN AMRO pays any dividends to the custodian for the benefit of the applicable shareholders. |
Share certificates will be issued
in hard copy form under seal or the securities seal (or in the
case of shares on an overseas branch register, an official seal
for use in that territory) or signed by a director and company
secretary or two directors. Each certificate specifies the
number of shares and class of shares to which it relates, the
amount paid up and distinguishing numbers (if any) of the shares
to which it relates. No certificates will be issued representing
shares of more than one class. Barclays also permits the issue of shares of any class to be held in uncertificated form and transferred through computer based systems and procedures permitted by the Uncertificated Securities Regulations 1995 (SI 1995 No. 95/3272) (as modified and replaced) and the rules of the LSE (including CREST) (“Regulations”) in which case Barclays will not issue, and no person is entitled to receive, a certificate in respect of any share and at any time for so long as the title to that share is evidenced otherwise than by a certificate and transfers may be made other than by a written instrument. |
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| Provisions applicable to | Provisions applicable to | |
| Holders of ABN AMRO Ordinary Shares | Holders of Barclays Ordinary Shares | |
| At the request of a holder of registered ordinary shares that are not registered in the name of Euroclear Netherlands, ABN AMRO is required to provide an extract from the register of shareholders in the name of the holder. Transfer of such a registered share in the capital of ABN AMRO requires an instrument of transfer and, if ABN AMRO is not a party to the transfer, either a written acknowledgement by ABN AMRO or service of an instrument on ABN AMRO. The acknowledgement must be made in the instrument of transfer, either by a dated statement on the instrument of transfer or on a copy or extract thereof certified by a civil law notary or the transferor to be a true copy or extract of the instrument of transfer. Official service by an authorized Dutch process service provider of the instrument of transfer or of such copy or extract on ABN AMRO is considered to have the same effect as an acknowledgement by ABN AMRO of the transfer. |
Transfers of shares in
uncertificated form shall be made in accordance with the
Regulations and the facilities and requirements of the relevant
system (such as CREST) subject to any arrangements made by the
Barclays Board pursuant to the Barclays articles of
association. Instruments of transfer of shares in certificated form shall be executed by or on behalf of the transferor and the transferor will be deemed to remain the holder of the share until the name of the transferee is entered into the register of members of Barclays. In the case of an instrument of transfer executed by a recognized clearing house or nominee of a recognized clearing house or of a recognized investment exchange, the lodgement of a certificate for the shares being transferred will not be required unless certificates have been issued in respect of those shares. |
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| Rights of shareholders | ||
| The rights of shareholders derive from the ABN AMRO articles of association and Dutch law. Amendments to ABN AMRO’s articles of association must be proposed by the ABN AMRO Managing Board and are subject to the approval of the ABN AMRO Supervisory Board and a majority vote of the shareholders. |
The rights of shareholders set out
in this summary derive from the Barclays articles of association
and English law. Under the Companies Act, the Barclays shareholders have the power to amend the objects or purpose clause in the Barclays memorandum of association and any provision of the Barclays articles of association by special resolution, subject to, in the case of the objects clause, the rights of dissenting shareholders to apply to the courts to cancel the amendments. Under the Companies Act, the Barclays Board is not authorized to change the memorandum of association or the articles of association. The rights attached to any class of shares may be varied with the sanction of an extraordinary resolution passed at a separate meeting of holders of the shares of that class (see the section, “— Meetings of Classes of Shareholders”). Neither English law nor the Barclays memorandum and articles of association limits the rights of non-residents or foreign persons to hold or vote on Barclays ordinary shares other than the limitations that would generally apply to all Barclays shareholders. |
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| Provisions applicable to | Provisions applicable to | |
| Holders of ABN AMRO Ordinary Shares | Holders of Barclays Ordinary Shares | |
| Voting | ||
| Each ordinary share in the capital of ABN AMRO is entitled to one vote. Subject to certain exceptions provided for by law or in ABN AMRO’s articles of association, resolutions are passed by an absolute majority of the votes cast. |
Every member who is present in
person or represented at any general meeting of Barclays and who
is entitled to vote has one vote on a show of hands. On a poll,
every member who is present or represented has one vote for
every share held. If any sum remains unpaid in relation to a member’s shareholding, that member is not entitled to vote that share unless the Barclays Board otherwise determines. |
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| Meetings of shareholders | ||
| General Meetings of Shareholders shall be held in Amsterdam, The Hague, Rotterdam, Utrecht or Haarlemmermeer (Schiphol). Annual meetings must be held within six months of the end of the financial year. In addition, General Meetings of Shareholders shall be held as deemed necessary by the ABN AMRO Managing Board or ABN AMRO Supervisory Board and when required by law or ABN AMRO’s articles of association. | Barclays is required to hold a general meeting each year as its annual general meeting in addition to other meetings (called extraordinary general meetings) at such time and place as the directors think fit. The type of meeting is specified in the notice calling it. Not more than 15 months may elapse between the date of one annual general meeting and the next. | |
| General Meetings of Shareholders are convened by the ABN AMRO Managing Board or the ABN AMRO Supervisory Board or as determined by law. The convocation to the meeting, which takes place not later than 15 days prior to the day of the meeting, shall state the items to be discussed or indicate that shareholders may inspect such items at the ABN AMRO offices. Proposals relating to reducing the ABN AMRO share capital or amending ABN AMRO’s articles of association must be included in the convocation. Notices calling meetings must be published in at least one daily national newspaper and on the Official List of the Euronext. Each shareholder, each usufructuary or pledgee of shares holding voting rights, as well as each depositary receipt holder is entitled to attend the ABN AMRO Shareholders’ Meeting and to speak and, where applicable, to vote, either in person or by proxy granted in writing. |
General meetings of shareholders
may be convened by the Barclays Board at its direction, or on by
requisition of members in accordance with the statutes. In the case of an annual general meeting or a meeting for the passing of a special resolution (requiring the consent of a 75% majority) 21 clear days’ notice is required. In other cases 14 clear days’ notice is required. The notice must specify the place, the day and hour of the meeting, and the general nature of the business to be transacted. |
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| Provisions applicable to | Provisions applicable to | |
| Holders of ABN AMRO Ordinary Shares | Holders of Barclays Ordinary Shares | |
|
Voting at shareholders’
meetings is principally related to approval of the annual
accounts of ABN AMRO, the adoption of the proposed dividend
per ordinary share (See “Dividends” below) and
discharging the members of the ABN AMRO Managing Board and the
ABN AMRO Supervisory Board. In addition, the shareholders may
appoint the auditors that are required by law to be appointed.
However, if they do not, the ABN AMRO Supervisory Board must do
so. The shareholders of ABN AMRO also may resolve to:
(1) delegate the authority to the ABN AMRO Managing Board
to issue shares or to grant rights to acquire shares,
(2) delegate the authority to the ABN AMRO Managing Board
to restrict or exclude pre-emptive rights in respect of shares
issued pursuant to authority granted in clause (1),
(3) authorize the ABN AMRO Managing Board to engage in
repurchases of capital stock of ABN AMRO or (4) amend ABN
AMRO’s articles of association, but, in the case of
clause (4), only following a motion by the ABN AMRO
Managing Board that has been previously approved by the ABN AMRO
Supervisory Board. In addition, shareholders of ABN AMRO are entitled to appoint or, as the case may be, to reappoint the members of the ABN AMRO Managing Board and ABN AMRO Supervisory Board. |
Voting at shareholders’ annual
general meetings is principally related to the receipt of the
audited accounts of Barclays for each financial year, the re-
election or appointment of directors to the Board, and the
re-appointment or appointment of auditors. The shareholders of Barclays may also resolve to authorize the Barclays Board to allot shares, to restrict or exclude pre-emptive rights in respect of the shares issued, authorize the Barclays Board to engage in buy-backs of the Barclays shares or the amendment of the articles of association (see “Issuance of Shares” above). Subject as noted in the “— Voting” section above, all shareholders are entitled to attend and vote at general meetings. The articles of association do, however, provide that arrangements may be made for simultaneous attendance at a general meeting at a place other than that specified in the notice of meeting, in which case some shareholders may be excluded from the specified place. |
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| Provisions applicable to | Provisions applicable to | |
| Holders of ABN AMRO Ordinary Shares | Holders of Barclays Ordinary Shares | |
| Meetings of classes of shareholders | ||
| A General Meeting of Shareholders of ABN AMRO must be held once a year in Amsterdam, The Hague, Rotterdam, Utrecht or Haarlemmermeer (Schiphol) in the Netherlands, no later than by the month of June to, among other things, adopt the annual accounts of ABN AMRO. General Meetings of Shareholders may be convened by the ABN AMRO Managing Board, the ABN AMRO Supervisory Board and, in certain circumstances, if authorized by the president of the Amsterdam court, the holders of shares (including holders of DR Prefs evidencing ownership interests in underlying preference shares) representing at least 10% of the total outstanding share capital of ABN AMRO, upon at least 15 days’ prior notice that must be published in at least one nationally distributed daily newspaper and the Official Price List of the Euronext. There are no quorum requirements applicable to general meetings, although certain quorum requirements may apply to specific proposed actions. |
If the capital of Barclays is to be
divided into different classes of shares, the holders of any
class of shares have the power by extraordinary resolution
passed at a meeting of holders of that class of shares to
consent to: • the issue or creation of any shares ranking equally with the shares of that class, • the abandonment or alteration of any preference, privilege, priority or special right affecting the class of shares, • any scheme or reduction of capital prejudicially affecting the class of shares, compared with any other class, and not otherwise permitted under the articles of association, • any scheme for the distribution of assets in money or in kind on or before liquidation or any contract for the sale of the whole or part of the company, determining the manner in which, between the classes, the purchase consideration will be distributed, and • generally, any alteration, contract, compromise or arrangement which the persons voting on could consent to or enter into. Any meeting to vary the rights of any class of shares will be convened and conducted in the same way as an extraordinary general meeting of Barclays (see “— Voting” above). |
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| Provisions applicable to | Provisions applicable to | |
| Holders of ABN AMRO Ordinary Shares | Holders of Barclays Ordinary Shares | |
| Dividends | ||
| Subject to certain exceptions, dividends may only be paid out of profits, as set forth in the annual financial statements of ABN AMRO. Distributions may not be made if the distribution would reduce shareholders’ equity below the sum of the paid up and called up capital and the reserves required by Dutch law or the ABN AMRO articles of association. | Under English Law, dividends are payable on Barclays ordinary shares only out of the profits available for distribution, as determined in accordance with accounting principles generally accepted in the UK and by the Companies Act 1985. Barclays may in a general meeting declare dividends by ordinary resolution, but such dividend may not exceed the amount recommended by the directors. The directors may pay interim or final dividends if it appears they are justified by Barclays financial position. | |
| ABN AMRO’s policy on reserves and dividends is determined and can be amended by the ABN AMRO Supervisory Board, upon the proposal of the ABN AMRO Managing Board. |
The profits that are resolved to be
distributed in respect of any financial period are applied first
in payment of the fixed dividend of 20% per annum on the staff
shares and then in payment of dividends on the ordinary
shares. The directors may, with the approval of an ordinary resolution of Barclays shareholders, offer shareholders the right to choose to receive an allotment of new ordinary shares credited as fully paid instead of cash in respect of all or part of any dividend. Any dividend unclaimed after a period of twelve years from the date it became due for payment will be forfeited and reverts to Barclays. |
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| Provisions applicable to | Provisions applicable to | |
| Holders of ABN AMRO Ordinary Shares | Holders of Barclays Ordinary Shares | |
| Shareholders’ Pre-emptive Rights | ||
| Upon the issuance of ordinary shares or convertible shares, holders of ordinary shares have pre-emptive rights to subscribe for new issuances in proportion to their holdings. Notwithstanding the foregoing, holders of ordinary shares will not have pre-emptive rights in respect of (i) issuances of shares to employees of ABN AMRO or group companies and (ii) issuances of shares for non-cash consideration. Holders of ordinary shares also do not have pre-emptive rights in connection with the issuance of ordinary shares and convertible shares pursuant to the exercise of a right to subscribe for such shares, such as options and warrants, although the holders of ordinary shares do have pre-emptive rights in respect of the issuance of such options and warrants. |
Under the Companies Act, if
Barclays proposes to issue for cash: • equity securities (which are securities carrying a right to participate in dividends or capital beyond a specified amount), or • rights to subscribe for equity securities, they must be offered first to each person who holds equity securities on the same or more favorable terms in proportion to those securities which is as nearly as practicable equal in proportion to the nominal value of equity securities held by him or her to the aggregate issued equity securities. |
|
| The ABN AMRO Managing Board, subject to the approval of the ABN AMRO Supervisory Board, may be authorized by resolution of the ABN AMRO Shareholders’ Meeting to restrict or exclude pre-emptive rights with respect to the ordinary shares and convertible shares (and the granting of rights to acquire such shares) if the shareholders have delegated the authority to issue these shares (and these rights) to the ABN AMRO Managing Board. The authority of the ABN AMRO Managing Board to restrict or exclude pre-emption rights was recently renewed at the 2007 ABN AMRO Shareholders’ Meeting. | These pre-emption rights can be disapplied by a special resolution passed by the shareholders in a general meeting, either generally or specifically, for a maximum period not exceeding five years. Barclays usually partially disapplies the statutory pre-emption requirement on an annual basis. Broadly, this change permits the directors to make limited non pre- emptive issues and rights issues or open offers. At the Barclays AGM held on April 26, 2007, the directors were authorized to allot equity securities (or sell treasury shares) pursuant to a rights issue, or for cash up to an amount representing approximately 5% of the issued ordinary share capital of Barclays, without the need to first offer the shares to existing shareholders. | |
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| Provisions applicable to | Provisions applicable to | |
| Holders of ABN AMRO Ordinary Shares | Holders of Barclays Ordinary Shares | |
| Acquisition of its Own Shares | ||
| ABN AMRO may acquire fully paid-up shares of any class of its capital for a consideration, subject to certain provisions of Dutch law and ABN AMRO’s articles of association, if: (i) shareholders’ equity less the payment required to make the acquisition does not fall below the sum of paid-up and called up capital and any reserves required by Dutch law or ABN AMRO’s articles of association and (ii) ABN AMRO and its subsidiaries would thereafter not hold shares with an aggregate nominal value exceeding one-tenth of ABN AMRO’s issued share capital. Any shares held by ABN AMRO in its own capital may not be voted. |
Barclays may purchase its own
shares if the purchase is authorized by the memorandum and
articles of association. The Barclays articles provide that
subject to the rights attached to the existing shares, Barclays
can purchase any of its shares. At the Barclays AGM held on April 26, 2007, the shareholders approved a resolution authorizing Barclays to make market purchases (within the meaning of the Companies Act 1985) of up to 980,840,000 ordinary shares of 25 pence each in its capital and Barclays may hold such shares as treasury shares provided that: |
|
|
An acquisition by ABN AMRO of fully
paid-up shares of any class of its capital for a consideration
may be effected by the Managing Board, subject to the approval
of the Supervisory Board. Such acquisitions by ABN AMRO of
shares in its own capital require the ABN AMRO
Shareholders’ Meeting to grant the Managing Board the
authority to effect such acquisitions. This authority may apply
for a maximum period of 18 months and must specify the
number of shares that may be acquired, the manner in which the
shares may be acquired and the price limits within which shares
may be acquired. No authority is required for the acquisition by
ABN AMRO of shares in its own capital for the purpose of
transferring the shares to employees of ABN AMRO or any
subsidiary thereof pursuant to any arrangements applicable to
such employees, provided that the shares are included in the
price list of a stock exchange. Dutch law provides that an acquisition as above is not allowed when a financial year has lapsed more than six months and the annual accounts have not been approved and adopted. |
• the minimum
price which may be paid for each ordinary share is not less than
25 pence, • the maximum price (exclusive of expenses) which may be paid for each ordinary share is not more than the higher of (i) 105% of the average of the market values of the ordinary shares (as derived from the Official List of the UKLA) for the five business days immediately preceding the date on which the purchase is made, and (ii) that stipulated by Article 5(1) of the Buy-back and Stabilization Regulation (EC 2273/2003), and the authority conferred by this resolution expires on the date of the 2008 Barclays annual general meeting or, if earlier, 15 months from the date of passing the resolution (except in relation to any purchase of shares the contract of which was concluded before such date and which would or might be executed after that date). Under the Companies Act 1985, any share may be issued on terms that are at the option of Barclays or the holder of such share, redeemable. Barclays has no redeemable shares in issue. |
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| Capital Reduction | ||
| Upon a proposal of the Managing Board, subject to the approval of the Supervisory Board, the ABN AMRO Shareholders’ Meeting may resolve to reduce the issued share capital of ABN AMRO by a cancellation of shares or by a reduction of the nominal amount of the shares by amendment of ABN AMRO’s articles of association. The resolution of the ABN AMRO Shareholders’ Meeting requires a majority of at least two-thirds of the votes cast if less than half of the issued share capital is present or represented at the meeting. | Barclays may, by special resolution, reduce its share capital or any capital redemption reserve or any share premium account or any other undistributable reserve in any manner authorized by the statutes. | |
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| Provisions applicable to | Provisions applicable to | |
| Holders of ABN AMRO Ordinary Shares | Holders of Barclays Ordinary Shares | |
| Liquidation Rights | ||
| In the event of the dissolution and liquidation of ABN AMRO, the assets remaining after payment of all debts are to be distributed first, to the holders of the preference shares and the convertible shares on a pro rata basis, in an amount equal to all dividends accrued from the beginning of the most recent full financial year through to the date of payment, and then the nominal amount of the preference shares or the amount paid in on the convertible shares, respectively, and second, to the holders of ordinary shares on a pro rata basis. | In the event of any return of capital on liquidation the ordinary shares and the staff shares rank equally in proportion to the amounts paid up or credited as paid up on the shares of each class, except that in the event of a winding up of Barclays the holders of the staff shares are only entitled to participate in the surplus assets available for distribution up to the amount paid up on the staff shares plus 10%. | |
| Management and Supervision | ||
| ABN AMRO has a two-tier system of corporate governance, consisting of a Supervisory Board and a Managing Board. ABN AMRO is managed by the ABN AMRO Managing Board, consisting of (executive) managing directors, under the supervision of the ABN AMRO Supervisory Board consisting of (non-executive) supervisory directors. The ABN AMRO Supervisory Board is a separate body from the ABN AMRO Managing Board. | Under English law, Barclays is only required to have a single tier board. The Barclays Board is headed by a Chairman and has a majority of independent non- executive directors. The Barclays Board currently comprises the Chairman, 10 non-executive directors and five executive directors. | |
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| Provisions applicable to | Provisions applicable to | |
| Holders of ABN AMRO Ordinary Shares | Holders of Barclays Ordinary Shares | |
|
The ABN AMRO Managing Board is
responsible for ABN AMRO’s day to day management. The ABN AMRO Supervisory Board supervises the policy conducted by the ABN AMRO Managing Board, as well as ABN AMRO’s general course of affairs and its business. In addition, it assists management with advice. In performing their duties, the members of the ABN AMRO Supervisory Board are guided by the interests of ABN AMRO and the enterprise connected therewith. Certain powers are vested within the Supervisory Board, such as the approval of certain resolutions by the ABN AMRO Managing Board. In addition, after having been presented the annual accounts by the ABN AMRO Managing Board, the ABN AMRO Supervisory Board submits these annual accounts for adoption to the general meeting of shareholders. The ABN AMRO articles of association provide that the ABN AMRO Managing Board requires the approval from the ABN AMRO shareholders’ meeting for certain resolutions. |
The Barclays Board is responsible
to shareholders for creating and sustaining shareholder value
through the management of the Barclays group’s business. It
is also responsible for ensuring that management maintain a
system of internal control that provides assurance of effective
and efficient operations, internal financial controls and
compliance with law and regulation. The Barclays Board is the
decision-making body for all matters deemed material to the
group in strategic, financial and reputational terms. The Barclays Board has a formal schedule of matters reserved for its decision, including the approval of interim and final financial statements, significant changes in accounting policy and practice, the appointment or removal of directors or the company secretary, and changes to the Group’s capital expenditure. The Barclays Board can delegate any of its powers, authorities, discretions and functions to any committee or committees of one or more persons or to a wholly owned subsidiary. Unless the directors decide not to allow this, any committee can sub-delegate any of its powers, authorities, discretions and functions to sub-committees. Any such subsidiary or committee must comply with the regulations which may from time to time be imposed by the Barclays Board. The Barclays Board has delegated powers to the Board HR and Remuneration Committee, the Board Corporate Governance and Nominations Committee, the Board Audit Committee and the Board Risk Committee. Responsibility for the day to day management of the Group is delegated to the Group Chief executive, who is supported by the Group Executive Committee which he chairs. The Committee meets weekly to develop strategies and policies for recommendation to the Board and to implement approved strategy. The Barclays Board may also appoint any person to be the attorney or agent of Barclays with such powers, authorities, discretions and functions of attorneys. However, they cannot give an attorney any powers, authorities, discretions or functions which the directors do not have under the Barclays articles. |
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| Provisions applicable to | Provisions applicable to | |
| Holders of ABN AMRO Ordinary Shares | Holders of Barclays Ordinary Shares | |
| Board | ||
| Following the ABN AMRO articles of association, both the ABN AMRO Managing Board and the ABN AMRO Supervisory Board shall consist of at least five members. | Under the Barclays articles of association, Barclays must have a minimum of five directors (disregarding alternate directors). | |
| Appointment and election of Directors | ||
| Members of the ABN AMRO Managing Board are appointed by way of a resolution by the ABN AMRO Shareholders’ Meeting, to be adopted by more than 50% of the votes validly cast at the meeting, upon nomination by the ABN AMRO Supervisory Board. Such nomination shall be binding in the event that the nomination by the ABN AMRO Supervisory Board with respect to a vacant seat consists of a list of two or more candidates. | The shareholders of Barclays may, by passing an ordinary resolution, elect any eligible, willing person to be a director, either as an additional director or to fill a vacancy. | |
|
Members of the ABN AMRO Supervisory
Board shall be appointed by the ABN AMRO Shareholders’
Meeting upon nomination by the ABN AMRO Supervisory Board. Such
nomination shall be binding in the event that the nomination by
the ABN AMRO Supervisory Board with respect to a vacant seat
consists of a list of two or more candidates. Pursuant to the ABN AMRO articles of association, the authority to represent ABN AMRO shall either reside with two members of the Managing Board acting jointly, or with one member of the ABN AMRO Managing Board and one duly authorized signatory acting jointly. ABN AMRO may also be represented by authorized signatories, with due observance of any restrictions imposed upon their representative authority. The ABN AMRO Managing Board shall decide on their authority, their job title and the terms of appointment, on the understanding that the title of Senior Executive Vice President may only be granted in consultation with the Supervisory Board. |
Subject to the Barclays articles of
association, the directors can resolve to appoint any person to
be a director, either to fill a casual vacancy or as an
additional director. Any director appointed by the Barclays
Board will hold office only until the next annual general
meeting and shall then retire and will be eligible to stand for
election. Any director (other than an alternate director) can appoint any other person (including another director) to act in his place (called an “alternate director”). That appointment requires the approval of the Board, unless previously approved by directors or unless the appointee is another director of Barclays. |
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| Provisions applicable to | Provisions applicable to | |
| Holders of ABN AMRO Ordinary Shares | Holders of Barclays Ordinary Shares | |
| Retirement of Directors | ||
| The Barclays articles of association provide that at each annual general meeting, one-third of the directors (or, if their number is not a multiple of three, the number nearest to but not greater than one-third) must retire from office. The directors to retire at each annual general meeting will be those who have been longest in office. Unless they otherwise agree between themselves, as between the directors who became directors on the same day, or who were last re-elected directors on the same day, those who are due to retire will be determined by lot. | ||
| Removal of Directors | ||
|
The ABN AMRO Supervisory Board may
suspend members of the ABN AMRO Managing Board at any time. If
the shareholders’ meeting fails to reach a decision whether
the member should be dismissed within three months of the
suspension, the suspension shall be lifted. The shareholders may
resolve to suspend a ABN AMRO Supervisory Board member by
resolution adopted by more than 50% of the votes validly cast at
the shareholders’ meeting. The ABN AMRO Shareholders’ Meeting may resolve to (i) suspend or dismiss (without their consent) members of the Managing Board and Supervisory Board, other than pursuant to a recommendation of the Supervisory Board; and/or (ii) set aside the binding nomination right of the ABN AMRO Supervisory Board in relation to the appointment of new members of ABN AMRO’s boards and the right to then appoint new members of ABN AMRO’s boards that have not been nominated through a binding nomination by the supervisory board. |
Under the Companies Act 1985, the Barclays shareholders may remove any director without cause by ordinary resolution, irrespective of any provision in the articles of association or any service contract between Barclays and the director, provided special notice (which requires at least 21 clear days) has been given. In these situations, Barclays may be required, pursuant to the service contracts with the directors, to pay damages or compensation to the removed director. | |
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| Provisions applicable to | Provisions applicable to | |
| Holders of ABN AMRO Ordinary Shares | Holders of Barclays Ordinary Shares | |
| Directors’ liability | ||
|
Under Dutch law, members of the ABN
AMRO Managing Board and the ABN AMRO Supervisory Board have a
duty, determined on a case-by-case basis, to properly fulfill
their tasks as a managing or supervisory director. Under Dutch law, members of the ABN AMRO Managing Board and the ABN AMRO Supervisory Board are jointly and severally liable to ABN AMRO for failure to fulfill their duties properly. Members of either board may, in the event of ABN AMRO’s bankruptcy, be liable towards the trustee in bankruptcy for improper fulfillment of their duties. In certain circumstances, tort liability of members of the ABN AMRO Managing Board and members of the ABN AMRO Supervisory Board towards ABN AMRO’s shareholders or third parties such as contractors, may arise. Generally, members of the ABN AMRO Managing Board and members of the ABN AMRO Supervisory Board cannot be held liable by holders of ABN AMRO’s shareholders for damage sustained by ABN AMRO. |
Under English law, each of the Barclays directors has a fiduciary duty to act in Barclays best interests. The duty includes an obligation not to create an actual or potential conflict of interest between the director’s duty to Barclays and duties to any other person or his personal interests as well as an obligation to exercise his powers only in accordance with the memorandum and articles of Barclays and any applicable legislation. In addition, each of the Barclays directors is obligated under English law to exercise reasonable care and skill. | |
| Limitation on liability and indemnification | ||
| The provisions of Dutch law governing the liability of members of the ABN AMRO Managing Board and ABN AMRO Supervisory Board are mandatory. |
The Barclays articles of
association provide that, as far as the legislation allows,
every director, officer and auditor and every former director,
other former officer and former auditor will be indemnified out
of the assets of the company against any liability incurred by
them. English law provides that a company can indemnify a director against any liability except for: (i) indemnity against liability incurred by the director to the company or any associated company, (ii) any indemnity against any liability incurred by the director to pay a fine imposed in criminal proceedings or a sum payable to a regulatory authority by way of penalty in respect of non-compliance with any requirement of a regulatory nature, (iii) any indemnity against any liability incurred by the director in defending criminal proceedings brought by the company or the associated company in which judgment is given against him or in connection with an application under certain sections of the Companies Act (acquisition by shares by an innocent nominee and relief in the case of honest and reasonable conduct) in which the court refuses to grant him relief. |
|
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| Provisions applicable to | Provisions applicable to | |
| Holders of ABN AMRO Ordinary Shares | Holders of Barclays Ordinary Shares | |
| Class action suits and shareholder derivative suits | ||
| While the Dutch Civil Code does not specifically provide for class actions or derivative suits, Dutch law allows for certain procedures and actions that may result in, or be followed by an action for, liability of ABN AMRO or members of the ABN AMRO Managing Board or the ABN AMRO Supervisory Board vis-à-vis holders of ABN AMRO ordinary shares. These procedures and actions include the right of holders of shares (including holders of DR Prefs evidencing ownership interests in underlying preference shares) representing at least 10% of the total outstanding share capital of ABN AMRO, or holders of shares (including holders of DR Prefs evidencing ownership interests in underlying preference shares) holding at least €225,000 aggregate par value to request the Enterprise Chamber to institute an independent enquiry into the management and general course of business of ABN AMRO. |
While English law currently permits
a shareholder to initiate a lawsuit on behalf of the company
only in limited circumstances, the Companies Act 1985
permits a shareholder whose name is on the register of
shareholders of the company to apply for a court order: • when the company’s affairs are being or have been conducted in the manner unfairly prejudicial to the interests of all or some shareholders, including the shareholder making the claim, or • when any act or omission of the company is or would be so prejudicial. A court has wide discretion in granting relief, and may authorize civil proceedings to be brought in the name of the company by a shareholder on the terms that the court directs. Except in limited circumstances, English law does not generally permit class action lawsuits by shareholders on behalf of the company on behalf of other shareholders. Under provisions of the Companies Act 2006 which are coming into force in October 2007, a shareholder may bring a claim on behalf of Barclays in relation to an actual or proposed act or omission involving negligence, default, breach of duty or breach of trust by a director. Such a claim is referred to as a “derivative claim”, and may be brought against a director or another person. |
|
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| Provisions applicable to | Provisions applicable to | |
| Holders of ABN AMRO Ordinary Shares | Holders of Barclays Ordinary Shares | |
| Transactions with interested directors | ||
| Under the Dutch Corporate Governance Code, any situation in which ABN AMRO has a conflict of interest with one or more members of the ABN AMRO Managing Board or the ABN AMRO Supervisory Board must be promptly reported to the Chairman of the ABN AMRO Supervisory Board. The relevant directors must not take part in any deliberations about the contemplated transaction. Decisions to enter into transactions in which there are conflicts of interest with members of the ABN AMRO Managing Board or the ABN AMRO Supervisory Board that are of material significance to ABN AMRO and/or to such persons require the approval of the ABN AMRO Supervisory Board. | Under the rules of the UKLA, Barclays must obtain shareholder approval for certain transactions with related parties. The UKLA provides that an announcement, a circular and prior approval of the shareholders in general meeting will be required before such transaction is entered into. The related party will not be allowed to vote on the resolution. The Barclays articles of association provide that, if the legislation and the FSA allows, and provided the director discloses the nature of his interest, the director is permitted to (i) have an interest in any other contract with, or involving, Barclays or any other company in which Barclays may be interested, (ii) hold any other position (other than the office of auditor of Barclays or any other company in the Barclays group) with Barclays as well as being a director, (iii) acting alone or through a firm in which he is interested, do paid professional work for Barclays, and (iv) hold any position within, or be otherwise interested in any other company in which Barclays may be interested. | |
| In the event of a conflict of interest with one or more members of the ABN AMRO Managing Board, members of the ABN AMRO Supervisory Board will represent ABN AMRO the ABN AMRO shareholders’ meeting is at all times authorised to appoint another representative. If there is a transaction involving a conflict of interest with a member of the ABN AMRO Supervisory Board, members of the ABN AMRO Managing Board, if they are not conflicted, represent ABN AMRO. Lack of approval from the ABN AMRO Supervisory Board (as described above) does not invalidate any transaction with a bona fide third party. | Except as provided in the Barclays articles of association, a director cannot vote at any meeting of the Barclays Board in respect of any contract in which he has an interest which is a material interest. Interests as a result of interests in securities of Barclays are disregarded for these purposes. | |
| Amendment of articles of association | ||
| Any amendment of the ABN AMRO articles of association requires a resolution adopted by a majority of more than 50% of the votes validly cast in the General Meeting of Shareholders. Such resolution may only be passed by the General Meeting of Shareholders following a proposal by the Managing Board which has been approved by the ABN AMRO Supervisory Board. |
Under the Companies Act, the
Barclays shareholders have the power to amend the objects or
purpose clause in the company’s memorandum of association
and any provision of the company’s articles of association
by special resolution, subject to, in the case of the objects
clause, the rights of dissenting shareholders to apply to the
courts to cancel the amendments. Under the Companies Act, the Barclays Board is not authorized to change the memorandum of association or the articles of association. |
|
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189
•
Barclays 2006
Form 20-F;
•
Barclays Current Reports on
Form 6-K,
furnished to the SEC on May 31, 2007 and April 27,
2007;
•
ABN AMRO 2006 Form 20-F; and
•
ABN AMRO’s Current Report on
Form 6-K,
furnished to the SEC on April 26, 2007 (“ABN AMRO
reports full first quarter 2007 results”).
•
any annual reports filed under Section 13(a), 13(c) or
15(d) of the Exchange Act, as amended; and
•
any current reports furnished on
Form 6-K that
indicate that they are incorporated by reference in this
document.
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CLIFFORD CHANCE |
CLIFFORD CHANCE LLP ADVOCATEN SOLICITORS NOTARIS BELASTINGADVISEURS Date: 23 April 2007 |
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A-2
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A-3
1.
BARCLAYS PLC, a public limited liability company, duly
incorporated and validly existing under the laws of England,
having its registered office at 1 Churchill Place, Canary Wharf,
E14 5HP, London, United Kingdom (“Barclays”);
and
2.
ABN AMRO Holding N.V., a public limited liability
company, duly incorporated and validly existing under the laws
of The Netherlands, having its registered office at Gustav
Mahlerlaan 10, 1082 PP Amsterdam, The Netherlands (“ABN
AMRO”);
(A)
ABN AMRO has listings on Euronext Amsterdam, Euronext Brussels
and Euronext Paris (although the listing on Euronext Brussels is
expected to terminate effective on 26 April 2007 and the
listing on Euronext Paris shortly thereafter), and has listed
its Ordinary Shares and the American Depositary Shares
representing such Ordinary Shares (“ABN AMRO
ADSs”) on the New York Stock Exchange and, together
with its subsidiaries and group companies (together, the
“ABN AMRO Group”), operates as an international
banking group offering a wide range of banking products and
financial services on a global basis;
(B)
Barclays has listings on The London Stock Exchange and the Tokyo
Stock Exchange, and has listed its Barclays Shares and the
American Depositary Shares representing such Barclays Shares
(“Barclays ADSs”) on the New York Stock
Exchange, and is engaged in various activities in the financial
services and banking industry, including but not limited to
commercial banking, investment banking, stockbroking, asset
management and fund management;
(C)
At the date of this merger protocol (the “Merger
Protocol”), ABN AMRO’s issued share capital
amounts to EUR 1,804,813,305.12, divided into 1,852,885,086
ordinary shares with a nominal value of EUR 0.56 each (the
“Ordinary Shares”), 1,369,815,864 convertible
preference financing shares— for which depositary receipts
have been issued (the “DR Prefs”), with a
nominal value of EUR 0.56 each (the “Underlying
Preference Shares”) and 44,988 formerly convertible
preference shares with a nominal value of EUR 2.24 each (the
“Convertible Shares”, and together with the
Ordinary Shares, including the ABN AMRO ADSs and Ordinary Shares
represented thereby, and the Underlying Preference Shares, the
“ABN AMRO Shares”) with ABN AMRO and its
subsidiaries holding 83,962,430 Ordinary Shares (and no other
shares and depositary receipts of shares) (“Treasury
Stock”);
(D)
At the date of this Merger Protocol, ABN AMRO has rights
outstanding to subscribe for a maximum of 1,605,435 Ordinary
Shares pursuant to existing employee option schemes, share
incentive schemes and share ownership schemes (the
“Conversion Rights”);
(E)
Barclays and ABN AMRO intend to integrate their respective
businesses, and align their business strategies, drawing on the
best from both organizations. By combining their experience in
the financial services industry, Barclays and ABN AMRO believe
that their combined businesses will be able to improve services
to customers and to increase their global reach, delivering a
high level of customer satisfaction and employee engagement.
Considering their respective track records, Barclays and ABN
AMRO expect to be able to successfully grow and invest in their
businesses, in addition to delivering the anticipated benefits
of the integration thereof. In view of the above, Barclays and
ABN AMRO wish to merge their businesses to create a leading
financial services provider (the “Merger”);
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A-4
(F)
The Merger is to be effected through (i) a public offer or
offers to be made by Barclays into The Netherlands, the United
States and certain other jurisdictions to be determined in
accordance with the terms of this Merger Protocol, in accordance
with relevant laws and regulations to acquire all the issued and
outstanding Ordinary Shares, including all Ordinary Shares
represented by the ABN AMRO ADSs, in exchange for ordinary
shares in the share capital of Barclays with a nominal value of
25 pence each (the “Barclays Shares”),
including Barclays ADSs and Barclays Shares represented thereby,
and to acquire all the issued and outstanding Convertible Shares
of ABN AMRO against a consideration in cash, both as further
described in this Merger Protocol, (ii) a public offer or
offers, or other transaction or series of transactions to
acquire all the issued and outstanding DR Prefs against a
consideration in cash and/or securities to be issued by Barclays
(“Barclays Securities”), as further described
in this Merger Protocol (individually and collectively the
“Offer”), and (iii) implementation of the
transactions further described herein. The Parties will use a
newly Dutch incorporated unregulated company (“Subco
N.V.”) in the structure to hold shares in ABN AMRO
following consummation of the Offer;
(G)
The making of the Offer is subject to fulfilment or waiver of
the Pre-Offer Conditions set out in Schedule 1 and
the Offer will be subject to fulfilment or waiver of the Offer
Conditions set out in Schedule 2;
(H)
The Parties have signed a preliminary transaction agreement
dated 21 March 2007 (the “Preliminary Transaction
Agreement”);
(I)
At the date of this Merger Protocol, Barclays issued and
outstanding ordinary share capital comprises 6,542,555,046
Barclays Shares;
(J)
The Parties have informed the involved trade unions and the
relevant works councils in relation to the Offer. ABN AMRO and
Barclays have each taken all corporate actions necessary to
approve the execution of this Merger Protocol;
(K)
ABN AMRO’s management board (“Management
Board”) and ABN AMRO’s supervisory board
(“Supervisory Board”, and together with the
Management Board, the “ABN AMRO Boards”), have
decided to enter into this Merger Protocol and to unanimously
recommend the Offer to ABN AMRO’s shareholders and the
board of directors of Barclays (the “Barclays
Board”) has decided to enter into this Merger Protocol
and to unanimously recommend the Merger to Barclays shareholders;
(L)
The Management Board has received signed fairness opinions from
Morgan Stanley & Co. Limited and from UBS Limited in
connection with the Offer, copies of which have been provided to
Barclays, stating that the Ordinary Share Exchange Ratio is, in
the opinion of Morgan Stanley & Co. Limited and UBS Limited
respectively, fair from a financial point of view to the holders
of Ordinary Shares;
(M)
The Supervisory Board has received a signed fairness opinion
from Goldman Sachs in connection with the Offer, a copy of which
has been provided to Barclays, stating that the Ordinary Share
Exchange Ratio is, in the opinion of Goldman Sachs, fair from a
financial point of view to the holders of Ordinary Shares;
(N)
The Barclays Board has received external financial advice from
Citigroup Global Markets Limited, Credit Suisse Securities
(Europe) Limited, Deutsche Bank AG London Branch, JPMorgan
Cazenove Limited and Lazard & Co., Limited in order to
assist the Barclays Board in considering whether the Offer is in
the best interests of Barclays shareholders and should be
recommended. The recommendation of the Barclays Board to be
contained in the Class 1 Circular will refer to such
financial advice having been received;
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A-5
(O)
The Parties have agreed on a Merger which as set out in this
Merger Protocol reflects the mutual desire of the Parties to
align their business strategies, drawing on the best from both
organisations. The terms are intended to recognise the
importance of the heritage of each of the organisations and to
ensure continuity of each organisation’s traditions. The
Parties have determined that it is important in this context to
locate the head office of the combined organisation in Amsterdam
and to have a UK incorporated holding company. The Parties have
also resolved to achieve clarity as to the future governance and
management arrangements from the outset of the Merger; and
(P)
Barclays and ABN AMRO wish to lay down in this Merger Protocol
their agreement with respect to the Offer and the Merger,
subject to the terms and conditions set forth herein.
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A-6
1.
THE OFFER
1.1
Barclays undertakes to prepare and make the Offer, subject to
the terms and conditions of this Merger Protocol. The Parties
shall use their respective reasonable endeavours to ensure that
the Offer will be consummated as soon as possible following the
date of this Merger Protocol, subject to the terms and
conditions hereof and to applicable laws and regulations.
1.2
Upon the terms of this Merger Protocol and subject to the
Pre-Offer Conditions (as defined in Clause 5.1) and the
Offer Conditions (as defined in Clause 6.1), Barclays shall
be committed to offer:
(i)
3.225 Barclays Shares for each Ordinary Share (the
“Ordinary Share Exchange Ratio”) and 0.80625
Barclays ADSs for each ABN AMRO ADS (the “ADS Exchange
Ratio”), in each case tendered pursuant to the Offer
(Barclays Shares, including Barclays Shares represented by
Barclays ADSs, to be offered pursuant to the Offer, the
“Consideration Shares”);
(ii)
an amount to be determined by Barclays, consisting of cash
and/or Barclays Securities for each DR Pref tendered pursuant to
the Offer (the “DR Pref Consideration”); and
(iii)
an amount, in cash equal to EUR 27.65 for each Convertible Share
tendered pursuant to the Offer (the “Convertible Share
Consideration”);
provided that Barclays shall at any time be entitled, but,
subject to Clause 1.3 and applicable law, under no
obligation whatsoever, to increase the consideration offered
under any or all of the Ordinary Share Exchange Ratio, the DR
Pref Consideration or the Convertible Share Consideration. In
connection with the Offer, Barclays will only issue whole
Consideration Shares and whole Barclays Securities (if any)
forming part of the DR Pref Consideration.
1.3
The provisions of Schedule 5 shall apply to adjust
the Ordinary Share Exchange Ratio and the related ADS Exchange
Ratio, the DR Pref Consideration and Convertible Share
Consideration where a Party undertakes a Capital Raising or a
Capital Return (as such terms are defined in
Schedule 5). Any dispute in relation to determining
whether the Ordinary Share Exchange Ratio and the related ADS
Exchange Ratio, the DR Pref Consideration and Convertible Share
Consideration should be adjusted shall be settled by the Binding
Advisor by way of a binding advice (bindend advies) under
articles 7:900 Dutch Civil Code in accordance with the
Terms Binding Advisor as set forth in Schedule 7.
Either Party may refer in writing the dispute to the Binding
Advisor and request such settlement.
1.4
Without prejudice to any of the Offer Conditions, the Offer
shall be open for acceptance for a period of at least 20
(twenty) United States business days (as defined in
Rule 14d-1(g)
under the United States Securities Exchange Act of 1934, as
amended, (the “Exchange Act”), and the rules
and regulations thereunder or, if required by law in any other
jurisdiction in which the Offer is made, 30 calendar days.
For the purpose of this Merger Protocol, the closing date of the
Offer shall be the initial date on which the Offer closes for
acceptance (the “Closing Date”), unless
Barclays, after having duly consulted ABN AMRO and duly taken
into account all reasonable suggestions and representations made
by ABN AMRO and subject to Clause 6.6, decides to extend
the Offer, in which case the closing date shall be the last date
on which the extended Offer closes for acceptance (the
“Postponed Closing Date”). Subject to
applicable rules and regulations and subject to Clause 6.6
Barclays may determine, after having duly consulted ABN AMRO,
and duly taken into account all reasonable suggestions and
representations made by ABN AMRO, the duration of the initial
acceptance period, and of any extension thereof. In the event
that Barclays declares the Offer unconditional (gestand
doet), Barclays may, after having duly consulted ABN AMRO
and duly taken into account all reasonable suggestions and
representations made by ABN AMRO, and in accordance with market
practice
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A-7
and applicable rules and regulations, publicly announce a
post-acceptance period (na-aanmeldingstermijn) and accept
each Ordinary Share, Convertible Share or DR Pref, as the case
may be, that is tendered after the date on which the relevant
notice that Barclays will declare the Offer unconditional
(gestand doet) is published.
1.5
The Parties shall comply in all material respects with, and
shall procure that the Offer shall comply in all material
respects with, all applicable laws and regulations, including
but not limited to the applicable provisions of (i) the
Dutch Securities Supervision Act 1995 (Wet toezicht
effectenverkeer 1995; the “DSSA”),
(ii) the Dutch Financial Supervision Act (Wet financieel
toezicht, “DFSA”), (iii) the Dutch
Securities Supervision Decree (Besluit toezicht
effectenverkeer; the “DSSD”), (iv) the
Dutch Temporary Exemption Regulation Public Offers
(Tijdelijke Vrijstellingsregeling Overnamebiedingen),
(v) any rules and regulations promulgated pursuant to the
DSSA, DFSA and DSSD, (vi) the policy guidelines and
instructions of the Netherlands Authority for the Financial
Markets (Stichting Autoriteit Financiële Markten,
the “AFM”), (vii) the Securities Act, the
Exchange Act and, in each case, the rules and regulations
thereunder, (viii) the policy guidelines, instructions,
rules and requirements of the United Kingdom Financial
Securities Authority (“FSA”), (ix) the
Merger Code 2000 (SER-besluit Fusiegedragsregels 2000;
the “Merger Code”), (x) the Dutch Works
Council Act (Wet op de ondernemingsraden), (xi) the
rules and regulations of Euronext Amsterdam and, to the extent
relevant, Euronext Paris and Euronext Brussels, and the rules
and regulations of The London Stock Exchange, the New York Stock
Exchange and the Tokyo Stock Exchange, (xii) the Dutch
Civil Code (the “DCC”), (xiii) the United
Kingdom Financial Services and Markets Act 2000 and all
regulations, codes, rules and statutory instruments published or
enacted thereunder (the “FSMA”), (xiv) the
Hart-Scott-Rodino Antitrust Improvement Act of 1976, as amended,
and any regulations made thereunder (the “HSR
Act”), (xv) Council Regulation (EC) 139/2004
(the “EU Merger Regulation”) and (xvi) all
relevant laws, rules and regulations in other applicable
jurisdictions, including but not limited to the Netherlands, the
United Kingdom and the United States (collectively the
“Merger Rules”). The Parties acknowledge that
it is anticipated that following the execution of this Merger
Protocol, but before the Commencement Date, the laws, rules and
regulations applicable to the Offer pursuant to the DSSA, DFSA
and DSSD (together, the “Dutch Public Offer
Rules”) are expected to be amended in accordance with
(i) legislative proposals that also provide for certain
amendments to the DCC and that are now being considered by the
Upper House of Dutch Parliament (Eerste Kamer der Staten
Generaal) as well as (ii) certain rules and regulations
to be promulgated thereunder (together, the “New Dutch
Public Offer Rules”) and effectively to be replaced by
the New Dutch Public Offer Rules. Both Parties agree that where
the New Dutch Public Offer Rules deviate from the Dutch Public
Offer Rules, and there is discretion to apply either set of
rules to the Offer, Barclays acting reasonably and after having
duly consulted ABN AMRO and duly taken into account all
reasonable suggestions and representations made by ABN AMRO
shall determine which rule or rules shall be applied.
1.6
On the Commencement Date, Barclays shall make an offer document
(biedingsbericht) generally available in the Netherlands,
the United States and certain other jurisdictions in which the
Parties agree the Offer shall be extended (such document,
together with all amendments and supplements thereto the
“Offer Document”) and shall disseminate such
Offer Document in such jurisdictions in accordance with
applicable law in any other jurisdiction where the Offer is
made. The Parties agree that the Offer Document shall comply as
to form and substance with the requirements of the Merger Rules
and may include such additional information as the Parties
reasonably agree should be included in the document, such
agreement not to be unreasonably withheld or delayed and taking
into account the rights of Barclays and ABN AMRO under
Clause 1.14. The Offer Document shall be made available in
the English language with a summary in Dutch. The AFM will be
provided in a timely manner with, and may be asked, in
accordance with the Dutch Public Offer Rules, to confirm that
AFM has no further comments in relation to the Offer Document,
or to approve the Offer Document in accordance
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A-8
with the Dutch Temporary Exemption Regulation Public
Offers (Tijdelijke Vrijstellingsregeling
Overnamebiedingen) or the New Dutch Public Offer Rules, as
the case may be.
1.7
The Offer Document shall, amongst others, contain (i) a
full description of the envisaged transaction structure,
(ii) a description of the undertakings contained in
Clauses 3 and 7 and (iii) subject to and in accordance
with Clause 4, a positive unanimous recommendation by the
ABN AMRO Boards to the holders of ABN AMRO Shares to accept, to
tender their ABN AMRO Shares into, the Offer in exchange for the
Consideration Shares, the Convertible Share Consideration, or
the DR Pref Consideration, as the case may be and to vote in
favour of any resolutions proposed to the ABN AMRO
Shareholders’ Meeting in accordance with Clause 7.4.
1.8
Barclays will prepare a registration statement on
Form F-4, or other
applicable form (as it may be amended or supplemented, and
including any documents incorporated by reference or included
therein, the “Registration Statement”) and the
tender offer statement on Schedule TO or other applicable
schedule or form (as it may be amended or supplemented, the
“Schedule TO”), each to be filed by
Barclays with the SEC in connection with the Offer, which shall
contain the Offer Document, the Prospectus (as defined below),
and such other information and materials pursuant to which the
Offer will be made in the United States as are required by
applicable laws and regulations and may include such additional
information as the Parties reasonably agree should be included
in the document, such agreement not to be unreasonably withheld
or delayed and taking into account the rights of Barclays and
ABN AMRO under Clause 1.14. Barclays shall also arrange for
the filing of a Registration Statement on
Form F-6 (as it
may be amended or supplemented, and including any documents
incorporated by reference or included therein, the “ADS
Registration Statement”), registering Barclays ADSs
that may be offered to ABN AMRO ADS holders. Provided that the
Parties co-operate as required in Clause 1.12 and
Clause 1.13 and elsewhere in this Merger Protocol, Barclays
agrees to file the Registration Statement and Schedule TO
with the SEC, and to arrange for the filing of the ADS
Registration Statement and ABN AMRO agrees to file the
Schedule 14D-9, in
each case as promptly as reasonably practicable within the
period prescribed by the Exchange Act and rules and regulations
thereunder. Both Parties shall use their reasonable endeavours
to cause the Registration Statement to be declared effective
under the Securities Act as promptly as reasonably practicable
after filing thereof.
1.9
On the Commencement Date, Barclays shall disseminate and make a
prospectus generally available, as and to the extent permitted
by applicable law, in the Netherlands, the United States and
certain other jurisdictions as may be determined in accordance
with Clause 1.6 above in which the Offer can legally be
made to holders of ABN AMRO Shares, and shall disseminate such
prospectus in such jurisdictions in accordance with applicable
law. The prospectus shall relate to the issue, admission to
trading and listing of the Consideration Shares offered in
exchange for the relevant ABN AMRO Shares (such prospectus,
together with all amendments and supplements thereto the
“Prospectus”). The Parties agree that the
Prospectus shall comply as to form and substance with the
requirements of applicable English law, including the
legislation implementing Directive 2004/109/ EC and shall be
filed by Barclays with the FSA on or before the Commencement
Date. The Prospectus shall be made available in the English
language and translations of the summary section of the
Prospectus as required by relevant authorities of EU member
states other than the Netherlands (if any) into which the
Prospectus is made available will be provided in a timely
manner. The UKLA will be provided in a timely manner with, and
will be asked to approve the Prospectus and a circular prepared
pursuant to and in accordance with the Listing Rules of the UKLA
and the requirements of applicable English law (the
“Class 1 Circular”) and to provide a
certificate of approval of the Prospectus to the AFM and to the
competent authority in any other EU member state into which the
Offer is to be made for the purposes of “passporting”
the Prospectus in accordance with Articles 17 and 18 of
Directive 2003/71/ EC (the “Prospectus
Directive”) and section 87H to 87J of the FSMA.
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1.10
On the Commencement Date, Barclays shall send to its
shareholders the Class 1 Circular. The Class 1
Circular will contain an explanation of the Offer and its
effects on Barclays, a unanimous recommendation from the
directors of Barclays to vote in favour of the resolutions to be
proposed, and will also include a notice to convene an
extraordinary general meeting of its shareholders (the
“Barclays Shareholders’ Meeting”) at which
resolutions will be proposed to approve, inter alia:
(i) the Offer and the Merger and the measures to implement
it; (ii) the proposed appointments of the relevant
Nominated Individuals to the Board of Barclays, subject to and
with effect as of the time the Offer is declared unconditional;
and (iii) the increase of Barclays authorised share capital
and the issue of the Consideration Shares subject to the Offer
being declared unconditional.
1.11
ABN AMRO shall prepare and file the Solicitation/ Recommendation
Statement on
Schedule 14D-9 (as
amended or supplemented, the “Schedule 14D-9”)
with the SEC, and disseminate to holders of ABN AMRO Shares as
and to the extent required by applicable law, in connection with
the foregoing, which shall, among other things, set forth the
recommendation of the Boards as set out in Clause 4.1 and
may include such additional information as the Parties
reasonably agree should be included in the document, such
agreement not to be unreasonably withheld or delayed, and taking
into account the rights of Barclays and ABN AMRO under
Clause 1.14.
1.12
Each of the Parties agrees to cooperate in the preparation of
the Offer Document, Prospectus, Class 1 Circular,
Registration Statement, the ADS Registration Statement and
Schedule TO and to promptly furnish to the other Party, if
relevant for inclusion all information concerning it, its
respective subsidiary undertakings, directors, officers and
shareholders as may be required by applicable law in connection
with the foregoing sub-clauses or as reasonably agreed by the
Parties, such agreement not to be unreasonably withheld or
delayed, and taking into account the rights of Barclays and ABN
AMRO under Clause 1.14, and to provide, and cause its
respective directors, officers, employees, outside legal
counsel, accountants and financial advisors to provide promptly,
such customary assistance as may be reasonably requested by
either Party, in connection with the foregoing, including,
without limitation, providing legal opinions, disclosure
letters, comfort letters, consents, certifications, certificates
and other documents or information, in each case in form and
substance reasonably satisfactory to Barclays.
1.13
The substance of the information contained in the Offer
Document, the Prospectus, Class 1 Circular, the
Registration Statement, Schedule TO and
Schedule 14D-9,
respectively, shall at all times be equivalent, except as
required by applicable laws or regulations or for non-material
details. The Parties envisage that the process for preparation
of the various disclosure documents referred to in this Merger
Protocol will be as follows:
1.13.1
Initial drafts of the Offer Document, Prospectus, Class 1
Circular, Registration Statement, the ADS Registration Statement
and Schedule TO shall be prepared and circulated by
Barclays and its advisors. ABN AMRO shall be given a reasonable
opportunity to review and comment on the drafts of the Offer
Document, Prospectus, Class 1 Circular, Registration
Statement, the ADS Registration Statement and Schedule TO.
A number of drafting sessions shall take place, during which the
Parties and their advisors shall discuss and consider their
respective comments. In this process, Barclays will take into
account any reasonable suggestions or comments from ABN AMRO,
such suggestions or comments not to be unreasonably delayed.
1.13.2
An initial draft of
Schedule 14D-9
shall be prepared and circulated by ABN AMRO and its advisors.
Barclays shall be given a reasonable opportunity to review and
comment on the drafts of
Schedule 14D-9. A
number of drafting sessions shall take place, during which the
Parties and their advisors shall discuss and consider their
respective comments. In this process, ABN AMRO will take into
account any reasonable suggestions or
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comments from Barclays, such suggestions or comments not to be
unreasonably delayed.
1.13.3
The Parties will provide each other and their respective counsel
with (i) any comments or other communications, whether
written or oral, that a Party or its counsel (and, in the case
of communications from the UKLA, a Party’s sponsor or the
sponsor’s counsel) may receive from time to time from the
AFM, UKLA or SEC with respect to the Offer Document, Prospectus,
Class 1 Circular, Registration Statement, the ADS
Registration Statement, Schedule TO and
Schedule 14D-9, as
the case may be, or requests for additional information promptly
after receipt of those comments or other communications,
(ii) a reasonable opportunity to review and comment upon
the response of Barclays or ABN AMRO, as the case may be, to
those comments and (iii) an opportunity to participate with
the other Party or its counsel (or in the case of communications
from the UKLA, the other Party’s sponsor or the
sponsor’s counsel) in any discussions or meetings with the
AFM, UKLA or SEC, except for discussions with the AFM or UKLA
which are of minor significance.
1.14
Acknowledging that ABN AMRO shall have primary responsibility
for Schedule 14D-9
and Barclays and the members of its board of directors shall
have primary responsibility for the Offer Document, Prospectus,
Class 1 Circular, Registration Document, the ADS
Registration Statement and Schedule TO, (i) Barclays,
acting reasonably, shall nevertheless have the right to approve
those parts of
Schedule 14D-9
that relate to Barclays alone, such approval not to be
unreasonably withheld or delayed taking into account ABN
AMRO’s responsibility for the document, (ii) ABN AMRO,
acting reasonably, shall nevertheless have the right to approve
those parts of the Offer Document, Prospectus, Class 1
Circular, Registration Document, the ADS Registration Statement
and Schedule TO that relate to ABN AMRO alone, such
approval not to be unreasonably withheld or delayed taking into
account Barclays responsibility for these documents and
(iii) any information in Schedule 14D-9, the Offer
Document, Prospectus, Class 1 Circular, Registration
Document, the ADS Registration Statement and Schedule TO,
which does not relate to either Party alone, shall be approved
by both Parties, provided that neither Party shall unreasonably
withhold or delay such approval and, in relation to (i) to
(iii) (inclusive), it being understood that when a Party is
under an obligation under applicable laws and regulations to
make a public announcement or filing in relation to
Schedule 14D-9,
the Offer Document, Prospectus, Class 1 Circular,
Registration Document, the ADS Registration Statement or
Schedule TO, or to make any particular statement or
disclosure in any such document, and it has made reasonable
efforts to obtain the requisite approval of the other Party in
relation thereto, such Party shall be entitled to comply with
applicable laws and regulations without delay. For the avoidance
of doubt, ABN AMRO and Barclays shall not be responsible for the
fairness opinions as referred to in Recitals (L) and (M),
or the financial advice as referred to in Recital (N) or
any auditors’ statements to be included in the Offer
Document, the Prospectus, Class 1 Circular, Registration
Document, the ADS Registration Statement, Schedule TO and
Schedule 14D-9.
1.15
Each Party agrees that to the best of their knowledge,
information or belief, having taken all reasonable care to
ensure such is the case, none of the information supplied by it
for inclusion or incorporation by reference in:
(i)
each of the Offer Document, the Prospectus and the Class 1
Circular and any amendment or supplement thereto, if any, will,
at the date of mailing or availability thereof, include an
untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements, in light of the
circumstances under which they were made, not misleading;
(ii)
the registration statement or the ADS registration statement
will, at the time the registration statement or the ADS
registration statement and each amendment or supplement
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thereto, if any, become effective under the Securities Act,
contain an untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to
make the statements therein not misleading; and
(iii)
each of Schedule TO and
Schedule 14D-9
will, at the respective time of filing of Schedule TO,
Schedule 14D-9 and
any amendments or supplements to Schedule TO or
Schedule 14D-9, as
the case may be, contain an untrue statement of a material fact
or omit to state a material fact necessary in order to make the
statements made, in light of the circumstances under which they
were made, not misleading.
1.16
Each Party further agrees that if it becomes aware that any
information furnished by it would cause any of the statements in
the Offer Document, the Prospectus, the Class 1 Circular,
the Registration Statement, the ADS Registration Statement,
Schedule TO,
Schedule 14D-9,
any amendment or supplement thereto, or any other document
pursuant to which the Offer will be made in any jurisdiction, to
be false or misleading with respect to any material fact or to
omit to state any material fact necessary to make the statements
therein not false or misleading, in light of the circumstances
under which they were made, to promptly inform the other Party
thereof and to take all appropriate steps to correct the
relevant document or enable the other Party to do so, including
without limitation causing, or enabling the other Party to
cause, such documents, as so corrected, to be filed with the
relevant stock market authorities and governmental authorities
and, at such time as to be reasonably agreed by the Parties,
subject to Clause 1.14, disseminated or made generally
available, as and to the extent required by applicable law.
1.17
Barclays shall take all steps reasonably necessary to obtain
(i) a primary listing of the Consideration Shares on the
official list of the UKLA, with admission to trading on the
London Stock Exchange’s main market for listed securities,
and maintenance of the inclusion of Barclays Shares in the FTSE
100 Index with full weighting; (ii) a secondary listing on
Euronext Amsterdam and inclusion of the Consideration Shares in
the AEX Index and (iii) a listing of the Consideration
Shares, and any Barclays ADSs representing such Consideration
Shares, on the New York Stock Exchange, and a listing of the
Consideration Shares on the Tokyo Stock Exchange in observance
of all applicable listing requirements. ABN AMRO will provide
all reasonable assistance in respect of the steps referred to in
(i) to (iii) (inclusive).
1.18
Prior to the opening of the first trading day on Euronext
following the execution of this Merger Protocol (which shall
also be a trading day on The London Stock Exchange, the New York
Stock Exchange and the Tokyo Stock Exchange), a joint public
announcement of the Offer (the “Announcement”)
will be made available to (i) Euronext, (ii) the AFM,
(iii) the Social Economic Council (Sociaal Economische
Raad), (iv) the London Stock Exchange, the New York
Stock Exchange and the Tokyo Stock Exchange, (v) DNB, the
FSA, the SEC and other relevant regulatory authorities,
(vi) the relevant (international) press agents,
(vii) the relevant works councils and European works
councils and (viii) the relevant Dutch trade unions
involved with ABN AMRO, in each case by way of the press release
issued jointly by Barclays and ABN AMRO (which has been notified
to the AFM and of which the AFM has confirmed it has no further
comments), which will be filed with the SEC by Barclays and ABN
AMRO as required by, and otherwise comply with, the Securities
Act, the Exchange Act and, in each case, the rules and
regulations promulgated by the SEC thereunder and other
applicable law. A copy of the press release is attached hereto
as Schedule 6.
1.19
Barclays shall announce the details of the Offer and the
availability of the Offer Document, Class 1 Circular, and
the Prospectus in the official price list of Euronext Amsterdam
and in at least two daily newspapers with national circulation
in the Netherlands and shall announce the availability of the
registration statement, Schedule TO and the documents included
therein, in all editions of a daily newspaper with national
circulation in the United States, at all times in accordance
with the Merger Rules, which will be filed with the SEC by
Barclays and ABN AMRO
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as required by, and otherwise comply with, the Securities Act,
the Exchange Act and the rules and regulations thereunder and
other applicable law.
1.20
The Parties will co-operate in ensuring that all filings
required under Rules 165 and 425 promulgated by the SEC
under the Securities Act and
Rule 14d-2 and
Rule 14d-9
promulgated by the SEC under the Exchange Act are timely and
properly made.
1.21
The Parties will use their reasonable endeavours to work towards
launch of the Offer before 1 August 2007.
2.
RATIONALE FOR THE OFFER, DELISTING AND SQUEEZE OUT
2.1
Barclays and ABN AMRO intend to integrate their respective
businesses, and align their business strategies, drawing on the
best from both organizations. By combining their experience in
the financial services industry, Barclays and ABN AMRO believe
that their combined businesses will be able to improve services
to customers and to increase their global reach, delivering a
high level of customer satisfaction and employee engagement.
Considering their respective track records, Barclays and ABN
AMRO expect to be able successfully to grow and invest in their
businesses, as conducted from time to time, in addition to
delivering the anticipated benefits of the integration thereof.
In view of the above, Barclays and ABN AMRO wish to merge their
businesses to create a leading financial services provider.
2.2
ABN AMRO and Barclays acknowledge that it is their intention,
subject to applicable laws and regulations, to delist ABN AMRO
Shares from Euronext Amsterdam and all other stock exchanges on
which ABN AMRO Shares are listed as soon as possible after the
settlement of ABN AMRO Shares tendered in the acceptance period
and any post-acceptance period (na-aanmeldingstermijn)
referred to in Clause 1.4.
2.3
With reference to the strategic rationale of the Merger and the
benefits to be attained by the Merger, the Parties acknowledge
that it is desirable that Barclays acquires all ABN AMRO Shares,
including any ABN AMRO Shares that are not tendered in the
Offer. Such ABN AMRO Shares may be acquired pursuant to
compulsory buy-out procedures in accordance with article 2:92a
DCC (the “Statutory Squeeze Out”) or, subject
to implementation of the relevant provisions in Dutch law, the
takeover buy-out procedures in accordance with the proposed
article 2:359c DCC (the “Takeover Squeeze
Out”). Barclays also envisages that a cross-border
legal merger (grensoverschrijdende fusie) may take place,
in which ABN AMRO would be the disappearing entity, and as a
result of which holders of shares in the capital of ABN AMRO
would become shareholders of Barclays (the “Cross Border
Merger”). Alternatively any other legal means may be
effected in accordance with the laws of The Netherlands and
other applicable laws from time to time in order for Barclays to
acquire all the ABN AMRO Shares (such legal means, including but
not limited to the Cross Border Merger, the Statutory Squeeze
Out and the Takeover Squeeze Out, collectively the
“Post-Offer Actions”). Any Post-Offer Actions
will be structured and implemented, using reasonable endeavours,
in an efficient manner, both from an operational as well as a
legal and tax perspective, taking into account relevant
circumstances and applicable laws and regulations and will be
implemented without prejudice to Clause 3.1 and the
Parties’ obligations under Clause 3.2.
2.4
Following completion of the Offer, Barclays shall give due
regard to the interests and position of any minority
shareholders of ABN AMRO when structuring, pursuing and
implementing any Post-Offer Actions in relation to ABN AMRO and
otherwise in connection with the management of the business and
affairs of ABN AMRO. In doing so, Barclays shall at all times
act in accordance with applicable corporate governance best
practices, and obtain independent financial, legal and tax
advice, to the extent necessary or appropriate, and respect that
ABN AMRO will also act in accordance with corporate governance
best practices applicable to it.
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3.
BUSINESS STRATEGY AND FUTURE GOVERNANCE
3.1
Barclays and ABN AMRO hereby agree that following consummation
of the Offer:
(i)
Barclays will be the holding company of the Combined Group and
will have a United Kingdom-style unitary board operating in
accordance with United Kingdom governance principles and best
practice prevailing at the time and clear governance and
management structures;
(ii)
the Barclays Board will initially comprise 19
(nineteen) directors, including the Chairman, a Deputy
Chairman, the Chief Executive Officer, 4 (four) other
executive directors and twelve other non-executive directors;
(iii)
the board of directors of Subco N.V., will be as selected by
Barclays;
(iv)
the next Chairman of the Barclays Board and 7 (seven) other non
executive directors will be nominated by ABN AMRO, the next
Deputy Chairman will be nominated by Barclays and the next Chief
Executive Officer and 5 (five) non executive directors will
be nominated by Barclays each of them to be appointed with
effect from the time the Offer is declared unconditional;
(v)
the executive committee of Barclays will initially comprise
Huibert Boumeester (Group Chief Administrative Officer), Piero
Overmars (CEO Asia and Continental Europe, GRCB), Ron Teerlink
(COO Global Retail and Commercial Banking), Robert E. Diamond
(President, CEO Investment Banking and Investment Management),
Frits Seegers (CEO, Global Retail and Commercial Banking), Paul
Idzik (Chief Operating Officer), Chris Lucas (Group Finance
Director) and John Varley (Group Chief Executive).
(vi)
the Barclays Board will also have a nomination committee, an
audit committee and a remuneration committee which will perform
important functions under the governance arrangements of the
Barclays Board, and which will be chosen following a thorough
consultation process by the next Chairman of the Barclays Board
with the other individual members of the Barclays Board and the
members of each such committee will include non executive
directors with suitable experience and qualifications;
(vii)
the location of the registered office of Barclays will remain in
England and the head office of Barclays will be located in
Amsterdam, The Netherlands, which means that (i) the
majority of the members of the executive committee of Barclays
(i.e. the Group Chief Executive, the Group Finance Director, the
Chief Operating Officer, the Group Chief Administrative Officer
and the three executive officers responsible for global retail
and commercial banking) and the global head office of retail and
commercial banking will be based in The Netherlands,
(ii) the meetings of the executive committee of Barclays
will be held primarily in The Netherlands and (iii) the
heads, senior management and appropriate core staff of all
relevant group functions (including in any event Risk,
Compliance, Legal, Audit, Human Resources and Finance) will be
based in The Netherlands;
(viii)
the Barclays Shares, including the Consideration Shares, will
have (i) a primary listing on the London Stock
Exchange’s main market for listed securities, thereby
maintaining the inclusion of Barclays Shares in the FTSE 100
Index with full weighting and (ii) a secondary listing on
Eurolist by Euronext Amsterdam;
(ix)
Piero Overmars will be the Chairman of the Management Board and
chairman of the management board of ABN AMRO Bank N.V., and each
of the other members of the Management Board and the Supervisory
Board and the supervisory board and the management board of ABN
AMRO Bank N.V. will initially comprise members nominated by the
Barclays Board; and
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(x)
the board of directors of Barclays Bank PLC will initially
comprise members nominated by the Barclays Board.
3.2
Both Parties shall:
(i)
work constructively with both the DNB and the FSA regarding the
regulators’ arrangements for the appropriate regulation and
supervision of the Combined Group in accordance with the
decision of the DNB and the FSA that the FSA will be the lead
supervisor of the Combined Group and that the DNB and the FSA
will be the consolidated supervisors of the ABN AMRO Group and
the Barclays Group respectively and to seek a smooth integration
after completion of the Offer; and
(ii)
seek a ruling from both the Dutch and United Kingdom tax
authorities that Barclays will remain United Kingdom tax
resident following consummation of the Offer.
Both Parties shall take all reasonable steps to achieve the goal
referred to in Clause 3.2(ii) (the “Structuring
Action”). The Parties shall cooperate in making all
notifications, filings and applications, including without
limitation any applications for the Authorisations from the
Competent Authorities, that are necessary or agreed by the
Parties to be appropriate in connection with the matters
referred to in this Clause 3.2, and shall take the steps
required following the outcome of discussions with the Competent
Authorities pursuant to Clause 3.2(i) provided that neither
of the Parties shall be required to deviate from the
arrangements relating to the Combined Group’s head office
jointly proposed by the Parties to the Competent Authorities
prior to the entering into of this Merger Protocol.
3.3
The Parties shall take all steps reasonably necessary to ensure
that as of the time the Offer is declared unconditional, subject
to applicable law, (i) the individuals nominated pursuant
to Clause 3.1 (the “Nominated
Individuals”) are appointed to the Barclays Board and
the board of directors of Barclays Bank PLC, to the Management
Board and the Supervisory Board and to the management board and
supervisory board of ABN AMRO Bank N.V. (to the extent not
already a member thereof) and to the board of Subco N.V. it
being understood that individuals that currently are a member,
and will remain a member of the Barclays Board, the ABN AMRO
Boards, the board of directors of Barclays Bank PLC or the
management board or supervisory board of ABN AMRO Bank N.V. will
not be reappointed as part of the Offer and (ii) any other
existing members of those boards that will not remain a board
member following the Offer being declared unconditional will
resign. Nominations must be made no later than is reasonably
required to ensure prompt dispatch of the Offer Document and to
ensure timely regulatory approvals in respect of such
nominations.
3.4
Barclays agrees that it will indemnify any Nominated Individual
that is to become a member of the Barclays Board for any
damages, costs, liabilities or expenses incurred by any such
Nominated Individual that arise out of inaccuracies or material
misstatements in those parts of the Offer Document, Prospectus,
Class 1 Circular, Registration Statement, the ADS
Registration Statement, Schedule TO or
Schedule 14D-9 for
which such Nominated Individual is or was responsible solely in
his capacity as a proposed member of the Barclays Board with
respect to the period prior to such person becoming a director
of Barclays to the same extent as available to members of the
Barclays Board on the date thereof. The indemnity will provide
for reimbursement of damages, costs, liability and expenses
incurred by the relevant Nominated Individual in his capacity as
a proposed member of the Barclays Board, on the same terms and
to the same extent as is provided by Barclays to any other
member of the Barclays Board, whether by Barclays itself or by
way of any insurance cover put in place by Barclays for the
benefit of such persons.
3.5
ABN AMRO agrees that it will indemnify any Nominated Individual
that is to become a member of either of the ABN AMRO Boards for
any damages, costs, liabilities or expenses incurred by any such
Nominated Individual that arise out of inaccuracies or material
misstatements in
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those parts of the Offer Document, Prospectus, Class 1
Circular, Registration Statement, the ADS Registration
Statement, Schedule TO or
Schedule 14D-9 for
which such Nominated Individual is or was responsible solely in
his capacity as a proposed member of any of the ABN AMRO Boards
with respect to the period prior to such person becoming a
member of any of the ABN AMRO Boards to the same extent as
available to members of any of the ABN AMRO Boards on the date
thereof. The indemnity will provide for reimbursement of
damages, costs, liability and expenses incurred by the relevant
Nominated Individual in his capacity as a proposed member of any
of the ABN AMRO Boards, on the same terms and to the same extent
as is provided by ABN AMRO to any other members of the relevant
ABN AMRO Board, whether by ABN AMRO itself or by way of any
insurance cover put in place by ABN AMRO for the benefit of such
persons.
3.6
Barclays and ABN AMRO intend to make the integration as smooth
as possible. Therefore an integration planning committee, which
will comprise senior management from both Barclays and ABN AMRO,
will be established as soon as agreed between the Parties but in
any event before 30 May 2007. Subject to applicable law,
the integration planning committee will undertake preparatory
work and planning activities in relation to the integration of
the two businesses following completion of the Offer.
3.7
It is understood and agreed between the Parties that Barclays
(including its affiliates) confirms and agrees that, also after
the Settlement Date, it will respect and shall work within the
employee co- determination regulations (medezeggenschap)
as applied by ABN AMRO Group in accordance with applicable laws
and regulations as well as the covenant with the central works
council of ABN AMRO Group.
3.8
The name of the holding company of the Combined Group shall be
Barclays PLC. As soon as reasonable possible after completion of
the Offer, in public materials of Barclays, the ABN AMRO shield
logo shall be used alongside the Barclays name. The Parties will
cooperate to agree the branding of the businesses of the
Combined Group, taking into account the markets in which such
businesses operate and the interests of customers and other
stakeholders. The ABN AMRO shield logo will be incorporated into
business unit branding in due course consistent with the
branding approach described above.
4.
RECOMMENDATION
4.1
ABN AMRO confirms that, because the ABN AMRO Boards consider
that the Offer is in the best interest of ABN AMRO, the ABN AMRO
Boards have unanimously resolved to (i) approve the
entering into of this Merger Protocol and (ii) recommend
the Offer for acceptance to the shareholders of ABN AMRO in
exchange for the Consideration Shares, the Convertible Share
Consideration, or the DR Pref Consideration, as the case may be
and (iii) recommend that shareholders of ABN AMRO vote in
favour of the resolutions to be proposed at the ABN AMRO
Shareholders Meeting as described in Clause 7.4 below (the
“ABN AMRO Boards Recommendation”).
4.2
Subject to Clause 12.2 and the need to observe their
fiduciary duties, and act accordingly as contemplated in
Clause 14, none of the members of the ABN AMRO Boards shall
(i) withdraw, modify, amend or qualify the unanimous
recommendation by the ABN AMRO Boards as set out in
Clause 4.1 and shall not make any contradictory Public
Statements as to their position with respect to the Offer
(including without limitation by way of statements concerning
any Alternative Proposal relating to ABN AMRO, as defined in
Clause 11.2) or (ii) fail to announce or reaffirm
their unanimous recommendation in accordance with
Clause 12.2.5 or Clause 19.3 unless ABN AMRO or Barclays
has terminated this Merger Protocol in accordance with
Clause 13, Clause 14 or Clause 19. The sole
remedy for breach of this Clause 4.2 is set forth in
Clause 19.4 and 19.6.
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4.3
Barclays confirms that, because the Barclays Board considers
that the Merger is in the best interests of Barclays, the
Barclays Board has unanimously resolved to (i) approve the
entering into of this Merger Protocol and (ii) recommend
that shareholders of Barclays vote in favour of the resolutions
to be proposed at the Barclays Shareholders Meeting as described
in Clause 1.10 above (the “Barclays Board
Recommendation”).
4.4
Subject to the need to observe their fiduciary duties, and act
accordingly as contemplated in Clause 13, none of the
members of the Barclays Board shall (i) withdraw, modify,
amend or qualify the unanimous recommendation by the Barclays
Board as set out in Clause 4.3 and shall not make any
contradictory Public Statements as to their position with
respect to the Offer (including without limitation by way of
statements concerning any Proposal in relation to Barclays, as
defined in Clause 11.9) or (ii) fail to reaffirm its
unanimous recommendation in accordance with Clause 19.4,
unless Barclays or ABN AMRO has terminated this Merger Protocol
in accordance with Clause 13, Clause 14 or
Clause 19. The sole remedy for breach of this
Clause 4.4 is set forth in Clause 19.5 and 19.7.
4.5
The Parties agree that the Announcement, the Offer Document, the
Prospectus, the Class 1 Circular, the Registration
Statement, Schedule TO and
Schedule 14D-9
will state that the ABN AMRO Boards unanimously recommends the
Offer and that the Barclays Board unanimously recommend the
Offer, subject to such recommendations not having been withdrawn
in accordance with the terms of this Merger Protocol.
5.
PRE-OFFER CONDITIONS
5.1
Subject to compliance with the Merger Rules, Barclays shall make
the Offer (het bod uitbrengen), as soon as practicable
after the fulfilment or waiver by either or both Barclays or ABN
AMRO, as the case may be, of the conditions precedent set out in
Schedule 1 below (the “Pre-Offer
Conditions”), but no later than 10 (ten) Business
Days thereafter, such date being the “Commencement
Date”.
5.2
The Pre-Offer Conditions in Clauses 1.1, 1.2, 1.3, 1.5 (in
relation to (i) under the definition of Frustrating Action
and in relation to (ii) and (iii) under such
definition to the extent relating to any member of the ABN AMRO
Group), 1.6(i), 1.9, 1.10, 1.15, 1.17, 1.23, 1.27 and 1.28 of
Schedule 1 are for the benefit of Barclays and may
be waived by Barclays (either in whole or in part) at any time
by written notice to ABN AMRO. The Pre-Offer Conditions in
Clauses 1.4, 1.5 (in relation to (ii) and
(iii) under the definition of Frustrating Action to the
extent relating to any member of the Barclays Group), 1.6(ii),
1.11, 1.16, and 1.24 of Schedule 1 are for the
benefit of ABN AMRO and may be waived by ABN AMRO (either in
whole or in part) at any time by written notice to Barclays. The
Pre-Offer Conditions in Clauses 1.7, 1.8, 1.12, 1.13, 1.14,
1.18 to 1.22 (inclusive), 1.25 and 1.26 of
Schedule 1, are for the benefit of both Barclays and
ABN AMRO, and may be waived (either in whole or in part) by
either Party subject to agreement in writing from other Party
except that Barclays shall only require the agreement of ABN
AMRO to waive the Pre-Offer Conditions in Clauses 1.7 and
1.8 of Schedule 1 to the extent that the Pre-Offer
Conditions in question relate to requirements applicable to
members of the ABN AMRO Group or if the failure to fulfill the
Pre-Offer Conditions in question would reasonably be expected to
materially and adversely affect the ABN AMRO Group taken as a
whole or the achievement of the Parties’ objectives set
forth in Clause 3.1 and 3.2, and furthermore except that
Barclays and/or ABN AMRO shall have the ability to waive the
Pre-Offer Condition in Clause 1.26 in
Schedule 2 in accordance with their rights under
Clause 6.2 to waive the respective Offer Conditions set out
in Schedule 2 if any become incapable of
fulfilment). If any Pre-Offer Condition becomes permanently
incapable of fulfillment, and this is caused as a result of a
breach of this Merger Protocol (other than a non-intentional
(niet-opzettelijke) breach) by any Party for whose
benefit the Pre-Offer Condition is expressed to be agreed, such
Pre- Offer Condition shall be deemed to be waived by such Party,
whereupon the ability to waive or invoke such Pre-Offer
Condition shall pass to the other Party. The Parties will notify
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each other forthwith of any facts or circumstances that they
become aware might reasonably be expected to cause
non-fulfillment of any Pre-Offer Condition.
5.3
Subject to the provisions of this Merger Protocol, each of the
Parties undertakes to use its reasonable endeavours to procure
the fulfilment of the Pre-Offer Conditions as soon as reasonably
practicable. Without prejudice to the generality of the
foregoing and subject to the provisions of Clauses 8 and 9
below, each of the Parties will make the notifications, filings
or applications required by the Pre-Offer Conditions and will
use its best efforts to procure that all such information as is
reasonably requested by the relevant authorities in connection
with such applications and notifications is provided as promptly
as practicable.
5.4
In the event either Party considers that all Pre-Offer
Conditions have been fulfilled or waived, such Party shall give
written notice thereof to the other Party, stating that the
Pre-Offer Conditions that are for the sole or joint benefit of
such Party are fulfilled or have been waived. Unless the other
Party responds within 3 (three) Business Days in writing
stating, in detail and supported by documents where possible,
which of the Pre-Offer Conditions that are for the sole or joint
benefit of such Party has not been fulfilled or waived
(“Notice of Disagreement”), Barclays shall
within 10 (ten) Business Days from the first mentioned
notice proceed with the Offer as envisaged in Clause 5.1.
For the avoidance of doubt, there is no obligation for either
Party to confirm to the other Party that any Pre-Offer
Conditions that are for the sole or joint benefit of such Party,
are fulfilled (if such is, in its reasonable determination, not
the case) or will be waived (unless such Party expressly agrees
to do so).
5.5
In the event that Barclays waives any Pre-Offer Condition that
is for its sole benefit in accordance with the terms of this
Merger Protocol, Barclays may decide in its discretion to
include such Pre-Offer Condition in the Offer Conditions, as
appropriate. In such case, the relevant Offer Condition shall be
for the benefit of Barclays. In the event that ABN AMRO waives
any Pre-Offer Condition that is for its sole benefit in
accordance with the terms of this Merger Protocol, ABN AMRO may
decide in its discretion to include such Pre-Offer Condition in
the Offer Conditions, as appropriate. In such case, the relevant
Offer Condition shall be for the benefit of ABN AMRO. In the
event that the Parties jointly waive any Pre-Offer Condition
that is for their joint benefit in accordance with the terms of
this Merger Protocol, the Parties may decide to include such
Pre-Offer Condition in the Offer Conditions, as appropriate. In
such case, the relevant Offer Condition shall be for the benefit
of both Parties.
5.6
If a Party has sent a Notice of Disagreement to the other Party
in accordance with Clause 5.4, the other Party shall reply
within 3 (three) Business Days in writing thereto stating,
in detail and supported by documents where possible, the reasons
why the Pre-Offer Conditions identified by the other Party have
been fulfilled or waived (“Counter-Notice of
Disagreement”). Either Party shall be entitled upon
lapse of 6 (six) Business Days from the Notice of
Disagreement to submit the dispute in writing, with copy to the
other Party, to a binding advisor to be agreed upon between the
Parties within 2 (two) weeks after signing of this
Merger Protocol (“Binding Advisor”) who shall
settle the matter by way of a binding advice (bindend
advies) under articles 7:900 and further of the Dutch Civil
Code and in accordance with the Terms Binding Advisor as set
forth in Schedule 7 (“Binding
Advice”). If the agreed Binding Advisor is not
available to act as Binding Advisor or if the Parties fail to
reach agreement on the identity of the Binding Advisor within 2
(two) weeks after signing of this Merger Protocol, the
President of the London Court of International Arbitration
(“LCIA”) shall appoint a Binding Advisor. The
Binding Advisor shall decide as binding advisor, not as
arbitrator. The Parties shall fully cooperate with the Binding
Advisor and shall provide him promptly with all information that
he reasonably requires. The Binding Advice shall be rendered
within 10 (ten) Business Days after the dispute having been
referred to the Binding Advisor or such shorter or longer time
as the Parties agree, such agreement not to be unreasonably
withheld or delayed. If agreed by the Parties to be appropriate
due to the relevant circumstances, the Parties agree to
accelerate the process set out in this Clause 5.6 in order
to resolve the issue as quickly as possible. The
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Binding Advice shall be final and binding upon the Parties and
each of Barclays and ABN AMRO shall fully comply with the
Binding Advice and the content thereof. Barclays and ABN AMRO
shall each pay one half of the Binding Advisor’s costs or
as the Binding Advisor may determine.
5.7
If in relation to a dispute on the fulfilment or waiver of the
Pre-Offer Condition in Clause 1.3 of Schedule 1
(no ABN AMRO Material Adverse Change), the Binding
Advisor has not reached a decision within 10 (ten) Business
Days after the dispute having been referred to the Binding
Advisor or such shorter or longer time as agreed by the Parties,
then an ABN AMRO Event shall be deemed to constitute an ABN AMRO
Material Adverse Change if the event or circumstance has the
effect of a fall in the ABN AMRO Ordinary Share price as
reported on Eurolist by Euronext Amsterdam N.V. of at least
20 percentage points relative to the movement of the MSCI
EUROPE/ Banks Index (a “Material
Decrease”). This Clause applies mutatis mutandis
to a dispute on the fulfilment or waiver of the Pre-Offer
Condition in Clause 1.4 of Schedule 1 (no
Barclays Material Adverse Change) in relation to a Barclays
Event, whereby for such purpose the share prices of Barclays
Shares as reported on the Official List of the London Stock
Exchange shall be taken into account and compared to the
remainder of MSCI EUROPE/ Banks Index. For the avoidance of
doubt, this Clause shall not prejudice or influence in any way
the ability of the Binding Advisor to conclude that there is an
ABN AMRO Material Adverse Change or Barclays Material Adverse
Change, as the case may be for whatever reason the Binding
Advisor may deem appropriate. Equally, without prejudice to the
above provisions, this Clause shall not prejudice or influence
the ability of Barclays or ABN AMRO to assert that there has
been a ABN AMRO Material Adverse Change or Barclays Material
Adverse Change in the absence of a Material Decrease.
6.
OFFER CONDITIONS
6.1
The obligation of Barclays to declare the Offer unconditional
(gestand te doen) shall be subject to the conditions
precedent (the “Offer Conditions”) set out in
Schedule 2 being fulfilled or waived, as the case
may be, as of the Closing Date, or the Postponed Closing Date.
6.2
The Offer Conditions in Clauses 1.1, 1.2, 1.3, 1.5, (in
relation to (i) under the definition of Frustrating Action
and in relation to (ii) and (iii) under such
definition to the extent relating to any member of the ABN AMRO
Group), 1.6(i), 1.11, 1.17 and 1.20 of Schedule 2
are for the benefit of Barclays and may be waived by Barclays
(either in whole or in part) at any time by written notice to
ABN AMRO. The Offer Conditions in Clauses 1.4, 1.5 (in
relation to (ii) and (iii) under the definition of
Frustrating Action to the extent relating to any member of the
Barclays Group), 1.6(ii) and 1.18 of Schedule 2 are
for the benefit of ABN AMRO and may be waived by ABN AMRO
(either in whole or in part) at any time by written notice to
Barclays. The Offer Conditions in Clauses 1.7 to 1.10
(inclusive), 1.12 to 1.16 (inclusive) and 1.19 of
Schedule 2 are for the benefit of both Barclays and
ABN AMRO, and may be waived (either in whole or in part) by
either Party subject to agreement in writing from the other
Party (except that Barclays shall only require the agreement of
ABN AMRO to waive the Offer Conditions in Clauses 1.7 or
1.8 of Schedule 2 to the extent that the Offer
Conditions in question relate to requirements applicable to
members of the ABN AMRO Group or if the failure to fulfill the
Offer Conditions in question would reasonably be expected to
materially and adversely affect the ABN AMRO Group taken as a
whole or the achievement of the Parties’ objectives set
forth in Clause 3.1 and 3.2). If any Offer Condition
becomes permanently incapable of fulfillment and this is caused
as a result of a breach of this Merger Protocol (other than a
non-intentional (niet-opzettelijke) breach by a Party for
whose benefit the Offer Condition is expressed to be agreed,
such Offer Condition shall be deemed to be waived by such Party
by written notice from the other Party whereupon the ability to
waive such Offer Condition shall pass to that other Party. The
Parties will notify each other forthwith of any facts or
circumstances which they become aware might reasonably be
expected to cause non-fulfillment of any Offer Condition.
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6.3
Subject to the provisions of this Merger Protocol, each of the
Parties undertakes to use its reasonable endeavours to procure
the fulfilment of the Offer Conditions as soon as reasonably
practicable. Without prejudice to the generality of the
foregoing and subject to the provisions of Clauses 8 and 9
below, each of the Parties will to the extent not completed in
accordance with Clause 5.3 make the notifications, filings
or applications required by the Offer Conditions and will use
its best efforts to procure that all such information as is
reasonably requested by the relevant Competent Authorities in
connection with such applications and notifications is provided
as promptly as practicable.
6.4
A waiver by Barclays of the Offer Condition in 1.1 of
Schedule 2 (Minimum Acceptance Conditions)
will require approval of the Supervisory Board in the event the
tendered ABN AMRO Shares, together with the ABN AMRO Shares
already held by Barclays at the Closing Date, or, as the case
may be, at the Postponed Closing Date would represent less than
50% (fifty per cent.) plus one of the voting rights represented
by ABN AMRO’s issued and outstanding share capital and
would represent less than 50% (fifty per cent.) plus one of the
Ordinary Shares in ABN AMRO’s issued and outstanding
ordinary share capital (excluding any Ordinary Shares held by
ABN AMRO or its subsidiaries).
6.5
Delivery of the tendered ABN AMRO Shares will take place against
delivery of the Consideration Shares, the Convertible Share
Consideration, or the DR Pref Consideration, as the case may be,
subject to the Offer having been declared unconditional
(gestand gedaan). The Offer may be structured such that
settlement of the Offer may take place in two stages, under
which first delivery of the ABN AMRO Shares takes place against
delivery of some other securities, which securities, upon
delivery, are immediately as a second stage delivered against
delivery of the Consideration Shares, Convertible Share
Consideration or the DR Pref Consideration, as the case may be.
Settlement is expected to occur on the date which is the fifth
Business Day after the Offer has been declared unconditional
(gestand gedaan). The date on which Settlement will take
place shall be the “Settlement Date”. Delivery
of ABN AMRO Shares tendered in any post-acceptance period
(na-aanmeldingstermijn) will take place subject to the
terms of any post-acceptance period, but no later than the fifth
Business Day after the results of the post-acceptance period
have been publicly announced.
6.6
If any of the Offer Conditions set out under 1.7 to 1.8 in
Schedule 2 (Regulatory Approvals and Consents) is
not fulfilled by the Closing Date, and all other Offer
Conditions have been fulfilled or duly waived by Barclays,
Barclays shall, to the extent it is permitted by applicable law
and regulations, extend the acceptance period with a period that
shall be reasonably determined by Barclays, taking into account
applicable laws and regulations and after having duly consulted
ABN AMRO and taken into account all reasonable suggestions and
representations made by ABN AMRO.
6.7
In the event either Party considers that all Offer Conditions
have been fulfilled or waived on the Closing Date or the
Postponed Closing Date, such Party shall give written notice
(also by fax and email) thereof to the other Party as soon as
possible on the Closing Date or the Postponed Closing Date. Such
written notice shall be sent simultaneously (also by fax and
email) to the Binding Advisor. The other Party may respond no
later than the following Business Day before midday Amsterdam
time in writing (also by fax and email) stating, in detail and
supported by documents where possible, which of the Offer
Conditions that are for the sole or joint benefit of such Party
has not been fulfilled or waived (Notice of Disagreement). The
Notice of Disagreement shall be sent simultaneously (also by fax
and email) to the Binding Advisor. Should the other Party not
respond within such time, Barclays shall declare the Offer
unconditional.
6.8
Parties shall be prepared to hold a conference with the Binding
Advisor on the same day as the day on which the Notice of
Disagreement has to be submitted or at any other time if so
requested by the Binding Advisor. The Binding Advisor shall
settle the matter by way of a binding advice (bindend
advies) under articles 7:900 and further of the Dutch Civil
Code and in
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accordance with the Terms of Binding Advisor as set forth in
Schedule 7. The Binding Advisor shall decide as
binding advisor, not as arbitrator. The Parties shall fully
cooperate with the Binding Advisor and shall provide him
promptly with all information, which he reasonably requires. The
Binding Advice shall be rendered as soon as possible after the
dispute has been referred to the Binding Advisor and in any
event no later than midday Amsterdam time on the Business Day
before the last date on which Barclays is permitted under
applicable law to announce whether or not it extends the Offer
or, in case Barclays has not extended the Offer, midday
Amsterdam time on the Business Day before the last date on which
Barclays is permitted to announce whether or not it declares the
Offer unconditional (gestand doen). The Binding Advice
shall be final and binding upon the Parties and each of Barclays
and ABN AMRO shall fully comply with the Binding Advice and the
content thereof. Barclays and ABN AMRO shall each pay one half
of the Binding Advisor’s costs or as the Binding Advisor
may determine.
6.9
If in relation to a dispute on the fulfilment or waiver of the
Offer Conditions in Clause 1.3 of Schedule 2
(No ABN AMRO Material Adverse Change) or Clause 1.4
of Schedule 2 (No Barclays Material Adverse
Change), the Binding Advisor has not reached a decision at
the earlier of (i) expiry of 10 (ten) Business Days
following submission of the dispute to the Binding Advisor; and
(ii) midday Amsterdam time on the Business Day before the
last date on which Barclays is permitted under applicable law to
announce whether or not it extends the Offer or, in case
Barclays has not extended the Offer, midday Amsterdam time on
the Business Day before the last date on which Barclays is
permitted to announce whether or not it declares the Offer
unconditional (gestand doen), the provisions of Clause
5.7 shall apply mutatis mutandis.
7.
UNDERTAKINGS AND INTERIM PERIOD
(a)
As of the date of this Merger Protocol until the earliest of
(i) the Settlement Date and (ii) the date on which
this Merger Protocol is terminated in accordance with
Clause 19 (the “Interim Period”), subject
to the applicable competition laws, each Party shall conduct its
and its Group’s business and operations in the ordinary and
usual course of business consistent with best practice, use its
reasonable endeavours to preserve intact its business
organisation and assets and maintain its rights, franchises and
authorisations and its existing relations with customers,
employees, suppliers, business associates, and governmental
authorities, and refrain from taking any action which may be
reasonably expected to impair its ability to perform its
obligations under this Merger Protocol or to consummate the
transactions contemplated hereby except for any actions taken by
either Party or any member of its Group: (i) as required by
applicable law or by any competent court, regulatory authority
or stock exchange; (ii) to fulfil a contractual obligation
existing as at the date of this Merger Protocol; or
(iii) as a result of or arising out of the entering into of
this Merger Protocol and the transactions contemplated hereby,
in the case of any material obligation referred to in either
(ii) or (iii) to the extent fairly disclosed in the
most recent published annual accounts of the Party concerned or
by a later stock exchange announcement by that Party or
otherwise in writing before the execution of this Merger
Protocol by the Party affected to the other Party.
(b)
Furthermore, during the Interim Period, subject to the
applicable competition laws, without the prior written consent
of the other Party, which shall not unreasonably be withheld or
delayed, each Party shall refrain from taking any of the
actions, and it shall procure that the companies within its
Group (in the case of any such companies which are not
wholly-owned, only to the extent the Party concerned is able so
to procure) shall refrain from taking any of the actions, set
out in Schedule 3, except for any actions taken by
either Party or any member of its Group (i) as required by
applicable law or by any competent court, regulatory authority
or stock exchange; or (ii) to fulfil a contractual obligation
existing as at the date of this Merger Protocol; or
(iii) as a result of or arising
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out of the entering into of this Merger Protocol and the
transactions contemplated hereby (including but not limited to
the establishment of any intermediate holding company), in the
case of any material obligation referred to in either
(ii) or (iii) to the extent fairly disclosed in the
most recent published annual accounts of the Party concerned or
by a later stock exchange announcement by that Party or
otherwise in writing before the execution of this Merger
Protocol by the Party affected to the other Party. For the
purposes of this Clause 7.1(b), it is agreed that pension
scheme trustees acting in such capacity (and their agents) are
not members of a Party’s Group.
(c)
ABN AMRO agrees that, in respect of transactions of its Group in
the Interim Period involving risk transfers for capital and risk
management purposes and in respect of subordinated capital
instruments including either or both tier one and tier two
securities, such transactions must comply with the rules of the
UK Financial Services Authority (FSA) as set out in the FSA
Handbook in addition to the similar Dutch rules provided that
this does not apply to any such transactions which are being
prepared on the date of this Merger Protocol.
7.2
Notwithstanding Clause 7.1, ABN AMRO may without the prior
approval of Barclays continue its asset disposal programme (the
“ABN AMRO Programme”) during the Interim Period
subject to the following conditions:
(a)
Subject to Clause 7.17, ABN AMRO may progress to signing
and completion of any disposals of assets, undertakings and
businesses (each a “Disposal”) under the ABN
AMRO Programme that have been fairly disclosed to Barclays in
writing prior to the execution of this Merger Protocol;
(b)
ABN AMRO may as part of the ABN AMRO Programme initiate
Disposals, provided that (i) the individual value of any
such Disposal by reference to the gross sale proceeds received
by ABN AMRO or any other member of the ABN AMRO Group does not
exceed EUR 500 million, and that (ii) the
aggregate value of any such Disposals determined as above under
(i), does not exceed EUR 2.5 billion;
(c)
In relation to any Disposal within (a) or (b) above,
any such Disposal must be entered into on an at arms’
length basis and at the best market price available;
(d)
In relation to any Disposal within (a) above, with an
individual value of more than EUR 500 million and, in
relation to any Disposal within (b) above with an
individual value of more than EUR 500 million for which
Barclays has given its prior approval, a fairness opinion
addressed to ABN AMRO shall be issued by an independent
reputable international investment bank;
(e)
In relation to any Disposal within (a) or (b) above,
and subject to any applicable law, regulations, any rule of any
relevant stock exchange, any governmental authority or other
authority with relevant powers or court order, ABN AMRO shall
give Barclays as soon as possible but at least 2
(two) Business Days’ notice in writing of any proposed
agreement or public announcement of any such Disposal and shall
take into account any reasonable requests from Barclays in
relation to any such public announcement; and
(f)
ABN AMRO shall keep Barclays fully informed of progress in
relation to any Disposal under negotiation or any proposed
Disposal under the ABN AMRO Programme.
7.3
Notwithstanding Clause 7.1, Barclays may without the prior
approval of ABN AMRO enter into disposals or acquisitions of
assets, undertakings and businesses (each, a
“Transaction”) during the Interim Period
subject to the following conditions:
(a)
Barclays may progress to signing and completion of any
Transactions that have been fairly disclosed to ABN AMRO in
writing prior to the execution of this Merger Protocol;
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(b)
Barclays may initiate Transactions, provided that (i) the
individual value of any such Transaction by reference to the
gross sale proceeds received by Barclays or any other member of
the Barclays Group does not exceed EUR 500 million or
the gross purchase price paid by Barclays or any other member of
the Barclays Group does not exceed EUR 500 million, as
the case may be, and that (ii) the aggregate value of any
disposals as above under (i), does not exceed
EUR 2.5 billion; and that (iii) the aggregate
value of any acquisitions as above under (i), does not exceed
EUR 2.5 billion.
(c)
In relation to any Transaction within (a) or (b) above, any
such Transaction must be entered into on an at arms’ length
basis and, in relation to disposals, at the best market price
available;
(d)
In relation to any Transaction within (a) above, with an
individual value of more than EUR 500 million and, in
relation to any Transaction within (b) above with an
individual value of more than EUR 500 million for
which ABN AMRO has given its prior approval, a fairness opinion
addressed to Barclays shall be issued by an independent
reputable international investment bank;
(e)
In relation to any Transaction within (a) or (b) above, and
subject to any applicable law, regulations, any rule of any
relevant stock exchange any governmental authority or other
authority with relevant powers or court order, Barclays shall
give ABN AMRO as soon as possible but at least 2 (two) Business
Days’ notice in writing of any proposed agreement or public
announcement of any such Transaction and shall take into account
any reasonable requests from ABN AMRO in relation to any such
public announcement; and
(f)
Barclays shall keep ABN AMRO fully informed of progress in
relation to any Transaction under negotiation or any proposed
Transaction.
7.4
On or prior to the Commencement Date, ABN AMRO shall send a
notice to convene the ABN AMRO Shareholders’ Meeting held
not later than 8 (eight) days prior to the Closing Date in order
to, inter alia, (i) provide its shareholders with required
information concerning the Offer in accordance with applicable
laws and regulations and (ii) if so requested by Barclays,
propose to the shareholders to resolve to approve any amendments
to ABN AMRO’s articles of association that are agreed
between the Parties and the proposed appointments of the
Nominated Individuals to the ABN AMRO Boards subject to and with
effect as of the time the Offer is declared unconditional. If
Barclays does not request ABN AMRO to propose such resolution to
the ABN AMRO Shareholders’ Meeting to be held during the
initial acceptance period, ABN AMRO shall undertake with
Barclays to effect such steps as soon as possible following the
time the Offer is declared unconditional, on terms reasonably
satisfactory to Barclays.
7.5
Subject to applicable laws and regulations, Clause 15 and
the reasonable belief of the Parties, after having considered
the advice of outside legal counsel, that such action may
materially prejudice an application required to be made in
connection with the Offer to a Competent Competition Authority,
and with full understanding and recognition of their respective
confidentiality obligations, for the duration of the Interim
Period, each Party undertakes to: (i) allow the other Party
and its advisors reasonable access to its directors, board
members, certain senior employees as agreed by both Parties,
information, documentation and advisors as may be reasonably
requested by the other Party in connection with the Offer and
any post-Offer integration planning (except in respect of any
event or circumstance which a Party would be required to notify
to the other Party pursuant to Clause 11);
(ii) furnish the other Party and its advisors as soon as
such is available with regular updates on financial results and
developments material to its Group; and (iii) provide, and
use reasonable endeavours to cause its respective directors,
officers, employees, outside legal counsel, accountants and
financial advisors to provide promptly, such customary
assistance as may be reasonably requested by the other Party in
connection with any financing or regulatory compliance
obligations which may be affected by the matters contemplated
hereby, including, without limitation, providing cus-
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tomary legal opinions, disclosure letters, comfort letters,
consents, certifications, certificates and other documents or
information, in each case in form and substance reasonably
satisfactory to the other Party. No investigation by any Party
of the business and affairs of the other Party, pursuant to this
Clause or otherwise, will affect or be deemed to modify or waive
any covenant or agreement in this Merger Protocol, or the
Pre-Offer Conditions or Offer Conditions.
7.6
Barclays and ABN AMRO shall during the Interim Period:
7.6.1
consult each other and cooperate in respect of any relevant
matters in pursuance of the Offer, including without limitation
on publicity and public relations, and the resolution of any
change of control issues triggered by the Offer and the change
of control contemplated thereby, subject to the terms and
provisions of this Merger Protocol; and
7.6.2
subject to the provisions of Clause 11, notify each other
promptly (and supply copies of all relevant information) of any
event or circumstance it may become aware of and which could
reasonably be expected to (i) have a significant impact on
the fulfilment of the Pre-Offer Conditions and/or the Offer
Conditions or (ii) prejudice the success of the Offer or
(iii) to cause or constitute a material breach of any covenants
or agreements contained herein, provided that any delay in or
absence of such notification by Barclays shall not prejudice any
of Barclays rights under or pursuant to this Merger Protocol and
that any delay in or absence of such a notification by ABN AMRO
shall not prejudice any of ABN AMRO’s rights under or
pursuant to this Merger Protocol.
7.7
The Parties agree for the benefit of, and to be enforced or
waived by Barclays only, that they shall use their reasonable
endeavours to obtain, prior to the Commencement Date,
irrevocable undertakings for the benefit of Barclays from any
holder of Ordinary Shares or DR Prefs that holds more than 3%
(three per cent.) of the Ordinary Shares or more than 3% (three
per cent.) of the DR Prefs to tender such securities in the
Offer.
7.8
ABN AMRO shall take all steps reasonably necessary to ensure
that the Stichting Administratiekantoor Preferente
Financieringsaandelen ABN AMRO Holding (the
“Foundation”) enters into the irrevocable
agreement described in Paragraph 1.2 of
Schedule 1 as soon as reasonably practicable
following the date of this Merger Protocol, and shall consult
with Barclays in relation to all such steps and the content of
all communications with the Foundation, and shall provide
Barclays with the opportunity to participate in all discussions
with the Foundation with a view to achieving the above objective.
7.9
ABN AMRO shall cause all members of the ABN AMRO Boards who
hold, directly or indirectly, or who are the beneficial owners
of one or more ABN AMRO Shares, to as soon as possible after the
date of this Merger Protocol, irrevocably undertake with
Barclays to tender any such ABN AMRO Shares held, to be held or
beneficially owned or to be beneficially owned by them to
Barclays under the terms and conditions of the Offer, subject to
the ABN AMRO Boards Recommendation not having been revoked,
except to the extent a member of the ABN AMRO Boards has already
irrevocably undertaken with Barclays to do so on terms
acceptable to Barclays. Barclays shall cause all members of the
Barclays Board who hold, directly or indirectly, one or more
Barclays Shares, to cast the votes attached to those shares in
favour of the resolution to be proposed at the Barclays
Shareholders’ Meeting, subject to the Barclays Board
Recommendation not having been revoked.
7.10
ABN AMRO confirms to Barclays that, other than the Conversion
Rights, there are no rights or entitlements to subscribe for or
convert into any securities in the capital of ABN AMRO.
7.11
The Parties agree that, in the ABN AMRO Employee Share Plans,
insofar as the Rules refer in any section on takeovers to a
Relevant Event meaning a tender offer for ABN AMRO’s
Ordinary Shares, this means the Offer being declared
unconditional (gestanddoening) and not the making of the
Offer.
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The Parties shall seek to agree prior to Commencement Date on an
offer to be made by Barclays to exchange all subsisting awards
and options under the ABN AMRO Employee Share Plans with new
awards and options over Barclays shares on terms satisfying the
requirements of the relevant ABN AMRO Employee Share Plan(s).
Barclays will consult with ABN AMRO prior and in relation to the
making of such offer and shall take into account any reasonable
requests or suggestions that ABN AMRO makes in this regard.
If the Parties fail to reach agreement in respect of such offer
prior to Commencement Date, each of the Supervisory Board, the
Management Board and the corporate body or committee with
authority with respect to the ABN AMRO Employee Share Plans may
exercise at its discretion any authority it may have under the
ABN AMRO Employee Share Plans (i) to cancel any awards or
options in return for a cash payment to the holders of such
awards or options, or to accelerate vesting following a change
in control of ABN AMRO and (ii) to resolve that any award
or option granted under the ABN AMRO Employee Share Plans may
become vested and exercisable as a result of the Offer, provided
that subsisting awards or options that may in accordance with
the Rules be pro-rated are so pro-rated (on a time and/or
performance basis) and provided that in the event that the
discretion to satisfy any awards in cash is exercised, the total
cash amount to be settled shall not exceed EUR 250 million.
For the purposes of this sub-clause, the “ABN AMRO
Employee Share Plans” means the ABN AMRO Key Staff
Stock Option Plan, the ABN AMRO Top Executive Stock Option Plan,
the ABN AMRO Performance Share Plan, the ABN AMRO Share
Investment and Matching Plan, the ABN AMRO UK Approved Stock
Option Plan, the ABN AMRO Global Key Employee Retention Plan,
the ABN AMRO Key Employee Equity Programme with Co-Investment
Plan, the ABN AMRO Key Employee Equity Programme with
Co-Investment Plan 2005, the ABN AMRO Asset Management Key
Employee Retention Plan with Co-Investment Plan 2005, the ABN
AMRO Asset Management Key Employee Retention Plan with
Co-Investment, the ABN AMRO BU Brazil Long Term Incentive Plan,
the ABN AMRO BU North American Long Term Incentive Plan, and any
other employee share plan or long term incentive plan adopted or
implemented by ABN AMRO, and the “Rules” means
the rules under the ABN AMRO Employee Share Plans.
7.12
The Preliminary Transaction Agreement is hereby terminated,
without prejudice to any accrued rights and obligations
thereunder up to termination of the Preliminary Transaction
Agreement.
7.13
Each Party undertakes not to, directly or indirectly trade in,
or in any way encourage any other party to trade in, any shares
or other securities of the other Party or any derivative
products related to any such shares or other securities or any
interests in any of them, as long as it has price sensitive
information except for any actions in the ordinary course of
each Party’s respective investment banking, stockbroking or
asset or fund management businesses, provided, however, that
such actions do not result nor could result in a breach of any
applicable law or regulations with respect to abuse of price
sensitive information in any jurisdiction, including without
limitation, Dutch, United Kingdom and United States insider
trading and antifraud rules.
7.14
Barclays agrees that it will not cast the votes attached to any
ABN AMRO Shares acquired by it for its own account (i.e. outside
of the ordinary course of its investment banking, stockbroking,
asset or fund management businesses) after the date of this
Merger Protocol (i) in favour of any shareholders’
resolutions in connection with an offer by Barclays for all of
the ABN AMRO Shares which is not or no longer recommended by the
ABN AMRO Boards or (ii) against any shareholders’
resolutions in connection with a Competing Offer (as defined in
Clause 12) which is recommended by the ABN AMRO Boards.
7.15
The Parties will inform, in accordance with the Merger Code, the
Unions in writing (unless agreed otherwise) on (a) the
reasoning behind the Offer and the Merger; (b) the
intentions with respect to the future business strategy, the
related social, economic and legal consequences of the Offer and
the Merger; and (c) any intended measures that will be
taken in this
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respect. During a meeting, the Unions will subsequently be given
the opportunity to discuss the timing and manner of informing
ABN AMRO Group’s employees. The Parties will also cooperate
fully and coordinate in relation to informing and, to the extent
legally required obtaining advice from, their respective works
councils of the Offer and the Merger.
7.16
Barclays will extend the Offer into the United States, subject
to applicable laws and regulations. ABN AMRO will use its
reasonable endeavours and co-operate with Barclays, to determine
whether persons resident in the United States together
beneficially hold less than 40% (forty per cent.) of the
outstanding ABN AMRO Shares, excluding ABN AMRO Shares held by
any person that beneficially holds more than 10% (ten per cent.)
of the outstanding Ordinary Shares. ABN AMRO will share with
Barclays the results of such inquiries. ABN AMRO agrees that it
will confirm to Barclays that in accordance with the applicable
provisions in the Exchange Act and rules and regulations
promulgated by the SEC thereunder, it has properly conducted
such inquiries with the aim to correctly and accurately
establish the number and percentage of outstanding ABN AMRO
Shares beneficially held by persons resident in the United
States.
7.17
The Parties have reached the following agreement in relation to
LaSalle:
7.17.1
The Parties envisage that ABN AMRO will sell LaSalle and
complete such sale prior to the Commencement Date.
7.17.2
ABN AMRO has entered into the LaSalle Agreement and agrees that,
for so long as it shall not have been terminated, it will keep
Barclays fully and promptly informed of the progress of the
transaction contemplated by such agreement and further agrees
not, without the prior written approval of Barclays (such
approval not to be unreasonably withheld or delayed) to amend or
vary such agreement in any material respect or waive any of its
material rights thereunder or agree to do any of the same.
Should the LaSalle Agreement be terminated without completion of
the LaSalle Transaction, ABN AMRO will, after due consultation
with Barclays, appoint an appropriate financial advisor to
assist with the process to find an alternative buyer for
LaSalle. Such process shall include the goal of achieving the
highest possible price for the sale, taking into account all
relevant considerations such as the suitability of the potential
bidders and the time to completion of the regulatory process in
the United States. ABN AMRO shall keep Barclays reasonably
informed of progress on this proposed transaction and provide
Barclays with copies of all material documents relating to the
potential sale and in advance of (i) the publication of any
sale materials, (ii) any key decision or (iii) the
issue of any material correspondence, duly consult with Barclays
and take into account all reasonable comments and
representations it may make. The final terms of any sale shall
be subject to the prior written approval of Barclays (such
approval not to be unreasonable withheld). If ABN AMRO enters
into a Sale Contract it agrees that, for so long as it shall not
have been terminated, it will keep Barclays fully and promptly
informed of the progress of the transaction contemplated by such
agreement and further agrees not, without the prior written
approval of Barclays (such approval not to be unreasonably
withheld or delayed) to amend or vary such agreement in any
material respect or waive any of its material rights thereunder
or agree to do any of the same. The provisions of this
sub-clause 7.17.2 are in addition to the provisions of
Clause 7.2.
7.17.3
If the cash consideration actually received by ABN AMRO on
completion of the LaSalle Agreement or on completion of a Sale
Contract, in each case with such completion occurring prior to
the Commencement Date, is less than US$ 21 billion,
then the Ordinary Share Exchange Ratio and the related ADS
Exchange Ratio will be adjusted in accordance with
Schedule 5, on the basis that any such shortfall
shall be deemed to be a Capital Return.
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7.17.4
To the extent permissible under applicable laws and regulatory
requirements, substantially all of the after tax proceeds
received by ABN AMRO on completion of the LaSalle Agreement or
on completion of a Sale Contract will be distributed to
shareholders of the Combined Group following completion of the
Offer on terms approved by the Barclays Board.
7.18
No member of the ABN AMRO Group shall tender any ABN AMRO Shares
held by it into the Offer.
8.
REGULATORY APPROVALS
9.
COMPETITION APPROVALS
9.1
Promptly after the signing of this Merger Protocol, the Parties
shall cooperate fully and shall file jointly or individually, as
required by applicable law (or where relevant procure that the
relevant member of its Group file jointly or individually, as
required by applicable law) with the Competent Competition
Authorities any notifications, filings or applications that are
necessary or, in the view of the Party subject to a notification
requirement under the applicable laws following local counsel
advice, appropriate in connection with the Merger or the Offer,
the proposed acquisition of any shares or other securities in,
or control of, ABN AMRO or any member of the ABN AMRO Group by
Barclays or any member of the Barclays Group, the implementation
of the Structuring Action and the operation of the Combined
Group as contemplated in this Merger Protocol, including without
limitation any applications for any Authorisations from the
Competent Competition Authorities that are necessary or, in the
view of the Party subject to a notification requirement under
the applicable laws following local counsel advice, appropriate
in respect of such matters or notifications, filings or
applications to secure the expiry, lapse or termination of any
waiting period relating thereto, and shall supply the other
Party or the Competent Competition Authorities any information
which is reasonably requested by that Party or those authorities
or required by applicable law in connection therewith.
9.2
The Parties shall take any and all provisional measures and
actions reasonably requested by either Party, having taken into
account the reasonable interests of the other Party, in order to
enable prompt closing of the transactions contemplated by this
Merger Protocol, provided that all such actions shall be
conditioned on the occurrence of the Settlement Date.
10.
CONTACTS WITH COMPETENT AUTHORITIES
10.1
Further to Clauses 3, 7, 8 and 9 above, the Parties
recognise that it is essential for the Parties to closely
coordinate their approaches to, discussions with and
notifications, filings and applica-
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tions with and to, and applications for Authorisations from, the
Competent Authorities. Therefore, each Party undertakes with the
other Party that it shall:
(i)
continue discussing with the other Party in relation to an
overview of the notifications, filings and applications with and
to, and applications for Authorisations from, the Competent
Authorities that the Parties believe are necessary or conducive
to completing the Offer and the Merger, including any aspect
thereof (the “Filings”), as well as the time
required for preparing and submitting those Filings to the
relevant Competent Authorities;
(ii)
keep the other Party reasonably informed of any discussions
between such Party and its home state regulators (which, in
relation to Barclays, shall mean the Competent Authorities in
the United Kingdom and in relation to ABN AMRO, shall mean the
Competent Authorities in the Netherlands (each a “Home
State Regulator”)) in relation to the Offer, and engage
in prior coordination with such other Party as to the timing,
contents and manner of any discussions with its Home State
Regulators in relation to the Offer to the extent such is
reasonably deemed appropriate and conducive;
(iii)
keep the other Party reasonably informed of any discussions in
relation to the Offer between such Party and its Competent
Authorities in the United States (the “US
Authorities”), and engage in prior coordination and
consultation with such other Party as to: (i) the timing,
contents and manner of any discussions in relation to the Offer
with its US Authorities to the extent such is reasonably deemed
appropriate and conducive; and (ii) as to the disclosure to
its US Authorities of any Confidential Information;
(iv)
not approach or initiate discussions with any Competent
Authority other than the respective Home State Regulators and
the respective US Authorities (each, a “Remaining
Competent Authority”) in relation to the Merger or the
Offer, or any aspect thereof, and procure that its
Representatives do not contact any Remaining Competent Authority
in relation to the Merger or the Offer, or any aspect thereof
without prior coordination with the other Party as to the
timing, contents and manner of such approach or discussions,
taking into account such other Party’s reasonable requests,
and (subject to Clause 16.6) obtain such other Party’s
prior written approval in relation to the disclosure to any
Remaining Competent Authority of any Confidential Information
provided by the other Party to such Party; and
(v)
promptly inform the other Party upon receiving, directly or
indirectly, any communication, orally or in writing or in any
other form, from any Remaining Competent Authority in relation
to the Merger or the Offer, or any aspect thereof, and in
particular upon receiving, directly or indirectly, any
indication from any Remaining Competent Authority in relation to
a fact or circumstance that will, or is reasonably expected to,
adversely affect the ability of the Parties to complete the
Merger or the Offer, or any aspect thereof, as envisaged by the
Parties.
11.
EXCLUSIVITY
11.1
For the purposes of this Merger Protocol, the
“Exclusivity Period” shall mean the period
commencing on the date hereof and ending on the Completion
Longstop Date, save in the event this Merger Protocol is
terminated in accordance with Clause 19 in which case the
Exclusivity Period shall end upon termination of this Merger
Protocol.
11.2
During the Exclusivity Period, ABN AMRO shall not and shall
cause that none of its subsidiaries, or subsidiary undertakings,
directly or indirectly, nor any of its or their
subsidiaries’ or subsidi-
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ary undertakings’ directors, employees, affiliates, agents,
or representatives shall, except as permitted pursuant to
Clause 11.4, encourage, initiate, solicit, or enter into
discussions or negotiations with, or provide any Confidential
Information to, or enter into any agreement with, any third
party with respect to the making of a bona fide
unsolicited offer or a bona fide unsolicited proposal for
the making of an offer for all or a substantial part of the
issued share capital of ABN AMRO or for the whole or any
material part of the undertaking, business, or assets of ABN
AMRO Group or any bona fide unsolicited proposal
involving the potential acquisition of a substantial interest of
share capital, undertaking, or business assets in ABN AMRO or
ABN AMRO Group, a merger, legal merger, consolidation or
demerger involving ABN AMRO, material reorganisation or
re-capitalisation of ABN AMRO, other than any action or matter
falling in Clause 7.2 (an “Alternative
Proposal”), except as disclosed by ABN AMRO to Barclays
prior to the execution of this Merger Protocol. For the
avoidance of doubt, following receipt by ABN AMRO of an
Alternative Proposal or a bona fide unsolicited
indication of interest in making an Alternative Proposal, ABN
AMRO may have contacts with such third party to understand its
contents, provided that ABN AMRO will comply with
Clause 11.3. Subject to this Clause 11, ABN AMRO shall
be allowed to continue discussions with a third party existing
as at the date of this Merger Protocol, provided that it has
notified Barclays thereof.
11.3
ABN AMRO will notify Barclays promptly (and in any event within
48 (forty eight) hours) if any communication, invitation,
approach or enquiry, or any request for information, is received
by ABN AMRO or any of its subsidiaries or undertakings or any of
its or its subsidiaries’ or subsidiary undertakings’
directors, employees or affiliates directly or indirectly
through its agents or representatives from any third party in
relation to an Alternative Proposal, it being understood that
ABN AMRO shall advise Barclays of the identity of such third
party, the proposed consideration and the other principal terms
of such Alternative Proposal, so as to enable Barclays to
consider its position in light of such Alternative Proposal and
to assess the (possible) effects of such Alternative Proposal on
the Offer and the Offer’s chances of success, and shall
keep Barclays informed of any discussions or developments with
respect to such Alternative Proposal. This Clause 11.3
shall apply equally to the activities disclosed by ABN AMRO to
Barclays prior to the execution of this Merger Protocol in
accordance with Clause 11.8.
11.4
In the event that a third party has communicated to ABN AMRO an
Alternative Proposal and the ABN AMRO Boards conclude, acting in
good faith and observing their fiduciary duties under applicable
law, that such Alternative Proposal would be reasonably likely
to constitute or develop into a Competing Offer as described in
Clause 12.1. ABN AMRO shall promptly, but in any event
within 12 (twelve) hours of reaching such conclusion,
give written notice thereof to Barclays. After having given such
notice, ABN AMRO may, subject to compliance with Clauses 11.4 to
11.7 (inclusive), engage in discussions or negotiations in
relation to the Alternative Proposal with such third party and
disclose Confidential Information to such third party. In the
event a notice is sent in accordance with the immediately
preceding sentence in relation to (i) ABN AMRO’s
intention to provide to a third party Confidential Information;
or (ii) its intention to enter into negotiations with such
third party or (iii) its intention to enter into any
agreements with such third party, the notice will so specify.
11.5
Before engaging in discussions or negotiations with a third
party regarding an Alternative Proposal or disclosing
Confidential Information to a third party, each as contemplated
in Clause 11.4, ABN AMRO shall first seek to enter into a
confidentiality and standstill agreement with such third party
on terms which are materially no less favourable to ABN AMRO
than the terms of the Preliminary Transaction Agreement as it
was entered into with Barclays. Except as otherwise provided for
in this Merger Protocol, ABN AMRO undertakes to enforce its
rights under any confidentiality and/or standstill agreement
entered into by it and any third party in connection with an
Alternative Proposal and ABN AMRO agrees not to waive any of its
rights
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under any such confidentiality and/or standstill agreement
without the prior written consent of Barclays, such consent not
to be unreasonably withheld or delayed. Unless this Merger
Protocol is terminated, where Confidential Information regarding
ABN AMRO and its subsidiaries has been provided to any third
party in relation to an Alternative Proposal which will not be
proceeding, ABN AMRO shall promptly request the return or
destruction of all such Confidential Information provided to any
such persons on, prior to or after the execution of this Merger
Protocol pursuant to the terms of any confidentiality agreements
or otherwise.
11.6
Under no circumstances shall ABN AMRO provide to a third party
any Confidential Information that it has not provided to
Barclays unless ABN AMRO shall also and promptly provide such
Confidential Information to Barclays.
11.7
By its acceptance of the terms of this Merger Protocol, ABN AMRO
agrees that it will not enter into any break fee arrangement,
incentive fee, cost compensation or any similar arrangement with
any third party in connection with an Alternative Proposal,
unless the procedures set out in Clause 12.2 have been
completed.
11.8
By its acceptance of the terms of this Merger Protocol, ABN AMRO
confirms that it is at the date of signing of this Merger
Protocol not in negotiations, activities or discussions with any
third party that may lead to an Alternative Proposal or a
Competing Offer and nor has it been in any such negotiations,
activities or discussions with any third party which it expects
may be revived or re-commenced after the date hereof, except as
fairly disclosed by ABN AMRO to Barclays prior to the execution
of this Merger Protocol.
11.9
During the Exclusivity Period, Barclays shall not and shall
cause that none of its subsidiaries, or subsidiary undertakings,
directly or indirectly, nor any of its or their
subsidiaries’ or subsidiary undertakings’ directors,
employees, affiliates, agents, or representatives shall, except
as permitted pursuant to Clause 11.11, encourage, initiate,
solicit, or enter into discussions or negotiations with, or
provide any Confidential Information to, or enter into any
agreement with, any third party with respect to the making of a
bona fide unsolicited offer or bona fide
unsolicited proposal for the making of an offer for all or a
substantial part of the issued share capital of Barclays or for
the whole or any material part of the undertaking, business or
assets of Barclays Group or bona fide unsolicited any
proposal involving the potential acquisition of a substantial
interest of share capital, undertaking, business or assets in
Barclays or Barclays Group, a merger, legal merger,
consolidation or demerger involving Barclays, material
reorganisation or re-capitalisation of Barclays, other than any
action or matter falling in Clause 7.3 (a “Proposal
in relation to Barclays”). For the avoidance of doubt,
following receipt by Barclays of a Proposal in relation to
Barclays or a bona fide unsolicited indication of
interest in making a Proposal in relation to Barclays, Barclays
may have contacts with such third party to understand its
contents, provided that Barclays will comply with Clause 11.10.
11.10
Barclays will notify ABN AMRO promptly (and in any event within
48 (forty eight) hours) if any communication, invitation,
approach or enquiry, or any request for information, is received
by Barclays or any of its subsidiaries or undertakings or any of
its or its subsidiaries’ or subsidiary undertakings’
directors, employees or affiliates directly or indirectly
through its agents or representatives from any third party in
relation to a Proposal in relation to Barclays, it being
understood that Barclays shall advise ABN AMRO of the identity
of such third party, the proposed consideration and the other
principal terms of such Proposal in relation to Barclays, so as
to enable ABN AMRO to consider its position in light of such
Proposal in relation to Barclays and to assess the (possible)
effects of such Proposal in relation to Barclays on the Offer
and the Offer’s chances of success, and shall keep ABN AMRO
informed of any discussions or developments with respect to such
Proposal in relation to Barclays.
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11.11
In the event that a third party has communicated to Barclays a
Proposal in relation to Barclays and the Barclays Board
concludes acting in good faith and observing its fiduciary
duties under applicable law, Barclays shall promptly, but in any
event within 12 (twelve) hours of reaching such conclusion,
give written notice thereof to ABN AMRO. After having given such
notice, Barclays may, subject to compliance with
Clause 11.12, engage in discussions or negotiations in
relation to the Proposal in relation to Barclays with such third
party and disclose Confidential Information to such third party.
In the event a notice is sent in accordance with the immediately
preceding sentence in relation to (i) Barclays intention to
provide to a third party Confidential Information; or
(ii) its intention to enter into negotiations with such
third party or (iii) its intention to enter into any
agreements with such third party, the notice will so specify.
11.12
By its acceptance of the terms of this Merger Protocol, Barclays
agrees that it will not enter into any break fee arrangement,
incentive fee, cost compensation or any similar arrangement with
any third party in connection with a Proposal in relation to
Barclays, unless the Barclays Board Recommendation has been
withdrawn.
11.13
By its acceptance of the terms of this Merger Protocol, Barclays
confirms that it is at the date of signing of this Merger
Protocol not in negotiations, activities or discussions with any
third party that may lead to a Proposal in relation to Barclays,
nor has it been in any such negotiations, activities or
discussions with any third party which it expects may be revived
or re-commenced after the date hereof.
12.
COMPETING OFFER
12.1
For the purpose of this Merger Protocol, a “Competing
Offer” is an unsolicited written bona fide
proposal from a third party involving an attempt to effect a
change of control of ABN AMRO by way of a merger (juridische
fusie) or through an offer for more than 50% (fifty per
cent.) of the voting rights with respect to ABN AMRO’s
share capital or its ordinary share capital or through an offer
for the acquisition of all or substantially all assets,
undertakings or business of the ABN AMRO Group, whereby for
purposes of this Clause “substantially all” shall be
construed to mean at least 95% (ninety five per cent.) of all
assets of the ABN AMRO Group as shown in the ABN AMRO
consolidated balance sheet as per 31 December 2006, which
proposal is binding on the third party and which proposal is
determined in the reasonable opinion of the ABN AMRO Boards,
after having considered the advice of outside legal counsel and
financial advisors, acting in good faith and observing their
fiduciary duties under applicable law, to be a more beneficial
offer than the Offer, specifically taking into account the
overall terms set out in this Merger Protocol.
12.2
In the event that the ABN AMRO Boards determine that they intend
to withdraw the recommendation of the Offer as set out in
Clause 4, and recommend the Competing Offer:
12.2.1
ABN AMRO shall promptly inform Barclays in writing (such
information in writing hereinafter the
“Notice”) thereof, and shall confirm in the
Notice that the Boards intend, acting in good faith and
observing their fiduciary duties under applicable law and in the
absence of a Revised Offer as described in 12.2.2 below, to
withdraw their recommendation of the Offer and to recommend the
Competing Offer for ABN AMRO, which Notice shall have attached
the most current written version of such Competing Offer;
12.2.2
Barclays shall have 5 (five) Business Days following
the date on which it has received the Notice to communicate to
the ABN AMRO Boards a revision of the Offer (“Revised
Offer”).
12.2.3
Provided that (i) ABN AMRO acts and has at all times acted
in accordance with Clauses 11, 12.2.1 and 12.2.2 and
(ii) either (a) Barclays fails to communicate a
Revised Offer within 5 (five) Business Days after
having received the Notice or (b) the ABN
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AMRO Boards reaffirms to Barclays in writing at the end of such
period, after taking into account any Revised Offer, acting in
good faith and observing their fiduciary duties under applicable
law, that the ABN AMRO Boards intend to recommend the Competing
Offer, each of ABN AMRO and Barclays shall be entitled to
terminate this Merger Protocol with immediate effect, without
prejudice to Clause 19, and the ABN AMRO Boards may
withdraw their recommendation of the Offer, and subsequently
recommend the Competing Offer;
12.2.4
Neither ABN AMRO nor any of its Representatives shall, directly
or indirectly, disclose or announce to any person or entity any
intention on the part of the ABN AMRO Boards to withdraw their
recommendation of the Offer and/or to recommend a Competing
Offer unless and until Barclays has failed to communicate to the
ABN AMRO Boards a Revised Offer within 5 (five) Business Days
after receipt by Barclays of the Notice or has communicated its
intention not to do so, and this Merger Protocol has been
terminated in accordance with Clause 12.2.3. This
sub-clause 12.2.4 is without prejudice to the ability of ABN
AMRO generally to make public announcements in accordance with
Clause 15.2, it being understood that pending completion of
the procedures in this Clause 12.2, ABN AMRO shall not be
permitted to make any public announcement that the ABN AMRO
Boards will, or intend to, withdraw their recommendation of the
Offer.
12.2.5
If Barclays has communicated a Revised Offer to the ABN AMRO
Boards in accordance with Clause 12.2.2 and the ABN AMRO
Board decided to recommend such Revised Offer, ABN AMRO shall
notify the third party proposing the Competing Offer that it
does not intend to recommend such Competing Offer and publicly
announce the terms of the Revised Offer which shall be publicly
recommended by the ABN AMRO Boards. ABN AMRO and Barclays shall
not be permitted in such circumstances to terminate this Merger
Protocol and ABN AMRO and Barclays and each of the members of
the ABN AMRO Boards and the Barclays Board shall continue to be
bound by their respective rights and obligations of this Merger
Protocol, including in relation to any other Competing Offer.
12.3
This Clause 12 applies mutatis mutandis to any
consecutive Competing Offer for ABN AMRO.
12.4
Nothing in this Merger Protocol shall preclude Barclays from
making or continuing with an Offer or keeping the acceptance
period of the Offer open, notwithstanding any withdrawal of the
Boards’ recommendation of the Offer.
13.
REVOCATION BARCLAYS RECOMMENDATION
13.1
In the event that the Barclays Board, after having considered
the advice of outside legal counsel and financial advisors,
acting in good faith and observing its fiduciary duties under
applicable law, determines that it intends to withdraw the
Barclays Board Recommendation as set out in Clause 4.3:
13.1.1
Barclays shall promptly inform ABN AMRO in writing that the
Barclays Board intends to withdraw the Barclays Board
Recommendation; and
13.1.2
Each of ABN AMRO and Barclays shall be entitled to terminate
this Merger Protocol with immediate effect, without prejudice to
Clause 19, and the Barclays Board may withdraw its Barclays
Board Recommendation.
14.
REVOCATION ABN AMRO RECOMMENDATION
14.1
Subject to the provisions of Clause 12 (Competing
Offer) which shall exclusively apply in case an Alternative
Proposal or Competing Offer is communicated to the ABN AMRO
Boards, in the event that the ABN AMRO Boards, after having
considered the advice of outside legal counsel and financial
advisors, acting in good faith and observing their respective
fiduciary duties
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under applicable law, determine that they intend to withdraw the
ABN AMRO Boards Recommendation as set out in Clause 4.1:
14.1.1
ABN AMRO shall promptly inform Barclays in writing that the ABN
AMRO Boards intend to withdraw the ABN AMRO Boards
Recommendation; and
14.1.2
Each of Barclays and ABN AMRO shall be entitled to terminate
this Merger Protocol with immediate effect, without prejudice to
Clause 19, and the ABN AMRO Boards may withdraw the ABN
AMRO Boards Recommendation.
15.
CONFIDENTIALITY AND ANNOUNCEMENTS
15.1
Subject to the provisions of this Merger Protocol and without
prejudice to Clause 15.3, neither Party shall, and agrees
that none of its Representatives shall, without the prior
written consent of the other Party, directly or indirectly,
disclose or announce to any person or entity (other than to a
Representative on a specified and need-to-know basis) anything
in relation to this Merger Protocol, save as set out in Clause
15.3, the contents of the discussions that are taking place or
have taken place concerning the Offer or the Merger or any part
thereof or progress thereof, the fulfilment of the
Pre-Conditions or Conditions, or any other aspect of the
relationship between the Parties or any of the terms, conditions
or other facts with respect thereto, including the status
thereof, nor will either Party make any public announcement
relating to any of the matters referred to herein, except as
provided in Clause 15.2 and Clause 15.3 below.
15.2
Where either Party reasonably determines, after having taken
advice from that Party’s outside legal counsel, and acting
in good faith, that a disclosure or announcement is required by
law, regulations, any rule of any relevant stock exchange, any
governmental authority or other authority with relevant powers
or court order (the “Announcing Party”) the
disclosure or announcement shall be made by the Announcing
Party, as appropriate in the reasonable opinion of the
Announcing Party, after, to the extent permitted by applicable
law, consultation (but without undue delay) between the Parties
and taking into account both of the Parties’ reasonable
requirements as to its timing, contents and manner of making or
despatch.
15.3
Nothing in this Clause 15 shall preclude either Party from
(i) providing a copy of this Merger Protocol to the DNB and the
FSA and (ii) filing a copy of this Merger Protocol with the
SEC in accordance with, and subject to, applicable law, provided
that in relation to (i) and (ii) the other Party receives a
copy of the correspondence in connection with providing or
filing such copy.
16.
CONFIDENTIAL INFORMATION
16.1
Before the Interim Period the Parties have exchanged and during
the Interim Period the Parties may exchange Confidential
Information with each other. In this Merger Protocol, the term
“Confidential Information” means— in
relation to either Party— all business, financial, legal,
operational and marketing information, or other information of a
non-public, confidential or proprietary nature, relating to such
Party’s business, orally or in writing or any other form,
including but not limited to notes, analyses, interpretations,
compilations, forecasts, studies or other documents prepared by
the party receiving the Confidential Information (the
“Receiving Party”) or its respective agents,
representatives (including, but not limited to, outside legal
counsel, accountants, consultants and financial advisors) or
employees (together, the “Representatives”),
that contain, reflect or are otherwise based in whole or in part
upon such information; the term Confidential Information does
not include any information which is:
(i)
generally known to the public, provided that such is not the
result of any violation by the Receiving Party or any of its
Representatives of any of the terms and conditions set forth in
this Merger Protocol;
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(ii)
available to the Receiving Party on a non-confidential basis
from a source other than the Party disclosing the Confidential
Information (the “Disclosing Party”) or its
external advisors, unless the Receiving Party knows or should
reasonably have known that the information was obtained
unlawfully by such other source; or
(iii)
independently acquired or developed by the Receiving Party,
without violating any of the obligations pursuant to this Merger
Protocol and without using any of the Confidential Information.
16.2
The Receiving Party and its Representatives may use any
Confidential Information received hereunder solely for the
purpose of the assessment of the Disclosing Party for the
purpose of evaluating, completing and concluding the Merger and
the Offer and the other transactions provided for this Merger
Protocol and shall not use the Confidential Information in any
other way or for any other purpose.
16.3
The Confidential Information shall be kept secret and
confidential and shall not, without the prior written consent of
the Disclosing Party and subject to the provisions of this
Merger Protocol, be disclosed, either directly or indirectly, by
the Receiving Party in any manner whatsoever, in whole or in
part.
16.4
The Receiving Party may only disclose Confidential Information
to its Representatives who are directly concerned with the
assessment of the Disclosing Party for the purpose of
evaluating, concluding or completing the Merger and the Offer
and the other transactions provided for in this Merger Protocol
and only to such of the Representatives who need to know the
Confidential Information for these purposes. Each Receiving
Party shall keep an up-to-date list of all Representatives that
are involved in the Offer. At the request of the Disclosing
Party, the Receiving Party shall submit a copy of such list to
the Disclosing Party.
16.5
Each Party shall take reasonable steps to ensure that its
Representatives are aware of the terms of this Clause 16.
In addition, each Receiving Party shall ensure that any of its
Representatives who receives any Confidential Information
complies with the terms of this Clause 16. Each Receiving
Party will be responsible for any breach of this Clause 16
by its Representatives.
16.6
In the event that the Receiving Party or any of its
Representatives becomes legally compelled (by deposition,
interrogatory, request for documents, subpoena, civil
investigative demand or similar process) to disclose any
Confidential Information provided by or on behalf of the other
Party, the Receiving Party or its Representatives, as
applicable, shall, to the extent legally permissible:
(i)
use reasonable efforts to provide the Disclosing Party with
prompt written notice of such requirement as soon as practicable
after such requirement becomes effective;
(ii)
use reasonable efforts to provide the Disclosing Party, in
advance of any such disclosure, with specific details of the
Confidential Information provided by the Disclosing Party to the
Receiving Party that the Receiving Party intends to disclose
(and the relevant text of any disclosure language itself, if
applicable) so that the Disclosing Party may seek a protective
order or other appropriate remedy or the Disclosing Party may
waive compliance with the terms of this Clause 16; and
(iii)
reasonably cooperate with the Disclosing Party in seeking such a
protective order or other confidential treatment for the
Confidential Information. In the event such protective order or
other remedy is not obtained or the Disclosing Party waives
compliance with the provisions hereof and the Receiving Party or
any of its Representatives are, upon the advice of outside legal
counsel to the Receiving Party, legally compelled to disclose
the Confidential Information to any court or tribunal, the
Receiving Party and its Representatives may furnish only that
portion of the Confidential Information that is, upon the advice
of outside legal counsel to the Receiving Party, legally
required (provided that the
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Receiving Party and its Representatives exercise all reasonable
efforts to obtain assurance that confidential treatment will be
accorded such Confidential Information).
17.
COSTS
18.
NON-SOLICITATION
18.1
Each Party agrees that until and including 21 March 2008
or, if earlier, the Settlement Date, it and its group companies
will not, directly or indirectly, solicit for employment or hire
any employee of the other Party or any of its group companies
with whom such Party or any of its Representatives has had
contact or who became known to such Party or any of its
Representatives in connection with such Party’s
consideration of the Offer; provided, however, that the
foregoing provision will not prevent such Party or its group
companies from hiring or soliciting any such employee:
(i)
who responds to a general solicitation of such Party or any of
its group companies conducted in the ordinary course of business
(including any recruitment efforts conducted by any recruitment
agency or pursuant to a bona fide advertisement or recruitment
campaign in newspapers, magazines, internet or any other
publications) and not directed specifically at the employees of
the other Party;
(ii)
with an annual remuneration (including pensions and bonuses) of
less than EUR 100,000;
(iii)
if such employee approaches such Party or any of its group
companies on an unsolicited basis; if such employee has engaged
in discussions in relation to a possible employment or hiring
with such Party or its group companies within 6
(six) months prior to the date of this Merger Protocol and
such discussions are continuing at the date of this Merger
Protocol; or if notice has been given in relation to termination
of the employment of such employee with the other Party or any
of its group companies before the date of this Merger Protocol;
or
(iv)
following termination of such employee’s employment with
the other Party without any solicitation or encouragement by
such Party or any member of its Group.
19.
TERMINATION
19.1
Except for Clauses 3.4, 3.5, 11.7 and Clauses 15 up to
and including 22, which Clauses shall survive termination of
this Merger Protocol, except that Clauses 15
(Confidentiality and Announcements) and Clause 16
(Confidential Information) shall expire upon the expiry of 12
(twelve) months following the date that this Merger
Protocol terminates and that Confidential Information disclosed
under the Preliminary Transaction Agreement or this Merger
Protocol shall duly remain confidential, this Merger Protocol
and the rights and obligations hereunder will immediately
terminate:
19.1.1
if upon the Closing Date or Postponed Closing Date, as the case
may be, not all Offer Conditions are fulfilled and the Offer is
not declared unconditional or extended, as the case may be, in
accordance with this Merger Protocol;
19.1.2
if upon 1 November 2007 not all Pre-Offer conditions have
been either fulfilled or duly waived, as the case may be (the
“Launch Longstop Date”); or
19.1.3
if upon 1 March 2008 the Offer has not been declared
unconditional (gestand gedaan) (the “Completion
Longstop Date”); or
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19.1.4
if ABN AMRO or Barclays terminates this Merger Protocol in
writing pursuant to Clause 12.2.3, Clause 13,
Clause 14 or the remaining provisions of this
Clause 19,
Provided that (i) if it becomes clear that any of the
Pre-Offer Conditions or Offer Conditions that are for the
benefit of Barclays (as set out in Clauses 5.2 and 6.2,
respectively), cannot be fulfilled (which, in case of any
Pre-Offer Condition or Offer Condition relating to any
regulatory approval, authorisation or other action required for
consummation of the Offer or any other transactions contemplated
hereby, shall mean the denial of such approval, authorisation or
action by final, non-appealable action of the relevant
authority) and Barclays does not elect to waive that or those
conditions, Barclays may, but is not required to, terminate this
Merger Protocol with immediate effect and (ii) if it
becomes clear that any of the Pre-Offer Conditions or Offer
Conditions that are for the benefit of ABN AMRO (as set out in
Clauses 5.2 and 6.2, respectively), cannot be fulfilled and
ABN AMRO does not elect to waive that or those conditions, ABN
AMRO may, but is not required to, terminate this Merger Protocol
with immediate effect. The right to terminate this Merger
Protocol under this Clause 19.1 shall not be available to
either Party if its failure to comply with any provisions of
this Merger Protocol has been the cause of, or materially
contributed, to the failure of any Pre-Offer Condition or Offer
Condition to be fulfilled. Any dispute in relation to
determining whether a Pre-Offer Condition or an Offer Condition
cannot be fulfilled shall be settled by the Binding Advisor by
way of a binding advice (bindend advies) under articles
7:900 Dutch Civil Code in accordance with the Terms Binding
Advisor as set forth in Schedule 7. Either Party may
refer in writing the dispute to the Binding Advisor and request
such settlement.
19.2
Barclays may terminate this Merger Protocol with immediate
effect if ABN AMRO materially breaches any provision of this
Merger Protocol or the Merger Rules to the extent that such
breach has or can reasonably be expected to have material
adverse repercussions on the Offer or the operation of the
Combined Group in accordance with this Merger Protocol. This
termination shall not affect the rights that Barclays may have
vis-à-vis ABN AMRO for breach of this Merger Protocol.
19.3
ABN AMRO may terminate this Merger Protocol with immediate
effect if Barclays materially breaches any provision of this
Merger Protocol or the Merger Rules to the extent that such
breach has or can reasonably be expected to have material
adverse repercussions on the Offer or the operation of the
Combined Group in accordance with this Merger Protocol. This
termination shall not affect the rights that ABN AMRO may have
vis-à-vis Barclays for breach of this Merger Protocol.
19.4
Barclays may terminate this Merger Protocol with immediate
effect if any member of the ABN AMRO Boards withdraws, amend,
modifies or qualifies their unanimous recommendation of the
Offer or makes any contradictory Public Statements as to their
position with respect to the Offer (including by way of
statements concerning any Alternative Proposal), unless the ABN
AMRO Boards shall have reaffirmed by way of a public
announcement the ABN AMRO Board Recommendation as soon as
possible, but in any event within 24 (twenty four) hours after
ABN AMRO or Barclays has become aware of such contradictory
Public Statement.
19.5
ABN AMRO may terminate this Merger Protocol with immediate
effect if any member of the Barclays Board withdraws, amend,
modifies or qualifies their unanimous recommendation of the
Offer or makes any contradictory Public Statements as to their
position with respect to the Offer (including by way of
statements concerning any Proposal in relation to Barclays,
unless the Barclays Board shall have reaffirmed by way of a
public announcement the Barclays Board Recommendation as soon as
possible, but in any event within 24 (twenty four) hours after
ABN AMRO or Barclays has become aware of such contradictory
Public Statement.
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19.6
In the event that this Merger Protocol is terminated:
19.6.1
by ABN AMRO or Barclays pursuant to:
(a)
Clause 12.2.3 (Recommendation of Competing Offer); or
(b)
Clause 14.1 (Revocation of Recommendation by the ABN
AMRO Boards); or
(c)
Clause 19.1 (Termination) following non-fulfilment
of any Pre-Offer Condition or Offer Condition where the main
cause of such non-fulfilment is a breach by ABN AMRO of this
Merger Protocol; or
19.6.2
by Barclays pursuant to:
(a)
Clause 19.2 (Material Breach by ABN AMRO); or
(b)
Clause 19.4 (Contradictory Public Statement),
in each case in the absence of (i) a material breach by
Barclays of this Merger Protocol; and (ii) Settlement of
the Offer or any offer by Barclays for ABN AMRO Shares, having
occurred, ABN AMRO shall immediately pay to Barclays an amount
of EUR 200 million by way of compensation for loss and
damages suffered.
19.7
In the event that this Merger Protocol is terminated:
19.7.1
by ABN AMRO or Barclays pursuant to:
(a)
Clause 13.1 (Revocation of Recommendation by the
Barclays Board); or
(b)
Clause 19.1 (Termination) following non-fulfilment
of any Pre-Offer Condition or Offer Condition where the main
cause of such non-fulfilment is a breach by Barclays of this
Merger Protocol; or
19.7.2
by ABN AMRO pursuant to
(a)
Clause 19.3 (Material Breach by Barclays); or
(b)
Clause 19.5 (Contradictory Public Statement),
in each case in the absence of (i) a material breach by ABN
AMRO of this Merger Protocol; and (ii) Settlement of the
Offer or any offer by Barclays for ABN AMRO Shares, having
occurred, Barclays shall immediately pay to ABN AMRO an amount
of EUR 200 million by way of compensation for loss and
damages suffered.
19.8
Without prejudice to Clauses 19.2 to 19.7 (inclusive), in
the event that this Merger Protocol is terminated pursuant to
this Clause 19, none of the Parties shall have any claim
against the other Parties, save where the Party is entitled to a
payment under this Clause 19 and has not received such
payment.
19.9
In the event that this Merger Protocol is terminated pursuant to
this Clause 19 each Receiving Party shall, as soon as
practicable and on its own initiative and expense so far as it
is practicable to do so, (i) return all material embodying,
or copies of, Confidential Information to the other or destroy
such without keeping any copies thereof, (ii) expunge or
destroy any Confidential Information from any computer, word
processor or other device and (iii) destroy any notes,
analyses, compilations, forecasts, studies, interpretations or
other documents prepared by it on the basis of the Confidential
Information, provided, however, that the Receiving Party and
certain of such Party’s advisors shall not be obligated to
return, expunge or destroy Confidential Information, or
otherwise comply with the provisions of this Clause 19.9 to
the extent otherwise required by: (a) any law, regulation, rule
or practice; (b) any internal compliance policy or
procedure of a banking or other regulated institution that is
implemented pursuant to mandatory law or regulations; or
(c) any internal policy or procedure relating to the
safeguarding or backup storage of electronic data, provided that
the confidentiality provi-
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sions of this Merger Protocol shall continue to apply to any
information so retained by the Receiving Party or such advisors.
19.10
In the event that this Merger Protocol is terminated pursuant to
this Clause 19, each Receiving Party shall at the request
of the Disclosing Party, provide the Disclosing Party with a
written statement by it and its Representatives to the effect
that to the best of their respective knowledge, information and
belief, having made all reasonable enquiries, the obligations
under Clause 19.9 have been fully complied with, save as
otherwise permitted by Clause 19.9.
20.
MISCELLANEOUS
20.1
In this Merger Protocol, references to:
(i)
this Merger Protocol, shall include the Recitals and Schedules
to this Merger Protocol, each of which constitutes an integral
part of this Merger Protocol;
(ii)
Clauses and Schedules, are to the Clauses and Schedules to, this
Merger Protocol and include the matters referred to in such
Clauses and Schedules;
(iii)
statutes, acts and the like of whatever jurisdiction shall
include any modification, re-enactment or extension thereof and
any orders, regulations, instruments or other subordinate
legislation made there under in force from time to time;
(iv)
the masculine gender shall include the feminine gender and
neutral and vice versa;
(v)
the singular number shall include the plural and vice
versa;
(vi)
persons shall include corporate bodies, corporate entities,
firms, unincorporated or incorporated associations, foundations
and partnerships;
(vii)
the headings are inserted for convenience only and shall not
affect the construction of this Merger Protocol;
(viii)
for the purpose of this Merger Protocol, a “Business
Day” means a day (other than a Saturday or Sunday) on
which banks are generally open in The Netherlands, the United
Kingdom and the United States for normal business;
(ix)
“reasonable endeavours” shall be deemed to refer to
endeavours that are commercially reasonable given the intentions
of the Party that agrees to use any reasonable endeavours, the
objectives that such Party is pursuing upon entering into of
this Merger Protocol and the benefits that the relevant Party
can reasonably expect to arise for it from the Offer and the
Merger. No duty or obligation whatsoever shall be implied,
deduced or inferred to exist on the part of such Party to engage
in, incur, or commit to undertake any action, cost or expense
where such would not be commercially reasonable in light of such
Party’s intentions, objectives and expected benefits from
the Offer and the Merger; and
(x)
in this Agreement, the words “include”,
“includes” and “ including” shall be
construed as if followed by “without limitation”
20.2
The Parties hereby waive their rights under Clauses 6:265
to 6:272 inclusive and article 6:228 of the Dutch Civil Code
(Burgerlijk Wetboek) to rescind (ontbinden) or
nullify (vernietigen) on the ground of error
(dwaling), or demand in legal proceedings the rescission
(ontbinding) or nullification (vernietiging) of,
this Merger Protocol.
20.3
The Parties undertake to each other to execute and perform all
such deeds, documents, assurances, acts and things and to
exercise all powers and rights available to them, in whatever
capacity, including the giving of all waivers and consents and
the passing of all resolutions reasonably required to ensure
that the Parties and their representatives (if any) give effect
to their obligations under the provisions of this Merger
Protocol.
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20.4
If part of this Merger Protocol is or becomes invalid or
non-binding, the Parties shall remain bound to the remaining
part. The Parties shall replace the invalid or non-binding part
by provisions which are valid and binding and the legal effect
of which, given the contents and purpose of this Merger
Protocol, is, to the greatest extent possible, similar to that
of the invalid or non-binding part.
20.5
This Merger Protocol shall only be amended or supplemented in
writing.
20.6
For the purpose of this Merger Protocol, any approval of ABN
AMRO shall be deemed to include the approval of the ABN AMRO
Boards.
20.7
No Party may assign its rights and obligations pursuant to this
Merger Protocol, or this legal relationship, to any third party,
without the written consent of the other Party except that
Barclays may assign its rights under Clause 19.6 to
Barclays Bank PLC.
20.8
Nothing in this Merger Protocol shall prevent ABN AMRO or
Barclays from acting in accordance with
Rule 14d-9 and
Rule 14e-2 under
the Exchange Act with respect to an Alternative Proposal
relating to ABN AMRO, or a Proposal in relation to Barclays, as
the case may be, provided that such rules will in no way
eliminate or modify the effect that any action by such Party
pursuant to such rules would otherwise have under this Merger
Protocol.
20.9
The amounts mentioned in this Agreement are inclusive of any
Value Added Tax, chargeable in respect thereof for which the
payee is liable to account to the relevant tax authorities.
21.
NOTICES
21.1
Any notices or other formal communication to be provided
pursuant to this Merger Protocol (which includes fax, but not
email), must be in writing and may be delivered in person, or
sent by post or fax (with true copy by post) to the Party to be
served as follows:
21.1.1
to ABN AMRO and the ABN AMRO Boards at:
ABN AMRO Holding N.V.
Gustav Mahlerlaan 10
1082 PP Amsterdam, The Netherlands
Fax: +31 20 628 6293
Telephone: +31 20 628 2249
Attention: the Board of Management
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With a copy (which shall not constitute a notice) to:
ABN AMRO
Fax: +31 20 629 2163
Telephone: +31 651 479 970
Attention: Eva Simon Thomas
NautaDutilh N.V.
Fax: +31 20 71 71 330
Telephone: +31 20 71 71 831
Attention: Hein Hooghoudt
Allen & Overy LLP
Fax: +31 20 674 1837
Telephone: +31 20 674 1191
Attention: Jan Louis Burggraaf
Davis Polk and Wardwell
Fax: +33 156 59 3770
Telephone: +33 156 59 3670
Attention: Margaret Tahyar
21.1.2
to Barclays and the Barclays Board at:
Barclays PLC
Churchill Place 1
Canary Wharf, E14 5HP
London, United Kingdom
Att.: The Group Secretary, Barclays Corporate Secretariat
Fax.: +44 207 116 7696
With a copy (which shall not constitute a notice) to:
Clifford Chance LLP
Attention: Peter Charlton
Telephone: +44 20 70061000
Fax: +44 20 70065555
Attention: Hans Beerlage
Telephone: +31207119000
Fax: +31207119999
Sullivan & Cromwell LLP
Fax: +1 212 558 3588
Telephone: +1 212 558 4000
Attention: H. Rodgin Cohen
Fax: +44 20 7959 8950
Telephone: +44 20 7959 8900
Attention: George H. White
or at such other address or fax number as such Party may notify
the other Parties under this Clause. Any notice or other
document sent by post shall be sent by recorded delivery post
(aangetekende post met ontvangstbevestiging) (if the
place of destination is the same as its country of origin) or by
overnight courier (if its destination is elsewhere).
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21.2
Any notice or other communication shall be deemed to have been
given:
21.2.1
if delivered in person, at the time of delivery; or
21.2.2
if sent by post, at 10.00 a.m. on the second Business Day after
it was put into the post or at 10.00 a.m. (local time at the
place of destination) on the first Business Day after it was put
into the post by overnight courier; or
21.2.3
if sent by fax, on the date of transmission, if transmitted
before 3.00 p.m. (local time at the place of destination) on any
Business Day and in any other case on the Business Day,
following the date of transmission).
21.3
In proving the delivery of a notice or other communication, it
shall be sufficient to prove that delivery in person was made or
that the envelope containing the communication was properly
addressed and posted, either by recorded delivery post or by
prepaid airmail, as the case may be, or that the fax was
properly addressed and transmitted, as the case may be.
21.4
For all matters relating to this Merger Protocol, each Party
nominates the address referred to in this Clause as its place of
residence.
22.
GOVERNING LAW AND DISPUTES
22.1
This Merger Protocol, including the arbitration agreement
contained in this Clause 22, is governed by, and shall be
construed in accordance with, the laws of The Netherlands.
22.2
Except as provided for in Clause 5.6 and 6.8 respectively,
all disputes arising out of or in connection with this Merger
Protocol or the Offer generally or any agreements resulting from
it shall be finally settled in accordance with the Arbitration
Rules of the Netherlands Arbitration Institute (“NAI
Arbitration Rules”).
The arbitral tribunal shall be composed of 3
(three) arbitrators. Instead of the list-procedure set
forth in Article 14 of the NAI Arbitration Rules, the
Parties agree to the following method of appointment:
Each Party shall appoint, in the request for arbitration and the
short answer respectively, one arbitrator. If a Party fails to
appoint such arbitrator in the request for arbitration or the
short answer, the appointment shall be made by the President of
the LCIA. The 2 (two) arbitrators thus appointed shall appoint
the third arbitrator who will act as chairman of the arbitral
tribunal. If within 30 (thirty) days after the appointment of
the second arbitrator the two arbitrators have not agreed on the
third arbitrator, such arbitrator shall be appointed by the
President of the LCIA.
22.3
In case of summary arbitral proceedings the Parties agree that,
instead of the method of appointment mentioned in
Article 42f of the NAI Arbitration Rules, the sole
arbitrator shall be appointed by the President of the LCIA as
soon as practicable after he receives a copy of the request for
summary arbitral proceedings with a request to appoint the
arbitrator for such summary arbitral proceedings.
22.4
Any arbitrator to be appointed, whether in summary arbitral
proceedings or otherwise, shall be a person with extensive
experience in international disputes involving multinationals
and the financial sector and with excellent English language
skills.
22.5
The place of arbitration shall be Amsterdam, The Netherlands.
The arbitral proceedings shall be conducted in the English
language. The arbitral tribunal and the sole arbitrator in any
summary arbitral proceedings shall decide in accordance with the
rules of law.
22.6
Notwithstanding the foregoing, in case either Party is a party
to proceedings against a third party in a dispute relating to
this Merger Protocol and/or the Offer generally and/or any
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agreements resulting from it, the other Party shall be entitled
to demand to be allowed to join and/or intervene in the
proceedings pending against that Party.
| /s/ Chris Lucas | ||
| By: Chris Lucas | By: | |
| Title: Group Finance Director | Title: | |
| Place: | Place: |
| /s/ Huibert Boumeester | /s/ Rijkman Groenink | |
| By: Huibert Boumeester | By: Rijkman Groenink | |
| Title: Member, ABN AMRO Managing Board | Title: Chairman, ABN AMRO Managing Board | |
| Place: | Place: |
A-41
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1.1
Barclays has received irrevocable undertakings, in forms
acceptable to it, by the members of the ABN AMRO Boards in
relation to the Ordinary Shares held or to be held by each of
these persons, in terms of which each undertakes to tender all
of his or her Ordinary Shares under the Offer.
1.2
The Foundation, which acts as depositary for the Underlying
Preference Shares and has issued the DR Prefs, has irrevocably
agreed with Barclays and ABN AMRO that, subject to:
(i)
the Offer being declared unconditional;
(ii)
an undertaking of Barclays not to exercise more voting rights on
the Underlying Preference Shares than it could exercise as
holder of DR Prefs for as long as the Ordinary Shares are listed
on Eurolist by Euronext Amsterdam; and
(iii)
the amendment of the terms of the DR Prefs necessary for an
exchange by Barclays of its DR Prefs for Underlying Preference
Shares and any other actions as may be legally required to
enable such exchange,
it will take all necessary action to exchange any DR Prefs for
Underlying Preference Shares, if and when requested by Barclays.
1.3
No ABN AMRO Material Adverse Change has occurred or has become
known to Barclays between the date hereof and the Commencement
Date, such that Barclays cannot reasonably be expected to
continue with the Offer or the Merger.
1.4
No Barclays Material Adverse Change has occurred or has become
known to ABN AMRO between the date hereof and the Commencement
Date, such that ABN AMRO cannot reasonably be expected to
continue with the Offer or the Merger.
1.5
No government or governmental, quasi-governmental,
supranational, statutory, regulatory, environmental,
administrative, fiscal or investigative body, court, or any
other body or person whatsoever in any jurisdiction (each a
“Third Party”) has decided to, or indicated any
intention to, take, institute, implement or threaten any
Frustrating Action, such that the Parties cannot be reasonably
be expected to continue with the Merger.
1.6
No circumstance, occurrence or development has occurred since
the date of this Merger Protocol that will constitute or
constitutes:
(i)
suspension of or limitation in trading in the Ordinary Shares or
the Convertible Shares (other than on a temporary basis in the
ordinary course of trading); or
(ii)
suspension of or limitation in trading in the Barclays Shares
(other than on a temporary basis in the ordinary course of
trading).
1.7
All notifications, filings and applications that are necessary
or that one or both of the Parties have determined to be
appropriate in any jurisdiction in connection with the Merger or
the Offer, its implementation, the proposed direct or indirect
acquisition of any shares or other securities in, or control of,
ABN AMRO or any member of the ABN AMRO Group by Barclays or any
member of the Barclays Group, the implementation of the
Structuring Action and the operation of the Combined Group in
accordance with this Merger Protocol, including, without
limitation, any applications for any Authorisations that are
necessary or that one or both of the Parties have determined to
be
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appropriate for or in respect thereof, have been made (other
than those notifications, filings or applications that cannot be
made until after the Commencement Date).
1.8
All Authorisations (other than with respect to the Offer
Document, the Prospectus, Class 1 Circular and the
registration statement) required in any jurisdiction for making
of the Offer have been obtained where the failure to obtain
those Authorisations would result in Barclays or any member of
the Barclays Group contravening any law, would reasonably be
expected to materially and adversely affect ABN AMRO or Barclays
or any member of the Combined Group or would otherwise mean that
Barclays cannot reasonably be expected to continue with the
Offer or the Merger.
1.9
At least 60 (sixty) calendar days have passed following the
date on which Barclays application under Section 3 of the
United States Bank Holding Company Act of 1956, as amended, if
required, has been accepted for processing by the Board of
Governors of the United States Federal Reserve System.
1.10
Barclays has reasonably determined that the Offer Conditions in
Clauses 1.7 and 1.8 of Schedule 2 will be
fulfilled as of the date proposed to be the Closing Date.
1.11
ABN AMRO has reasonably determined that the Offer Conditions in
Clauses 1.7 and 1.8 of Schedule 2 will be
fulfilled as of the date proposed to be the Closing Date to the
extent that such Offer Conditions relate to requirements
applicable to members of the ABN AMRO Group or if the failure to
fulfill such Offer Conditions would reasonably be expected to
materially and adversely affect the ABN AMRO Group taken as a
whole or the achievement of the Parties’ objectives set
forth in Clauses 3.1 and 3.2.
1.12
Barclays and ABN AMRO have received notification in writing from
each of the DNB and the FSA confirming that the FSA will be the
competent authority that will exercise supervision on a
consolidated basis of the Combined Group for the purposes of
Directive 2006/48/EC or that will act as the coordinator in
relation to the Combined Group for the purposes of Directive
2002/87/EC following consummation of the Offer and the other
supervisory, reporting and regulatory capital arrangements and
requirements that the DNB or, as the case may be, the FSA will
implement or require in relation to the Combined Group (and the
members thereof supervised by it) following consummation of the
Offer in terms reasonably satisfactory to Barclays and ABN AMRO,
and neither Party has received any notification from the DNB or
the FSA indicating that there is likely to be any change with
respect to the matters set out in those notifications.
1.13
Clearances and confirmations from the relevant tax authorities
in The Netherlands and the United Kingdom that Barclays will be
considered to be resident for Tax purposes in the United
Kingdom, after consummation of the Offer, have been obtained in
terms reasonably satisfactory to Barclays and ABN AMRO and such
clearances and confirmations have not been withdrawn or modified
(the “Tax Clearances”).
1.14
All requisite employee consultations and information procedures
with employee representative bodies of ABN AMRO and Barclays
have been completed.
1.15
Barclays and ABN AMRO have received copies of resignation
letters from those members of the ABN AMRO Boards and those
members of the management board and supervisory board of ABN
AMRO Bank N.V. who, it has been agreed, shall resign subject to
the Offer being declared unconditional (gestanddoening).
1.16
Barclays and ABN AMRO have received copies of resignation
letters from those members of the boards of Barclays who, it has
been agreed, shall resign subject to the Offer being declared
unconditional (gestanddoening).
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1.17
All requisite corporate action has been taken in connection with
the appointment of the Nominated Individuals to the supervisory
board and management board of ABN AMRO Bank N.V. subject to and
with effect as of the time the Offer being declared
unconditional.
1.18
The AFM has approved the Offer Document or has declared that it
has no further comments with respect to the final draft of the
Offer Document, as the case may be. The UKLA has approved the
Class 1 Circular, the Prospectus and has provided a
certificate of approval of the Prospectus to the AFM. The
Registration Statement shall have become effective under the
Securities Act and no stop order suspending the effectiveness of
the registration statement shall have been issued and be in
effect and no proceedings for that purpose shall have been
initiated by the SEC and not withdrawn.
1.19
There is no indication that the Consideration Shares will not be
admitted to the Official List of the UKLA, admitted to trading
on the main market for listed securities of the London Stock
Exchange, Euronext Amsterdam and the Tokyo Stock Exchange and
the Barclays ADSs representing such Consideration Shares or a
portion thereof as reasonably determined by Barclays and having
consulted ABN AMRO and having taken into account its reasonable
requests, shall have been approved for listing on the NYSE,
subject to official notice of issuance.
1.20
Euronext Amsterdam has confirmed it has no further comments on
the proposed amendments to the articles of association of ABN
AMRO.
1.21
The FTSE 100 Committee has provided written confirmation to the
reasonable fulfilment of Barclays and ABN AMRO to the effect
that the Barclays Shares will continue to be included in the
FTSE 100 Index with full “weighting” as a single line
of stock following the Offer being declared unconditional and
the issue of Barclays Shares.
1.22
The Parties have not received a notification from the AFM
pursuant to Clause 32a DSSD that the preparations of the
Offer are in breach of Chapter IIA of the DSSA, as amended
from time to time, in which case, pursuant to those rules,
securities institutions (effecteninstellingen) would not
be permitted to co-operate with the execution and completion of
the Offer.
1.23
There has been no event, circumstance or series of linked events
or circumstances, and no event, circumstance or series of linked
events or circumstances has become known to Barclays that was
not fairly disclosed in the Annual Report and Accounts of ABN
AMRO for the year ended 31 December 2006 or in any public
announcements by or on behalf of ABN AMRO before the date of
this Merger Protocol or fairly disclosed in writing by ABN AMRO
to Barclays before the execution of this Merger Protocol, and
that has, or can be reasonably be expected to have, a negative
impact on the consolidated operating income of ABN AMRO equal to
5% (five per cent.) or more of the consolidated operating income
as stated in the Accounts of ABN AMRO for the year ended
31 December 2006.
1.24
There has been no event, circumstance or series of linked events
or circumstances, and no event, circumstance or series of linked
events or circumstances has become known to ABN AMRO that was
not fairly disclosed in the Annual Report and Accounts of
Barclays for the year ended 31 December 2006 or in any
public announcements by or on behalf of Barclays before the date
of this Merger Protocol or fairly disclosed in writing by
Barclays to ABN AMRO before the execution of this Merger
Protocol, and that has, or can be reasonably be expected to
have, a negative impact on the consolidated operating income of
Barclays equal to 5% (five per cent.) or more of the
consolidated operating income as stated in the Accounts of
Barclays for the year ended 31 December 2006.
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1.25
This Merger Protocol has not been terminated.
1.26
No Offer Condition has become permanently incapable of
fulfilment and not waived.
1.27
Since the date of this Merger Protocol no Materially Burdensome
Regulatory Condition having been or become reasonably likely to
be imposed affecting any of the Barclays Group, the ABN AMRO
Group or the Combined Group (measured on a scale relative to the
relevant Group).
1.28
All regulatory approvals required for completion of the LaSalle
Agreement or a Sale Contract, as the case may be, in accordance
with its terms have been obtained.
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1.1
Such number of Ordinary Shares are tendered for acceptance and
not, where permitted, withdrawn that these, together with the
Ordinary Shares directly or indirectly held by Barclays at the
Closing Date or the Postponed Closing Date (and excluding any
Ordinary Shares held by ABN AMRO or by any of its subsidiaries
at the Closing Date or the Postponed Closing Date, as the case
may be), represent at least 80%, or such lower percentage as
Barclays may in its discretion decide, of ABN AMRO’s issued
ordinary share capital (geplaatst gewoon
aandelenkapitaal) as at the Closing Date or the Postponed
Closing Date as the case may be (excluding any Ordinary Shares
held by ABN AMRO or by any of its subsidiaries as at the Closing
Date or the Postponed Closing Date, as the case may be), and for
this purpose including any Ordinary Shares which will be issued
upon conversion of the Underlying Preference Shares by the
holders thereof into Ordinary Shares.
1.2
The irrevocable agreement between the Foundation, Barclays and
ABN AMRO in relation to the DR Prefs entered into prior to
the Commencement Date continues to be in full force and effect.
1.3
No ABN AMRO Material Adverse Change has occurred or has become
known to Barclays prior to or on the Closing Date or the
Postponed Closing Date, as the case may be, such that Barclays
cannot reasonably be expected to continue with the Offer or the
Merger or declare the Offer unconditional
(gestanddoening).
1.4
No Barclays Material Adverse Change has occurred or has become
known to ABN AMRO prior to or on the Closing Date or the
Postponed Closing Date, as the case may be, such that ABN AMRO
cannot reasonably be expected to continue with the Offer or the
Merger.
1.5
No Third Party has decided, or indicated any intention to, to
take, institute, implement or threaten any Frustrating Action,
such that the Parties cannot be reasonably be expected to
continue with the Merger or declare the Offer unconditional
(gestanddoening).
1.6
No circumstance, occurrence or development has occurred since
the date of this Merger Protocol that will constitute or
constitutes:
(i)
suspension of or limitation in trading in the Ordinary Shares or
the Convertible Shares (other than on a temporary basis in the
ordinary course of trading);
(ii)
suspension of or limitation in trading in Barclays Shares (other
than on a temporary basis in the ordinary course of trading).
1.7
All:
(i)
notifications, filings and applications that are necessary or
that one or both of the Parties have determined to be
appropriate in any jurisdiction in connection with the Merger or
the Offer, its implementation, the proposed direct or indirect
acquisition of any shares or other securities in, or control of,
ABN AMRO or any member of the ABN AMRO Group by Barclays or any
member of the Barclays Group, and the implementation of the
Structuring Action and the operation of the Combined Group in
accordance with this Merger Protocol have been made;
(ii)
Authorisations that are necessary or that one or both of the
parties have determined are appropriate in any jurisdiction for
or in respect of the Merger or the Offer, its implementation,
the proposed direct or indirect acquisition of any shares or
other securities in, or control of, ABN AMRO or any member of
the ABN AMRO Group by Barclays or any member of the Barclays
Group, the implementation of the Structuring Action and the
operation of the
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Combined Group in accordance with this Merger Protocol have been
obtained from all appropriate Third Parties (including without
limitation any person or body with whom any member of the
Combined Group has entered into any contractual arrangements)
and remain in full force and effect and are not subject to any
material term or condition which has not been satisfied or
fulfilled;
(iii)
waiting periods (or extensions thereof) under any applicable
legislation or regulation of any jurisdiction during which any
Third Party may oppose or take or announce steps which could
impede the Merger or the Offer, its implementation, the proposed
direct or indirect acquisition of any shares or other securities
in, or control of, ABN AMRO or any member of the ABN AMRO Group
by Barclays or any member of the Barclays Group, the
implementation of the Structuring Action or the operation of the
Combined Group in accordance with this Merger Protocol (or which
in any other way would reasonably be expected to materially and
adversely affect ABN AMRO or Barclays or any member of the
Combined Group) have expired, lapsed or been terminated; and
(iv)
statutory or regulatory obligations in any jurisdiction for or
in respect of the Merger or the Offer, its implementation, the
proposed direct or indirect acquisition of any shares or other
securities in, or control of, ABN AMRO or any member of the ABN
AMRO Group by Barclays or any member of the Barclays Group, the
implementation of the Structuring Action and the operation of
the Combined Group in accordance with this Merger Protocol have
been complied with,
where the failure to make those notifications, filings or
applications, to obtain those Authorisations, to wait for the
expiry, lapse or termination of such waiting period or to comply
with such obligations would result in Barclays or any member of
the Barclays Group contravening any law, would reasonably be
expected to materially and adversely affect ABN AMRO or Barclays
or any member of the Combined Group or would otherwise mean that
Barclays cannot reasonably be expected to continue with the
Offer or the Merger or declare the Offer unconditional
(gestanddoening) and other than those notifications,
filings, applications and obligations and, in relation to the
Structuring Action, those Authorisations and waiting periods
that cannot be made, be complied with, be obtained, expire or
lapse before the consummation of the Offer.
1.8
Without limitation to paragraph 1.7 above:
(i)
the Competent Regulatory Authorities in The Netherlands have
given their declaration of no-objection in accordance with and
to the extent required by the DFSA in respect of each person
(whether or not a member of the Combined Group) who will hold,
obtain or increase a qualifying holding (for the purposes of the
DFSA) or exercise any control relating to such a qualifying
holding in any credit institution, financial institution, UCITS
management company, investment firm, insurance undertaking or
other undertaking, not being an aforementioned financial
undertaking (financiële onderneming) within the
meaning of the DFSA which is a member of the Combined Group (and
for any reduction of own funds, taking over of assets and
liabilities, merger or reorganisation to be carried out) in
connection with the Merger or the Offer, its implementation, the
proposed direct or indirect acquisition of any shares or other
securities in, or control of, ABN AMRO or any member of the ABN
AMRO Group by Barclays or any member of the Barclays Group, the
implementation of the Structuring Action or the operation of the
Combined Group in accordance with this Merger Protocol;
(ii)
the FSA has notified its approval in writing in respect of each
person (whether or not a member of the Combined Group) who will
acquire control or any additional or increased control (for the
purposes of FSMA) over any UK authorised person (within the
meaning of FSMA) which is a member of the Combined Group in
connection with the Merger or the Offer, its implementation, the
proposed direct or indirect acquisition of any shares or other
securities in, or control or management of, ABN AMRO or any
member of the ABN AMRO Group by Barclays or any member of the
Barclays Group, the implementation of the Structur-
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ing Action or the operation of the Combined Group in accordance
with this Merger Protocol or, where no such notification has
been made in respect of any such person, the period allowed
under such Act for the FSA to notify any objections to such
person acquiring such control or any such additional or
increased control having expired without notification of such
objection and the FSA has not cancelled or varied, and has not
notified (or intimated that it may notify) any proposal to
cancel or vary, any permission (within the meaning of FSMA) held
by any such authorised person at the date of this Merger
Protocol;
(iii)
DNB has confirmed that it has no objection in relation to the
appointment of the Nominated Individuals to the management board
and supervisory board of ABN AMRO Bank N.V., subject to and with
effect as of the time the Offer is declared unconditional, and
the FSA has approved the Nominated Individuals being appointed
to the board of directors of Barclays Bank to perform the
functions of a director thereof, subject to and with effect as
of the time the Offer is declared unconditional;
(iv)
all approvals have been received or notices have been filed
under United States federal or state banking laws that are
necessary to permit consummation of the Offer and the Merger,
and all required waiting periods have expired;
(v)
the European Commission has issued a decision under
Article 6(1)(b) of the EU Merger Regulation, or is deemed
to have done so under Article 10(6) of the EU Merger
Regulation, declaring the Merger and the Offer compatible with
the Common Market without attaching to its decision any
conditions or obligations and in the event that a request under
Article 9(2) of the EU Merger Regulation has been made by a
Member State, the European Commission has indicated that it has
decided not to refer the Merger or the Offer (or any part
thereof) or any matter arising therefrom to a competent
authority of a Member State in accordance with Article 9(1)
of the EU Merger Regulation; and
(vi)
the applicable waiting period, if any, under the HSR Act in
Relation to the Merger or the Offer has expired or been
terminated, and no order is issued by any competent U.S.
governmental authority (whether temporary, preliminary or
permanent) preventing the implementation of the Merger or Offer
and no U.S. governmental entity has indicated an intention or
threatened to commence proceedings seeking the same and no
proceedings seeking the same are pending and not finally
resolved, and
(a) all such Authorisations remain in full force and
effect, (b) no such Authorisations are subject to any
material term or material condition which has not been fulfilled
or satisfied.
1.9
Neither Barclays nor ABN AMRO has received any notification from
the DNB or the FSA indicating that there is likely to be any
change in the supervisory, reporting or regulatory capital
arrangements and requirements that will apply in relation to the
Combined Group (or any member thereof) following the
consummation of the Offer as set out in the notifications
referred to in Clause 1.12 of Schedule 1 by
either of them before the making of the Offer.
1.10
The Tax Clearances from the relevant tax authorities in The
Netherlands and United Kingdom have not been withdrawn or
modified.
1.11
Prior to the Closing Date, or, as the case may be, the Postponed
Closing Date and subject to the Offer being declared
unconditional, the general meeting of shareholders of ABN AMRO
having unconditionally passed all appropriate resolutions
(i) to give effect to the Offer and the Merger,
(ii) amend the ABN AMRO articles of association in on
agreed form, subject to the Offer being declared unconditional
with effect from the Settlement Date, and (iii) appoint the
Nominated Individuals to the ABN AMRO Boards, subject to the
Offer being declared unconditional with effect as of the time
the Offer is declared unconditional. The appointment of the
Nominated Individuals to the supervisory board and management
board of ABN AMRO Bank N.V., subject to and with effect
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as of the time the Offer being declared unconditional, is still
in force and effect as of the time the Offer is declared
unconditional.
1.12
Prior to the Closing Date, or, as the case may be, the Postponed
Closing Date and subject to the Offer being declared
unconditional, the general meeting of shareholders of Barclays
having passed all appropriate resolutions to give effect to
(i) the Offer and the Merger and all measures to implement
it, (ii) the proposed appointments of the Nominated
Individuals to the Barclays Board, subject to and with effect
from the Offer being declared unconditional, and (iii) the
increase of Barclays share capital and the issue of the Barclays
Shares to be issued pursuant to the Offer, subject to and with
effect as of the time the Offer being declared unconditional.
1.13
The Registration Statement shall be effective under the
Securities Act and no stop order suspending the effectiveness of
the Registration Statement shall have been issued and be in
effect and no proceedings for that purpose shall have been
initiated by the SEC and not withdrawn.
1.14
Confirmation has been given by the applicable listing authority
and/or relevant stock exchange that, subject to the Offer being
declared unconditional (gestanddoening), the
Consideration Shares and Barclays ADSs representing such
Consideration shares or a portion thereof as reasonably
determined by Barclays and having consulted ABN AMRO and having
taken into account its reasonable requests, shall have been
authorised or approved, as the case may be for listing and
trading on the London Stock Exchange, Euronext Amsterdam, the
Tokyo Stock Exchange and on the NYSE.
1.15
Barclays and ABN AMRO have not received any notification from
the FTSE 100 Committee indicating that it has withdrawn or
modified, or may withdraw or modify, its confirmation provided
to Barclays before the making of the Offer to the effect that
Barclays Shares will continue be included in the FTSE 100 Index
with full “weighting” as a single line of stock
following the Offer being declared unconditional and the issue
of the Barclays Shares.
1.16
On or prior to the Closing Date, or, as the case may be, the
Postponed Closing Date, the Parties have not received a
notification from the AFM pursuant to Clause 32a DSSD that
the preparations of the Offer are in breach of Chapter IIA
of the DSSA, as amended from time to time, in which case,
pursuant to those rules, securities institutions
(effecteninstellingen) would not be permitted to
co-operate with the execution and completion of the Offer.
1.17
There has been no event, circumstance or series of linked events
or circumstances, and no event, circumstance or series of linked
events or circumstances has become known to Barclays that was
not fairly disclosed in the Annual Report and Accounts of ABN
AMRO for the year ended 31 December 2006 or in any public
announcements by or on behalf of ABN AMRO before the date of
this Merger Protocol or fairly disclosed in writing by ABN AMRO
to Barclays before the execution of this Merger Protocol, and
that has, or can be reasonably be expected to have, a negative
impact on the consolidated operating income of ABN AMRO equal to
5% or more of the consolidated operating income as stated in the
Accounts of ABN AMRO for the year ended 31 December 2006.
1.18
There has been no event, circumstance or series of linked events
or circumstances, and no event, circumstance or series of linked
events or circumstances has become known to ABN AMRO that was
not fairly disclosed in the Annual Report and Accounts of
Barclays for the year ended 31 December 2006 or in any
public announcements by or on behalf of Barclays before the date
of this Merger Protocol or fairly disclosed in writing by
Barclays to ABN AMRO before the execution of this Merger
Protocol, and that has, or can be reasonably be expected to
have, a negative impact on the consolidated operating income of
Barclays equal to 5% or more of the consolidated operating
income as stated in the Accounts of Barclays for the year ended
31 December 2006.
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1.19
This Merger Protocol has not been terminated.
1.20
The LaSalle Agreement has completed in accordance with its terms
or a Sale Contract has completed in accordance with its terms.
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(a)
Not make any changes to (i) such Party’s corporate
structure or (ii) the structure of its Group (other than
either or both (x) any intra-Group change which does not
materially and adversely affect the assets and liabilities of
the relevant Group taken as a whole or (y) the creation of
subsidiaries in the ordinary course of business consistent with
past practice or the routine winding-up of subsidiaries as part
of routine corporate housekeeping consistent with past practice);
(b)
Not merge, de-merge or consolidate with or into any other
company or business, except for any such transaction solely
among wholly-owned subsidiaries, or change in any manner its
identity or character or that of its business (save for any such
activity expressly permitted under (a) above);
(c)
In respect of such Party, not declare, pay or agree to pay or
declare any dividend or make or agree to make any distribution
in kind, whether from capital or reserves, in respect of any
securities other than its ordinary shares except for any
distributions due under the terms of preference shares and
hybrid capital instruments issued or agreed to be issued as at
the date of this Merger Protocol or which are otherwise
permitted to be issued by or for the purposes of Clause 7.1(a)
and Schedule 3. ABN AMRO is prohibited from
distributing by any means (dividend, share repurchase or
otherwise) proceeds received under the LaSalle Agreement or a
Sale Contract;
(d)
Not amend its articles of association or equivalent or similar
constitutional documents save that this does not apply to
members of a Party’s Group (other than the Party) to the
extent that changes do not materially and adversely affect the
assets and liabilities of the relevant Group taken as a whole or
the rights attaching to any shares in any member of a
Party’s Group;
(e)
Not propose to appoint any new members on any of the ABN AMRO
Boards, other than with respect to ABN AMRO, the appointment of
a new member of the Supervisory Board proposed to ABN
AMRO’s general meeting of shareholders to be held on
26 April 2007;
(f)
Subject to Clause 7.2 or Clause 7.3 (as the case may
be) not create, extend, grant, issue, or agree to create,
extend, grant, issue or allow any third party rights over any of
its Group’s material assets or any part thereof, except in
the ordinary course of business;
(g)
Not enter into any capital commitment or investment that
individually (or taken with any other such commitment(s) or
investment(s) which might together reasonably be regarded as
constituting a single commitment or investment) amounts to EUR
250 million or more and that has not been provided for in
its budget for the financial year commencing 1 January 2007
or fairly disclosed to the other Party before the execution of
this Merger Protocol and other than (i) intra-Group capital
investments, (ii) loans and investments in the ordinary
course of business consistent with past practice including
without limitation private equity investments;
(h)
To the extent in the best interest of the relevant Group company
and reasonably possible, maintain the services of its directors,
officers and key employees, and its business relationships with
key customers and others having material business dealings with
its Group;
(i)
In relation to employees and consultants, make no material
change to any contract term or compensation or benefits
arrangements unless the change is:
(a)
consistent with existing policies and governance processes in
operation at the time of execution of this Merger Protocol; and
(b)
commercially necessary or reasonably desired; and
(c)
reasonably capable of documentary support in respect of
(a) and (b);
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and would not materially adversely affect any of the planned
synergy savings as agreed between the Parties;
(j)
Except in the ordinary course of the Party’s private equity
or merchant bank business or otherwise to the extent permitted
by Clause 7, not acquire or dispose of any material legal
entities, material businesses or all or a material part of its
assets (including, without limitation, strategic stakes) or
engage in series of acquisitions or disposals of such material
legal entities, material businesses or all or part of its
assets. For the purposes of this paragraph (j), a legal entity,
business, asset or part of the Party’s assets shall be
material if it has a book value of, or is bought or sold for,
EUR 500 million or more. This paragraph (j) does not
restrict anything permitted by Clause 7;
Merchant bank business of ABN AMRO in the context of this
Schedule 3 shall mean: minority equity investments
(i.e., non-controlling stakes, co-investments), generally in the
range of Euro 20-100 million, which are primarily
client-driven and intended to generate (i) private equity type
return on investment, and, (ii) significant ancillary revenues
for the various product groups within ABN AMRO. Merchant banking
of ABN AMRO is primarily active in Europe and Asia and focuses
on both the financial institutions sector (including all
sub-sectors) and the corporate sector (including all
sub-sectors);
(k)
Not settle or initiate any litigation or arbitration or similar
proceedings that involves a payment or receipt (or a claim in
respect of which the relevant group member is claimant) of an
amount of EUR 250 million or more. For the purposes of
this paragraph (k) a series of proceedings (or claims) arising
out of the same or substantially the same originating cause
shall be treated as one proceeding (or claim);
(l)
Not make any changes with respect to accounting policies or
procedures, except as (i) required by applicable law or by
changes in applicable generally accepted accounting principles
or (ii) as either Party, after having obtained the advice
of its independent auditors and after consultation with the
other Party, determines in its good faith is advisable to
conform to best accounting practices;
(m)
Not make or alter any material tax election or take any material
position on any material tax return filed on or after the date
hereof or adopt any tax method therefore that is inconsistent
with elections made, positions taken, or methods used in
preparing or filing any tax return in prior periods or settle or
otherwise finally resolve any dispute with respect to an amount
of tax which exceeds by EUR 250 million or more in
aggregate the amount provided in the relevant Party’s
consolidated balance sheet in its published audited account for
the year ended 31 December 2006;
(n)
Procure that neither it nor any other member of its Group shall:
(i)
issue or authorise or propose the issue of additional shares of
any class or securities in its capital, or securities
convertible into, or exchangeable for, or rights, warrants or
options to subscribe for or acquire, any such shares or
convertible securities or transfer or sell or authorise or
propose the transfer or sale of shares out of treasury (save,
where relevant, as between such Party and its wholly-owned
subsidiaries and save for the issue or transfer out of treasury
of shares on the exercise of options granted before the date of
this Merger Protocol in the ordinary course);
(ii)
enter into or vary or authorise, propose or announce its
intention to enter into or vary any contract, transaction,
arrangement or commitment (whether in respect of capital
expenditure or otherwise) (otherwise than in the ordinary course
of business) which is of a long term, unusual or onerous nature
and which involves or could reasonably be expected to involve an
obligation of a nature or magnitude which is, in any such case,
material in the context of its Group or which is or is likely to
be restrictive on the business of any member of the Combined
Group;
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(iii)
propose, agree to provide or modify in any material respect the
terms of any share option scheme or incentive scheme;
(iv)
make, agree or consent to any significant change to the terms of
any pension scheme established for its directors, employees or
their dependants or the benefits which accrue, or to the
pensions which are payable, thereunder, or to the basis on which
qualification for, or accrual or entitlement to, such benefits
or pensions are calculated or determined or to the basis on
which the liabilities (including pensions) of such pension
schemes are funded or valued, or carry out any act which may
lead to the commencement of the winding up of the pension scheme
or which could give rise directly or indirectly to a liability
arising out of the operation of any statute in any jurisdiction
in relation to the scheme or agree to make any additional
funding to the pension scheme as part of any negotiations with
the trustees of the pension scheme other than as required by
applicable law or required under the terms or rules of the
pension scheme or as has been fairly disclosed to the other
Party prior to the date hereof;
(v)
save as expressly permitted under Clause 7, implement or
effect, or authorise, propose or announce its intention to
implement or effect any merger, de-merger, or liquidation or
apply for bankruptcy or suspension of payments or enter into
negotiations with any one or more of its creditors with a view
to the readjustment or rescheduling of all or part of its debts,
or enter into any other similar transaction or arrangement in
any jurisdiction (other than the Offer) otherwise than in the
ordinary course of business and except for any such transaction
solely among wholly-owned subsidiaries provided that it does not
involve any insolvent liquidation (within the meaning of English
law), application for bankruptcy or suspension of payment or
entering into negotiations with any one or more creditors with a
view to the readjustment or rescheduling of all or part of its
debt or similar actions under any jurisdiction;
(vi)
purchase, redeem or repay or announce any proposal to purchase,
redeem or repay any of its own shares or other securities or
reduced or, make any other change to any part of its share
capital to an extent which (other than in the case of such
Party) is material in the context of its Group save that:
(a)
ABN AMRO is permitted to repurchase any of its ordinary shares
at a price not exceeding, at the time of the repurchase, either
the market price of such shares or the Daily Reference Price.
The Daily Reference Price is calculated as the Ordinary Share
Exchange Ratio (adjusted in accordance with
Schedule 5 as if the date of repurchase were the
Settlement Date) multiplied by the Barclays Reference Price as
at the date of repurchase. The Barclays Reference Price for a
day is the 5 (five) day rolling average of the
mid-market Barclays ordinary share price for the
5 (five) preceding trading days as per the London
Stock Exchange Daily Official List (calculated in Euros with
each of the 5 (five) trading days’ Sterling price
converted using the spot Euro-Sterling exchange rate as at the
close of the relevant trading day on the London Stock Exchange);
and
(b)
Barclays is permitted to repurchase any of its ordinary shares
at a price not exceeding the market price of such shares at the
time of repurchase;
(o)
Generally, not do anything that can reasonably be expected to
compromise the proposed synergy plans as discussed between the
Parties and delivery of the underlying savings; or
(p)
Not enter into any contract, commitment, agreement or
arrangement or pass any resolution or make any offer (which
remains open for acceptance) with respect to or announce an
intention to, or to propose to, effect any of the transactions,
matters or events referred to in this Schedule.
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ABN AMRO
refers to ABN AMRO Holding N.V., a public limited liability
company, duly incorporated and validly existing under the laws
of The Netherlands, having its registered office at Gustav
Mahlerlaan 10, 1082 PP Amsterdam, The Netherlands;
ABN AMRO ADSs
has the meaning ascribed thereto in Recital (A);
ABN AMRO Boards
has the meaning ascribed thereto in Recital (K);.
ABN AMRO Boards Recommendation
has the meaning ascribed thereto in Clause 4.1;
ABN AMRO Employee Share Plans
has the meaning ascribed thereto in Clause 7.11;
ABN AMRO Event
means any event, events or circumstance that results or could
reasonably be expected to result in a material adverse effect on
the business, cash flow, financial or trading position, assets,
profits, operational performance, capitalization, prospects or
business of the ABN AMRO Group taken as a whole, that, in either
case, does not arise as a result of:
(i) a general economic decline in the financial services
and banking industry, including but not limited to commercial
banking, investment banking, stock broking, asset management and
fund management; or
(ii) a general economic decline affecting Barclays and ABN
AMRO in a similar and proportionate way; or
(iii) any matter known to Barclays, its group companies and
Barclays advisors from information filed by any member of ABN
AMRO Group as a matter of public record, made public by ABN AMRO
pursuant to the Merger Rules or fairly disclosed by ABN AMRO to
Barclays, its group companies or Barclays advisors prior to the
date hereof and which matter Barclays could reasonably be
expected to know on signing of this Agreement would, but for
this exception (iii) constitute an ABN AMRO Event; or
(iv) the announcement, making and implementation of the
Offer;
ABN AMRO Group
has the meaning ascribed thereto in Recital (A);
ABN AMRO Material Adverse Change
means (i) an ABN AMRO Event; or (ii) a change since
the date hereof in national (including, without limitation,
United States, United Kingdom, The Netherlands or any other
member state of the European Economic Area) or international
capital markets (including without limitation, an adverse change
in the tax laws of such states), financial, political or
economic conditions or currency exchange rates or exchange
controls (whether or not arising as a result of or in connection
with any outbreak or escalation of hostilities or declaration of
war or national emergency or act of terrorism or other
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national or international calamity), that does not arise as a
result of:
(i) a general economic decline in the financial services
and banking industry, including but not limited to commercial
banking, investment banking, stock broking, asset management and
fund management; or
(ii) a general economic decline affecting Barclays and ABN
AMRO in a similar and proportionate way; or
(iii) the announcement, making and implementation of the
Offer;
ABN AMRO Programme
has the meaning ascribed thereto in Clause 7.2;
ABN AMRO Shareholders’ Meeting
means the extraordinary general meeting of shareholders of ABN
AMRO that is held in accordance with the Merger Rules prior to
the Closing Date and is convened by ABN AMRO on or prior to the
Commencement Date;
ABN AMRO Shares
has the meaning ascribed thereto in Recital (C);
ADS Registration Statement
has the meaning ascribed thereto in Clause 1.8;
AFM
means the Netherlands Authority for the Financial Markets
(Stichting Autoriteit Financiële Markten);
Alternative Proposal
has the meaning ascribed thereto in Clause 11.2;
Announcement
has the meaning ascribed thereto in Clause 1.18;
Announcing Party
has the meaning ascribed thereto in Clause 15.2;
Authorisation
means any authorisation, order, grant, recognition,
confirmation, consent, licence, clearance, certificate,
permission, exemption or approval;
Barclays
means Barclays PLC, a public limited liability company, duly
incorporated and validly existing under the laws of England,
having its registered office, at 1 Churchill Place, Canary
Wharf, London, E14 5HP, United Kingdom;
Barclays ADSs
has the meaning ascribed thereto in Recital (B);
Barclays Board
has the meaning ascribed thereto in Recital (K);
Barclays Board Recommendation
has the meaning ascribed thereto in Clause 4.3;
Barclays Event
means any event, events or circumstance that results or could
reasonably be expected to result in a material adverse effect on
the business, cash flow, financial or trading position, assets,
profits, operational performance, capitalization, prospects or
business of the Barclays Group taken as a whole that does not
arise as a result of:
(i) a general economic decline in the financial services
and banking industry, including but not limited to commercial
banking, investment banking, stock broking, asset management and
fund management; or
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(ii) a general economic decline affecting Barclays and ABN
AMRO in a similar and proportionate way; or
(iii) any matter known to ABN AMRO, its group companies and
ABN AMRO’s advisors from information filed by any member of
Barclays Group as a matter of public record, made public by
Barclays pursuant to the Merger Rules or fairly disclosed by
Barclays to ABN AMRO, its group companies or ABN AMRO’s
advisors prior to the date hereof and which matter ABN AMRO
could reasonably be expected to know on signing of this Merger
Protocol would, but for this exception (iii), constitute a
Barclays Event; or
(iv) the announcement, making and implementation of the
Offer;
Barclays Group
Barclays, its subsidiaries, its group companies and its
affiliated companies;
Barclays Material Adverse Change
means (i) an Barclays Event or (ii) a change since the
date hereof in national (including, without limitation, United
States, United Kingdom, The Netherlands or any other member
state of the European Economic Area) or international capital
markets (including without limitation, an adverse change in the
tax laws of such states), financial, political or economic
conditions or currency exchange rates or exchange controls
(whether or not arising as a result of or in connection with any
outbreak or escalation of hostilities or declaration of war or
national emergency or act of terrorism or other national or
international calamity), that does not arise as a result of:
(i) a general economic decline in the financial services
and banking industry, including but not limited to commercial
banking, investment banking, stock broking, asset management and
fund management; or
(ii) a general economic decline affecting Barclays and ABN
AMRO in a similar and proportionate way; or
(iii) the announcement, making and implementation of the
Offer;
Barclays Securities
has the meaning ascribed thereto in Recital (F);
Barclays Shares
means ordinary shares in the share capital of Barclays with a
nominal value of 25 pence each;
Barclays Shareholders’ Meeting
has the meaning ascribed thereto in Clause 1.10;
Binding Advice
has the meaning ascribed thereto in Clause 5.6;
Binding Advisor
has the meaning ascribed thereto in Clause 5.6;
Business Day
means a day (other than a Saturday or Sunday) on which banks are
generally open in The Netherlands, the United Kingdom and the
United States for normal business;
Calculation Date
has the meaning ascribed thereto in Schedule 5;
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Class 1 Circular
means a circular prepared pursuant to and in accordance with the
Listing Rules of the UKLA and the requirements of applicable
English law;
Closing Date
has the meaning ascribed thereto in Clause 1.4;
Combined Group
means the ABN AMRO Group and the Barclays Group together;
Commencement Date
has the meaning ascribed thereto in Clause 5.1;
Competent Authorities
means the Competent Competition Authorities and the Competent
Regulatory Authorities and other governments and governmental,
quasi-governmental, supranational, statutory, regulatory or
self- regulatory, administrative or other bodies or agencies in
any jurisdiction;
Competent Competition Authorities
means the bodies or agencies in jurisdictions where filings are
envisaged in accordance with Clause 9.1;
Competent Regulatory Authorities
means governments and governmental, quasi-governmental,
supranational, statutory, regulatory or self-regulatory,
administrative or other bodies or agencies exercising
regulatory, supervisory or other functions in respect of matters
relating to any banking, securities, insurance or other
financial services business or any other business carried on by
a member of the Combined Group (including without limitation any
exchanges, trading systems, clearing houses and settlement or
payment systems of which any member of the Combined Group is a
member) or foreign exchange, foreign investment or similar
matters in any jurisdiction;
Competing Offer
has the meaning ascribed thereto in Clause 12.1;
Completion Longstop Date
has the meaning ascribed thereto in Clause 19.1.3;
Confidential Information
has the meaning ascribed thereto in Clause 16.1;
Consideration Shares
has the meaning ascribed thereto in Clause 1.2 (i);
Convertible Share Consideration
has the meaning ascribed thereto in Clause 1.2 (iii);
Convertible Shares
has the meaning ascribed thereto in Recital (C);
Conversion Rights
has the meaning ascribed thereto in Recital (D);
Cross Border Merger
has the meaning ascribed thereto in Clause 2.3;
DCC
means the Dutch Civil Code;
DFSA
means The Dutch Financial Supervision Act (Wet financieel
toezicht);
Disclosing Party
has the meaning ascribed thereto in Clause 16.1(ii);
Disposal
has the meaning ascribed thereto in Clause 7.2(a);
DNB
means De Nederlandsche Bank N.V. (the Dutch Central Bank);
DR Prefs
has the meaning ascribed thereto in Recital (C);
DR Pref Consideration
has the meaning ascribed thereto in Clause 1.2 (ii);
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DSSA
means the Dutch Securities Supervision Act 1995 (Wet toezicht
effectenverkeer 1995) as amended and/or replaced by the New
Dutch Public Offer Rules;
DSSD
means the Dutch Securities Supervision Decree 1995 (Besluit
toezicht effectenverkeer 1995) as amended and or replaced by
the New Dutch Public Offer Rules;
Enquiries
has the meaning ascribed thereto in Schedule 7;
EU Merger Regulation
means Council Regulation (EC)139/2004;
Exchange Act
has the meaning ascribed thereto in Clause 1.4;
Exclusivity Period
means the period commencing on the date of this Merger Protocol
and ending on the Completion Longstop Date;
Filings
has the meaning ascribed thereto in Clause 10.1;
Foundation
has the meaning ascribed thereto in Clause 7.8;
Frustrating Action
means any action, proceeding, suit, investigation, enquiry or
reference, or any act taken or otherwise anything done or any
statute, regulation, decision, order or change to published
practice which has been enacted made or proposed and any
statute, regulation, decision or order, which is continuing to
be outstanding and which could reasonably be expected to
(i) make the Offer (including the proposed Merger), its
implementation or the acquisition or proposed acquisition of any
shares or other securities in, or control of, ABN AMRO by
Barclays, or the issue, listing or admission to trading of the
Consideration Shares, void, illegal and/or unenforceable under
the laws of any jurisdiction, or otherwise directly or
indirectly, prohibit, restrain, restrict, delay or otherwise
interfere with the implementation of, or impose additional
conditions or obligations with respect to, or otherwise
challenge or require amendment of, the Offer or the acquisition
of any such shares or securities by Barclays; (ii) impose
any limitation on, or result in a delay in, the ability of
Barclays directly or indirectly to acquire or hold or to
exercise effectively all or any rights of ownership in respect
of shares or other securities in ABN AMRO or on the ability of
any member of the ABN AMRO Group or any member of the Barclays
Group directly or indirectly to hold or exercise effectively any
rights of ownership in respect of shares or other securities (or
the equivalent) in, or to exercise management control over, any
member of the ABN AMRO Group; or (iii) except as fairly
disclosed in writing by ABN AMRO to Barclays prior to the
execution of this Merger Protocol or as publicly announced by or
on behalf of ABN AMRO before that date, otherwise affect the
business, assets, profits or prospects of any member of the ABN
AMRO Group or any member of the Barclays Group;
FSA
means the United Kingdom Financial Services Authority;
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FSMA
The United Kingdom Financial Services and Markets Act 2000 and
all regulations, codes, rules and statutory instruments
published or enacted thereunder;
Group
means, in relation to any legal entity, its subsidiaries, its
subsidiary undertakings, group companies and affiliates;
HSR Act
means the US Hart-Scott-Rodino Antitrust Improvement Act of 1976
and any regulations made thereunder;
Interim Period
has the meaning ascribed thereto in Clause 7.1(a);
LaSalle
means ABN AMRO North America Holding Company and its downstream
subsidiaries and group companies;
LaSalle Agreement
means the agreement entered into prior to the execution of this
Merger Protocol between ABN AMRO Bank N.V. and Bank of America
Corporation in relation to the sale by ABN AMRO Bank N.V. of all
of the outstanding shares of LaSalle to Bank of America
Corporation;
Launch Longstop Date
has the meaning ascribed thereto in Clause 19.1.2;
LCIA
has the meaning ascribed thereto in Clause 5.6;
Management Board
has the meaning ascribed thereto in Recital (K);
Material Decrease
has the meaning ascribed thereto in Clause 5.7;
Materially Burdensome Regulatory Condition
means any action, condition, sanction or restriction imposed by
a Competent Authority or third party that has or would
reasonably be expected to have a material adverse effect on the
business, results of operations or financial condition of the
relevant Party;
Matters in Dispute
has the meaning ascribed thereto in Schedule 7;
Merger
has the meaning ascribed thereto in Recital (E);
Merger Code
means the Merger Code 2000 (SER-besluit Fusiegedragsregels
2000);
Merger Protocol
has the meaning ascribed thereto in the Preamble;
Merger Rules
has the meaning ascribed thereto in Clause 1.5;
NAI Arbitration Rules
has the meaning ascribed thereto in Clause 22.2;
Nominated Individuals
has the meaning ascribed thereto in Clause 3.3;
Notice
has the meaning ascribed thereto in Clause 12.2;
Notice of Disagreement
has the meaning ascribed thereto in Clause 5.4;
Offer
has the meaning ascribed thereto in Recital (F);
Offer Conditions
means the conditions as set out in Schedule 2;
Offer Document
means the offer document (biedingsbericht), together with
all amendments and supplements thereto, which Barclays shall
make generally available in the Netherlands on the Commencement
Date;
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Ordinary Shares
has the meaning ascribed thereto in Recital (C);
Ordinary Share Exchange Ratio
has the meaning ascribed thereto in Clause 1.2;
Parties
has the meaning ascribed thereto in the Preamble;
Post-Offer Actions
has the meaning ascribed thereto in Clause 2.3;
Postponed Closing Date
has the meaning ascribed thereto in Clause 1.4;
Preference Shares
means the Underlying Preference Shares and Convertible Shares
together;
Preliminary Transaction Agreement
has the meaning ascribed thereto in Recital (H);
Pre-Offer Conditions
means the conditions as set out in Schedule 1;
Proposal in relation to Barclays
has the meaning ascribed thereto in Clause 11.9;
Prospectus
means a prospectus, together with all amendments and supplements
thereto, that Barclays shall make generally available in the
Netherlands and the United Kingdom on the Commencement date,
relating to the issue and listing of the Consideration Shares
offered in exchange for the relevant ABN AMRO Shares;
Prospectus Directive
means EU Directive 2003/71/ EC;
Public Statement
means any public statement or any non-public statement that is
intended to become public, has become public or will become
public;
Receiving Party
has the meaning ascribed thereto in Clause 16.1;
Registration Statement
has the meaning ascribed thereto in Clause 1.8;
Remaining Competent Authority
has the meaning ascribed thereto in Clause 10.1;
Representatives
has the meaning ascribed thereto in Clause 16.1;
Sale Contract
means an agreement relating to the sale of LaSalle by ABN AMRO,
other than the LaSalle Agreement;
Schedule 14D-9
means ABN AMRO’s Solicitation/ Recommendation statement on
Schedule 14D-9, as
amended or supplemented;
Schedule TO
has the meaning ascribed thereto in Clause 1.8;
SEC
means the United States Securities and Exchange Commission;
Securities Act
means the United States Securities Act of 1933, as amended;
Settlement
has the meaning ascribed thereto in Clause 6.5;
Settlement Date
has the meaning ascribed thereto in Clause 6.5;
Share Price
has the meaning ascribed thereto in Schedule 5;
Structuring Action
has the meaning ascribed thereto in Clause 3.2;
Subco N.V.
has the meaning ascribed thereto in Recital (F);
Supervisory Board
has the meaning ascribed thereto in Recital (K);
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Tax Clearances
has the meaning ascribed thereto in Clause 1.13 of
Schedule 1;
Third Party
means any government or governmental, quasi governmental,
supranational, statutory, regulatory, environmental,
administrative, fiscal or investigative body, court, trade
agency, association, institution or any other body or person
whatsoever in any jurisdiction;
Transaction
has the meaning ascribed thereto in Clause 7.3;
Treasury Stock
has the meaning ascribed thereto in Recital (C);
Underlying Preference Shares
has the meaning ascribed thereto in Recital (C);
US Authorities
has the meaning ascribed thereto in Clause 10.1; and
Value Added Tax
means (a) any tax imposed in compliance with the council
directive of 28 November 2006 on the common system of value
added tax (EC Directive 2006/112), or predecessor legislation,
and (b) any other tax of a similar nature, whether imposed
in a member state of the European Union in substitution for, or
levied in addition to, such tax referred to in (a), or elsewhere;
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1.
A Party may (notwithstanding Clause 7.1 of this Merger
Protocol and Schedule 3, other than the final
sentence of paragraph (c) of Schedule 3) effect a
Capital Raising or Capital Return as defined in paragraph 4
below, subject to the Ordinary Share Exchange Ratio and the
related ADS Exchange Ratio and, if relevant, the DR Pref
Consideration being adjusted as contemplated by this
Schedule 5 and provided always that none of the
proceeds under the LaSalle Agreement or a Sale Contract may in
any circumstance be distributed during the Interim Period by any
means whatsoever.
2.
The Parties agree that the Ordinary Share Exchange Ratio is
expressed on the basis of the value of Barclays Shares by
reference to the closing share price on the Calculation Date
relative to the value of ABN AMRO Ordinary Shares implied by the
Ordinary Share Exchange Ratio and the purpose of the adjustments
contemplated in this Schedule 5 is to factor into this
ratio the impact on the relative values of Barclays and ABN AMRO
arising from certain actions.
3.
For the purposes of clarity, the proposed dividends relating to
the financial year ended 31 December 2006 and any interim
dividends in respect of the financial year commencing
1 January 2007 (provided any such interim dividend is
consistent with the dividend policy of such Party prevailing as
at the date of this Merger Protocol and does not exceed
reasonable market expectations as on 20 April 2007) and any
repurchase of ordinary shares permitted by paragraph (n)(vi) of
Schedule 3 shall not result in an adjustment of any
ratio contemplated by this Schedule 5.
4.
Where there is a Capital Raising or Capital Return, the Ordinary
Share Exchange Ratio shall be adjusted in accordance with the
following formula (calculated to 3 decimal places):-
5.
In any calculation of the Adjusted Ordinary Share Exchange
Ratio, the GBP/ EUR exchange rate shall be the relevant
reference rate as published by the European Central Bank (and
quoted on its website) prevailing on the date of the Capital
Return or the Capital Raising.
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6.
In this Schedule 5:
“ADS Exchange Ratio” has the meaning ascribed
to it in Clause 1.2(i) of this Merger Protocol.
“Calculation Date” means 20 April 2007.
“Capital Raising” means the issue of
(i) any ordinary shares by a Party; or (ii) paid-for
newly granted rights to acquire the issued ordinary shares of
either Party (whether or not otherwise permitted under or for
the purposes of Clause 7.1 of this Merger Protocol and
Schedule 3).
“Capital Return” means the declaration of a
dividend, capital repayment or any other distribution by a Party
in respect of its ordinary shares (whether or not otherwise
permitted under or for the purposes of Clause 7.1 of this
Merger Protocol and Schedule 3, other than the final
sentence of paragraph (c) of Schedule 3), but
excluding any transaction referred to in paragraph 3 of
this Schedule 5.
“Ordinary Share Exchange Ratio” has the meaning
ascribed to it in Clause 1.2(i) of this Merger Protocol.
In respect of each Party, the number of shares in issue are
calculated on a fully diluted basis, minus the number of shares
in issue on the Calculation Date that were held by that Party as
Treasury shares, plus all ordinary shares repurchased by that
Party from the Calculation Date to the Settlement Date.
Unless specifically defined in this Schedule 5,
defined words and phrases shall have the meaning ascribed to
them in this Merger Protocol.
7.
Where ABN AMRO receives cash consideration for the sale of
LaSalle (the “LaSalle Proceeds”) which is less
than US$ 21 billion (the “LaSalle
Amount”), an amount equal to the shortfall shall be
deemed to have been a distribution by ABN AMRO and therefore
amounts to a Capital Return by ABN AMRO for the purposes of this
Schedule 5. However, where the LaSalle Proceeds are
in excess of the LaSalle Amount, this shall not amount to a
Capital Raising for the purposes of this Schedule 5
and, consequently, there shall be no adjustment to the Ordinary
Share Adjustment Ratio as a result of the excess proceeds.
8.
Where a Party undertakes a Capital Raising or Capital Return (i)
the relevant ADS Exchange Ratio; (ii) the DR Pref
Consideration; and (iii) Convertible Share Consideration
shall be equitably adjusted to the extent necessary to reflect
the Adjusted Ordinary Share Exchange Ratio on a basis consistent
with the principles of this Schedule 5.
9.
Where a Party elects to undertake a Capital Raising or a Capital
Return it shall promptly provide the other Party with a
calculation of the effect on the Adjusted Ordinary Share
Exchange Ratio (and the related ratios) and use all reasonable
endeavours to reach agreement on such adjustments. In the
absence of agreement within 5 Business Days of the calculation
being submitted for agreement, the matter shall be referred to
an expert pursuant to Clause 6.8.
10.
For the avoidance of doubt, except as provided in
paragraph 1 of this Schedule 5, any adjustment
made pursuant to the provision of this Schedule shall not
constitute a waiver or settlement with respect to any breach by
any Party of the provisions of Schedule 3 or Clause
7.1(a) and shall not limit any rights of any Party with respect
thereto.
11.
This Schedule 5 shall cease to operate, and no adjustment
shall be made to the final exchange ratio, after the date the
Offer is declared unconditional. During the period from then
until the settlement of any final acceptances under the Offer,
no action may be taken by either party which would otherwise
have given rise to an adjustment under this Schedule 5.
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12.
The intended operation of this Schedule 5 is
illustrated in the following worked examples:
13.
Example 1. Barclays issues 1,000m new shares at £5.25
|
Value per Barclays share on
Calculation Date
|
£7.50 | |||
|
Number of Barclays shares issued
and outstanding on Calculation Date
|
6,389m | |||
|
Ordinary Share Exchange Ratio
|
2.0 | |||
|
Implied ABN AMRO share price on
Calculation Date (expressed in GBP)
|
£15.00 | |||
|
Share price at which placement is
made (expressed in GBP)
|
£5.25 | |||
|
Number of shares issued in the
placement
|
1,000m | |||
|
Number of Barclays shares
outstanding post placement
|
7,389m | |||
|
Adjusted Ordinary Exchange Ratio =
(15.00) / ((7.50 × 6,389 + 1,000 × 5.25) / 7,389)
|
2.08 |
| 14. | Example 2. ABN AMRO pays a special dividend of €500m |
|
Value per Barclays share on
Calculation Date
|
£7.50 | |||
|
Ordinary Share Exchange Ratio
|
2.0 | |||
|
Implied ABN AMRO share price on
Calculation Date (expressed in GBP)
|
£15.00 | |||
|
Number of ABN AMRO shares issued
and outstanding on Calculation Date
|
1,846m | |||
|
EUR-GBP exchange rate on
Calculation Date
|
1.47 | |||
|
Special dividend declared and paid
by ABN AMRO
|
€500m | |||
|
Adjusted Ordinary Exchange Ratio =
((15.00 × 1,846 - 500/1.47) / 1,846) / (7.50)
|
1.98 |
A-64
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A-66
(a)
These Terms indicate the proceedings and the basis for the
binding advice in respect of the matters in dispute between the
Parties (the “Matters in Dispute”).
(b)
The Matters in Dispute are to be set out in the Parties’
respective notices, including any notices delivered by either
Party under Clause 1.3 or Clause 19.1. The Parties agree
that such notices together set out all of the Matters in Dispute
between the Parties which are to be the subject of the Binding
Advice process contemplated herein.
(c)
The Binding Advisor shall be entitled to make such additional
enquiries as he may determine in his discretion
(“Enquiries”) in order to assist with the
Binding Advice. Any such Enquiries will be made in writing
jointly to the Parties setting out the issues that the Binding
Advisor considers that either or both Parties should address.
(d)
The Binding Advisor shall ensure that either Party has a
reasonable opportunity to present its arguments and shall treat
the Parties equally.
(e)
The Binding Advisor may seek advice from experts where there is
any question or issue arising from any of the information
submitted which require specialist expertise outside the scope
of the Binding Advisor’s own expertise. In the event the
Binding Advisor decides to obtain external advice, he will make
the requirement known to the Parties. The Binding Advisor will
allow the parties to comment on the questions that he intends to
submit to the expert and will allow the parties to comment on
the answers given by the expert.
(f)
The Parties require this dispute to remain confidential between
them, the Binding Advisor and any expert engaged by the Binding
Advisor. The Binding Advisor agrees to observe and ensure such
confidentiality and to ensure that all documentation and
correspondence remain confidential. The Binding Advisor will not
disclose any confidential information concerning the
Parties’ business to third parties without the relevant
Party’s prior written consent unless otherwise required by
law, a court of competent jurisdiction, taxation authorities or
other government or regulatory authority.
(g)
The Binding Advisor shall render its Binding Advice as amiable
compositeur. The Binding Advice shall be final and binding on
the Parties as regards the fulfilment and/or waiver of the
Pre-Offer Conditions or Offer-Conditions, as the case may be.
(h)
The Binding Advice shall set out in writing, for each of the
Matters in Dispute, a decision as to the fulfilment or waiver
and a brief explanation of the basis upon which the Binding
Advisor reaches his Binding Advice. In the situation mentioned
in Clause 6.8 of this Merger Protocol the Binding Advisor
may submit the written explanation of his decision within 2
(two) Business Days of his Binding Advice, unless Parties
agree to allow an extension.
(i)
Billings will be presented equally for the account of each Party
unless the Binding Advisor determines otherwise.
(j)
The Parties may terminate the Binding Advice proceedings jointly
in writing. The Parties shall pay the Binding Advisor for all
services rendered and expenses incurred as of the date of
termination.
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|
Morgan Stanley & Co. Limited 25 Cabot Square Canary Wharf London E14 4QA tel +44 (0)20 7425 8000 fax +44 (0)20 7425 8990 telex 8812564 |
||
| i) | reviewed certain publicly available earnings forecasts, financial statements and other business and financial information of or relating to ABN AMRO and Barclays, respectively; | |
| ii) | reviewed certain internal financial statements and other financial and operating data concerning ABN AMRO and Barclays including certain internal estimates as to potential cost savings and other synergies expected to result from the Transaction that were prepared and provided to us by management of ABN AMRO and Barclays and not publicly available; | |
| iii) | reviewed certain financial projections prepared by, and which were provided to or discussed with us by, the management of ABN AMRO; |
B-1
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B-2
iv)
reviewed certain other financial information and data relating
to ABN AMRO and Barclays which were provided to or
discussed with us by the respective managements of ABN AMRO
and Barclays, including information relating to the potential
strategic implications and operational benefits (including the
amount, timing and achievability thereof) anticipated by the
managements of ABN AMRO and Barclays to result from the
Transaction;
v)
discussed the past and current operations and financial
condition and the prospects of ABN AMRO with senior
executives of ABN AMRO and analysed the potential pro forma
impact of the Transaction;
vi)
reviewed the prices and trading activity for the ordinary shares
of ABN AMRO and Barclays, respectively;
vii)
compared the financial performance of ABN AMRO and Barclays
with that of certain other publicly-traded companies comparable
with ABN AMRO and Barclays;
viii)
reviewed the financial terms, to the extent publicly available,
of certain comparable acquisition transactions;
ix)
participated in discussions and negotiations among
representatives of ABN AMRO and Barclays and their
respective financial and legal advisors;
x)
reviewed the Merger Protocol;
xi)
reviewed the draft PSA dated 22 April 2007;
xii)
reviewed the financial impact of the PSA on the Exchange Ratio
and the conditionality of the Transaction with the PSA; and
xiii)
reviewed such other information and performed such other
analyses that we have deemed appropriate.
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B-3
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C-1
UBS Limited
1 Finsbury Avenue
London, EC2M 2PP
Tel. +44-20-7567-8000
www.ubs.com
UBS Limited is a subsidiary of UBS AG
UBS Limited is incorporated as a limited liability company
in England & Wales Registered Address: 1 Finsbury Avenue,
London EC2M 2PP Company Number 2035362
UBS Limited is a member of the London Stock Exchange
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C-2
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Very truly yours,
UBS Limited
|
By: /s/ John
Cryan
|
By: /s/ Jonathan
Evans |
||
|
Name: John Cryan Title: Managing Director |
Name: Jonathan
Evans Title: Executive Director |
||
C-3
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D-3
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| By Mail: | By Hand Delivery | By Overnight Delivery | ||||||
|
[ l ]
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[ l ] | [ l ] | ||||||
| By Mail: | By Hand Delivery | By Overnight Delivery | ||||||
|
[ l ]
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| US and Canada | Europe | |||
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II-1
Item 20.
Indemnification of Directors and Officers
(1)
This section applies in relation to any liability attaching to a
director of a company in connection with any negligence,
default, breach of duty or breach of trust by him in relation to
the company.
(2)
Any provision which purports to exempt (to any extent) a
director of a company from any liability within subsection
(1) is void.
(3)
Any provision by which a company directly or indirectly provides
(to any extent) an indemnity for a director of —
(a) the company, or (b) an associated
company — against any liability within subsection
(1) is void. This is subject to subsections (4) and
(5).
(4)
Subsection (3) does not apply to a qualifying third party
indemnity provision (see section 309B(1)).
(5)
Subsection (3) does not prevent a company from purchasing
and maintaining for a director of — (a) the
company, or (b) an associated company — insurance
against any liability within subsection (1).
(6)
In this section, “associated company”, in relation to
a company (“C”), means a company which is C’s
subsidiary, or C’s holding company or a subsidiary of
C’s holding company; “provision” means a
provision of any nature, whether or not it is contained in a
company’s articles or in any contract with a company.
(1)
For the purposes of Section 309A(4) a provision is a
qualifying third party indemnity provision if it is a provision
such as is mentioned in Section 309A(3) in relation to
which conditions A to C below are satisfied.
(2)
Condition A is that the provision does not provide any indemnity
against any liability incurred by the director —
(a) to the company, or (b) to any associated company.
(3)
Condition B is that the provision does not provide any indemnity
against any liability incurred by the director to
pay — (a) a fine imposed in criminal proceedings,
or (b) a sum payable to a regulatory authority by way of a
penalty in respect of non-compliance with any requirement of a
regulatory nature (however arising).
(4)
Condition C is that the provision does not provide any indemnity
against any liability incurred by the director —
(a) in defending any criminal proceedings in which he is
convicted, or (b) in defending any civil proceedings
brought by the company, or an associated company, in which
judgment is given against him, or (c) in connection with
any application under any of the following provisions in which
the court refuses to grant him relief, namely, (i) section
144(3) or (4) (acquisition of shares by innocent nominee), or
(ii) section 727 (general power to grant relief in case of
honest and reasonable conduct).
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II-2
(5)
In paragraph (a), (b) or (c) of subsection
(4) the reference to any such conviction, judgment or
refusal of relief is a reference to one that has become final.
(6)
For the purposes of subsection (5) a conviction, judgment
or refusal of relief becomes final — (a) if not
appealed against, at the end of the period for bringing an
appeal, or (b) if appealed against, at the time when the
appeal (or any further appeal) is disposed of.
(7)
An appeal is disposed of — (a) if it is
determined and the period for bringing any further appeal has
ended, or (b) if it is abandoned or otherwise ceases to
have effect.
(8)
In this section “associated company” and
“provision” have the same meaning as in
Section 309A.
(1)
Subsections (2) and (3) impose disclosure requirements
in relation to a directors’ report under section 234 in
respect of a financial year.
(2)
If — (a) at the time when the report is approved
under section 234A, any qualifying
third-party indemnity
provision (whether made by the company or otherwise) is in force
for the benefit of one or more directors of the company, or
(b) at any time during the financial year, any such
provision was in force for the benefit of one or more persons
who were then directors of the company, the report must state
that any such provision is or (as the case may be) was so in
force.
(3)
If the company has made a qualifying
third-party indemnity
provision and — (a) at the time when the report
is approved under section 234A, any qualifying
third-party indemnity
provision made by the company is in force for the benefit of one
or more directors of an associated company, or (b) at any
time during the financial year, any such provision was in force
for the benefit of one or more persons who were then directors
of an associated company, the report must state that any such
provision is or (as the case may be) was so in force.
(4)
Subsection (5) applies where a company has made a
qualifying third-party
indemnity provision for the benefit of a director of the company
or of an associated company.
(5)
Section 318 shall apply to — (a) the
company, and (b) if the director is a director of an
associated company, the associated company, as if a copy of the
provision, or (if it is not in writing) a memorandum setting out
its terms, were included in the list of documents in section
318(1).
(6)
In this section — “associated company” and
“provision” have the same meaning as in section 309A;
and “qualifying
third-party indemnity
provision” has the meaning given by section 309B(1).
(1)
This section applies to any provision, whether contained in a
company’s articles or in any contract with the company or
otherwise, for exempting any person (whether an officer or not)
employed by the company as auditor from, or indemnifying him
against, any liability which by virtue of any rule of law would
otherwise attach to him in respect of any negligence, default,
breach of duty or breach of trust of which he may be guilty in
relation to the company.
(2)
Except as provided by the following subsection, any such
provision is void.
(3)
This section does not prevent a company —
(a) from purchasing and maintaining for any such auditor
insurance against any such liability, or (b) from
indemnifying any such auditor against any liability incurred by
him — (i) in defending any proceedings (whether
civil or criminal) in which judgment is given in his favour or
he is acquitted, or (ii) in connection with any
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II-3
application under section 727 (general power to grant relief in
case of honest and reasonable conduct) in which relief is
granted to him by the court.
(1)
A company is not prohibited by section 330 from doing anything
to provide a director with funds to meet expenditure incurred or
to be incurred by him — (a) in defending any
criminal or civil proceedings, or (b) in connection with
any application under any of the provisions mentioned in
subsection (2).
(2)
The provisions are — section 144(3) and (4)
(acquisition of shares by innocent nominee), and section 727
(general power to grant relief in case of honest and reasonable
conduct).
(3)
Nor does section 330 prohibit a company from doing anything to
enable a director to avoid incurring such expenditure.
(4)
Subsections (1) and (3) only apply to a loan or other
thing done as mentioned in those subsections if the terms on
which it is made or done will result in the loan falling to be
repaid, or any liability of the company under any transaction
connected with the thing in question falling to be discharged,
not later than — (a) in the event of the director
being convicted in the proceedings, the date when the conviction
becomes final, (b) in the event of judgment being given
against him in the proceedings, the date when the judgment
becomes final, or (c) in the event of the court refusing to
grant him relief on the application, the date when the refusal
of relief becomes final.
(5)
For the purposes of subsection (4) a conviction, judgment
or refusal of relief becomes final — (a) if not
appealed against, at the end of the period for bringing an
appeal, or (b) if appealed against, at the time when the
appeal (or any further appeal) is disposed of.
(6)
An appeal is disposed of — (a) if it is
determined and the period for bringing any further appeal has
ended, or (b) if it is abandoned or otherwise ceases to
have effect.
(1)
If in any proceedings for negligence, default, breach of duty or
breach of trust against an officer of a company or a person
employed by a company as auditor (whether he is or is not an
officer of the company) it appears to the court hearing the case
that that officer or person is or may be liable in respect of
the negligence, default, breach of duty or breach of trust, but
that he has acted honestly and reasonably, and that having
regard to all the circumstances of the case (including those
connected with his appointment) he ought fairly to be excused
for the negligence, default, breach of duty or breach of trust,
that the court may relieve him, either wholly or partly, from
his liability on such terms as it thinks fit.
(2)
If any such officer or person as above-mentioned has reason to
apprehend that any claim will or might be made against him in
respect of any negligence, default, breach of duty or breach of
trust, he may apply to the court for relief; and the court on
the application has the same power to relieve him as under this
section it would have had if it had been a court before which
proceedings against that person for negligence, default, breach
of duty or breach of trust had been brought.
(3)
Where a case to which subsection (1) applies is being tried
by a judge with a jury, the judge, after hearing the evidence,
may, if he is satisfied that the defendant or defender ought in
pursuance of that subsection to be relieved either in whole or
in part from the liability sought to be enforced against him,
withdraw the case in whole or in part from the jury and
forthwith direct judgment to be entered for the defendant or
defender on such terms as to costs or otherwise as the judge may
think proper.
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(a)
Subject to the provisions of the statutes, but without prejudice
to any indemnity to which he or she may otherwise be entitled,
every director, other officer and auditor of the company and
every former director, other former officer and former auditor
of the company shall be indemnified out of the assets of the
company against any liability, loss or expenditure incurred by
him or her in the actual or purported execution and/or discharge
of his or her duties and/or the exercise or purported exercise
of his or her powers and/or otherwise in relation to or in
connection with his or her duties, powers or office including
(without prejudice to the foregoing) any liability incurred by
him or her in defending any proceedings, whether civil or
criminal, which relate to anything done or omitted to be done or
alleged to have been done or omitted to be done by him or her as
a director, officer or auditor of the company and in which
judgment is given in his or her favour or in which he or she is
acquitted or which are otherwise disposed of without any finding
or admission of guilt or breach of duty on his or her part or
incurred in connection with any application in which relief is
granted to him or her by the court from liability in respect of
any such act or omission or from liability to pay any amount in
respect of shares acquired by a nominee of the company.
(b)
To the extent permitted by the statutes, the board may arrange
and maintain insurance cover at the cost of the company in
respect of any liability, loss or expenditure incurred by any
director, other officer or auditor of the company in relation to
anything done or alleged to have been done or omitted to be done
by him or her as a director, officer or auditor.
Item 21.
Exhibits and Financial Statement Schedules
(a)
Exhibit Index
| Exhibit | ||||
| Number | Description | |||
| 2 | .1 | Merger Protocol, dated April 23, 2007, between ABN AMRO Holding N.V. and Barclays PLC (included as Annex A to the offer document/prospectus contained in this registration statement) | ||
| 3 | .1 | Memorandum and Articles of Association of Barclays PLC, as adopted on April 26, 2007 (incorporated by reference to the Current Report on Form 6-K of Barclays PLC, filed on March 27, 2007) | ||
| 5 | .1 | Opinion of Clifford Chance LLP with respect to the validity of the Barclays ordinary shares to be registered* | ||
| 8 | .1 | Opinion of Sullivan & Cromwell LLP with respect to material US tax consequences of the transaction* | ||
| 8 | .2 | Opinion of Clifford Chance LLP with respect to material UK and Dutch tax consequences of the transaction* | ||
| 21 | .1 | Subsidiaries of Barclays PLC (incorporated by reference to Exhibit 8.1 to the Annual Report on Form 20-F of Barclays PLC and Barclays Bank PLC for the year ended December 31, 2006, filed on March 26, 2007) | ||
| 23 | .1 | Consent of PricewaterhouseCoopers LLP, independent registered public accounting firm | ||
| 23 | .2 | Consent of Ernst & Young Accountants, independent registered public accounting firm | ||
| 23 | .3 | Consent of Clifford Chance LLP (included in Exhibit 5.1 and Exhibit 8.2)* | ||
| 23 | .4 | Consent of Sullivan & Cromwell LLP (included in Exhibit 8.1)* | ||
| 24 | .1 | Power of Attorney of Certain Directors and Officers of Barclays PLC | ||
II-4
Table of Contents
| Exhibit | ||||
| Number | Description | |||
| 24 | .2 | Power of Attorney of Authorized Representative in the United States of Barclays PLC | ||
| 99 | .1 | Form of Consent of Proposed Directors | ||
| 99 | .2 | Opinion of Morgan Stanley & Co. Limited (included as Annex B to the offer document/prospectus contained in this registration statement) | ||
| 99 | .3 | Opinion of UBS Limited (included as Annex C to the offer document/prospectus contained in this registration statement) | ||
| 99 | .4 | Opinion of Goldman Sachs International (included as Annex D to the offer document/prospectus contained in this registration statement) | ||
| 99 | .5 | Consent of Morgan Stanley & Co. Limited | ||
| 99 | .6 | Consent of UBS Limited | ||
| 99 | .7 | Consent of Goldman Sachs International | ||
| 99 | .8 | Form of Letter of Transmittal* | ||
| * | To be filed by a subsequent amendment to the registration statement. |
| Item 22. | Undertakings. |
| (a) (1) | To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: |
| (i) | To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; | |
| (ii) | To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 per cent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and | |
| (iii) | To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; |
| (2) | That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; | |
| (3) | To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering; | |
| (4) | To file a post-effective amendment to the registration statement to include any financial statements required by Item 8A of Form 20-F at the start of any delayed offering or throughout a continuous offering; |
II-5
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II-6
(5)
To include any financial statements and information otherwise
required by Section 10(a)(3) of the Act need not be furnished,
provided, that the registrant includes in the prospectus,
by means of a post-effective amendment, financial statements
required pursuant to this paragraph (a)(4) and other information
necessary to ensure that all other information in the prospectus
is at least as current as the date of those financial
statements. Notwithstanding the foregoing, with respect to
registration statements on Form F-3, a post-effective
amendment need not be filed to include financial statements and
information required by Section 10(a)(3) of the Act or
Rule 3-19 of this chapter if such financial statements and
information are contained in periodic reports filed with or
furnished to the Commission by the registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in the
Form F-3;
(b)
That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the registrant’s
annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each
filing of an employee benefit plan’s annual report pursuant
to Section 15(d) of the Securities Exchange Act of 1934)
that is incorporated by reference in this registration statement
shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial
bona fide offering thereof;
(c)
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers
and controlling persons of the registrant pursuant to the
foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities
(other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the
registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Act and will be governed by the final adjudication of such
issue;
(d)
(i) To respond to requests for information that is
incorporated by reference into the prospectus pursuant to
Items 4, 10(b), 11, or 13 of this form, within one business
day of receipt of such request, and to send the incorporated
documents by first class mail or other equally prompt means; and
(ii) to arrange or provide for a facility in the US for the
purpose of responding to such requests. The undertaking in
subparagraph (i) above includes information contained in
documents filed subsequent to the effective date of the
registration statement through the date of responding to the
request; and
(e)
To supply by means of a post-effective amendment all information
concerning a transaction and the company being acquired involved
therein, that was not the subject of and included in the
registration statement when it became effective.
Table of Contents
Barclays plc
By:
/s/ Lawrence Dickinson
Name: Lawrence Dickinson
Title: Company Secretary
| Signature | Title | |||
|
* |
Chairman (Chairman of the Board) |
|||
|
* |
Group Chief Executive (Board and Executive Committee member) |
|||
|
* |
President, Barclays PLC and CEO of
Investment Banking and Investment Management (Board and Executive Committee member) |
|||
|
* |
Group Vice Chairman (Board member) |
|||
|
* |
Group Finance Director (Board and Executive Committee member) |
|||
|
* |
Chief Executive, Global Retail and Commercial Banking (Board and Executive Committee member) | |||
|
* |
Non Executive Director (Board member) |
|||
|
* |
Senior Independent Director (Board member) |
|||
|
* |
Non Executive Director (Board member) |
|||
|
* |
Non Executive Director (Board member) |
|||
II-7
Table of Contents
| Signature | Title | |||
|
* |
Non Executive Director (Board member) |
|||
|
* |
Non Executive Director (Board member) |
|||
|
* |
Deputy Chairman (Board member) |
|||
|
* |
Non Executive Director (Board member) |
|||
|
* |
Authorized Representative in the United States | |||
| *By: /s/ Lawrence Dickinson | |||
| Lawrence Dickinson | |||
| Attorney-in-Fact | |||
II-8
Table of Contents
| Exhibit | ||||
| Number | Description | |||
| 2 | .1 | Merger Protocol, dated April 23, 2007, between ABN AMRO Holding N.V. and Barclays PLC (included as Annex A to the offer document/prospectus contained in this registration statement) | ||
| 3 | .1 | Memorandum and Articles of Association of Barclays PLC, as adopted on April 26, 2007 (incorporated by reference to the Current Report on Form 6-K of Barclays PLC, filed on March 27, 2007) | ||
| 5 | .1 | Opinion of Clifford Chance LLP with respect to the validity of the Barclays ordinary shares to be registered* | ||
| 8 | .1 | Opinion of Sullivan & Cromwell LLP with respect to material US tax consequences of the transaction* | ||
| 8 | .2 | Opinion of Clifford Chance LLP with respect to material UK and Dutch tax consequences of the transaction* | ||
| 21 | .1 | Subsidiaries of Barclays PLC (incorporated by reference to Exhibit 8.1 to the Annual Report on Form 20-F of Barclays PLC and Barclays Bank PLC for the year ended December 31, 2006, filed on March 26, 2007) | ||
| 23 | .1 | Consent of PricewaterhouseCoopers LLP, independent registered public accounting firm | ||
| 23 | .2 | Consent of Ernst & Young Accountants, independent registered public accounting firm | ||
| 23 | .3 | Consent of Clifford Chance LLP (included in Exhibit 5.1 and Exhibit 8.2)* | ||
| 23 | .4 | Consent of Sullivan & Cromwell LLP (included in Exhibit 8.1)* | ||
| 24 | .1 | Power of Attorney of Certain Directors and Officers of Barclays PLC | ||
| 24 | .2 | Power of Attorney of Authorized Representative in the United States of Barclays PLC | ||
| 99 | .1 | Form of Consent of Proposed Directors | ||
| 99 | .2 | Opinion of Morgan Stanley & Co. Limited (included as Annex B to the offer document/prospectus contained in this registration statement) | ||
| 99 | .3 | Opinion of UBS Limited (included as Annex C to the offer document/prospectus contained in this registration statement) | ||
| 99 | .4 | Opinion of Goldman Sachs International (included as Annex D to the offer document/prospectus contained in this registration statement) | ||
| 99 | .5 | Consent of Morgan Stanley & Co. Limited | ||
| 99 | .6 | Consent of UBS Limited | ||
| 99 | .7 | Consent of Goldman Sachs International | ||
| 99 | .8 | Form of Letter of Transmittal* | ||
| * | To be filed by a subsequent amendment to the registration statement. |